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Natural Law Liberalism and the

Issues Facing Contemporary American Public Philosophy



Christopher Wolfe

Marquette University






The second part of the twentieth century saw the United States engaged in a struggle with totalitarianism, and its public philosophy was deeply influenced by the sense that it represented “Western civilization” against a new barbarism.[i]   With the stunningly quick demise of communism toward the end of the century, this struggle was succeeded by one internal to the West, one which in fact raised questions even about the unitary character of “the West”.  Rather than an “end of history” with liberal democracy triumphant and unchallenged[ii], questions about the very nature of liberal democracy emerged more forcefully in the internal life of Western civilization.

One interesting perspective on the post-communism world was that of Time magazine’s 1994 “Man of the Year”, Pope John Paul II.  Karol Wojtyla became pope at a time when communism still seemed strong and sometimes aggressive, and he participated in changes that helped lead to its downfall.  Subsequently, he has focused his attention on the situation of the post-communist world, from a rather broader perspective than many others (being less confined by national and temporal horizons), and has identified key civilizational questions.  Western liberal democracy triumphed in the Cold War, and it did so under the banner of freedom.  But what is this freedom? Is it an end in itself?  Or is it, by its nature, oriented toward some other end: toward knowing and living what he calls “the truth about the human person.”[iii] 


This relation of freedom and truth is the question at the heart of America’s current “culture wars,” and it is these issues that are central in the battle over American public philosophy as we enter the new millennium. 

At the same time, however, recent events have raised new questions about our public philosophy in another context, as we find ourselves in the midst of a “clash of civilizations.”  We are today much more conscious of the fact that liberal democracy is by no means the worldwide norm, especially in Islamic and Sinic civilizations.  Rather than taking the political ideals of “north atlantic” nations as a given–as John Rawls, for example, seems to–we have to face the fact that we must make a more persuasive case for our principles, if we wish to see them triumph throughout the world.

In this article, I would like to provide a context for further study of these important issues of “public philosophy.”[iv]  In particular, I want to identify what I think are the key issues for the West as it enters the 21st century.   The resolution of these issues will define contemporary public philosophy.  Eight of these issue sets are substantive: life, death, and personhood; marriage, family, and sexuality; the role of women in society; education and culture; race; religion; citizenship and immigration, and political economy.[v]  Five others are more structural or procedural: the role of the judiciary; the marketplace(s) and centers of private power; the roles of civil society and government; federalism and decentralization; and common core values.

This list does not include important issues of foreign and defense policy, what might be called the face of public philosophy towards the outside world.  For reasons of time, I will confine myself to the issue sets regarding the internal life of our nation, and within those, to the substantive rather than the procedural issues.


After describing these issues, I will survey a number of ways of approaching the task of answering them, and then I will elaborate what I think is the most adequate public philosophy, which I call “natural law liberalism.”  I will conclude by giving a brief outline of the core principles of natural law liberalism.


Life and Death and Personhood

The first set of issues concerns life and death.  Abortion, euthanasia, reproductive technologies, and “justifiable killing” (the death penalty and war) are prominent issues here.

Abortion, despite the almost unanimous efforts of national politicians, remains a live issue, and perhaps the most profoundly divisive issue, in American politics.  Ironically, the battle between liberals and conservatives on this issue seems to reverse what in the past was the ordinary structure of debate.  In the past, it was not uncommon to find religiously-oriented moralists deeply suspicious of modernity and all its works (including modern science and the expansion of individual rights) pitted against modern progressives for whom modern science and the expansion of rights was a new kind of “orienting framework for life”–a worldview, or even a religion, if you will.  (The Scopes trial was the classic instance of such forces squaring off.)  On the issue of abortion, however, it is the “moral traditionalists” who have been able to invoke the wonders of neonatal technology, who often rely on the relatively straightforward scientific facts about the beginning of an individual human life from the point of conception, and who press for an expansion of rights.  The “progressives” find themselves in the position of using scientifically awkward circumlocutions for the conceptus, such as “blob of tissue” or “products of conception,” and of opposing an expansion of the category of rights-recipients to a new group.[vi]


But perhaps appearances may be misleading.  The underlying worldviews may still be the same, but the difference is not so much over when human life begins as over the significance to be accorded what is concededly some form of human life, at its various stages. Thus the debate typically centers on a purported difference between “human life” and “personhood.”  “Science”, of course, has nothing to say about this, strictly speaking, since it is a philosophical (or theological) matter.  Nonetheless, there is a certain rationalist and utilitarian worldview that is often associated with science that tends to minimize the importance of merely “potential” (relatively “un-actualized”) human life, especially in view of other factors “in the balance”, above all, personal, economic, and sexual freedom for women (which may also advance the interests of certain men),[vii] and, sometimes, the negative value accorded human lives under conditions “inconsistent with” human dignity. 

Euthanasia is an issue that has only begun to be discussed, though only one state (Oregon) has authorized assisted suicide.  Not only the suffering of terminal illnesses, but also the decline of human powers in old age, are thought by some to rob human life of its “dignity,” especially in a society whose medical resources permit greater prolonging of life (not always wisely).  As with abortion, “un-actualized” human capacities are not thought to provide an adequate ground for an inviolable human dignity.  In fact, the disappearance or serious decline of such actualized capacities are grounds to argue for “death with dignity”, to argue, that is, that dignity may call for death. 


The logic of euthanasia starts with individual autonomy, the right of a person to choose to end his own life (if necessary, with the assistance of others).  But if the right to life is not really “inalienable”--if it can be given up--then it is hard to see why any absolute barrier should be erected against third parties making such decisions in at least some cases, beginning with instances of incompetent patients.

Arguments for euthanasia are typically made in the name of compassion--indeed, the basis for such acts in compassion may be viewed by some as the basis of their moral justifiability.  There is reason for concern, however, that judgments based on compassion may end up being based on feelings or a utilitarian calculus dominated by “gut” preferences--at the expense of reason--and one may ask whether such judgments are appropriate.[viii]  And a process of reasoning that is selective about which human lives can be regarded as having human dignity, or that even may use human dignity as a ground for actively ending certain human lives, must be viewed, at a minimum, with caution, and at a maximum, with fear, especially when we consider the human capacity for rationalization (e.g., concluding that lives that happen to be very expensive to sustain are not really “lives worth living” at all).  When we factor in a likely future scenario in which medical advances continue to extend life, and when the burden of supporting the aged falls very heavily on a smaller number of younger people, it would be surprising if pressures for expanded euthanasia were not to increase.

What is at issue here is what human dignity means.  It is generally agreed to rest on something other than the “achievement” of a given person, an actualization of his or her human powers--for a basis of that sort would easily authorize denying the dignity of countless human beings.  But if it rests on “capacity” or “potential”, on what grounds can it be denied to human life at any point after conception?   The pro-choice (abortion and euthanasia) answer is largely framed, for rhetorical purposes, as an issue of individual autonomy, allegedly bracketing the substantive question of the status of the incipient or declining human being.  But can such a question truly be bracketed, or is the bracketing itself not an answer?


In a different area of scientific technology regarding human life, scientists have been able to develop remarkable technological means to assist infertile couples in having children, and medical research has just entered into a new era of striking capacities for genetic manipulation and cloning.  A compassionate concern for the plight of such couples has seemed to many a sufficient justification for using such technologies.  But these capacities raise the specter of human beings “making” other human beings, and it is not clear how this will affect our attitudes toward the dignity of human life.  Does it matter whether a human being is engendered as the “natural” outcome of an act of love between two human beings, or from an act (however much based on compassion) of scientists, doctors, and tests tubes? 


And, finally, what are the implications of different understandings of human dignity for certain forms of “justifiable killing”, such as capital punishment and war?[ix]  When the representatives of the political community inflict death as the just punishment for a crime, it can be argued that this penalty not only defends the community and innocent lives, but also vindicates the dignity of the one who suffers the punishment, on the grounds that it affirms the reality of his free will and appeals to his intellect to recognize the evil of his action and repent.[x]  But where does this leave the connection between human dignity and the inviolability of human life?  Is this only a different way of arguing that human dignity does not attach to human life per se, but only to human life under certain circumstances?  It is true, of course, that capital punishment is inflicted on human beings who have freely chosen seriously evil actions, which is not arguably the case with issues such as abortion.  But this leaves open a number of questions: whether the benefits of capital punishment (relative to other forms of punishment, such as life imprisonment) are so great as to require the death penalty, assuming that society can still protect itself by other methods of punishment; whether the foregoing of capital punishment might contribute to a deeper appreciation of the worth of all human lives; whether the imposition of the death penalty, even when justified, may have corollary moral effects that we should seek to avoid, such as reinforcing a spirit of vengeance or a utilitarian spirit in calculating whether to kill a person.  The issue seems to me much more complex than either death penalty partisans or opponents are usually willing to acknowledge.

Those same issues are raised in the context of “justified killing” in war.  Such questions about the limits of such justified killing have always been with us, of course, but several features of the contemporary world make them even more complex.  First, the extraordinary destructive power of modern weapons (especially nuclear weapons, but also conventional weapons, and biological and chemical weapons as well), capable of obliterating whole populations, tempts people today to abandon rational moral limits on the use of military power, for example, those based on the hard-won distinction between combatants and non-combatants. And while there are difficult questions and grey areas regarding “collateral damage” and the relation of particular non-military personnel to a nation’s military activity, it would be dangerous simply to believe that the end of a nation’s self-preservation justifies any means.  Second, modern technology (nuclear, biological, and chemical weapons) potentially offers to large numbers of small nations, and even to very small groups of terrorists, the capacity to inflict extraordinary carnage on large populations.  It is not hard to imagine such acts, and the brutal responses in kind that fear and anger might produce.  (If ends justify means, would our moral principles regarding torture of terrorists, for example, hold firm?)


In these life and death issues, it is the very meaning and significance of human life, “the human person,” that is called into question, perhaps more dramatically than at any previous time.  Answers to these questions will be shaped by a key element of a public philosophy--its philosophical anthropology.


Marriage, Family, and Sex

The second set of issues revolve around marriage, family, and sex.  This must be a matter of great importance, given that the family is the “cell” of society, the primordial human community on which all others are based.

The facts here are disturbing to almost everyone, at some level.  Divorce has very much become a way of life for Americans.  From being a relatively rare event, it has become both relatively normal (if still painful), and embodied fully in law, through no-fault divorce.  Americans can now be said to be monogamous only in the sense that people have one spouse at a time.

In addition to families suffering broken marriages, there are many families that never experience marriage.  Cohabitation has gone in a generation or two from being a rare and shameful lifestyle to the more or less normal pattern for younger Americans (though many of them will go on to get married).  Illegitimacy has reached extraordinary heights, cutting across racial and class lines, with powerful social consequences.[xi] 

In recent years, moreover, there has been a move to redefine marriage and family to encompass homosexual relationships, and more broadly to legitimize homosexual activity as one among many sexual lifestyles.[xii] 


There are some who argue that considerable variation in family forms is natural and unproblematic--there is no “family” but only different kinds of “families.”  There is some truth in this, undoubtedly, since families have differed in various ways from place to place and time to time.  The question is what the outside limit to this variability might be, if families are to serve their purposes.[xiii]

Social science evidence seems more and more to confirm harmful effects of family non-formation or breakdown in America.  While it is essential to recognize that many single-parents struggle heroically to provide a good upbringing to their children, and that human beings can be remarkably adaptable under non-ideal conditions, it is also necessary not to shirk the fact that a considerable range of social pathologies are significantly correlated with divorce and illegitimacy.[xiv]

Given these problems, the great question facing this generation of Americans is: why does our society seem to have so much difficulty sustaining stable family life?   Certainly, it is easy to see that there are objective conditions that make some form of marital breakdown understandable, as cases of spousal abuse demonstrate.[xv]  There are many other, less dramatic, forms of ill-treatment of spouses by each other.  And there is the simple fact of the emergence of “irreconcilable differences” or merely “growing apart” (especially when life expectancy increases dramatically). 


And yet, presumably, human nature has not changed so drastically in recent eras--many of these factors must have been present throughout human history.  There must be other factors, then, that account for the relative increase of divorce and illegitimacy .  Some of them include the following.  First, divorce feeds on itself, since it raises the question, for the children of divorce, whether permanent human commitments are really possible.  Second, marriage has lost the support of its close tie to sex.  When the powerful urges of sex are confined by prevailing social norms to marriage, they provide a strong auxiliary support.  When sex is readily available outside marriage (without social sanctions), as it has become, there is both less incentive to enter into marriage and more temptations to leave it (especially for men).  Third, more modern and relativist ethical notions--Alan Wolfe’s formulation of Americans’ new Eleventh Commandment, “Thou shalt not be judgmental”[xvi]--may be used to justify extra-marital sex and childbearing, on one hand, and exiting from unsatisfactory marriages, on the other.  A particularly influential form of this ethic has been the liberationist or autonomist ethos associated with more recent forms of liberalism, particularly since the 1960s.  Fourth, liberalism’s tendency to ground human relationships in voluntary contracts rather than status may result in a diminished sense of certain fundamental duties that arise from nature rather than human will, among them the duties of parenthood.   Fifth, materialism and affluence may incline people to resolve difficulties by moving out of an unpleasant situation rather than remaining in it and working through difficulties. Sixth, paradoxically, modern notions of romantic love may create expectations about marriage that actual human beings often are unable to meet.


But perhaps we should ask, not just “why unstable family life?”, but also “how was stable family life ever possible?”  There are plenty of ordinary human inclinations and objective circumstances to explain why two people would not want to live with each other for a lifetime.  We have to recognize first, of course, that there was no “golden age” of marriage, in which family life was basically trouble-free.  The relatively more “stable” family life of the past had its own unhappy share of pains and difficulties, infidelities and desertion.  But family life was more stable partly because of the strong social supports that helped to resist or overcome the more centrifugal tendencies in marriage.  Among these, religion--in America, specifically Christianity--was among the foremost.  We might expect, then, a decline in marital and family stability from the facts that a) religion exercises less power over the everyday lives of many people in our society, and b) many religious communities have come to accommodate more modern (and looser) conceptions of family life and divorce.  The largely religious ideals of the past, moreover, were typically supported both by the power of social conventions and of law.

Finally, as a transition to the next topic, we can point out that family instability is partly caused by the fact that women who did not have the economic resources to live independently of a male wage earner, are now much more able to do so, either through their own earnings, or through the substitute provider, the state.  Alternative sources of support have therefore made it possible for women to leave difficult or unsatisfying marriages to which they once would have been tied by economic necessity.

That the nuclear family has become less stable is generally (though not universally) accepted.  Increasingly, social scientists are acknowledging a variety of detrimental consequences correlated with family instability.  Most people probably would agree that greater stability of family life is desirable.  On the question of whether this instability is basically a necessary evil, however, or basically an evil to be rectified, there is, unfortunately, little agreement.


The Role of Women in Society


There is widespread agreement today that changes of this century regarding gender have been in many ways a great victory for justice: the past confinement of women to the private sphere of the home by legal and social pressures unjustly denied many women opportunities that should have been available to them.[xvii]  The opening up to women of education, employment outside the home, and participation in public life is acknowledged as a good by virtually everyone in our society. 

And yet these genuine advances are not without some more questionable consequences as well. One may view them somewhat as the protagonist of Saul Bellow’s Mr. Sammler’s Planet looks at post-Enlightenment developments:


. . . it has only been in the last two centuries that the majority of people in civilized countries have claimed the privilege of being individuals.  Formerly they were slave, peasant, laborer, even artisan, but not person.  It is clear that this revolution, a triumph for justice in many ways--slaves should be free, killing toil should end, the soul should have liberty--has also introduced new kinds of grief and misery, and so far, on the broadest scale, it has not been altogether a success.[xviii]


We are especially struggling for answers as to who “foots the bill” for the liberation of women from those unjust traditional constraints, and so far the short-term answers are unsatisfying.

Children, in particular, it seems, pay a large part of the price, despite efforts of social scientists to discount the significance of altering traditional child-care arrangements.  The reallocation of resources in the family, especially the precious resource of time, away from children to other activities (most notably, work outside the home) has come at the expense of children.[xix]


Another group that has suffered from this change is those women who choose to stay at home full-time with their children--either during childbearing years, or permanently--and whose work is generally not accorded high status in our society. What conclusions, after all, should we draw from social studies that claim to prove that full-time mothering has no significant benefits, relative to the work of low-paid “substitutes” in day-care centers?  And what is the inevitable effect on school girls of anti-stereotype-programs that encourage them to be more than “just” mothers and “homemakers”?  Under these circumstances, college women today who desire to have children and be full-time homemakers (at least for part of their lives) must hesitate to admit to this goal, for fear of the subtle or not-so-subtle contempt it would engender in their peers and in society at large.

Likewise, mothers who arrange their employment around (subordinate it to) child-raising responsibilities not only forego career advancement and higher salaries in doing so, but also find this price exacerbated by the lower status society often accords them.  For many women, the difficulties of combining outside-the-home employment and the responsibilities of child-raising can make the once supposedly glorious “having it all” a burdensome “having to do everything for everybody”.[xx]


Of course, an alternative proposal is that men foot the bill, by making a more balanced contribution to the home and the raising of children.[xxi]  It is clear, I think, that paternal involvement in the home is essential.[xxii]  What is less clear is what form that involvement ought to take, and  whether the contributions of men and women to the home are, or should be, more or less interchangeable. Whatever the particular balance between work and family for husband and wife in a given marriage--different couples will certainly work out different ways of such balancing--should we expect or desire a significant movement away from our current situation, in which mothers, in the vast majority of cases, still undertake the primary responsibility (in terms of time, and relative to employment outside the home) for childraising? 

The evidence so far suggests to me the following: a) most men are unwilling to undertake roles in the home that would make it impossible for them to work full-time, b) men in general are not as capable as women in the work of raising young children; c) the realities of pregnancy, childbearing, and nursing may not demand, but do support arrangements by which mothers will undertake the primary role in childraising; d) what men are capable of doing in the home is not enough to make it possible for most women to meet child-raising responsibilities without having to limit or subordinate the demands of other employment, at certain times; and e) most women, despite feminist objections, recognize all of the above and are quite willing to pay the price for assuming the lead in raising children, accepting certain limitations in other areas (work outside the home)--but they also believe that society artificially and unnecessarily increases that price.[xxiii]

Of course, there are various experiments afoot to deal with this difficult issue--various kinds of accommodation in the workplace, and ways of doing work in the home--and many women (and men) make extraordinary efforts to meet the various responsibilities of work and family that they have undertaken.  But it remains to be seen how successful these efforts will be in reconciling the needs and desires of women and men with the best interests of children. 


Education and Culture


Perhaps because “equality of opportunity” is the linchpin connecting democracy’s two most fundamental principles, freedom and equality, education has always been a central concern of Americans. That each person should have the opportunity to receive a basic education is one point on which there is consensus in our society.  But education has also become a central battleground of various social forces in the nation.  While an important part of education--especially the basic skills of “reading, writing, and arithmetic”--is relatively noncontroversial, there are other aspects of education that guarantee controversy in a culturally pluralistic society. 

Elementary and secondary public schools originated, in great measure, with a very public task: not only providing basic skills, but also educating the citizenry in the principles of republican government.  Throughout American history, the public schools have transmitted the civil religion of the nation, with its “scriptures” (Declaration and Constitution), its history, and its “saints” (e.g., Washington and Lincoln).  This role was thought to be especially important in a nation of immigrants from non-republican lands.[xxiv]

Recent divisions within the United States on cultural issues have, unsurprisingly, been reflected in debates about the content of education.  When America was largely a Protestant Christian nation, the existence within schools of Christian practices (reflecting the practices of local majorities) such as school prayer and Christian teachings (e.g., the Ten Commandments) was commonplace and uncontroversial.  There was always the anomaly of Catholic schools--which objected precisely to the Protestant character of most public schools--but such schools were precisely that, an anomaly.  The post-Everson secularization of public schools, especially the school prayer decisions of the early 1960s,[xxv] therefore came as something of a shock to many Protestants, especially evangelicals and fundamentalists, and the issue of religion and the public schools has been actively contested throughout recent decades.[xxvi]


But the controversy has spread beyond religion, because modern secular intellectuals often apply the same corrosive analysis to traditional moral values, which are often held similarly to offend proper “liberal neutrality.”  For example, in Board of Education v. Pico, the Supreme Court ruled that local school boards may not remove books from school libraries simply because they dislike the ideas contained in those books and seek by their removal to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion”.[xxvii]  Moreover, certain political theorists argue that it is precisely the purpose of at least post-elementary schooling in a liberal society to offer the individual student a wide range of theoretical possibilities, which will necessarily entail challenging the moral ideals of students’ families.[xxviii]  Add to this mix the increasing salience of topics such as sex education and AIDs education, and the potential for controversy obviously becomes very great.

A combination of dissatisfaction with public school policy on religious and moral grounds, and a sense that public schools have failed educationally (either generally, or in certain places, such as major urban school districts) has led to a growing movement--vociferously opposed by teachers’ unions and religious separationist groups such as the ACLU--for policies that facilitate school choice, such as voucher programs and tuition tax credits.  The upholding of the constitutionality of such programs last year by the Supreme Court simply clears the way for that battle to be fought in legislatures.  Education will therefore continue to be a major public policy issue.


But “education” in a broader sense goes beyond the classroom.  One of the profound civilizational changes in the twentieth century, especially in affluent post-World War II nations, has been the extraordinary expansion of “leisure” made possible by modern economies.  A forty-hour work week for many people leaves many hours of time in which to pursue other activities.[xxix]  Moreover, childbearing is typically confined to a more limited range of life, due to decreased family size.  And people are living much longer beyond the time during which the care of children consumes much of their activity.

Now, in principle, this additional leisure time could be an extraordinary opportunity for intellectual and moral development.  One could hope that succeeding generations take more and more advantage of leisure to develop capacities that human beings in earlier ages had no opportunities to develop, for example, intellectual and moral development through reading “great books” and literature, listening to and playing music, observing and engaging in various fine arts.

Under the circumstances of expanded “non-work” time, the importance of popular culture and of “entertainment” has been greatly magnified.  The media, especially the visual media (movies and above all television), have come to play an enormous role in many people’s lives. This is not primarily because of any conscious attempt by people in the media to persuade their viewers to think a certain way (though there is a tendency for people in the media to hold distinctive worldviews and these views do get reflected in their productions[xxx]).  The deeper effect is more indirect, a function less of “logic” than of what might be called a “sociology of knowledge and values.” 


One example: prime-time television series typically tell stories, and watching a television program is a form of “entering” that story imaginatively.  For at least a short time, the “world” in which we live is the world represented in that imaginative portrayal.  What is “in” those worlds is important--sex and violence, of course, but also friendship, fear, insecurity, humor, and a multitude of other things.  At least as important, however, is what is not in those worlds, either because it is difficult to portray, or because its authors cannot, or do not think to, or choose not to portray it (which, in turn, may be because of their own preferences or because of what they believe to be the preferences of their viewers).  Some aspects of human life, not surprisingly, are therefore significantly under-represented in the worlds fashioned by the media.  These include: sex that is embedded in a context of marriage and child-bearing; intimate prayer to God, the frustration, tedium, and satisfaction of ordinary, unexciting, but necessary work; the broad range (bell curve?) from ugliness to beauty among human beings; the personal confrontation with the fact of mortality.

In general, it seems fair to characterize the content of popular culture as superficial.  So much of the leisure time that might have offered unparalleled opportunities for intellectual and moral development seems wasted on passive activities that are hard to view as increasing the quality of human life.

Another, more extreme aspect of the search for ways to fill leisure time is drugs.  There has never been a time in human history when human beings did not seek to deal with stress or boredom by manipulating their consciousness chemically.  What is different now perhaps is that affluence and time, and perhaps also spiritual and moral vacuums in people’s lives, have expanded the range of opportunity for such indulgence.

Should we be surprised at the low to mediocre quality of most leisure-time activities in our contemporary society?  Classical political philosophers, after all, would have noted that in democracies the “common man”--with his very common desires--sets the  tone.  Is this inevitable in a democracy, and should it therefore be accepted? Or can democracy be “high-toned”, and, if so, how?[xxxi] 


One of the striking aspects of cultural life today is the fairly widespread faith--no less deep for being often unnoticed--in the “cultural” invisible hand.  There is an alliance here between those on the right who have a general faith in the market, with those on the left who have traditionally shared a great faith at least in the intellectual marketplace.  There are occasional dissenters on both the left and the right--e.g., cultural conservatives hostile to markets in debased sex, and liberals and feminists who would regulate the cultural marketplace on behalf of less powerful or “marginalized” groups.  But, given most Americans’ reluctance to support any form of government “censorship”, a rather open cultural marketplace is what seems to remain.[xxxii]

In some cases these issues go beyond the marketplace, when they involve government sponsorship of cultural activities.  For example, the National Endowment for the Arts has come under political attack in Congress, due to its funding of some controversial art and exhibitions (e.g., a picture of a crucifix in urine).  While few people would argue that the government has an obligation to fund specific forms of art, there are some who contend that, once government offers sponsorship of cultural activities, it may not choose to withhold funding from a particular activity because of its ideological content.[xxxiii]  This would seem to leave Congress simply with the general decision about whether or not to fund art, while the specific decisions about which art is to be funded would be left to “peer review” within the arts community (or at least among the elites who are dominant within it).  The question here is whether the determination of government arts funding by such elites itself meets the criterion of “neutrality” on the basis of which explicit government decisions about content are considered legally dubious.  That art elites can and do consistently make “neutral” judgments apart from content seems implausible.




A central issue of American life from the beginning, race has continued to be a source of cultural divisions in the post-“civil rights revolution” era.  Conservatives, who were often reluctant to endorse government (especially federal) intervention to promote racial equality until the mid-1960s, generally consider racism to have been defeated (despite lingering and ineradicable pockets of it), and have embraced the standard of legal equality of opportunity and “color-blindness”.  Liberals tend to discount advances in racial equality, believing that racism is still powerful and pervasive, and that much more extensive government intervention is necessary to rectify the effects of past racial discrimination and to enforce true racial equality.

The dominant contemporary issues are affirmative action and multiculturalism.  Conservatives generally deplore the principle of race-based decision-making in government (or even private) affirmative action plans, which they consider unjust and likely to perpetuate racial divisions and stereotyping.[xxxiv]  They are optimistic that, at least in the long term, race-neutral government policies and formal legal racial equality will ensure equality of opportunity and guarantee that people are treated on the basis of their individual qualities rather than their race. 

Liberals view affirmative action as a minimum requirement of justice to level a playing field heavily tilted against traditionally disfavored racial minorities, due to the effects of past discrimination and due to subtle but still powerful racist attitudes today.[xxxv]  Moreover, according to some, only conscious and extensive efforts to foster a multicultural society that celebrates “difference” will be able to make inroads against these attitudes.  This may require the use of government power to suppress public manifestations of disrespect for certain groups, for example, prohibitions of “hate speech.”[xxxvi]


Each side, in its own way, may represent a kind of utopian thinking.  The idea of multicultural diversity as its own end, a good in itself, can only subsist in the absence of a candid evaluation of different cultures, since all human cultures are a mixture of good and bad, more and less attractive elements.  Western culture has a monopoly neither on human cruelty, greed, and rapacity, nor on the good, the true, and the beautiful. But the need to have standards by which to evaluate the better or worse aspects of all cultures implies some universal standards that transcend particular cultures--standards difficult (but perhaps not impossible) to come by, in a pluralistic society. 

On the other hand, is it possible to achieve a pure, cosmopolitan color-blindness?  Individuals need to be judged on their own merits, certainly, but can race be filtered out of human consciousness so easily?  Does political prudence require ignoring racial differences under all circumstances? 

It may be that liberalism (including what Americans call “conservatism”) of its nature has difficulty with certain kinds of particularism, and race and nationality are among these, since they seem fundamentally “irrational”, irrelevant to rational perceptions and evaluations of people and actions.  But particular identities may, from another perspective, be more rational than liberals think, since they often provide some of the most powerful and satisfying forms of human solidarity and community. (One only has to think of sports teams and the loyalties they can engender.).  How to permit these particular identities (often a melange of race, nationality, and culture) to flourish, without permitting them to be the ground of unjust discrimination, is a perennial, vexing question of political life.




In the ancient world, the problem of church and state was unknown, though the problem of law and religious conscience was not (as we see in Sophocles’ Antigone).  With the coming of Christianity, and the distinction between an immanent political order and a transcendent spiritual order, the relationship between Church and State became a central question of Western political theory and practice.

America, in fact, was in some measure born out of European church-state problems, since many of the early settlers came precisely to find an opportunity to practice their religious faiths.  In early colonial times, however, this did not necessarily mean that they sought “religious liberty” in the form we think of it today.  A colonial “Christian commonwealth” did not necessarily accord a broad freedom of worship to other Christian denominations.  Yet by the time of the American founding religious liberty had broadened considerably, and the main political divisions regarded religious establishments in the states.  At the same time, there was general agreement that Americans were “a religious people whose institutions presupposed a Supreme Being”[xxxvii]--manifested, most obviously, in the Declaration of Independence’s reference to Creator-bestowed natural rights, and in the emphasis on the importance of “religion and morality” in Washington’s Farewell Address (echoing the Northwest Ordinance and various state constitutions).


The original understanding of church and state in the United States grew out of a particular society--one that was “sociologically” and “intellectually” (Protestant) Christian.  This considerably narrowed the range of unresolvable tensions (though without completely resolving them[xxxviii]), and made it possible, on some accounts (notably Alexis de Tocqueville’s), to derive considerable political benefits from religion, while maintaining a general separation of church and state.  For example, Tocqueville noted that religion (by which he meant the Christian religious groups in early nineteenth century America) had the benefits of countering the typical modern democratic tendencies toward individualism and excessive emphasis on physical well-being, which were dangerous both to the political community and to human beings themselves.[xxxix]

The twentieth century has seen (besides an increasing number of “unchurched” but generically Christian Americans) increasing numbers of non-Christians, partly through the increase of religious minorities such as Muslims, and greater attention to the heretofore “invisible” Indians[xl], but more importantly perhaps, through the growing numbers of agnostics and atheists, especially among intellectual elites.  The Supreme Court has undertaken the task of fashioning a new First Amendment for this more diverse society, but hardly anyone considers it to have done this satisfactorily.


The Supreme Court began its attempted “adaptation” of the First Amendment to the new religious sociology of the mid-twentieth century with Everson v. Board of Education in 1947.[xli]  A key step in this case was mandating not only federal neutrality among different religions (the command of the original First Amendment[xlii]) but also federal and state government neutrality between religion and non-religion.  In its attempt to achieve this illusory goal of neutrality, the Court has lurched back and forth between more separationist and more accommodationist readings of the Amendment.  Its secularizing decisions (especially beginning with the school prayer decisions of the 1960s)--together with decisions in some other areas undermining traditional morality[xliii]--were said by some to have “privatized” religion and to have created a “naked public square” [xliv]  At the same time, the expansion of the public square--especially the welfare state--in modern America, had the effect of confining religion to a smaller and smaller private sphere, since government carried the principle of church-state separation with it as it expanded dramatically throughout the century.

One of the important effects of this secularizing process was to mobilize heretofore less politically engaged evangelical and fundamentalist Protestants.[xlv]  This mobilization of “the Religious Right”, in turn, further stimulated elite fears of Christian domestic jihads (fears that gradually seeped into other strata of American society).[xlvi] 

While the Court more recently has been less separationist in a number of areas[xlvii], at the more theoretical level, it is striking that the Court has tended to minimize the distinctive character of religion, viewing it more and more as one subcategory of “deeply held opinions”[xlviii] or of “speech.”[xlix]   Religious freedom has gone from being singled out by the Constitution for special protection to being a rather indistinct element in a more broadly defined liberty.

The current conundrum facing any public philosophy is whether (and how) it is possible to guarantee a broad religious liberty (which, especially in a pluralistic society, involves both free exercise and non-establishment of religion) without in some sense advancing the particular religious view of secularism.   Do modern fears (especially among elites) of manifestations of religion in the public square preclude any non-sectarian natural theology being an essential part of the public philosophy?  Or are we still “a religious people whose institutions presuppose a Supreme Being” and can that fact be publicly recognized--and can religion be generously accommodated--without endangering religious liberty and the political equality of citizens of all religious beliefs? 


Citizenship and Immigration


A combination of the foregoing considerations hooks up with another major contemporary policy question, namely, citizenship and immigration.  Culture, race, and religion are sources of “difference” in society, and can be viewed as fostering a diversity that enriches our nation.  Indeed, there is a significant tradition in America of looking to immigration as a source of great benefits, with its contributions to the American “melting pot”.  This diversity was possible, without undermining the core “unity” required for “community”, because the United States was unusual in the way it was founded on a certain set of ideas, especially the principles of the Declaration of Independence and the Constitution.  In embracing those ideas, immigrants could quickly become “Americans” in more than a formal sense.

In principle, unity based on ideas should be able to transcend many differences.  For example, race, by itself, should be irrelevant with respect to those ideas.  But culture and religion are categories that involve precisely ideas and ways of life that reflect underlying ideas.  Earlier immigration came primarily from Europe, and immigrants thus shared the heritage of “Western civilization” with their new fellow citizens, which helped to mitigate the tensions that arose from various differences, e.g., language, and in many cases the difference between American Protestant Christianity and immigrants’ Catholicism.

Questions arise today from two sides.  Either of these, by itself, would be much more limited in its consequences, but taken together they magnify potential concerns.  First, immigrants today come from a very wide range of cultures, many of them involving cultural differences broader than those present in earlier waves of immigration.  For example, the proportion of European immigrants has declined, and the proportion of immigrants from non-European nations and cultures (e.g., Asia and the Middle East) has increased. 


Second, and more importantly, there has been a significant loss of consensus within our nation about precisely the ideas that determine what it means to be an “American”.  If the core unity of the nation has been maintained by educating new Americans in the principles of our regime (form of government, broadly speaking), what is the likely result of increasing division within America over the meaning of those principles?  How much “unity” is necessary to sustain the political community, and how is that unity to be secured?  Under what circumstances (if any) would immigration jeopardize that unity, and what reasonable measures (educational and otherwise) might harmonize a generous policy on immigration with the requirements of national unity?


Political Economy

I end this discussion of substantive issues by mentioning only briefly the area that has probably been the most prolific source of public policy questions in American history.[l]


Questions in this area include the balance between work and family, kinds and conditions and amount of work and the personal development of the worker, the relations between employers and employees (or between owners, managers, and workers), worker participation in ownership and direction and profits of enterprises, the availability of employment for all workers (and the availability of enough workers for jobs), the roles of businesses, unions, government, and individuals in worker (re-)training and education programs, especially in the context of rapid reallocation of resources in a modern market economy, wages and benefits (for both full-time and part-time workers), entrepreneurial freedom and the appropriate extent of government business regulation, the impact of various forms and amounts of taxation, and the adequacy of private and public provision for unemployment, illness, and old age. (Moreover, these could be multiplied by attention to numerous and complex questions regarding the international economy.)

In the late 20th century, the salience of political economy issues was muted somewhat by the fact that the United States was in a period of extraordinary economic growth, frequently confounding forecasters’ predictions of slowdowns.  Recent events demonstrate that it will not always be this way, of course, and in more depressed economic circumstances these issues will likely become greater sources of dispute.


Structural Political Issues

In the preceding sections, I have focused on substantive issues of public philosophy.  It is also important to note, however, that there are other, structural political and procedural questions intertwined with the substantive ones


The Judiciary in the Culture Wars


One of the most notable is the question of the role of the judiciary in American political and social life.  Cultural liberalism is strong among elites, and judges have been among the most effective implementors of elite intellectual and cultural values.  This is most obviously true of the Warren Court, in its decisions on religion, obscenity, and privacy.[li]  But the subsequent Burger and Rehnquist Courts, despite their conservatism relative to the Warren Court in some areas, have also shared elite cultural values in many areas.  The Burger Court--though comprised largely of Republican appointees--transformed gender equal protection law, dramatically expanded privacy rights, and maintained a high wall of separation in public schools while limiting the permissibility of public support for parochial schools.  The Rehnquist Court backed off overruling, and then reaffirmed the central holding of, Roe v. Wade, held that nude dancing is entitled to some First Amendment protection, and (without overruling Bowers v Hardwick, a Burger Court decision that upheld the power of states to prohibit homosexual sodomy) overturned a state constitutional amendment designed to prohibit nondiscrimination laws for homosexuals.[lii] 

In the face of these judicial interventions, Congress and the President did relatively little.  In fact, it was not clear how robust was their sense that they had any right to oppose such judicial actions.  Judicial review was certainly important in early American history, but at that time there was still widespread recognition that constitutional issues were not the sole preserve of judges, as Lincoln’s response to the Dred Scott decision made clear.[liii]  By the end of the twentieth century, however, judicial power was so identified with constitutional questions that Attorney-General Edwin Meese’s repetition of Lincoln’s argument caused something of a furor.[liv]

The Supreme Court did, unanimously, reject a call to strike down a state ban on physician-assisted suicide--but only after lower federal courts upheld such a right.[lv] Moreover, the Court seemed to indicate that at least some aspects of this issue might be revisited in the future.


It is worth noting, too, the “asymmetry” of modern Supreme Court decisions on cultural issues.  The Court has served as an engine of liberal social reform in some areas, e.g., obscenity, privacy rights--especially abortion--and (with Romer v. Evans) homosexual rights. In other areas, the Court has rejected the invitation to advance such causes, e.g., homosexual sodomy rights in Bowers, euthanasia. But an examination of the opinions shows that there is no debate between “cultural liberals” and “cultural conservatives” on the Supreme Court. The debate is between “cultural liberals” and “anti-judicial activists”.  For example, there has never been a Supreme Court “pro-life” opinion, though a claim that laws tolerating abortion violate the equal protection clause is more plausible than a claim that laws prohibiting abortion violate the due process clause.  Perhaps the justices opposed to a constitutional right to abortion are correct in basing their opposition on “anti-judicial activist” grounds, and in refusing to overturn abortion laws on equal protection grounds.[lvi]  Nonetheless, this asymmetry does place cultural conservatives are a great disadvantage, since the educative effects of Supreme Court opinions work in favor of culturally liberal opinions.  For example, if all the Court could offer in Bowers v. Hardwick as a reason sustaining sodomy laws was something along the lines of “if the people of Georgia want to do it, the Constitution doesn’t tell them they can’t”, then should we be surprised if Bowers is followed by Romer v. Evans, which (wrongly) treats the position opposed to sexual orientation nondiscrimination laws as if it were based on a mere irrational animus?[lvii]

Cultural conservatives thus continuously labor under the burden of never knowing whether their laborious efforts in the political process to achieve certain goals, even when successful, will survive Court challenge.  For example, Planned Parenthood v. Casey “lowered the bar” for abortion regulation somewhat, by establishing an “undue burden” test.[lviii]  Abortion opponents also concentrated their efforts on limited forms of regulation, such as prohibitions of a particularly gruesome kind of late-term abortion (so-called partial-birth abortions).  But even these limited prohibitions, evaluated under a less restrictive test, have been struck down by unsympathetic courts, including finally the Supreme Court.[lix]


How far the Court will go in asserting the power to resolve national issues–especially “culture war” issues– remains to be seen.


The Marketplace(s) and “Centers of Private Power”

On both the right and the left, there are frequently suspicions that major decisions with society-wide impact are controlled by unaccountable institutions.  This is accomplished either through behind-the-scenes power within political institutions, or through a power to shape public opinion and to manipulate it to obtain private objectives. 

On the left, it is typically corporations that are considered to have this power.  They use their money to buy political access and influence through campaign financing.  Or, alternatively, they use advertising to shape popular desires along the lines that will serve their private interests. 

On the right, it is the “new class”--cultural elites in education (especially the higher education multiversities and professional schools), journalism, literature and the arts, the media, entertainment--who are thought to exercise disproportionate influence in American government and society.  These elites are not monolithic on all issues, but they are distinctly and consistently more liberal on social issues.  For example, one study of the media elite has pointed out that 90% favor abortion and gay rights and only a small number are actively religious--a dramatic contrast with “ordinary” Americans.[lx]


These criticisms have an underlying similarity in their dissatisfaction with “market” decisions.  This is partly due to a suspicion that markets do not always work properly, but, more importantly, it reflects an unwillingness to take the “preferences” that the market responds to as simple “givens”.  Preferences come from somewhere, and their development in individuals is not simply autonomous.  Whether it is commercial advertising that shapes  preferences--focusing on, appealing to, “playing upon”, and reinforcing particular human inclinations, at the expense of others--or the prejudices of cultural elites transmitted through institutions of education and communication, the power to shape preferences is said to give disproportionate power to certain segments of our society.

There is little doubt in my mind that there is some truth to these allegations, on both sides of the political spectrum.  But the extent of “shaping” power is not clear.  There are substantial differences, for example, between “creating” preferences, “modifying” them, “reinforcing” them, “appealing” to them.  It is necessary to balance these effects against the fact of free will and the importance of people having opportunities to make choices, even when others are trying to manipulate them, and sometimes succeeding.  Moreover--the great practical question--assuming that human beings are susceptible to various forms of “shaping”, what are the realistic alternatives to the economic and cultural marketplaces? 

The substantial displacement of the marketplace--substituting a “planned economy” or “planned cultural offerings”--seems to be a dubious idea, if only because of the intrinsic difficulties in such planning, and--even if such planning were a plausible possibility--because of serious doubts about whether there is any institutional mechanism to guarantee that the planners chosen would be capable of performing the job well.[lxi]  The more realistic alternative would appear to be the maintenance of the marketplace, but subject to some limited, democratic regulation. (An example that cuts across both marketplaces, and the political spectrum, is regulation of pornography.) 


At the same time, difficulties concerning the determination of the proper nature and extent of that regulation, as well as the possibility--indeed, the likelihood--that such regulatory power will be abused, caution us not to employ such power too broadly.  Those who are unhappy with the marketplace(s)--and there is no doubt that there is often enough reason to be unhappy--ought to be satisfied with rather limited regulation of it, and recognize the necessity of themselves competing within the marketplace to achieve their aims, with more or less success.


The Roles of Civil Society and Government

How much of our common life as citizens of a particular polity should we coordinate through government and how much of it should exist and be conducted in the non-governmental sphere of civil society, with its great diversity of voluntary associations?

Modern America, for all the resonance of cries against “Big Government”, is certainly committed to an active government of extensive responsibilities.  It is hard even to imagine a general rolling-back of the modern administrative state.[lxii] 

And yet it seems clear that Americans have become at least somewhat less inclined to believe that the answers to their problems will come from government programs.  At the same time, it also seems clear that Americans do not place unqualified faith in the “market”, where aggregations of individual preferences (as reflected--imperfectly--in an ability and willingness to sell and to buy goods and services) are the primary determinants in the process of allocating and reallocating resources.


In between the market and government is the world of civil society, in which human beings act together to achieve many of the ends they consider most important in their individual lives and in the lives of the communities of which they are a part.  Among these communities, the family is the most important.  What government could use its ordinary power of coordination of activity through law to induce parents to have children and love them and sacrifice themselves in raising them?  What market analysis can explain the worth of the work done by mothers, in particular, to care for their children?  While both government and market obviously can have substantial impacts on family life, the dominant forces and typical modes of analysis in neither are able to account fully for, to provide for, the family and its contribution to human happiness and well-being, personal and social.

In similar ways, churches, community associations, charitable and educational associations, ad hoc groups to advance a thousand causes, all play important and indispensable roles in our common life.[lxiii]

A public philosophy must grapple with various questions relating to civil society.  How many of our social problems can be, or must be, dealt with through civil society?  What are the underlying conditions for and sources of the different groups within civil society, and what causes them to be more or less successful in achieving the purposes for which they are formed?  How are they affected--both promoted and inhibited—by government and marketplace? 

Civil society should not simply be characterized as an “alternative” to political society, however. The two reciprocally influence each other.  The institutions of civil society promote many of the qualities of democratic citizenship.  And the laws of a political community, in turn, provide the conditions under which natural and voluntary associations can flourish in society.[lxiv]  It is precisely the balance between these communities, the division of responsibilities for various aspects of the common good, and their reciprocal influence on each other that are an important aspect of social life.



Federalism and Decentralization

One set of answers to the problem of deep pluralism of beliefs in a modern extended republic is federalism and decentralization.[lxv]  Particularly given intractable differences in cultural beliefs, and the practical impossibility of a society that is genuinely “neutral” on these issues, allowing diversity from state to state (and perhaps from community to community within states) is one response.  For example, in Miller v. California,[lxvi] the Supreme Court acknowledged a legitimate power of states (within certain limits) to adopt different standards for obscenity.  Why, it is asked, should a rural Alabama county and New York City have to operate with a single, unitary, national standard? 

There are obviously some advantages and disadvantages to the decentralization solution. Even those who believe that there is an “objectively right” position on an issue that society ought to adopt can recognize that their political power may be insufficient to achieve this standard for the nation.  Under such circumstances, the possibility of living in a more limited jurisdiction that upholds the standard may be considered better than living under some muddled national compromise, or even the possibility of losing the political battle entirely.

On the other hand, the decentralization approach means that it is more likely that somewhere in the nation, state laws will protect activities that are, not just vaguely “undesirable”, but evil, and some people may consider that their moral obligations or essential goals extend beyond just not participating in or being subject to this evil--to eradicating it.  One of the reasons, after all, for the earlier Supreme Court contraction of federalism and states’ rights was the sense that it had been used too much to protect racist legal order in the South.


More objectionable forms of human behavior that might not be able to obtain legitimacy and legal protection nationally, might do so in states and localities.  (Liberals might think of “sexism”, conservatives of pornography and gay rights.)  If paying a fairly steep price is considered worthwhile, relocation may make it possible for individuals to follow a course prohibited elsewhere (e.g., companies moving to places where laws protecting workers or the environment are weaker, homosexuals moving to friendlier sites).  Once a behavior is established locally, it might be difficult to prevent its eventual normalization in the wider political community (e.g., gay rights, certain abortion restrictions), and, economically, it might provide a competitive advantage to certain (less “socially-conscious”) businesses over others, in the national market.

Or, alternatively, even if restrictive laws in some states keep the behavior local or regional, the price of the activity, and its availability, may simply be increased by the cost of a trip to an area where it (e.g., an abortion) is permitted.

How satisfactory a decentralization solution is, then, depends on various factors: the perceived magnitude of the evil sought to be prohibited or the good to be obtained, and how the activity is affected concretely by this kind of solution; whether the national “truce” and local options are likely to remain stable over time; what is the perceived likelihood of the truce giving way to victory for one side or the other; how willing one is to accept “the half cup” rather than fighting for the whole one, risking the chance of losing everything.


Common Core Values?


 One final, very important question that flows naturally from the issue of decentralization is: how much does the entire community need “common” core values, and what should these values be, and how will they be transmitted?  For example, advocates of public education (and opponents of school choice) have traditionally stressed the role the public schools play in guaranteeing and transmitting core political values of the nation, as a factor providing some balance to the nation’s great diversity.[lxvii]  Paradoxically, advocates of private education and school choice often argue that one of the chief problems with contemporary public education is its inability to identify and foster key common moral values on which the community depends, and that private education achieves this goal more successfully.[lxviii]


The debate over substantive issues confronting public philosophy today can, in some ways, be seen as a dispute between two fundamental philosophical/theological perspectives.  “Life and death” issues pit those who have a clear definition of life and definite moral demands regarding it against those who find the question of life much less clear-cut and the moral standards regarding it sufficiently unclear to call for leaving the question up to the individuals involved.  “Family” issues involve contention between groups that have a relatively clear and unitary definition of “the family” against those who, impressed by historical and cultural diversity, prefer to speak of “families” and to deny that one set of moral views regarding marriage, family, and sexuality can be imposed on all people.  “Gender” issues often are characterized as debates between those who believe that nature establishes norms that call for the fulfillment of particular gender roles and those who regard these roles as artificial and unjust constraints on opportunity for women. “Cultural” issues involve an evaluation of the ways in which various people use their leisure time, some people applying objective standards and concluding that various elements of popular (and elite) culture are debased, and others doubtful that there are truly objective standards in light of which such judgments could be made.  “Race” issues--especially insofar as there is general public agreement in principle on racial equality of opportunity--tend to gravitate toward issues of diversity and multiculturalism, which often involve questions of whether canons containing disproportionately the contributions of the “dead, white males” of “Western civilization” should give way to new or newly discovered voices of marginalized groups in society, whose voices are as important as anyone else’s.  “Religious” issues find one side believing that there is a core or “least common denominator” of religious belief in the nation (ranging from various forms of Christianity through a generic Judeo-Christian heritage to a very limited or “thin” theism), which may legitimately be invoked in the public square, and another side believing that religion--however important personally, and perhaps precisely because so important personally--should be completely private, with no place in public life.  “Citizenship” issues may place at odds those who have a more determinate conception of the “America” that immigrants are joining--a conception that immigrants should be able to and educated to embrace--and others who are somewhat dubious about what “Americanism” might be and would confine it (if they define it at all) to accepting basic democratic procedures and rights. 

In each of these oppositions, there is one side that is somewhat more optimistic that, as a people, we can identify and act on at least some of “the truth about the human person”, while the other side is more sceptical about whether such truth (if it even exists) is knowable with any certitude and whether it belongs in the public sphere. 


But it is too simple to say that the opposition is between “believers” and “sceptics”[lxix]. For the sceptics--precisely because of their belief in the limits of knowledge regarding human ends--believe strongly that certain principles flow from that knowledge (the knowledge of our limits): above all, the priority of a certain autonomy-centered understanding of human rights.  Sceptics, no less than others, have certain fundamental doctrines, to guide their actions and persuade their fellow citizens.  Ultimately, then, these issues involve debate and competition regarding different substantive positions on questions about the nature and goals of human beings.  That is why they are unavoidably central to discussions (explicit or implicit) about the public philosophy of a nation.


The Current Situation:The Choice Among Various Liberalisms

One way of characterizing the current situation would be to view it as offering a choice among various forms of liberal political theory.  The major choices available in current discussion of public philosophy seem to be: Antiperfectionist Liberalism, Radical or Post-Modern (Super)liberalism, Communitarian Liberalism, Libertarian Liberalism, Classical Liberalism, and Perfectionist Liberalism.  These different forms of liberalism are not always sharply differentiated--indeed, some of them blend into other forms rather substantially.  Yet each is distinctive enough, I think, to merit discussion.  After surveying them, I want to add another possibility: “natural law liberalism.”



Antiperfectionist Liberalism: The dominant form of liberalism today, in the academic world, is one that has tried to achieve a peaceful system of social cooperation by bracketing substantive questions of political morality.  Government must be “neutral” on comprehensive philosophical and theological questions, confining itself to matters of “the just”, as distinguished from “the right” or “the good”.  The goal of liberal democracy is to guarantee to all individuals the basic liberties and necessary resources for pursuing their own life-plans.  Prominent among antiperfectionist liberals are John Rawls, Ronald Dworkin, Bruce Ackerman, David A.J. Richards, and Stephen Macedo (though Macedo and Dworkin, at least, would be willing to grant that they are “comprehensive liberals” and that there are greater limits to “liberal neutrality” than Rawls would admit.)[lxx]

Libertarianism: Liberals tend to advocate a broad liberty, and to be suspicious of government intervention, in social and cultural matters, but their commitment to equality leads them to recognize a broader role for government in economic matters.  Libertarians believe that liberals should carry over their commitment to neutrality and their suspicion of government into economic matters as well.  Government’s job is the very limited one of protecting the framework within which individuals can pursue their own good, as they see it.  Interpersonal cooperation is necessary for human life, of course, but this can generally be secured most effectively by voluntary contracts, with government’s function being the even-handed enforcement of commutative justice.  Leading libertarians would include Friedrich Hayek, Milton Friedman, Randy Barnett, Douglas Rasmussen and Douglas Van Den Uyl, and Leonard Liggio.[lxxi]

Radical or Post-Modern (Super)liberalism: Radical or post-modern liberalism is most obviously a strident critique of liberalism, and is usually not thought of as a variant form of liberalism at all.  Liberalism is condemned because its formal guarantees of equality and liberty are held to be masks or covers for a continuation of various forms of domination and oppression.  Only by uprooting traditional patterns of hierarchy and privileged forms of thought and speech is it possible to achieve freedom, in the form of continual re-inventing of the self.   A Critical Legal Studies exponent, Roberto Unger, has a valuable description of this post-modern viewpoint:


. . . it represents superliberalism.  It pushes the liberal premisses about state and society, about freedom from dependence and governance of social relations by the will, to the point at which they merge into a large ambition: the building of a social world less alien to a self that can always violate the generative rules of its own mental or social constructs and put other rules and constructs in their place.[lxxii]


The radical critique of liberalism is generally that liberalism has not been sufficiently true to the implications of its own premisses: the inability of the human intellect to grasp an objective reality and the absence of a knowable natural order that constrains human freedom.  This group of post-modern thinkers includes, besides the Critical Legal Studies movement, Richard Rorty and radical feminists.[lxxiii]


Communitarian Liberalism: Another line of criticism of antiperfectionist liberalism comes from communitarians.  Indeed, communitarianism is largely defined by its critique of liberalism.  Communitarians are liberals who criticize what they regard as the excessive individualism of antiperfectionist liberalism, and its excessive emphasis on rights and attempts to avoid substantive moral questions.    At the same time, they also distance themselves from the right, rejecting the individualism of libertarianism and the focus of the market on maximizing individual preferences.  Self-consciously “centrist” (but in fact usually moderate liberals), communitarians believe in community--against the individualism of right-wing libertarianism and left-wing liberalism--but are hesitant to spell out the substantive content of this community, tending to emphasize the need for public discussion and deliberation to determine community values.  Likewise, they believe in virtue--against the moral neutrality of the (antiperfectionist) liberal and libertarian ideals--but tend to focus on “less divisive” virtues (e.g., toleration and civility), emphasizing issues that cut across the right/left political divide, and avoiding the hard cases that would divide their ranks (e.g., abortion).  Moreover, their emphasis on the voluntary associations of civil society reflects their (liberal?) suspicion of legal efforts to promote morality.  They are also somewhat divided over the importance of religion, recognizing its value in promoting virtue and community, but also worried about its potential for divisiveness and authoritarianism.  Prominent among communitarians are Michael Sandel, Mary Ann Glendon, Amitai Etzioni, and Jean Bethke Elshtain.[lxxiv] 

Sober Classical Liberalism: Antiperfectionist liberals tend to see their own theory as a simple working out of the implications of the basic principles of early or classical liberalism, such as that of John Locke, and critics of liberalism often accept their claim.  But there are also liberals who deny that classical liberalism contains an inner logic compelling it in the (extreme) direction of contemporary antiperfectionist liberalism, arguing that classical liberalism was self-conscious and reflective in its refusal to push some principles too far.  In particular, these liberals are likely to reject what they regard as the excesses of 1960s counter-cultural liberalism.


Various elements of (non-sectarian) religion, morality, and family, for example, are not properly regarded merely as vestiges of “pre-liberal” political communities that must be sifted out of liberalism, but are considered constituent elements of healthy liberal societies (within proper limits).  Important elements of political moderation are thought to flow from the commercial character of modern liberal democracies.  And liberal principles such as free speech need not be absolutized, by being extended, for example, to groups that are unwilling to accept basic principles of liberal democracy and that would only use free speech as a tool to undermine liberal democratic freedoms and replace them with some ideology. 

What distinguishes this group from perfectionist liberals is their fuller acceptance of the natural rights project of modern political philosophy, and their greater scepticism about the political relevance of the full human good (whether based on reason or revelation).  Examples of these “sober classical” liberals include Walter Berns,  Peter Berkowitz, and Catherine and Michael Zuckert.[lxxv]

Perfectionist Liberalism: If liberalism is concerned with liberty and limited government, and if it arose historically as an alternative to regimes lacking a strong and clearly delineated separation of church and state, nonetheless, these origins do not rule out a form of liberalism that is perfectionist, that is, a form of liberalism that argues for the political relevance of an intelligible and rather broad human good.  Such perfectionist liberals tend to take their orientation from natural right (Plato and Aristotle) and natural law (Augustine and Thomas Aquinas).[lxxvi]


Government must be sensitive to a political community’s moral ecology, and shaping character is a legitimate function of government.  At the same time, perfectionist liberals are different from perfectionists simpliciter in that they emphasize that the appropriate scope of government is limited to those matters that touch most directly on the common good, and that there are some moral issues that touch the common good only indirectly and do not typically fall under the purview of government.  Promoting virtue as such may not be the legitimate goal of government, but it may be an important instrumental goal (i.e., instrumental to the protection of life, liberty, and property, or to the attainment of the common good).  (However, given the fact that natural law theory requires limited government and important human rights--though the language of “rights” is used explicitly only in more modern formulations of natural law, not in the classic sources--one interesting question is where one might draw the line to say, “beyond this point, a perfectionist, natural law theorist cannot be considered a ‘liberal’”?) Among perfectionist liberals one might count (the later) Alasdair MacIntyre, William Galston, and (especially more recently) John Finnis.[lxxvii]

As I indicated in the beginning of this section, these six different positions overlap significantly at times.  Communitarianism, classical liberalism, and perfectionist liberalism blend into each other in important ways, and particular contemporary theorists might easily be placed in more than one of these groups.  (For example, Galston is viewed by some as a communitarian, while I believe that his theoretical work places him in a more liberal perfectionist camp.) 


These, then, are two different approaches to formulating the current state of American public philosophy from a natural law perspective.  First, we can view recent liberal political theory as a move toward a more consistent liberalism, purified of the vestiges of pre-liberal thought the earliest exponents of liberalism had neglected to purge--and this more consistent liberalism can be viewed as being damaged by the loss of certain essential preconditions that it inherited from classical political thought. According to this view, what we need is a form of “mixed government”--not a mixture of the one, the few, and the many, but a mixture of liberalism, with its focus on liberty and rights, and classical and medieval political philosophy, with their emphasis on the human good and duties.[lxxviii]  Liberal democracy can be a good form of government, according to this view, as long as it is moderately liberal and moderately democratic.


Or, second, on the other hand, we can view liberal political theory today as offering us a range of possible liberalisms to choose from.  These would include: the form of liberalism that has been  dominant in late twentieth century Anglo-American academic circles, the antiperfectionist liberalism especially associated with John Rawls; libertarianism, liberalism with a deeper distrust of government, a greater emphasis on property rights, and a less egalitarian cast; the radical critique of liberalism, or “superliberalism”, with its focus on overturning oppression masked by formalistic liberal equality and on pursuing the radical freedom of self-creation; a more centrist critique, communitarianism, that seeks to balance the liberal focus on the individual and rights with an emphasis on various human communities and responsibilities (tempered by typical liberal concerns about abuses of authority); the sober classical liberalism of Locke and his modern followers, who reject perfectionism, but recognize the need for a certain moderation and certain civic virtues that they see as flowing from within liberalism itself (perhaps especially from the enlightened self-interest of a commercial society); and perfectionist liberalism, with its focus on the achievement on a rich and varied common good, which includes important aspects of limited government and the protection of human rights.  From the perspective of perfectionist liberals especially (though also from communitarianism and sober classical liberalism), liberal democracy can be a good form of government, as long as it is moderately liberal and moderately democratic.


Natural Law Liberalism

What I wish to propose is a somewhat different understanding of liberalism: namely, natural law liberalism.[lxxix]


Many liberals and natural law theorists will regard each other as distinctly unlikely (and uncomfortable) bedfellows.  They will feel, in fact, that if they wake up and find themselves in bed with each other, that it must have been the result of some improbable Shakespearean plot in which one’s expected bedfellow has been switched and the difference has not been noticed until the following morning.

The proponents of natural law, tracing their roots to Thomas Aquinas, and in many ways back beyond him to the classical Greek natural right tradition, maintain that it is possible for human beings to recognize a wide range of objective human goods and that these goods provide a necessary framework for political life, for understanding and pursuing the common good.  Liberals, tracing their roots through John Stuart Mill back to John Locke, and in certain ways further back to Thomas Hobbes, are more sceptical of the possibility of agreement on what is good for human beings, and would limit the object of political life to defending the rights of individuals to pursue their own ideas of the good.  Natural law theorists defend “regulating morality,” while liberals generally oppose it.  Can there be fundamental agreement between such apparently distinct traditions of thought?

I want to argue that the relationship between liberalism and natural law is–or at least can be–more like the ordinary relationship between another kind of bedfellows: namely, good spouses. In a good marriage, there is underlying agreement on fundamental matters, combined with some genuine complementarity–that is, differences–that may cause tensions but that also contribute to their mutual personal improvement.  Often it takes years to see that the differences and tensions are not just a source of difficulty but an opportunity for growth.  That has certainly been the case with the rocky relationship between liberalism and natural law.


It is interesting to play with this analogy (though in the end, like most analogies, it has its very definite limits.). Not the least of the difficulties is that the stories of the relationship of natural law and liberalism vary so greatly, depending on whether the story describes continental, English, or American liberalism.  The story line I follow focuses on Anglo-American liberalism: born and developing in England, but eventually coming to have its center of gravity in America, more democratic and more free of the vestiges of pre-liberal social structures. 

Natural law and liberalism were, after all, originally “married”, in the classical liberal political philosophy of John Locke.  From the beginning, there were problems with the marriage. Perhaps the brash young man had married the daughter of an old and declining family only to buttress his own reputation, and the young woman had been misled by the young man’s veneer of respectability.  But the partners gradually discovered that they didn’t have much in common.  Though they had used the same words, they had meant different things by them.  Their growing recognition of their differences led to bitterness and recrimination, terrible fights, irreconcilable differences, separation, and a bitter divorce.  Only after many years did the former partners–spurred in part by a growing realization of their own defects–take another, deeper look at each other and recall the genuine good in the other person that had been lost sight of amidst the fighting.  As their feelings toward each other softened, to their own surprise it seemed possible that a reconciliation might be possible, the marriage once again consummated.


The happy ending to this story, though, requires that both parties come to the realization of their compatibility and even their need for each other.  But the achievement of that happy ending is more than a little doubtful.  The process by which natural law has come to appreciate the strengths of liberalism has moved at a much more rapid pace than liberalism’s recognition of its need for natural law.  And, in fact, liberalism today seems intent on “going it alone”, without the need for any support outside its own commitment to autonomy, which entails the permanent revisability of all personal commitments.

For years it has been said that there is a “crisis of liberalism,” but it is really an intellectual crisis of contemporary liberalism.  Liberalism, understood broadly, is generally triumphant around the world, in the wake of the collapse of communism, and for good reasons. Those reasons were brought home with particular force on September 11, 2001.  Liberal democracy offers people a measure of freedom, prosperity, and well-being that no other form of government seems able to provide as consistently.  Whatever the faults of liberalism–and liberal democracy, like every other form of government, has its own characteristic weaknesses–it is by far the best game in town, and we should want to preserve and strengthen it.  But preserving and strengthening it may mean moderating it, and the vice of contemporary liberalism is to place such a great emphasis on the chief animating principles of liberalism, liberty and equality, that insufficient attention is paid to other human goods, including truth, family, and piety.

The way to deal with the crisis of contemporary liberalism is to embrace what I will call natural law liberalism.  The principles of natural law philosophy provide a more solid foundation for liberalism and moderate its more problematic tendencies.  It secures the strengths of liberalism while mitigating its defects.  Above all, it provides a ground for liberalism that rests on a confidence that human beings can and do know the truth about the human good (in its great variety of forms) rather than a scepticism about such knowledge or a despair that human beings can ever agree on it.  It grounds liberalism positively in the truth about the human person rather than negatively in various forms of agnosticism, about man as much as God.


This natural law liberalism cannot be billed simply as a “return” to some past form of liberalism, one that was still influenced by medieval natural law before that influence became attenuated in the course of time.  Contemporary natural law thinkers have to confront the plain fact that liberalism arose precisely as a reaction against a society in which natural law thinking seemed dominant.  For much of the last four centuries classical natural law and liberalism have been perceived (by people on both sides) as opponents, or even deadly enemies. 

But this perception is wrong, for several reasons.  First, some of what passed as “natural law principles” in pre-liberal societies was not in fact an essential part of natural law philosophy, but merely one particular application of it, and even, in some cases, an actual distortion of it.  (The failure to protect a sufficiently broad form of religious liberty was especially notable.)  Second, while it is true that liberalism was a reaction against a society in which natural law principles played a role, it is also true that from the beginning liberalism retained important elements of natural law thought.

Natural law liberalism, then, depends on moderating both traditions.  Classic natural law has to be separated from its original historical, political, and social context, purified of elements that are inconsistent with its most important principles, and adapted to modern circumstances.  In this process, the fundamental harmony between natural law and reasonable forms of liberty and equality will become apparent.


Liberalism has to be freed of its insensitivity to the fact of the deep influence of the “regime”–including liberal democratic political communities–on the formation of people’s ideals and character: their thoughts, desires, attitudes.  Moreover, certain perennial substantive tendencies of liberalism, which tend to be exacerbated in contemporary liberalism, have to be overcome: the tendency of toleration to evolve into forms of scepticism and relativism (at least about the human good) and principled religious indifferentism, and the tendency of equality and freedom to evolve into an egoistic individualism that undermines the family and commitment to human goods beyond consumeristic well-being. 

Another way to say this is that liberalism must be moderated so that when it shapes its citizens–as it inevitably will, even in its milder way–it does so in ways that are more fully compatible with important intellectual and moral goods: with reason and faith, and with the moral virtues that regulate the passions and promote individual and social well-being.  Natural law, without disturbing its convictions that there is a truth, that human beings can know it, and that their well-being lies in finding and living in accord with it, has to be so formulated as to recognize, in ways that its historical representatives have sometimes failed to do, the intrinsic importance–the necessity–of human freedom and the limits of coercion and law. 


Natural Law Public Philosophy

If natural law liberalism were adopted as the foundation of contemporary public philosophy, what would it look like?  How would the issues I outlined in the first part of my paper be resolved? 

Let me here provide a brief outline of the fundamental principles of a natural law public philosophy.[lxxx]  I think that even this brief summary will suggest the answers to many of the questions I have raised.


I. The Foundational Principle: The Dignity of the Human Person


The most fundamental principle of a public philosophy, on which all others ought to rest, is the dignity of the human person.  This dignity is rooted in certain distinctive human qualities, especially intellect and free will, the human capacity to know the truth and to love and choose the good   In these fundamental capacities, all human beings, made in the Aimage and likeness of God,@ are equal.

II. The Origins and End of Government: The Common Good

The purpose of government is to serve the common good of the political community, which comprehends the intellectual, moral, and physical well-being of the people.  The common good must be understood in light of the goods toward which human persons are inclined by nature, in all their diversity and richness.  The benefits involved in the common good should be shared in by all, but it is not merely the sum total of individual goods (as the Acommon good@ of a sports team transcends the individual talents and activities of its members).

III. The Legitimate Scope of Government: Limited Government 

There are many important limits on the scope of legitimate government action.  First are the restraints of the moral law itself, e.g. not to lie, steal, or murder.  Among the moral limits on government would be included the obligation to respect the consciences of the citizens, so that, for example, religious liberty is a fundamental principle of just governments.

            A second set of limits is made up of those which flow from the importance of government Afostering@ the common good and the development of its citizens, which is different from government substituting its own activity for their initiative and their own efforts to identify and achieve a choiceworthy set of particular goods.  This principle is known as subsidiarity.

IV. Political Authority


Political authority is natural, and those who exercise political power legitimately, acting within their proper powers and in the pursuit of the common good, should be respected and obeyed.  In a well-founded and well-developed polity, the people should have a share in rule. A prudent desire to limit the potential abuse of political power calls for principles such as constitutionalism and separation of powers. 

The obligation to obey the law derives, not merely from popular will, but from the duty and right of government to foster the common good.  (This is one way of saying that the demands of the common good bind Athe people@ in their collective capacity, as much as it does public officials themselves.)  Even when government falls short of successfully attaining this goal, the importance of political stability normally calls for citizens to obey the laws.  But there are limits to the obligatory character of lawBin particular, when laws command citizens to do things that are morally evil, and when the entire character of the government is so contrary to the fundamental principles of justice that citizens may justly alter or abolish it.

V. Citizenship


A nation must have some principles and rules that determine who will be citizens. The presumption ought to be that all adults residing permanently in a nation, who are willing and able to accept the responsibilities of citizenship, ought to be, or be able to become, citizens. (These responsibilities presume some preparation in the form of education regarding the principles and history of the nation.)  It will also be necessary to establish rules determining who will be permitted to reside in the nation, such as rules regarding immigration, which will consider the many particular circumstances regarding whether the admission of immigrants will advance or impede the common good.  Again, the presumption ought to be in favor of generous willingness to welcome others.

VI. Political and Personal Rights of Citizens and Persons

Also central to natural law public philosophy is the importance of rights, both political and personal.  The rights of citizens to life and personal liberty are fundamental constituents of the common good.  Freedom of speech, freedom of religion, freedom of association, and certain rights regarding legal procedure were enshrined in the Constitution, and have generally been broadened over time. These rights are derived from the goods toward which human beings are naturally inclined, as means to ends, and it is in light of those goods that reasonable limits on and regulation of rights are necessary and appropriate.

VII. The Relation of the Political Community to Other Communities: Civil Society

Besides the relationship of the general government to states given in the principle of federalism, government has important rights and duties vis-a-vis other forms of community.  It should provide support for and encouragement to the basic Acell@ of society, the family, which should have a privileged place in the legal and social structure of society.  The stability of

marriage (the permanent union of one man and one woman) should be supported by a strong legal bond.  Parental rights in the upbringing and education of children should be recognized as primary, though they are subject to reasonable limitations.


Society should encourage and facilitate the formation of voluntary associations, since they contribute greatly to the goods of friendship and individual development that are part of the common good.  ANatural@ groups in society, such as ethnic or racial groups, and their individual members should be protected from invidious discrimination and assured of equal participation in the political community.  Different economic and occupational groups (business and labor, manufacture and commerce and agriculture, professions and services) should have the right to organize and participate in political and social life.  Their pursuit of their own self-interest ought to be consonant with a fundamental commitment to the common good (just as the common good should not be considered to be merely a majority or aggregate good, but must consider the good of all the citizens).

VIII. The Economic System and the Rights and Duties of Property  

Private property rights are essential in order to maintain the security and independence, the self-rule and self-reliance, of citizens.  Yet, the public philosophy has always recognized that property carries with it certain social responsibilities.  One way of looking at this matter is to understand that property provides human beings with the means to pursue the various goods toward which they are inclined by nature, and that all the resources of the world exist in order to facilitate the development of all human beings.  Accordingly, a just economic system will attempt to make available to everyone in society the resources needed to act well.  This entails certain obligations (which can be enforced by political authority, where appropriate) on the part of those who have more than enough property to meet their needs, in a world where many people, through no fault of their own, lack the necessary resources for self-development, and often even the most elementary necessities of life.


Another element of the economic life of a nation is the fundamental human activity of work.  By work, human beings provide for the support of themselves and their families, develop their own talents and abilities, and make a contribution to the common good of the community.  The political community should foster an economic system that provides effectively for the employment of its citizens.  Those who have the power and responsibility to shape workplaces should keep in mind the priority of persons over things, so that the production of goods and provision of services is harmonized as well as possible with the growth and development of those who work. (Among other things, this suggests that economic activities ought to be regarded as cooperative undertakings, with due respect for the rights and responsibilities of all participants.)

IX. Education 

Among the most important aspects of the common good is education. Education ranges from the basics of literacy (reading, writing, and arithmetic) and skills necessary for employment, to the political education necessary for the proper fulfillment of our duties and rights as citizens, to moral, intellectual, and spiritual development.  The responsibility for this important task is shared by parents, teachers, the political community, and religious communities.  Political and religious communities exercise their important roles especially by facilitating the efforts of parents to educate their children, whether by means of public or religiously-affiliated schools or by supporting private educational initiatives of parents.

X. Culture and Entertainment


Issues of culture play an important part in the life of a nation (and indeed may be thought of as an important form of Aeducation@ extended beyond basic schooling).  Institutions of higher education will have a great impact here, as will a multitude of cultural institutions and activities, such as those involving literature and drama, music, and art.  And in modern democratic communities, Apopular culture@, for example, as found in television, radio, and movies, may constitute a significant part of the Acommon@ life of the community.  Especially given the greatly increased leisure time available to citizens under modern economic conditions, entertainment must be regarded as a very important part of the national life, with great import for the common good.  While, in general, cultural activities will arise as the free initiatives of groups and individuals in society, there is room for public promotion of culture and also for public restrictions on elements that debase the culture (e.g., pornography).

XI. The Shared Understanding of the Community Regarding Its History.

            One of the sources of community is a shared understanding of a nation=s past life.  This constitutes a kind of Acollective memory@ of the political community.  Indeed, education in the nation=s political principles, and the Ahanding on@ of the traditions that have helped to form a given nation=s ideals and culture is an important requirement for maintaining a Acommon@ life.  This education should foster a proper pride in the nation=s distinctive path in pursuing the common good, but it can and should recognize occasions on which it has not lived up to its ideals and responsibilities.  (For example, an education in American history will recognize the ideals of liberty under law and equal rights and the distinctive contribution of American political life to self-government, while recognizing that it has taken great efforts over time to achieve civil rights for black Americans, and that this is still an on-going process.) 

XII. The Relation of the Nation to Other Peoples and the World.          


As to its guiding principles, the foreign policy of a nation ought not to choose between (much less oscillate between) an idealism unattached to national interest and a realism devoid of concern for what might be called the Ainternational common good@ (still Aunformed@) and the good of other nations.  Its primary aim should always be to provide for the independence, the security, and the well-being (as essential constituents of the common good) of the nation itself.  But this legitimate and appropriate focus on national self-interest does not mean that the nation is exempt from important moral considerations similar to those that govern the action of individuals.  In particular, nations must conform to certain fundamental moral normsBe.g., not waging unjust wars against other nations even when it might appear to be in the narrow self-interest of the nation to do soBand they ought even to be willing to act benevolently for the good of other nations, when such action would achieve important goods for other nations or people without Aexcessive@ costs for the acting nation.

Relations among nations ought to be regulated, not by mere power, but according to principles of justice.  In principle, it would seem desirable that, where the common good of nations requires coordinated activity, this activity be regulated by principles that are clearly established and stable, and therefore, juridical or legal principles.  Given the great differences among nations and peoples (a pluralism far deeper even than the Adeep pluralism@ of Western liberal democracies), however, such a juridical order seems unlikely in the foreseeable future.  Were an international consensus on fundamental principles sufficient for a juridical order to be achieved, however, even then any such order would have to place great emphasis on subsidiarity.

Moreover, a candid recognition of the depths of differences among different peoples and cultures and political systems in the world today, as well as a prudent concern for the dangers of political power exercised over large portions of the globe, would also counsel caution in international juridical undertakings, and reliance on relationships of voluntary cooperation (e.g., treaties) to cover many areas of common concern.

XIII. The Relation of the Polity to the Transcendent Order.  


In a pluralistic society, religious establishments are neither possible nor desirable, but this does not require so strict a notion of establishment as to preclude public recognition of God and his providence, which is, in fact, legitimate and desirable.  (Traditionally, Americans, for example, have recognized the existence of God and his providenceBparticularly his providence in regard to this nationBby such symbols as Thanksgiving Day proclamations, the use of AIn God We Trust@ on coins, the inclusion of Aunder God@ in the pledge of allegiance, and religious invocations at public events.)  Recognition of God, of course, does not require a nation to claim or believe that its activity is based on any special divine authority.  Such recognition of God and his providence has various justifications, beyond the simple fact that it is true; among the most important of these is to provide the most solid ground for the dignity of all human persons and their Ainalienable rights.@


As you can see, many of these principles are quite general.  An extremely important part of natural law public philosophy is the recognition that, as we apply these general principles to very specific circumstances, intelligent people of good will can have very different opinions about the best way to carry them out.  The key virtue of political prudence requires not only a good grasp of general principles and a good moral character, but also a great deal of knowledge, derived from both study and experience.  Given the enormous number of Afacts@ involved in any broad social problem, different people will arrive at different conclusions about how best to approximate the ideal aimed at.  Another aspect of natural law public philosophy, thenBin addition to a strong commitment to sound moral principlesBwill be respect for others, humility regarding our own opinions, willingness to exchange views with others, and open-mindedness: in short, Acivility@. 





[i]. An eloquent statement of this perspective was the foreword to Whittaker Chambers’ Witness (Random House, 1952)

[ii]. Francis Fukuyama, The End of History (Free Press, 1992).

[iii]. See especially his encyclicals Veritatis Splendor (1993), especially sections 31ff., and Evangelium Vitae (1995).

[iv]. The first part of this article is drawn from my article “Issues Facing Contemporary American Public Philosophy,” in Public Morality, Civic Virtue, and the Problem of Modern Liberalism eds. T. William Boxx and Gary M. Quinlivan (Grand Rapids, Mich.: William B. Eerdmans Publishing Company, 2000).

[v]. For reasons of space, I will confine myself in this paper to a discussion of domestic issues, leaving to the side the very important questions of the role of the United States in international affairs.

[vi]. Stanley Fish (no conservative!), who formerly viewed the abortion issue as pitting the modern scientific view against traditionalist religious moralizing, publicly recanted that position on a panel at the 1998 American Political Science Association annual meeting.  Without becoming “pro-life” himself, he acknowledged that the pro-life advocates were the ones effectively invoking science, while the pro-choice advocates were generally avoiding scientific facts about human life, relying largely on moral assertions.

[vii].On the worldview of pro-choice activists, see Kristin Luker Abortion and the Politics of Motherhood (University of California Press, 1984).

[viii]. On emotivism, see Alasdair MacIntyre After Virtue (University of Notre Dame, 1980), especially chapter 1.  I do not mean to suggest that compassion is always simply a “feeling.”  Properly understood--and perhaps in spite of its etymology--the word compassion can be understood to include a rational moral judgment about the propriety of relieving suffering.

[ix]. Perhaps “justifiable killing” questions could be extended to include the issues of personal security that are central to discussions of crime and gun control, though these important public policy issues are less immediately connected, I think, with the central issue of human personhood and dignity, and its implications.

[x]. John Grisham’s novel, The Chamber, which seems generally to reflect anti-capital punishment beliefs, may actually be viewed as a depiction of repentance induced by the approaching imposition of the death penalty.

[xi]. See Charles Murray, “The Coming White Underclass” The Wall Street Journal (October 29, 1993).


[xii]. See Homosexuality and American Public Life ed. Wolfe (Spence Publishing Company, 1999) and Homosexuality and American Public Policy (forthcoming, Spence Publishing Company).

[xiii]. See The Family, Civil Society, and the State ed. Wolfe (Rowman and Littlefield, 1998), especially chapter 1, Elizabeth Fox-Genovese “Thoughts on the History of the Family.”

[xiv]. See The Family, Civil Society, and the State ed. Wolfe.

8. What form such a desirable “breakdown” takes would depend on the underlying conception of marriage.  For those who consider marriage a species of voluntary contract, divorce would be the logical response.  For those who consider marriage a natural institution, the qualities of which are independent of human will and include indissolubility, the form would be legal separation.

[xvi]. Alan Wolfe, One Nation After All ((Viking, 1998).

[xvii]. For the record, though, I would deny that this injustice is fairly characterized as “an oppression of women by men.”  It reflected an erroneous (because too rigid) conception of sexual differentiation shared generally by both men and women.

[xviii]. Saul Bellow,  Mr. Sammler’s Planet (Viking Press, 1969), p. 228

[xix]. See Peter Uhlenberg and David Eggebeen’s  very interesting article “The Declining Well-Being of American Adolescents”  Public Interest Number 82 (Winter, 1986), pp. 25-38.

[xx]. For a recent discussion of the difficulties in balancing different aspects of a woman’s life, see Danielle Crittenden What Our Mothers Didn't Tell Us : Why Happiness Eludes the Modern Woman (Simon & Schuster, 1999).

[xxi]. See Susan Moller Okin,   Justice, Gender, and the Family (Basic Books, 1989).

[xxii]. This is true not only for those who tend to be critical of sex role differentiation, but also  for traditionalists whose beliefs are grounded in such differentiation.  The profound importance of paternal involvement in the home, and especially in the raising of children, is an essential part of reflective conservative efforts to defend both marriage in general (versus illegitimacy) and heterosexual marriage in particular.

I should also make this important point: to say that paternal involvement in the home is essential is not to say that single-parent homes are necessarily bad homes.  There have been and are, obviously, single-parent families in which a mother has done an admirable job in raising the family. It is only to say that single-parent homes labor under the burden of lacking something very important--which is ordinarily a key factor--and that efforts to cope with the absence of a father are necessary.  At the same time, however, I should candidly admit that the importance of paternal involvement does suggest that a society with many single-parent families, in the aggregate, is likely to experience a higher level of various social pathologies.

[xxiii]. How many of the above observations (if true) are results of “natural” inclinations, and how many are the results of social conditioning, is hard to say, of course. (Given certain basic biological facts about child-bearing, it seems plausible to me that there are important elements of each, the latter both reflecting and reinforcing the former.)  Even if they are the result of social conditioning to some significant extent, that does not mean that they could be easily changed or that the benefits to be gained would outweigh the costs.

[xxiv]. In many cases, this public purpose was rather explicitly anti-Catholic, as Charles Glenn shows in  The Myth of the Common School (University of Massachusetts Press, 1988).

[xxv]. Engel v. Vitale 370 U.S. 421 (1962), and Abington School District v. Schempp 374 U.S. 203 (1963).

[xxvi]. Among other cases, see Wallace v. Jaffree 472 U.S. 38 (1985), Edwards v. Aguillard 482 U.S. 578 (1987), and Lee v. Weisman 120 L.Ed.2d 467 (1992).

[xxvii]. 457 U.S. 853 (1982). The quotation is from W. Va. v. Barnette 319 U.S. 624 (1943), which, Michael Sandel argues, is the key decision importing the liberal neutrality of the “procedural republic” into constitutional law (Democracy’s Discontent, pp. 53-54).

[xxviii]. See, for example, Bruce Ackerman Social Justice in the Liberal State (Yale University Press, 1980), and Stephen Macedo “Multiculturalism for the Religious Right? Defending Liberal Civic Education” Journal of Philosophy of Education Vol. 29, No. 2 (1995), pp. 223-38.

[xxix]. I can only acknowledge briefly here one important omission in my discussion here, namely work.  In this paper I focus primarily on the issues that are associated with what is often called the “culture wars”, as opposed to economic issues.  But “work” is more than just an economic issue.  It is also itself a “cultural” issue, since it involves profoundly important questions about the way in which people will seek their life goals.  Moreover, the organization of the economy and work ought to reflect the priority of persons to things: the fact that the most important “product” of any process of work is the worker himself.

[xxx]. See, for example, Robert Lerner and Althea K. Nagai,  “Family Values and Media Reality ” in The Family, Civil Society, and the State ed. Wolfe.

[xxxi]. These are important themes in Allan Bloom’s The Closing of the American Mind (Simon and Schuster, 1987).

[xxxii]. Whether this reluctance to support at least a moderate form of censorship is reasonable can be doubted.  See Harry M. Clor, Public Morality and Liberal Society (University of Notre Dame Press, 1996).

[xxxiii]. See the various opinions in National Endowment for the Arts v. Finley 140 L.Ed.2d (1998).

[xxxiv]. See Adarand v. Pena 515 U.S. 200 (1995) , especially Justices Scalia’s and Thomas’s concurrences.


[xxxv]. Regents of the University of California v. Bakke 438 U.S. 265 (1978), opinion

 of Justice Brennan.

[xxxvi]. See the ordinance and its background in R.A.V. v. St. Paul 505 U.S. 377 (1992), and the controversy over various university hate speech codes.

[xxxvii]. As Justice Douglas noted in Zorach v. Clauson 343 U.S. 306 (1952).

[xxxviii]. Consider the existence of considerable strains of nativism, anti-Catholicism, and anti-Semitism, the fate of Mormon polygamy, and the unpopularity of certain religious minorities (such as the Jehovah’s Witnesses) that made them central figures in many modern religious liberty cases.

[xxxix]. Wolfe “Tocqueville and the Religious Revival” This World  (Winter/Spring 1982) No. 1 pp. 85‑96.

[xl]. One example of broader, and more intractable contemporary tensions can be found in Lyng v. Northwest Indian Cemetery Protection Association, 99 L Ed 2d 534 (1988), in which Indians sued to prevent the federal government from building a road through a National Forest, on the grounds that Indians practiced religious rituals there that depended on “privacy, silence, and an undisturbed natural setting.”  The federal government “owned” the land in question, but “ownership” and “religious ritual” have meanings and legal standing in Anglo-American law quite different from Indian notions of property and religious ritual. 

[xli]. 330 U.S. 1 (1947).

[xlii]. See Gerard V. Bradley Church-State Relationships in America (Greenwood Press, 1987).

[xliii]. See especially the obscenity and privacy decisions, such as Memoirs v. Mass 383 U.S. 413 (1966) and Roe v. Wade 410 U.S. 113 (1973).

[xliv]. Richard John Neuhaus The Naked Public Square (W.B. Eerdmans Pub. Co., 1984).

[xlv]. Nathan Glazer “Toward a New Concordat?” This World Number Two (Summer, 1982), p. 109.

[xlvi]. See Alan Wolfe One Nation After All (Viking, 1998).  While these fears are generally unfounded, I think, it is true that some attempts to have the United States declared “a Christian nation” would not return to the original understanding of the First Amendment, but would reject its principle of nonpreferentialism--a principle that allowed favoring religion “in general”, but not particular religions.

[xlvii]. See, for example, Agostini v. Felton  138 L.Ed.2d 391  (1997), loosening the requirements for certain sorts of public support for parochial school children.


[xlviii]. See for example Justice Sandra Day O’Connor’s concurrence in Kiryas Joel v. Grumet 512 U.S. 687 (1994), at : “That the government is acting to accommodate religion should generally not change this analysis. What makes accommodation permissible, even praiseworthy, is not that the government is making life easier for some particular religious group as such.  Rather, it is that the government is accommodating a deeply held belief.”  See also Gerard V. Bradley “Is the Constitution What the Winners Say It Is? ”, a paper delivered at the conference “Reining in Judicial Imperialism”, Washington, D.C. (October, 1998).

[xlix]. See, for example, Rectors of the University of Virginia v. Rosenberger 515 U.S. 819 (1995).

[l]. Part II of Michael Sandel’s Democracy’s Discontent (Harvard University Press, 1996) is an extensive survey of such issues in American history.

[li]. Wolfe The Rise of Modern Judicial Review, revised edition (Rowman and Littlefield, 1994), chapter 12.

[lii]. Ibid, chapters 13 and 14.  Wolfe “Burger Court Disappointments This World (Fall, l986) No. 15, pp. 59‑65.  Recently, the Rehnquist Court has become more aggressively conservative in some ways, but it is typical of it that the conservatism is largely structural, on matters related to federalism.

[liii]. Wolfe “Interpreting the Bill of Rights: What? Who? Why? in In Celebration of the Bill of Rights, eds G. Bryner and A. Sorensen,  (Provo, Utah: Brigham University Press, 1995), especially 67-75.

[liv]. Edwin Meese “The Law of the Constitution” 61 Tulane Law Review 979 (1987).

[lv]. Washington v. Glucksberg 138 L.Ed.2d 772 (1997).

[lvi]. That is my own position, as elaborated in “Natural Law and Judicial Review” in Natural Law and Contemporary Public Policy ed. D. Forte (Georgetown University Press, 1998).  I admit, however, that a powerful case can be made for the contrary position, relying on the meaning of the word “person” and the interpretive norm (described by John Marshall in Dartmouth College v. Woodward) that constitutional principles apply to matters that fall within their terms, even when the founders did not have those matters in view.

[lvii]. Bowers v. Hardwick 478 U.S. 186 (1986); Romer v. Evans 134 L.Ed.2d 855 (1996).  On grounds for law and public policy to view active homosexuality as a problem, see Homosexuality and American Public Life (Spence Publishing Company, 1999), especially Part III.

[lviii]. 120 L.Ed.2d 674 (1992).

[lix]. See, for example, Judge Richard Posner’s opinion in Planned Parenthood of Wisconsin v. Doyle 1998 U.S. App. 27992 (1998).


[lx].  Robert Lerner, Althea K. Nagai, Stanley Rothman American Elites (Yale University Press, 1996).

[lxi]. Salutary effects might be derived from encouraging partisans on both sides of the spectrum to see the parallels between the economic and cultural marketplaces.  The effect of such reflection should be a healthy recognition of the problems of the marketplace, and also a healthy recognition of the problems of regulating it.

[lxii]. This seems clear from the relative lack of success of Republican presidents, and a “revolutionary” Republican Congress elected in 1994, in cutting back the size of the federal government and its programs.  (They have succeeded mostly in slowing its growth.) 

[lxiii]. Don E. Eberly America's Promise : Civil Society and the Renewal of American Culture (Rowman and Littlefield, 1998).  Americans tend to take civil society and its benefits for granted, because we have been blessed with a very rich diversity of associations.  The experience of Eastern European nations, in some of which communism had destroyed most of the institutions of civil society, and whose reform depends on developing new institutions, should be a strong reminder of the importance of civil society.

[lxiv]. See Gertrude Himmelfarb “The Trouble With Civil Society” in Unum Conversation, Number 4  (Ethics and Public Policy Center, Washington, D.C.) based on an Unum Project seminar, January 28, 1997).

[lxv]. Note that many of the arguments of this section apply not only to federalism and decentralization, but to “privatization” as well.

[lxvi].413 U.S. 15 (1973).

[lxvii]. See, for example, Justice Frankfurter’s Court opinion in Minersville School District v. Gobitis 310 U.S. 586 (1940).

[lxviii]. Charles Glenn, The Myth of the Common School (University of Massachusetts Press, 1988), and Educational Freedom in Eastern Europe (Cato Institute, 1995).

[lxix]. “Believers” here is meant to include philosophical and ethical doctrines or opinions as well as theological or religious beliefs.

[lxx]. John Rawls, A Theory of Justice and Political Liberalism; Ronald Dworkin The Tanner Lectures on Human Values Vol. 2 (University of Utah Press, 1990); Bruce Ackerman Social Justice in the Liberal State; David A.J. Richards Toleration and the Constitution (Oxford University Press, 1986); Stephen Macedo Liberal Virtues (Oxford University Press, 1990).

[lxxi]. Friedrich von Hayek The Constitution of Liberty (University of Chicago Press, 1960); Milton Friedman Capitalism and Freedom (University of Chicago Press, 1962); Randy Barnett The Structure of Liberty : Justice and the Rule of Law (Oxford University Press, 1998); Douglas Rasmussen and Douglas Van Den Uyl Liberty And Nature : An Aristotelian Defense Of Liberal Order (Open Court Press, 1991); Leonard Liggio [his article in this volume].

[lxxii]. Unger, The Critical Legal Studies Movement (Harvard University Press, 1983), p. 4; cited in Russell Hittinger, “Roberto Unger: Liberalism and ‘Superliberalism’”, in Liberalism at the Crossroads, p. 120.

[lxxiii]. Richard Rorty Achieving Our Country : Leftist Thought in Twentieth‑Century America (Harvard University Press, 1998); see also Peter Berkowitz on Rorty and other radical thinkers [his article in this volume].

[lxxiv]. Michael Sandel Liberalism and the Limits of Justice (Cambridge University Press, 1982) and  Democracy’s Discontent (Harvard University Press, 1996); Mary Ann Glendon Rights Talk : The Impoverishment Of Political Discourse (Free Press, 1991); Amitai Etzioni The New Golden Rule : Community And Morality In A Democratic Society (Basic Books, 1996); Jean Bethke Elshtain [her article in this volume].

[lxxv]. Walter Berns [his article in this volume]; Peter Berkowitz [his article in this volume]; Michael Zuckert The Natural Rights Republic (University of Notre Dame, 1996); Catherine Zuckert [her article in this volume].

[lxxvi]. For the record, though, I should note that it can be argued that “comprehensive liberals” (e.g., Stephen Macedo, and the later Dworkin)--who argue that liberalism is desirable not because it is neutral on the human good, but because it fosters human goods more successfully--represent  modern variants of perfectionism (though it is a very formalistic perfectionism). 

[lxxvii]. Alasdair MacIntyre Three Rival Versions Of Moral Enquiry : Encyclopaedia, Genealogy, And Tradition (University of Notre Dame Press, 1990); William Galston  Liberal Purposes : Goods, Virtues, And Diversity In The Liberal State (Cambridge University Press, 1991); John Finnis “Is Natural Law Theory Compatible with Limited Government?” in Natural Law, Liberalism, and Morality ed. George (Oxford University Press, 1996).

[lxxviii]. It could be argued, however, that this modern “mixed government” really is a variation of the more traditional mixed government, since liberty and rights tend to be associated especially with the rule of the many, democracy, and the human good and duties tend to be associated especially with aristocratic or oligarchic rule.

[lxxix]. This section is drawn from my book Natural Law Liberalism (forthcoming, Cambridge University Press).

[lxxx].. The following section draws on my “Liberalism, Public Philosophy, and Natural Law” in Building a Healthy Culture ed. D. Eberly (William B. Eerdmans Publishing Company, 2001).



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