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Abstract:
This paper evaluates arguments made in Ran Hirschl's powerful and sobering book, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard, 2004). Studying Canada, Israel, South Africa, and New Zealand, Hirschl aims to dispel what he views as the hollow hopes that constitutionalism and judicial review will bring about progressive change around the world. If Gerald Rosenberg, in his book, The Hollow Hope: Can Courts Bring About Social Change, focused on the hollow hopes of liberals for social change securing, e.g., racial equality (Brown) and women's reproductive freedom (Roe), Hirschl focuses on hollow hopes for progressive economic change furthering distributive justice and securing welfare rights. The paper offers three lines of critique of Hirschl's thesis. First, with respect to American constitutional theorists and jurists, we concede for the sake of argument that courts have not brought about progressive economic change, but question whether liberals and progressives in American constitutional law ever harbored any hollow hopes that courts would do so. Second, we concede that some American liberals and progressives have viewed the American Constitution as securing welfare rights, but we contend that they have conceived these rights, not as judicially enforceable, but as what Larry Sager calls judicially underenforced norms. These American liberals and progressives have looked to legislatures, executives, and citizens generally more fully to enforce these constitutional norms by taking the Constitution seriously outside the courts. Hirschl's court-centered analysis overlooks such discourse. Third, we suggest that Hirschl defines progressive change too narrowly, as concerned with economic change, distributive justice, and welfare rights. If he defined progressive change more broadly, to include challenges to traditional norms and institutions, including gender norms along with family law, we might find that constitutionalization and judicial review in the four countries he analyzes have been instrumental in bringing about some progressive social change, such as gains in gender equality. We support this argument by looking at constitutionalization in Canada and South Africa.

judicial review, constitutionalism, progressive, sex equality, social change

Abstract:
I prepared this paper for a panel on "The Constitutional Essentials of Political Liberalism" in a symposium, "Rawls and the Law", 72 Fordham Law Review 1381 (2004). The paper has three parts. In Part I, I outline a constitutional constructivism that is analogous to the political constructivism that John Rawls develops in "Political Liberalism". I reprise previous work, in which I have developed a constitutional theory with two fundamental themes: first, securing the basic liberties that are preconditions for deliberative democracy, and second, securing the basic liberties that are preconditions for deliberative autonomy. In prior work, I have elaborated upon the second fundamental theme. In Part II, I sketch certain aspects of the first fundamental theme. I take up the commitments to guaranteeing the fair value of the equal political liberties and protecting free and informed political processes. I explore what the structure of First Amendment law would look like if we were committed, not to protecting an absolutist First Amendment in isolation from the rest of the Constitution, but to securing a fully adequate scheme of the basic liberties as a whole.

In Part III, I continue this exploration by focusing on four important Supreme Court cases that involve clashes between the First Amendment's protection of freedom of expression and the Equal Protection Clause's concern for equal citizenship. In three out of four of these cases, the Court protected freedom of expression to the exclusion (or indeed erasure) of equal citizenship. First, I present Rawls's own critique of Buckley v. Valeo as an exemplar of how to secure equal protection or equal participation together with freedom of expression. Second, I sketch an analogous critique of R.A.V. v. St. Paul for privileging freedom of expression over equal protection. Third, I analyze Roberts v. United States Jaycees as an exemplar of how the Supreme Court itself on occasion has taken equal citizenship seriously in the context of freedom of expression and association. Finally, with this example on hand, I criticize Boy Scouts of America v. Dale for privileging freedom of association over equal protection. Throughout, my aim is to suggest that a Rawlsian guiding framework of basic liberties might help frame our judgments concerning what to do when confronting clashes between freedom of expression and equal protection. Those judgments would be guided by the aspiration to accord priority to the family of basic liberties as a whole, not to give priority to freedom of expression over equal protection.

Abstract:
The Article raises some questions for proponents of reviving civil society as a cure for many of our nation's political, civic, and moral ills (whom McClain and Fleming designate as "civil society-revivalists"). How does civil society serve as "seedbeds of virtue" and foster self-government? Have liberal conceptions of the person corroded civil society and undermined self-government? Does the revivalists' focus on the family focus on the right problems? Have gains in equality and liberty caused the decline of civil society? Should we revive civil society or "a civil society"? Would a revitalized civil society support democratic self-government or supplant it? McClain and Fleming largely agree with the revivalists that it would be a good thing to revive civil society, but they raise doubts about whether its revival can reasonably be expected to accomplish what its proponents hope for it, e.g., moral renewal, civic renewal, and strengthening the bonds of citizenship. They suggest that civil society is at least as important for securing what they call "deliberative autonomy" - enabling people to decide how to live their own lives - as for promoting "deliberative democracy" - preparing them for participation in democratic life. Working within the tradition of political liberalism, and guided by key feminist and civic republican commitments, McClain and Fleming also sketch their own views concerning the proper roles and regulation of civil society in our morally pluralistic constitutional democracy.

Abstract:
This symposium addresses legal and constitutional implications of the calls to revive or renew civil society (a realm between the individual and the state, including the family and religious, civic, and other voluntary associations). The erosion or disappearance of civil society is a common diagnosis of what underlies civic and moral decline in America, and its renewal features prominently as a cure for such decline. To date, there has been a great deal of discussion of civil society and proposals for its revival or renewal, but not enough discussion of legal and constitutional implications of such proposals. This symposium seeks to help fill this void. The articles pursue questions such as the following. What role do law and the Constitution play in the constitution of civil society? Does civil society serve as "seedbeds of virtue" - "our foundational sources of competence, character, and citizenship" - and foster self-government? Or is civil society's more vital purpose to serve as a buffer or check against the state? Should government attempt to secure congruence between democratic values and the structure and values of voluntary associations, or would such an effort offend commitments to pluralism and diversity? If it is not possible to establish a clear link between participation in associations, as such, and the inculcation of democratic values, are there some institutions of civil society that are especially valuable for cultivating civic virtue and fostering democratic deliberation?

The family features, for civil society-revivalists, as first and foremost among the seedbeds of virtue. Is the family a seedbed of virtue or a school of inequality and injustice? What forms of regulation of the family are necessary and appropriate? Does the vitality of the family as a seedbed of virtue depend upon one particular form of family (i.e., the heterosexual two-parent, marital family) and should government seek to encourage that family form and discourage others? If business, labor, and economic institutions are within civil society, are they seedbeds of virtue that foster civic health or do current economic practices hinder civic health and put pressures on families, endangering their strength? More generally, how do proponents of renewing civil society view the relationship between systemic inequality (including racism) and civic health? Have civil rights movements and gains in equality and liberty contributed to the decline of civil society and civic virtue? Finally, would a revitalized civil society support democratic self-government or supplant it, and with what implications for federalism and the separation of church and state?