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CONSTITUTIONAL LAW AND THE LIMITS OF RAWLSIAN LIBERTY

Published online by Cambridge University Press:  15 October 2020

Gillian Sinnott
Gillian Sinnott*
Affiliation:
Harvard College Writing Program; Faculty of Arts and Sciences, Harvard University
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Abstract

This paper examines the scope of John Rawls's theory of liberty. It first develops an account of how this theory, which Rawls presents in largely abstract terms, applies in specific cases. It then argues that this account reveals that the scope of Rawls's theory of liberty is surprisingly narrow and that it does not include such seemingly obvious liberal rights as the freedom to engage in the sexual behavior of one's choice or to have access to pornography.

Type
Research Article
Information
Legal Theory , Volume 26 , Issue 2 , June 2020 , pp. 124 - 155
Copyright
Copyright © The Author(s), 2020. Published by Cambridge University Press

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Footnotes

*

For helpful comments on earlier versions of the essay, thanks to Rosalind Dixon, Andrew Koppelman, Frank Michelman, Dilip Ninan, Richard Sinnott, and an anonymous referee for Legal Theory. I'm especially grateful to Richard Fallon for his advice and encouragement on the essay from the outset.

References

1. John Rawls, Political Liberalism (paperback ed. 1996), at 5, 291.

2. Id. at 19, 293, 332–333.

3. See, e.g., id. at 291–299.

4. See City of Erie v. Pap's A.M., 529 U.S. 277 (2000).

5. See Rawls, supra note 1, at 6; Rawls, A Theory of Justice (rev. ed. 1999), at 53–54, 266.

6. Rawls, supra note 1, at 6, 294–297; Rawls, A Theory of Justice, supra note 5, at 214–220.

7. Cohen, Joshua, Democratic Equality, 99 Ethics 727, 729 (1989)CrossRefGoogle Scholar.

8. See Lochner v. New York, 198 U.S. 45, 61 (1905).

9. Economic liberties could also be conceived of in more egalitarian terms; I focus here on laissez-faire rights because of the threat they pose to the difference principle.

10. Tomasi, John, Democratic Legitimacy and Economic Liberty, 29 Soc. Phil. & Pol'y 50 (2012)Google Scholar.

11. Id. at 50.

12. See infra text accompanying notes 43–45.

13. Frank Michelman, The Priority of Liberty: Rawls and “Tiers of Scrutiny”, in Rawls's Political Liberalism, 199 (Thom Brooks & Martha C. Nussbaum eds., 2015).

14. See infra note 88 for examples of this support. The record of the U.S. Supreme Court on these issues has been more equivocal: the Court of course has not ever reversed its holding in Miller v. Cal., 413 U.S. 15 (1973), that obscenity is outside the protection of the First Amendment.

15. See Rawls, supra note 1, at 72–77.

16. Id. at 289–371.

17. Id. at l, 224. For further elaboration of the idea of public reason, see Rawls, John, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997)CrossRefGoogle Scholar, reprinted in The Law of Peoples, 129–180 (1999).

18. Rawls, supra note 1, at xlviii.

19. Id. at 240.

20. Id. at lii–liii, 226.

21. Id. at 226.

22. Id. at 227.

23. Id. at 290 (emphasis added).

24. I do discuss public reason in the context of when perfectionism is permissible in a Rawlsian scheme. See infra text accompanying notes 80–85.

25. Rawls, supra note 1, at 289–290, 331ff. For Hart's criticisms, see H.L.A. Hart, Rawls on Liberty and Its Priority, 40 U. Chi. L. Rev. 534 (1973), reprinted in Reading Rawls: Critical Studies on Rawls’ “A Theory of Justice”, 239–244 (Norman Daniels ed., 1989).

26. Hart, supra note 25, at 249–252.

27. Rawls, supra note 1, at 75–76.

28. Id. at 310–324. This list can either be based on traditional protections in democratic constitutions or formed by considering which liberties are required to develop and exercise the moral powers. Id. at 292–293.

29. Id. at 290.

30. Id. at 332–333.

31. Rawls, supra note 1, at 332. See also id. at 333–334.

32. Id. at 293. See also Rawls, A Theory of Justice, supra note 5, at 172–173; Samuel Freeman, Rawls (2007), at 203.

33. See Rawls, A Theory of Justice, supra note 5, at 174 (noting the relevance of people's likely “beliefs and interests” and “political tactics” to what “procedural arrangements” are most likely to bring about just outcomes).

34. See infra text accompanying notes 70–73 for a discussion of the connection between the moral powers and respect.

35. Rawls, supra note 1, at 19. This is not to say that there will be no hard cases in which it is difficult to tell whether someone is exercising the capacity for a sense of justice.

36. Id. at 332.

37. Id. at 19.

38. Id. at 19–20.

39. Id. at 332.

40. Hart, supra note 25, at 237–239.

41. See Rawls, supra note 1, at 19 (a conception of the good “must not be understood narrowly, but rather as including a conception of what is valuable in human life”).

42. As I argue in the rest of the paper, however, Hart nonetheless raised a difficult question for Rawls in asking whether the account of liberty in A Theory of Justice extended to sexual freedom. Although Rawls engaged in detail with Hart's review (see Rawls, supra note 1, at 289ff., 331ff., 369ff.), he did not directly address this point.

43. Michelman, supra note 13, at 188.

44. Rawls, supra note 1, at 190.

45. See Michelman, supra note 13, at 189.

46. David Richards, Toleration and the Constitution (1986), at 190.

47. See Rawls, supra note 1, at 364–365. See discussion of advertising in text accompanying note 140, infra.

48. Richards, supra note 46, at 211–212.

49. Id. at 212.

50. James Fleming, Securing Constitutional Democracy (1996), at 3.

51. Id. at 109–110, 128–129.

52. Id. at 133.

53. Id. at 109.

54. See infra text accompanying note 108 for discussion of Rawls's own views as to why subversive advocacy should be protected.

55. Rawls, supra note 1, at 359.

56. Id. at 335.

57. Id. at 336.

58. Id.

59. Id. at 335.

60. I will argue below that people cannot be required to refrain from certain behavior on the grounds that this behavior violates religious law (see infra text accompanying notes 80–86), but this does not mean that eating bacon is a basic liberty that is protected from even neutral utilitarian considerations.

61. Michelman, supra note 13, at 192.

62. One might also take “normally” to have the more demanding meaning that someone be “usually” or “in most cases” exercising the moral powers in doing X; the following analysis does not change.

63. There is an extensive literature addressing these issues. See, e.g., Frank Michelman, Rawls on Constitutionalism and Constitutional Law, in The Cambridge Companion to Rawls, 418 (Samuel Freeman ed., 2006); Stephen Macedo, Liberal Civic Education and Religious Fundamentalism: The Case of God v. John Rawls?, 105 Ethics 468 (1995); William A. Galston, Two Concepts of Liberalism, 105 Ethics 516 (1995); Susan M. Okin, Mistresses of Their Own Destiny: Group Rights, Gender and Realistic Rights of Exit, 112 Ethics 205 (2002).

64. Rawls, supra note 1, at 326.

65. It is important to note that a Rawlsian scheme would not privilege religious commitment over secular conceptions of the good in granting exemptions from generally applicable laws, unlike the U.S. Supreme Court. See Wisconsin v. Yoder, 406 U.S. 205, 216 (1972).

66. Rawls also accords special weight to those aspects of freedom of speech that function “as a way of controlling the misconduct of government.” Rawls, supra note 1, at 335 n.45. For a similar approach by the Supreme Court, see New York Times Co. v. Sullivan, 376 U.S. 254, 268–282 (1964).

67. Rawls, supra note 1, at 335.

68. Id.

69. Id. at 298.

70. Id. at 318.

71. See id. at 32–33.

72. See, e.g., Albert Raboteau, Slave Religion (rev. ed. 2004), at 212–288 (describing the distinctive religious tradition developed by enslaved African Americans and the central role it played in the society of enslaved people).

73. Rawls, supra note 1, at 298.

74. The basic liberties are “specified by institutional rights and duties that entitle citizens to do various things, if they wish, and that forbid others to interfere.” Rawls, supra note 1, at 325. See also Michelman, supra note 63, at 394, 417.

75. Rawls, supra note 1, at 297.

76. Rawls, The Idea of Public Reason Revisited, supra note 17, at 159.

77. Rawls, supra note 1, at 291. See also id. at l, 214–215, 241; Rawls, A Theory of Justice, supra note 5, at 133; Michelman, supra note 63, at 401; Fleming, supra note 50, at 108, 136; Michelman, supra note 13, at 185.

78. Even advocates of criminalizing revenge porn accept that the First Amendment limits how this can be done. See Danielle Citron & Mary Anne Franks, Criminalizing Revenge Porn, 49 Wake Forest L. Rev. 345, 387–389 (2014).

79. See the “secondary effects” analysis in Young v. American Mini-Theaters, 427 U.S. 50, 71 (1976).

80. Rawls, A Theory of Justice, supra note 5, at 291.

81. Id.

82. Rawls, supra note 1, at 214.

83. Id.

84. Id. at 294.

85. See supra text accompanying notes 17–24.

86. See Stanley v. Georgia, 394 U.S. 557, 565 (1969).

87. John Finnis, Law, Morality and “Sexual Orientation”, 69 Notre Dame L. Rev. 1049, 1076 (1994). Many conservatives of course argue that law can justifiably seek to prevent people from doing moral harm to themselves. See, e.g., Robert George, Making Men Moral: Civil Liberties and Public Morality (1995), at 45–47.

88. For the assumption that pornography is protected in a Rawlsian account of freedom of speech, see Richards, supra note 46, at 203–209; Fleming, supra note 50, at 188 (endorsing the Canadian Supreme Court's approach in R. v. Butler, [1992] 1 S.C.R. 452, which treated pornography as protected speech under Section 2(b) of the Canadian Charter of Rights and Freedoms); Amy Gutmann, Rawls on the Relationship Between Liberalism and Democracy, in The Cambridge Companion to Rawls 168, 184–185 (Samuel Freeman ed., 2003). Joshua Cohen specifically argues for a Rawlsian right to access to pornography in Freedom, Equality, Pornography, in Justice and Injustice in Law and Legal Theory, 99–137 (Austin Sarat & Thomas R. Kearns eds., 1998). By contrast, Andrew Koppelman has recognized the narrow scope of Rawlsian protection for sexual autonomy. Andrew Koppelman, The Limits of Constructivism: Can Rawls Condemn Female Genital Mutilation?, 71 Rev. of Pol. 459, 464, 468 (2009). I discuss Koppelman's arguments further infra at text accompanying notes 108–122.

89. Rawls, A Theory of Justice, supra note 5, at 214.

90. Rawls, supra note 1, at 291.

91. Michelman, supra note 13, at 188 (emphasis in original).

92. See supra text accompanying note 60.

93. See Rawls's discussion of how commitments and attachments contribute to moral identity in Political Liberalism, supra note 1, at 31.

94. See Moore v. City of East Cleveland, 431 U.S. 494, 496–500 (1977).

95. Fleming, supra note 50, at 169–170.

96. Koppelman, supra note 88, at 464, 468.

97. Rawls, The Idea of Public Reason Revisited, supra note 17, at 147.

98. Koppelman, supra note 88, at 465.

99. Supra text accompanying note 93.

100. Koppelman, supra note 88, at 470.

101. Id. at 472–473.

102. Michelman, supra note 13, at 195.

103. See supra text between notes 60 and 61.

104. See, e.g., S. Andersson, J. Rymer, D. Joyce, C. Momoh & C. M. Gayle, Sexual Quality of Life in Women Who Have Undergone Female Genital Mutilation: A Case–Control Study, 119 Brit. J. Obstetrics & Gynaecology 1606 (2012); Abdulrahim A. Rouzi et al. Effects of Female Genital Mutilation/Cutting on the Sexual Function of Sudanese Women: A Cross-Sectional Study, 217 Am. J. Obstetrics & Gynecology 62 (2017). These effects are by no means universal; some women who have undergone even extensive FGM report satisfaction in their sexual relationships. See the discussion in Ellen Gruenbaum, The Female Circumcision Controversy: An Anthropological Perspective (2015), at 133–157. As noted supra in the text accompanying note 72, however, it is wrong to burden the exercise of the basic liberties even if some people can overcome these burdens to meaningfully exercise the moral powers.

105. This could either be a direct basic liberty or a supporting basic liberty to the right to form relationships. See supra Section IV.A.2.i.

106. Fred Schauer, First Amendment Opportunism, in Eternally Vigilant: Free Speech in the Modern Era, 174–197 (Lee Bollinger & Geoffrey Stone eds., 2002).

107. Rawls, supra note 1, at 335–336.

108. Id. at 346.

109. Id. at 336.

110. Id. at 313.

111. Andrew Koppelman, Madisonian Pornography or, the Importance of Jeffrey Sherman, 84 Chi.-Kent L. Rev. 597, 610–611, 613 (2009).

112. Cohen, supra note 88, at 125.

113. Id.

114. Richards, supra note 46, at 170, 205–206.

115. Id. at 206–207.

116. See supra text accompanying note 60.

117. I address the question of what counts as artistic speech infra in text accompanying notes 125–131.

118. Cohen, supra note 88, at 124.

119. Id. at 126.

120. Id. at 127.

121. Id. at 127–128.

122. Id. at 129.

123. Id. at 124.

124. Koppelman, supra note 111, at 613.

125. The best case for regarding speech of scientific value as a basic liberty seems to be as a supporting basic liberty, since without free scientific inquiry it would impossible to think clearly about many religious, political, or ethical questions.

126. Andrew Koppelman, Is Pornography “Speech”?, 14 Legal Theory 71, 82 (2008).

127. Id. at 81–82.

128. Amy Adler, Note, Post-Modern Art and the Death of Obscenity Law, 99 Yale L.J. 1359, 1368 (1990).

129. See id. at 1376.

130. Id. at 1376–1377.

131. See, e.g., Virginia v. Black, 538 U.S. 343, 366 (2003) (treating the act of cross burning as prima facie evidence of intent to intimidate was unconstitutional because it failed to consider such relevant factors to establishing intent as whether the burning took place at a public rally or on a neighbor's lawn, whether it was directed at an individual or at “a group of like-minded believers,” and whether it occurred with the permission of the property owner).

132. Richards, supra note 46, at 207.

133. See, e.g., Patricia Morrisroe, Mapplethorpe: A Biography (1995), at 42–44, 266–267 (describing the role of heavy drug use in Robert Mapplethorpe's artistic process).

134. Rawls, supra note 1, at 336.

135. See supra text following note 73.

136. See, e.g., Rae Langton's argument that the “speech acts” of pornographers “authoritatively rank women, legitimate violence and thus subordinate.” Rae Langton, Sexual Solipsism (2009), at 44.

137. See, e.g., John Finnis's argument that allowing the widespread availability of pornography is “teaching an attitude to people.” John Finnis, Reason in Action (2011), at 323 (emphasis in original).

138. For criticism of Langton's understanding of pornography's message, see Koppelman, Andrew, Another Solipsism: Rae Langton on Sexual Fantasy, 5 Wash. U. Juris. Rev. 163 (2013)Google Scholar. For criticism of Finnis's exceedingly narrow conception of sexual morality, see Macedo, Stephen, Against the Old Sexual Morality of the New Natural Law, in Natural Law, Liberalism, and Morality, 27–48 (Robert George ed., 1996)Google Scholar.

139. Thomas Scanlon, A Theory of Freedom of Expression, 1 Phil. & Pub. Aff., 204, 217 (1972).

140. Rawls, supra note 1, at 365.

141. Koppelman, supra note 126, at 87.