Dworkin\u27s Perfectionism

In this essay, we shall interpret Dworkin\u27s constitutional theory in light of three varieties of perfectionism: (1) the idea that government should undertake a formative project of inculcating civic virtues and encouraging responsibility in the exercise of rights; (2) the idea that we should interpret the American Constitution so as to make it the best it can be; and (3) the idea that we should defend a Constitution-perfecting theory that would secure not only procedural liberties essential for democratic self-government but also substantive liberties essential for personal self-government. We shall identify three gaps left by Dworkin\u27s work and sketch how we have sought to fill those gaps in the spirit of his work through developing a mild form of constitutional perfectionis

Respecting Freedom and Cultivating Virtues in Justifying Constitutional Rights

What’s new in the long-standing debate between civic republicans and liberals about how best to understand and justify rights? This article picks up the thread with political philosopher Michael Sandel’s recent, internationally-renowned book, Justice: What’s the Right Thing To Do? The article evaluates the sharp contrasts his book draws between justice as cultivating virtues and justice as respecting freedom, using his example of contemporary arguments for and against opening up civil marriage to same-sex couples. Sandel contends that “liberal neutrality” and a public square denuded of religious arguments and convictions are impossible on this issue. Drawing on Aristotle, he contends that it is necessary to engage in substantive moral argument about marriage as a social institution, the virtues it honors and rewards, and whether gay and lesbian unions are worthy of the honor and recognition that, in our society, state-sanctioned marriage confers. Arguments rooted in freedom to choose one’s marital partner or in the right to equal access to marriage will not suffice. In this article, we offer a close reading of the Massachusetts marriage opinion, Goodridge v. Department of Public Health (2003), and the California marriage opinion, In re Marriage Cases (2008), to support our argument that Sandel draws too stark a dichotomy between virtue-based and freedom-based arguments about justice (and, in turn, between civic republicanism and liberalism), and that both strands feature in these opinions. Arguments about why marriage matters as a social institution fruitfully complement arguments about why marriage matters from an individual rights perspective, although the latter properly constrain certain appeals to religious arguments about civil marriage. We conclude with a brief consideration of how these arguments play out in the recent federal district court opinion, Perry v. Schwarzenegger, which held Proposition 8 (amending the California constitution to bar same-sex marriage) unconstitutional

Some Questions for Civil Society-Revivalists

This Article raises some questions for proponents of reviving civil society as a cure for many of our nation\u27s 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\u27 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 we 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

Ordered Liberty: A Response to Three Views

Response by the authors of Ordered liberty: rights, responsibilities, and virtues, James E. Fleming and Linda C. McClain, to three reviews of their book by Abner Greene, Ken Kersch, and Toni Massaro. The three reviews and the response all appear in Constitutional Commentary 28.3

Some Questions for Civil Society-Revivalists

This Article raises some questions for proponents of reviving civil society as a cure for many of our nation\u27s 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\u27 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 we 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

The Effect of Resistivity on the Nonlinear Stage of the Magnetorotational Instability in Accretion Disks

We present three-dimensional magnetohydrodynamic simulations of the nonlinear evolution of the magnetorotational instability (MRI) with a non-zero Ohmic resistivity. The properties of the saturated state depend on the initial magnetic field configuration. In simulations with an initial uniform vertical field, the MRI is able to support angular momentum transport even for large resistivities through the quasi-periodic generation of axisymmetric radial channel solutions rather than through the maintenance of anisotropic turbulence. Simulations with zero net flux show that the angular momentum transport and the amplitude of magnetic energy after saturation are significantly reduced by finite resistivity, even at levels where the linear modes are only slightly affected. This occurs at magnetic Reynolds numbers expected in low, cool states of dwarf novae, these results suggest that finite resistivity may account for the low and high angular momentum transport rates inferred for these systems.Comment: 8 figures, accepted for publication in Ap

Ordered Gun Liberty: Rights with Responsibilities and Regulation

This Article focuses on the case of the Second Amendment right to bear arms and gun control to examine whether the Constitution has fostered a pathological rights culture of rights without responsibilities and regulation. We offer some preliminary thoughts about “ordered gun liberty” – the individual right to bear arms in relation to responsibilities, virtues, and regulation. This article addresses a conundrum concerning this right: there is no individual right that cries out more for governmental encouragement of responsibility concerning its exercise and for governmental regulation to promote safety and to protect from harm, and yet there is no individual right whose defenders more strenuously reject such governmental promotion of responsibility and regulation. We argue that, notwithstanding the rhetoric of rights absolutism, ordered gun liberty supports a “reasonable right to bear arms” that also recognizes the proper role of regulation. We highlight several dimensions of responsibility talk in the discourse concerning the individual right to bear arms, including in District of Columbia v. Heller itself. We address the myth of strict scrutiny for Second Amendment rights, pointing out the wide latitude that protecting an individual right to bear arms, like other rights, leaves for government to encourage responsible exercise of the right. We argue that a form of intermediate scrutiny analogous to that of Moore v. East Cleveland under the Due Process Clause is a strong candidate for the appropriate framework for thinking about rights and responsibilities under Heller for gun control regulation, as is the undue burden standard of Planned Parenthood v. Casey. As a practical example of appropriate regulation, we discuss regulations to protect children from guns in the home – a context in which Second Amendment rights intersect with fundamental parental liberty, family privacy, children’s own rights and needs, and governmental authority to protect children from harm or evils and further their healthy development. We argue that, notwithstanding the NRA’s rejection them, safe storage, or Child Access Prevention laws, are a reasonable regulation aimed at preventing unnecessary injury and loss of life and do not unduly burden Second Amendment rights or fundamental parental liberty or religious liberty. While the NRA advocates exhortation and education over regulation, we counter that, in light of the developmental differences between children and adults – pointed out in the Supreme Court’s jurisprudence – supplementing gun education (focused on avoiding guns) with actual regulations requiring adults to take steps to keep children safe is likely to be more effective. We also argue that the privacy of the home is not unduly burdened by medical practice aimed at taking a public health approach to ameliorating risks to children by encouraging responsible gun storage

Liberty

To secure the blessings of liberty, the Preamble to the US Constitution proclaims, We the People . . . ordain and establish this Constitution. The Constitution is said to secure liberty through three principal strategies: the design of the Constitution as a whole; structural arrangements, most notably separation of powers andfederalism; and protection of rights. This chapter focuses on this third strategy of protecting liberty, in particular, through the Fifth and Fourteenth Amendments. We first examine the several approaches taken to the Incorporation of certain basic liberties enumerated in the Bill of Rights to apply to the state governments. We then examine the protection of unenumerated substantive fundamental rights or liberties against encroachment by the state governments or the federal government. We distinguish three phases in judicial protection of fundamental rights or liberties: (1) from 1887 to 1937; (2) from 1937 to 1973; and (3) from 1973 to the present. We discuss the substantive liberties that the Court has recognized under thecategories of privacy, autonomy, or substantive due process. On one view, this list is a subjective, lawless product of judicial fiat and the whole enterprise is indefensibly indeterminate and irredeemably undemocratic. The other view, which we defend, is that the list represents a rational continuum of basic liberties stemming from the individual’s right to make certain unusually important decisions that will affect his own, or his family’s, destiny. Tracing the due process inquiry from Roe (1973) to Lawrence v. Texas (2003) reveals how the Court and individual justices have waged a contentious battle among three available conceptions of what constitutes a tradition: abstract aspirational principles, concrete historical practices, and a rational continuum or evolving consensus. Lawrence signaled a return to a conception of tradition as a rational continuum or evolving consensus of aspirational principles and, in 2013, the Court drew upon Lawrence’s understanding of liberty together with Romer v. Evans’s understanding of equality in United States v. Windsor, striking down Section 3 of the Defense of Marriage Act. This chapter also discusses the so-called double standard concerning judicial protection of economic liberties as distinguished from personal liberties, sketching several theories’ views regarding Lochner v. New York in relation to Roe. Another issue is the stringency of the protection of liberties under the Due Process Clauses. Rather than two rigidly-policed tiers of scrutiny, with strict scrutiny automatically invalidating laws and deferential rational basis scrutiny automatically upholding them. the leading due process cases protecting liberty and autonomy – from Meyer (1923) through Lawrence (2003) – map onto a continuum of ordered liberty, with several intermediate levels of review. The chapter concludes by addressing substantive and institutional criticisms of constitutional protection of liberty

Constitutionalism, Judicial Review, and Progressive Change

This paper evaluates arguments made in Ran Hirschl\u27s 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\u27s 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\u27s 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\u27s 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