Posted by: jackslife | May 20, 2009

The Rights Society

Rod has a lengthy post up on the Crunchy Con blog about “The Ideology of Rights”. This post matches up with a book that I am currently reading called, “Democracy’s Discontent” by Michael J. Sandel.

The first part of this book examines the “procedural republic” that we find ourselves living in. The gist of this idea is that the government has moved towards an approach of moral neutrality, that is really anything but neutral. Here is an excerpt that is a good example –

Given the intense disagreement over the moral permissibility of abortion, the case for seeking a political solution that brackets the moral and religious issues-that is neutral with respect to them-would seem especially strong. But whether it is reasonable to bracket, for political purposes, the moral and religious doctrines at stake depends largely on which of those doctrines is true. If the doctrine of the Catholic church is true, if human life in the relevant moral sense really does begin at conception, then bracketing the moral-theological question of when human life begins is far less reasonable than it would be on rival moral and religious assumptions. The more confident we are that fetuses are, in the relevant moral sense, different from babies, the more confident we can be in affirming a political conception of justice that sets aside the controversy about the moral status of fetuses.

As the contemporary debate over abortion reflects, even a political conception of justice presupposes a certain view of the controversies it would bracket. For the debate about abortion is not only a debate about when human life begins, but also a debate about how reasonable it it to abstract from that question for political purposes.

The point is that to say that we have to “bracket” moral judgment on an issue like abortion really implies a moral judgment, since if the fetus is a human being than the right to life for the fetus would trump the right of the mother to choose whether to end that life. So the courts are really judging that the fetus is not a human life.

There is a lot that is problematic about the procedural republic, or procedural liberalism.¬† The excerpt that Rod posts from Peter Berkowitz’s 2005 Policy Review essay points out some of these problems.

No controversies that arise under the Fourteenth Amendment create greater opportunities for introducing moral judgments about freedom and equality into constitutional law than abortion, affirmative action, and soon, perhaps, same-sex marriage. Nor do any other constitutional controversies provide larger lessons concerning the culture of freedom established by the Constitution.

Four lessons stand out. First, equality in freedom is the coin of the constitutional realm. The central debates over the constitutionality of abortion and affirmative action are hard cases because they do not for the most part pit liberal principles and goods on one side against some other kinds of principles and goods on the other, but rather involve a confrontation between conservative and progressive interpretations of the practical demands of constitutionally protected freedoms. Because it is more difficult to translate arguments against same-sex marriage into the language of freedom, there is a good chance that should the issue come before the Supreme Court, some majority of justices will hold that the Constitution requires it. Second, the Constitution is not neutral between conservative and progressive interpretations of freedom but favors the progressive interpretation, according to which government is responsible for enlarging the sphere of individual freedom and promoting an expansive view of equality. Third, the freedom secured by the Constitution is inherently unstable because there is no fixed stopping point to the demand for it: Progress in enlarging freedom’s realm provides new desires and reasons for further enlargement. [Emphasis mine — RD] Fourth, progress in enlarging freedom’s realm creates new threats — including the temptation to adopt illiberal and antidemocratic measures — to the preservation of the order that the peaceful enjoyment and wise exercise of freedom requires. These lessons and the cases that bring them into focus show that understanding freedom’s progress is critical to freedom’s preservation.

The question of where it all ends is certainly a good one. I’m looking forward to finishing Sandel’s book to see what he has to say about the issue.


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