29 Pages Posted: 15 Jun 2011
Date Written: May 19, 2011
It is commonly and rightly understood in this country that our constitutional system ensures, or seeks to ensure, that individuals are accorded the greatest degree of personal, political, social, and economic liberty possible, consistent with a like amount of liberty given to others, the duty and right of the community to establish the conditions for a moral and secure collective life, and the responsibility of the state to provide for the common defense of the community against outside aggression. Our distinctive cultural and constitutional commitment to individual liberty places very real restraints on what our elected representatives can do, even when they are acting in what all of us, or most of us, would consider our collective best interest. For example, we cannot outlaw marches by the Ku Klux Klan, or the burning of flags by political extremists, or the anti-Semitic, racist, or hateful speech of incendiary and potentially dangerous bigoted zealots. Nor can we simply outlaw those practices of religious sects that may have deleterious effects on the members, such as the refusal of certain Amish sects in the Eastern United States to allow their children to receive a public education past the eighth grade, the explicit exclusion (until recently) of blacks from positions of influence in the Mormon Church, or the continuing exclusion of women from positions of power, prestige, and influence in our dominant, mainstream, Protestant, Catholic, and Judaic faiths. We may believe correctly that a full civic education for every individual is not only desirable for its own sake but is an absolute prerequisite for meaningful participation in our shared political life. We may believe that racist speech is antithetical to the racial tolerance necessary to our continued existence as a pluralistic society, that flag-burning communicates no message worth hearing, and that women and blacks are entitled to the opportunity to aspire to positions of full participation and responsibility in religious life. Nevertheless, we are precluded from legislating in a way that would put the weight of the law behind these values because to do so ostensibly would do great violence to something we hold even more dear: the right and responsibility of the individual to think, speak, and act autonomously in matters of religious, political, and social life-to reach one's convictions on one's own and for oneself, unfettered by the moral dictates of the state, even where those dictates are benign and wise.
In constitutional discourse, this complex aspiration is often captured by the phrase "ordered liberty." The first thing to note about this aspiration of ordered liberty is that it is a relatively modern and distinctively liberal interpretation of our constitutional heritage. Thus, although Justice Cardozo coined the phrase "ordered liberty" in the 1930s, our modern understanding of ordered liberty protected by the Constitution came to full fruition with the liberty-expanding cases of the liberal Warren Court era. Quite possibly it received its most definitive formulation in the 1960s case Poe v. Ullman. To paraphrase a bit, our modern understanding of ordered liberty implies that the state may not interfere with the personal or individual decisions that are most fundamental to a free life or with those liberties the protection of which is what prompts individuals – or would prompt individuals if given the explicit option – to enter civic society in the first place. The driving idea behind this notion of ordered liberty is that the protection of those liberties by the state against its own tendency to intrude in the name of some shared political end is of a higher order or of greater importance to civic life than any other conceivable and temporal state goal. Which particular liberties we view as fundamental and hence requiring this constitutional protection against even wise and benign state regulation is, of course, a subject of deep and profound disagreement. There is, however, a remarkably broad consensus in our contemporary legal culture and in our national community generally about the quite modern and quite liberal idea or aspiration of ordered liberty: that there are some liberties, whatever they may be, so essential to an autonomous life that they must be kept free of state control.
In my comments, I will be largely critical of this understanding of ordered liberty, which I occasionally will call the "modern" or "liberal" interpretation of our constitutional heritage. I want to make two objections to this concept of liberty, one political and one historical. The political objection is that the modern conception of ordered liberty is a largely empty promise for women. My claim, very briefly, will be that even the ideal expressed by this conception of ordered liberty-to say nothing of the actual practices it protects is skewed against women in a significant manner. The historical objection is that the liberal conception of liberty is also a cramped, inaccurate understanding of our constitutional history. I will conclude by arguing that we could fundamentally reconceive liberty in a more generous and explicitly feminist way without doing violence to either liberalism or to the document we have inherited.
Keywords: constitutional law, freedom of religion, state actor, freedom of speech, women's rights, sexual violence, domestic responsibility, familial privacy, individual liberty, racism, Bill of Rights, Fourteenth Amendment, First Amendment, Bill of Rights, Equal Rights Amendment, Due Process Clause
JEL Classification: K19, K39
Suggested Citation: Suggested Citation