Taking responsibilities as well as rights seriously

Boston University Law Review

Volumn 90, Issue 2, 2010, Pages 839-855

  Fleming, James E ^a,b  

^a Department of Law ^*  (United States)

^b BOSTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77954319344     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (113)

1. RONALD DWORKIN, TAHNG RIGHTS SERIOUSLY, at xv, 269 (1977).
2. See, e.g., MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE 76-108 (1991);
3. Robin West, The Supreme Court, 1989 Term - Foreword: Taking Freedom Seriously, 104 HARV. L. REV. 43,46 (1990).
4. RONALD DWORKIN, LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM 18-19,213 (1993)
5. [hereinafter DWORHN, LIFE'S DOMINION].
6. See id. at 151.
7. RONALD DWORHN, JUSTICE FOR HEDGEHOGS (forthcoming 2010) (Apr. 17, 2009 manuscript at 209, on file with the Boston University Law Review).
8. Id.
9. In his article for this symposium, John Goldberg analyzes Dworkin's arguments concerning personal responsibility. See John CP. Goldberg, Liberal Responsibility: A Comment on Justice for Hedgehogs, 90 B.U. L. REV. 677,677 (2010) ("I... assess one of [Dworkin's] central claims: namely, that a case for liberalism can be built around the idea that each person bears a responsbility to live her life well.").
10. This Essay is part of a larger book project I am working on with Linda C McClain. JAMES E. FLEMING & LINDA C. MCCLAIN, RIGHTS, RESPONSIBILITIES, AND VIRTUE (forthcoming 2011).
11. RONALD DWORHN, SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY (2000)
12. [hereinafter DWORHN, SOVEREIGN VIRTUE].
13. RONALD DWORHN, IS DEMOCRACY POSSIBLE HERE?: PRINCIPLES FOR A NEW POLITICAL DEBATE (2006).
14. DWORHN, JUSTICE FOR HEDGEHOGS, supra note 5 (manuscript at 208).
15. DWORKIN, LIFE'S DOMINION, supra note 3, at 150.
16. Id.
17. Id.
18. See T.M. Scanlon, Partisan for Ufe, N.Y. REV. BOOKS, July 15, 1993, at 45, 46
19. (reviewing DWORHN, LIFE'S DOMINION, supra note 3).
20. See, e.g.. West, supra note 2, at 46-47 (criticizing Dworkin's "liberal legalist" strategy of "taking rights seriously" and proposing instead a "responsibility-based liberalism" that would "take seriously not only the individual's demand for rights but also the burdens of bis responsibility").
21. See, e.g.. Loving v. Virginia, 388 U.S. 1, 8 (1967) (describing one of the appellate court's rationales for upholding Virginia's miscegenation statute as "preserving the racial integrity of its citizens" (citation omitted)).
22. See, e.g., STEPHEN MACEDO, DIVERSITY AND DISTRUST: CIVIC EDUCATION IN A MULTICULTURAL DEMOCRACY 5-6 (2000);
23. STEPHEN MACEDO, LIBERAL VIRTUES: CITIZENSHIP, VIRTUE, AND COMMUNITY IN LIBERAL CONSTITUTIONALISM 5 (1990);
24. LINDA C MCCLAIN, THE PLACE OF FAMILIES: FOSTERING CAPACITY, EQUALITY, AND RESPONSIBILITY 4 (2006);
25. Linda C McClain, The Domain of Civic Virtue in a Good Society: Families, Schools, and Sex Equality, 69 FORDHAM L. REV. 1617, 1627 (2001);
26. Linda C McClain, Toleration, Autonomy, and Governmental Promotion of Good Lives: Beyond 'Empty' Toleration to Toleration as Respect, 59 OHIO ST. L.J. 19, 19 (1998)
27. [hereinafter McClain, Toleration as Respect];
28. Linda C McClain, Toward a Formative Project of Securing Freedom and Equality, 85 CORNELL L. REV. 1221, 1225 (2000);
29. see also Abner S. Greene, Government of the Good, 53 VAND. L. REV. 1,2 (2000).
30. DWORHN, JUSTICE FOR HEDGEHOGS, supra note 5 (manuscript at 233).
31. Id.
32. DWORHN, LIFE'S DOMINION, supra note 3, at 151.
33. Id.
34. RONALD DWORHN, A MATTER OF PRINCIPLE 65-66 (1985);
35. DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 1, at 272-73.
36. JAMES E. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY: THE CASE OF AUTONOMY 61-85 (2006);
37. see also JOHN RAWLS, POLITICAL LIBERALISM 15-20,29-35,299-304 (1993).
38. See McClain, Toleration as Respect, supra note 17, at 91-100.
39. DWORHN, TAHNG RIGHTS SERIOUSLY, supra note 1, at xv, 269.
40. GLENDON, supra note 2, at 40.
41. West, supra note 2, at 46.
42. Id. at 81-82.
43. GLENDON, supra note 2, at 47-66.
44. DWORHN, LIFE'S DOMINION, supra note 3, at 150.
45. Id. at 153.
46. Id. at 150-59.
47. Id. at 153
48. (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877 (1992) (joint opinion of O'Connor, Kennedy, Souter, JJ.)).
49. In Justice for Hedgehogs, Dworkin still contemplates that even if a person has a right to do something, for example, have an abortion, that does not necessarily mean that the person is to be insulated from what I am calling governmental moralizing short of government's compelling the ultimate decision. He writes: But even if we accept that negative answer to the moral question, and hold that a mother has no moral duty not to abort the fetus she carries, critical ethical issues remain. For it remains a vivid possibility that abortion is nevertheless inconsistent with the respect for human life on which our dignity depends-That is why it is crucial, in discussing abortion and related issues, to take care to distinguish the moral from the ethical issues in play. DWORHN, JUSTICE FOR HEDGEHOGS, supra note 5 (manuscript at 236-37). He continues: Liberty - the right of ethical independence - ... is violated and liberty denied when government restricts freedom in order to enforce a collective ethical judgment: a collective ethical judgment in this instance, that a woman who aborts an early pregnancy does not show the respect for human life that her dignity demands. I myself believe that to be the correct ethical judgment in many cases. A woman acts inconsistently with her own dignity when she aborts for frivolous reasons: to avoid rescheduling a holiday, for instance. A different ethical judgment is in my view appropriate in other cases: when a teen-aged woman's prospects for a decent life would be rained by becoming a single mother, for example. But whether the judgment is right or wrong in any particular case, it remains an ethical not a moral judgment. That judgment must be made, in a society that respects individual dignity, by people who take responsibility for their own ethical convictions.
50. Id. (manuscript at 237) (footnote omitted).
51. Linda C McClain, Rights and Irresponsibility, 43 DUKE L. J. 989,1077-87 (1994).
52. Id. at 1077-82.
53. See, e.g., Robin West, Integrity and Universality: A Comment on Ronald Dworkin's Freedom's Law, 65 FORDHAM L. REV. 1313,1313 (1997).
54. See, e.g., McClain, Toleration as Respect, supra note 17, at 91-100.
55. DWORHN, JUSTICE FOR HEDGEHOGS, supra note 5 (manuscript at 232) ("Government must not abridge total freedom when its putative justification relies on some collective decision about what makes a life good or well-lived. We must each make that decision for himself: that is the core of our ethical responsibility.").
56. DWORHN, LIFE'S DOMINION, supra note 3, at 153.
57. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 885-87 (1992) (joint opinion of O'Connor, Kennedy, Souter, JJ.).
58. DWORHN, LIFE'S DOMINION, supra note 3, at 153,174.
59. Id. at 174.
60. Casey, 505 U.S. at 918-19 (Stevens, J., concurring in part and dissenting in part) ("The mandatory delay thus appears to rest on outmoded and unacceptable assumptions about the decisionmaking capacity of women.").
61. Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should Be Overruled, 59 U. CHI. L. REV. 381, 409-10 (1992)
62. [hereinafter Dworkin, Unenumerated Rights],
63. reprinted in RONALD DWORHN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 72,96-97 (1996)
64. [hereinafter DWORHN, FREEDOM'S LAW].
65. DWORHN, JUSTICE FOR HEDGEHOGS, supra note 5 (manuscript at 237).
66. Casey, 505 U.S. at 916. Justice Stevens quotes Dworkin's work.
67. Id. at 913 (citing Dworkin, Unenumerated Rights, supra note 45, at 400-01).
68. Harris v. McRae, 448 U.S. 297, 325 (1980).
69. Id. at 314.
70. Id. at 330 (Brennan, J., dissenting);
71. id. at 347 (Marshall, J., dissenting);
72. id. at 348-49 (Blackmun, J., dissenting);
73. id. at 354 (Stevens, J., dissenting).
74. DWORHN, LIFE'S DOMINION, supra note 3, at 175-76.
75. For Justice Scalia's critique of the "undue burden" standard and balancing, see, for example, Casey, 505 U.S. at 987-93 (Scalia, J., concurring in the judgment in part and dissenting in part).
76. Cf. ARCHIBALD COX, THE WARREN COURT: CONSTITUTIONAL DECISION AS AN INSTRUMENT OF REFORM 6 (1968) ("Once loosed, the idea of Equality is not easily cabined.").
77. Whitney v. California, 274 U.S. 357,371 (1927).
78. Todd S. Purdum, Terror in Oklahoma: The President; Shifting Debate to the Political Climate, Clinton Condemns 'Promoters of Paranoia,'N.Y'.TIMES, Apr. 25,1995, at A19.
79. See DWORKIN, FREEDOM'S LAW, supra note 45, at 204-07 (criticizing statutes drafted to outlaw certain types of offensive speech);
80. id. at 214-26 (criticizing attempts to censor certain types of pornographic and hate speech);
81. id. at 227-43 (criticizing attempts to censor pornography).
82. RAWLS, supra note 23, at 139.
83. See FLEMING, supra note 23, at 175-94 (discussing clashes between protecting freedom of expression and securing equal citizenship);
84. Jeremy Waldron, Dignity and Defamation: The Visibility of Hate, Holmes Lectures at Harvard Law School (Oct 5-7,2009).
85. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 330-57 (1990) (Stevens, J., dissenting);
86. see also Washington v. Glucksburg, 521 U.S. 702, 738-52 (1997) (Stevens, J., concurring in the judgments).
87. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 916 (1992) (Stevens, J., concurring in part and dissenting in part) ("Decisional autonomy must limit the State's power to inject into a woman's most personal deliberations its own views of what is best").
88. DWORKIN, LIFE'S DOMINION, supra note 3, at 28.
89. See Zipursky & Fleming, supra note *, at 130-32.
90. DWORHN, LIFE'S DOMINION, supra note 3, at 160-68.
91. Though, to be perfectly fair, his tack in responding to Catharine MacKinnon is to defend privacy or autonomy arguments against her critique and then to say it is fine for her to make her feminist equal protection arguments as well.
92. Id. at 52-57.
93. Id. at 28-29.
94. Id. at 29.
95. Id.
96. Id. He even goes so far as to say that such arguments "may be better suited to the academy too."
97. Id. But he steps back, recognizing "that is another story."
98. Id.
99. Scanlon, supra note 14, at 45.
100. Id.
101. -381 U.S. 479, 485 (1965) (holding unconstitutional a state law forbidding the use of contraceptives by married couples).
102. -410 U.S. 113,163 (1973) (holding unconstitutional a Texas statute forbidding anyone from procuring an abortion).
103. Dworkin's criticism of Glucksberg was published subsequent to Life's Dominion. See DWORHN, SOVEREIGN VIRTUE, supra note 8, at 465-73.
104. DWORHN, LIFE'S DOMINION, supra note 3, at 9-10.
105. See, e.g., F.M. KAMM, CREATION AND ABORTION: A STUDY IN MORAL AND LEGAL PHILOSOPHY 78-123 (1992);
106. EILEEN L. MCDONAGH, BREAKING THE ABORTION DEADLOCK: FROM CHOICE TO CONSENT 10 (1996);
107. Judith Jarvis Thomson, A Defense of Abortion, PHIL. & PUB. AFF., Autumn 1971, at 47,47.
108. See Zipursky & Fleming, supra note *, at 130-33.
109. DWORKIN, LIFE'S DOMINION, supra note 3, at 9.
110. Laurence H. Tribe, On the Edges of Ufe and Death, N.Y. TIMES, May 16,1993, §7, at 1
111. (reviewing DWORKIN, LIFE'S DOMINION, supra note 3).
112. See McClain, Toleration as Respect, supra note 17, at 21-24 (distinguishing between "empty" toleration and toleration as respect).
113. In a similar vein, West makes a progressive (or reconstructed liberal) argument that "taking freedom seriously" requires showing that persons exercising their reproductive and other rights typically are acting responsibly rather than licentiously. West, supra note 2, at 82-83.