Perfectionist liberalism, tolerance and American law

Res Publica

Volumn 8, Issue 1, 2002, Pages 41-70

  Fagelson, David ^a  

^a AMERICAN UNIVERSITY   (United States)

Author keywords

American law; Autonomy; Perfectionist liberalism; Tolerance

Indexed keywords

EID: 33746356744     PISSN: 13564765     EISSN: 15728692     Source Type: Journal    
DOI: 10.1023/A:1014280625713     Document Type: Article

References (86)

1. I have defended the stronger claim elsewhere, in a 1998 APSA Paper: "Tolerance And The Concept of Law".
2. For his most recent defense of his view Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, Mass.: Harvard University Press, 2000).
3. Griswold v. Connecticut 381 US (1965), 479, 484.
4. One need look no further than the subordination of blacks, women and Native Americans for illustrations of this inability to accommodate difference.
5. Compare Cohen v. California 403 US (1971), 15, where the court upheld the right of a person to emblazon "Fuck the Draft" on his jacket, with FCC v. Pacifica 438 US (1978), 726, where the court refused to protect less explicit language used in a comedy routine.
6. Ronald Dworkin, Law's Empire (Cambridge, Mass.: Harvard University Press, 1986), 93.
7. Ronald Dworkin, Law's Empire Ibid., 185, 222.
8. John Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999), 132-40.
9. For a critique of Rawls' idea of public reason, see David Reidy, "Rawls's Wide View of Public Reason: Not Wide Enough", Res Publica 6 (2000), 49-72
10. and the reply by Andrew Williams, "The Alleged Incompleteness of Public Reason", Res Publica ", ibid., 199-211;
11. and my "Two Concepts of Sovereignty: From Westphalia To The Law of Peoples?" International Politics 38 (2001), 515-30.
12. Ronald Dworkin, A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985), 191.
13. Aristotle, "The Politics", in Stephen Everson, ed., The Politics, and the Constitution of Athens (New York: Cambridge University Press, 1996).
14. Thomas Hurka, Perfectionism (New York: Oxford University Press, 1993), Ch. 2.
15. Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986), 370.
16. Children and the comatose have legal rights, but their status is in some senses closer to pets than to autonomous human adults. Like pets, children are protected by the state, but neither have any right to participate in the formation or implementation of laws that regulate them. Comatose people are appointed guardians (like owners) who can make life or death decisions on their behalf.
17. Raz, The Morality of Freedom op. cit., 204.
18. Subject of course to other mediating norms such as the harm principle.
19. But see Res Publica 7, 3 (2001), for a variety of analyses of the idea of tolerance.
20. Some uncertainty in the application of rules may be inevitable given that the generalizations that form rules can be over- and under-inclusive and thereby ignore otherwise relevant features. But I would argue that this is more of a problem for perfectionist versions of natural law that cannot be indifferent to various differences.
21. While the Married Women's Acts of New York State gave married women the right to own property, to sue and to be sued, the common-law rule that she could have no separate property from her husband remained intact until People v. Morton 308 N.Y. (1954), 96.
22. For example, §130.35 of the New York State Penal Law provided in part that "female", for purposes of the rape statute, was defined as "any female person who is not married to the actor". This exemption remained until New York v. Liberia 485 N.Y.S. (1984), 2d 207.
23. See R.A.V. v. City of St. Paul, Minnesota 505 US (1992), 377. The court found that St. Paul's desire to communicate to minority groups that it did not condone the 'group hatred' of bias-motivated speech did not justify selectively silencing speech on the basis of its content. See also American Booksellers v. Hudnut 771 (1985), F.2d 323, where the court, quoting MacKinnon's, "Pornography, Civil Rights, and Speech", 20 Harv. Civ. Rts. - Civ. Lib. L. Rev. 1 (1985), 21, explicitly rejected her argument to protect women as a group with special needs and rights.
24. Minersville School District v. Gobitis 310 US (1940), 586.
25. The pledge states: "I pledge allegiance to the flag of the United States of America, and to the Republic, for which it stands, one nation, under God, with liberty and justice for all."
26. MacKinnon's, "Pornography, Civil Rights, and SpeechHarv. Civ. Rts. - Civ. Lib. L. Rev. ", 20 1 (1985), 21, Op. cit.
27. MacKinnon's, Harv. Civ. Rts. - Civ. Lib. L. Rev. Ibid., 596.
28. While this seems incongruous given his sanction of state coercion, the Jehovah's Witness explicitly rejected the legitimacy of all United States law. Originally founded upon democratic principles, the Witnesses metamorphised in the early 20th century into an authoritarian organization with the aim of establishing an earthly theocracy. It became a millennialist sect that rejected all earthly government as Satanic. The Jehovah's Witnesses were themselves perfectionist, of course, but their idea of human excellence clashed directly with Frankfurter's perfectionist liberal vision.
29. Minersville v. Gobitis op. cit., 596.
30. This does not reflect an abandonment of Frankfurter's perfectionist principles. Indeed, later courts that understood the distinction between teaching citizens about values and coercing them were perfectly willing to require liberal indoctrination in the public schools: see e.g. Mozert v. Hawkins County Board of Education 827 (1987), F.2d 1058, discussed below.
31. West Virginia State Board of Education v. Barnette 319 US (1943), 624.
32. Ibid., 642.
33. Wooley v. Maynard 430 US (1977), 705.
34. Ibid., 715.
35. Ibid., 714.
36. Chaplinsky v. New Hampshire 315 US (1942), 568.
37. Cohen v. California 403 US (1971), 15.
38. 354 US (1957), 476: see discussion below.
39. Cohen v. California, op. cit., 20.
40. Ibid., 25.
41. Ibid., 21.
42. 109 S.Ct. (1989), 2533.
43. 110 S.Ct. (1990), 2404.
44. Texas v. Johnson 109 S.Ct. at 2544.
45. Ibid., 2541.
46. Roth v. United States, 354 US (1957), 476.
47. Ibid., 491.
48. Ibid., 484.
49. Ibid., 489.
50. Patrick Devlin, "Morals And The Criminal Law", in R. Dworkin, ed., The Philosophy of Law (Oxford: Oxford University Press, 1982), 66-82.
51. Ginsberg v. United States 383 US (1966), 463; Mishkin v. New York 383 US (1966), 502; A Book Named "John Cleland's Woman of Pleasure" v. Attorney General of Massachusetts 383 US (1966), 413; Miller v. California 413 US (1973), 15; and Paris v. Adult Theater I v. Slaton 413 US (1973), 49.
52. Joel Feinberg, Offense To Others (Oxford: Oxford University Press, 1985), 1-4.
53. L.R. 3 Q.B. (1868), 360.
54. Ibid., 371.
55. Roth v. US 35 4 US at 487.
56. 413 US (1973), 49.
57. Ibid., 68-9.
58. Roth 354 USat 485 (quoting with approval Chaplinsky 315 US at 571-2).
59. Frederick Schauer, "Speech and 'Speech' - Obscenity and Obscenity'", 67 Georgetown L.J. (1979), 899-933.
60. Indeed, some constitutional theorists believe this is the foundation of justice in America. A forceful champion of this idea, Cass Sunstein, believes that the founders established a 'Republic of Reason' in which laws are made and must be justified according to reasons that everyone can understand to be motivated by the common good: see his The Partial Constitution (Cambridge, Mass.: Harvard University Press, 1993), 18-39.
61. Even a communitarian society that favoured autonomy for the community's sake would clash with a perfectionist autonomy that favoured autonomy for each person's sake.
62. Indeed, the continuing force of Paris, and its application in FCC v Pacifica Foundation 438 US (1978), 726, is open to question after Reno v. ACLU 520 US (1997), 1113. In this case the ACLU challenged the constitutionality of the Communication Decency Act (CDA) which purported to regulate obscenity over the internet. In Pacifica the court used the lower protection of erotic material and the harm to minors by exposure as a basis of preventing its broadcast. Although pornography was much more readily accessible to minors and unwilling observers on the internet, the court struck down the CDA. This undercut the rationale used for censoring erotic material. It also implicitly rejected the idea of erotic material as emotive rather than expressive, and brought it closer to the realm of other protected speech.
63. 381 US (1965), 479.
64. §§32-53 and 54-196 General Statutes of Connecticut (1958 rev.).
65. The Partial Constitution, 1993, 18-39, Op. cit.
66. 367 US (1961), 497.
67. 367 US at 553.
68. 388 US (1967), 1.
69. Loving, 388 US 12.
70. 405 US (1972), 438.
71. Eisenstadt, 405 US at 453.
72. Roe v. Wade, 410 US (1973), 113, which recognized a woman's privacy right to choose an abortion, supports this essay's thesis. The difficult question here was the conflicting rights of mother and foetus. The court essentially denies the foetus any fourteenth amendment rights in the first trimester by saying the state's interest in it does not emerge until it is viable outside the mother's womb. This decision has no basis in conservative morality because most religions that prohibit abortions do so at every stage of the pregnancy. Viability does not seem to reflect any moral principle, liberal or conservative. This decision makes no sense unless one views it as an extension of the perfectionist autonomy principle. First trimester foetuses are incapable not only of reason, but of sentience. Such a living being has no present capacity to be autonomous and is given the lowest level of protection by the court. As the life approaches sentience in the second trimester and perhaps even autonomous survival in the third, the court weighs its interests more highly. Indeed, where the mother is a minor, and therefore not considered fully autonomous herself, as in Planned Parenthood v. Casey, 505 US (1992), 833, the court was willing to condition her right to abortion even in the first trimester upon the consent of her parents or a judge.
73. 741 F.2d. (D.C. Cir. 1984), 1388.
74. Dronenburg, 741 F.2d at 1396.
75. 478 US (1986), 186.
76. Bowers, 478 US at 191.
77. Bowers, 487 US 194. It is interesting to note that by reversing the order and using tradition to determine natural law, White has taken the critical value out of natural law, essentially reducing it to the axiom that whatever was, ought to have been and ought to be. Presumably natural law is taken to be true even if there is a tradition of ignoring it.
78. It is of course paradoxical that homosexual conduct was the subject of moral criticism at the same time as it was considered a mental illness: moral responsibility implies a capacity to have chosen differently, while mental illness suggests the absence of any such ability.
79. While the resolution of this antagonism is far from resolved, Romer v. Evans, 517 US (1996), 620, and several decisions in Hawaii, Baehr v. Miike, Civ. No. 91-1394 (Haw. Cir. Ct. Dec. 3, 1996) and Vermont, Baker v. Vermont, 744 A. 2d (1999), 864, suggest that it will be the principle in Bowers rather than in Loving that ultimately capitulates. Baehr permitted same-sex marriages according to the state constitutional right to privacy. While this decision was overturned by a constitutional amendment, that enactment has many of the features of the proposition that was invalidated in Romer. Baker mandated equal benefits for unmarried couples of the same sex, which was followed by legislation permitting civil union for same-sex couples.
80. The role of schools in shaping meaning has been part of 14th Amendment jurisprudence at least since Brown v Board of Education (347 US (1954), 483). While this case was about the equal rights of blacks to an education, the justification for equal treatment was their equal right to be moulded by public schools into the community's values. As Chief Justice Warren noted in Brown, "[Education] is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values . . . and in helping him to adjust normally to his environment."
81. 406 US (1972), 205.
82. Ibid., 213, 215, 221, 225, 233, 236, 238-9.
83. 827 F. 2d (6th Cir. 1987), 1058.
84. Mozert, 827 F.2d at 1069.
85. For opposing views on this position see Nomi Stolzenberg, "'He Drew a Circle That Shut me Out': Assimilation, Indoctrination and the Paradox of Liberal Education", 106 Harv. L. Rev. (1993), 581-667, p. 634;
86. and Amy Gutmann, "Civic Education And Social Diversity", Ethics 105 (1995), 557-79, p. 563.