Forthcoming in 81 U. Chi. L. Rev. (2014).


This review of Ordered Liberty: Rights, Responsibilities, and Virtues, by James E. Fleming and Linda C. McClain, considers the possibility of reconciliation between political liberalism and its critics. The book promises such a reconciliation with a new version of liberalism they call “constitutional liberalism.” This review essay considers four different topics on which constitutional liberalism claims to find compromise and concludes that, in the end, the compromise is elusive. Ultimately, liberalism must choose because rights cannot be subject to communitarian or majoritarian approval; equality cannot yield to intolerance; and political status cannot depend on the tenets of contested moral belief systems. There is great social value in seeking common ground in the arenas of public life where overlapping consensus is possible; but on the deep constitutive principles, we search in vain for common ground.


Constitutional Law | Jurisprudence | Law

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