The Law and Courts of Enlightened Localism

The Law and Courts of Enlightened LocalismAuthor(s): Benjamin GreggSource: Polity, Vol. 35, No. 2 (Winter, 2002), pp. 283-309Published by: Palgrave Macmillan JournalsStable URL: http://www.jstor.org/stable/3235501Accessed: 25/08/2009 13:07

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Polity * Volume XXXV, Number 2 * Winter 2002

The Law and Courts of Enlightened Localism

Benjamin Gregg University of Texas at Austin

What role should law play in the self-determination of communities? Notions of community typically invoke norms that claim validity for an entire group. Yet in complex modern societies almost any conception of generally valid norms is controversial because these societies are heterogeneous in many ways. Theories depicting law as a closed, recursive system of rules related to citizens hierarchically or vertically cannot capture this normative heterogeneity. To relate law to the horizontal relations among members of a community I propose "law and courts of enlightened localism" that would (I) interpret laws in ways that include more rather than fewer groups, (2) construe narrowly those statutes that represent interest groups alone, (3) pursue forms of political and legal decentralization, (4) facilitate social cooperation, not merely social coordination, (5) approach the constitution more as procedure than purveyor of substantive values, (6) view rights as created, not discovered, and (7) remand to the legislature laws that cannot find broad community support.

Benjamin Gregg teaches social and political theory in the Department of Gov- ernment at the University of Texas at Austin. He is the author of Thick Moralities, Thin Politics: Social Integration Across Communities of Belief (Duke University Press, 2003) and Coping in Politics with Indeterminate Norms: A Theory of Enlight- ened Localism (SUNY Press, 2003). He is currently completing a critical social theory of nationalism and political identity in the twenty-first century titled Political Solidarity Without Nationalism.

In view of the moral diversity of cosmopolitan society, how can community- oriented politics be institutionalized? By way of two contrasting examples, the rights and autonomy of children, and the admission or exclusion of aliens from state or communal territory, I analyze community as a political and legal problem. As a means to normative agreement I propose a range of strategies, if not for politics in general, then at least for the role of courts in the self-determination of communities. My alternative constructs justice not as rights to be possessed but rather as ways in which courts might facilitate equal participation of citizens in the public sphere.

The following proposals for "courts of enlightened localism"-enlightened in distinction to parochial-attempt a path between rejecting collective or community rights (for example, because some groups may be difficult to identify or demarcate)

284 THE LAW AND COURTS OF ENLIGHTENED LOCALISM

and accepting unqualified community autonomy (perhaps to maximize tolerance where tolerance is so valued).'

By way of preliminary definition, I use "community" to refer to a unified body of individuals, whose "unity" may derive from any number of sources, including common interests (such as members of a school district); or particular kinds of interaction (for example, members of a labor union); or common characteristics (of, say, race, ethnicity, or immigrant-status); or a common political policy geo- graphically situated (such as members of an incorporated legal entity, such as a town); or a shared history (especially where that history informs members' social, economic, and political interests).

I begin with the following premise: given the fact of normative heterogeneity, society in general-and courts of law in particular-should think less in terms of majorities and minorities and more in terms of the multiplicity of groups. Norma- tive heterogeneity entails distinct consequences for social organization. To think in terms of multiplicity, rather than majorities and minorities, allows for concern for the well-being of more rather than fewer persons. And it allows for recognition of their worth and dignity. I base the following three proposals on this premise, in ways I shall explain.

Proposal 1: Interpret the laws in ways that include more rather than fewer groups

Given the normative ambiguity of community-but also simply because some social problems are more likely to be recognized at society's margins than at the center of the political spectrum-courts should interpret laws so as to include more rather than fewer social groups. After all, differences within a population and among populations may have distinctly positive consequences for the community. The political and economic inclusion of more rather than fewer groups would require communal attention to differences in community members' social, economic, and educational status, culture and values, needs and capacities, because genuine inclusion and participation are possible often only where differences are acknowledged.

Legal formalism, like moral universalism, cannot capture such differences, blind as both formalism and universalism are to the presence of multiple sub-communities within a larger community. Multiplicity of this sort generates problems of authority. If no one group can represent all groups-indeed, if no group can represent any other group-which voice or voices legitimately and authoritatively speaks and decides for the whole community, for putative "common interests"? Unless courts interpret laws in ways that include more rather than fewer groups, people

1. I develop a comprehensive theory of enlightened localism in Coping in Politics with Indeterminate Norms: A Theory of Enlightened Localism (Albany: State University of New York Press, forthcoming 2003).

Benjamin Gregg 285

practicing different ways of life may have but two options in the public sphere: either they elide the differences, or they insist upon those differences but then risk exacerbating disagreements, heightening tensions, enlarging frictions.

Interpreting the laws in ways that include more rather than fewer groups could aid a citizen's interest in not being excluded from communal electoral politics but in "participat[ing] in elections on an equal basis with other citizens in the jurisdiction."2 John Hart Ely argues that courts properly function to keep the political processes as wide open as possible.3 This function may expand current rights to participation, facilitating the expression of divergent convictions in the public sphere. Political openness may entail that neither geographic residence nor citizenship need be a criterion of eligibility for enfranchisement: neither is a necessary aspect of communal membership, neither can serve as a surrogate for communal identity. A member need not reside physically in that community, understood topo- graphically, to be a "genuine member," because genuine members can also vote by absentee ballot. Perhaps a member of a community need not be a citizen to be a "genuine member" wherever resident aliens (among other outsiders) are affected no less than resident citizens by legislative decisions of the jurisdiction. Persons interested in a jurisdiction's legislative outcomes need be neither residents nor citizens. Persons of shared interests (one aspect of many definitions of community) may be fewer than the entire population of a jurisdiction, just as persons whose interests are affected by electoral outcomes may be greater in number than the enfranchised portion.4 Greater inclusion may facilitate fuller and richer forms of membership. After all, citizens who go along with the enfranchisement of one another are more likely to be interested in one another's vital public concerns.

Consider an example I shall return to repeatedly in this essay. Does every prospec- tive voting member in a community dilute the voting power of each current member? Or does he or she enrich the meaning of the political community for all? How the electorate is defined closely tracks the character and destiny of the community. Yet the very logic that urges suffrage for resident aliens-that all of the residents should have a right to participate in some of the decision-making affecting them, whether citizen or not-equally bears the contrary conclusion that solely the current electorate (all of whom must be citizens) should determine the shape of the electorate to come. But the first interpretation is buttressed by an additional argument. Resident aliens (and

2. San Antonio Unified School District v. Rodriquez, 411 U.S. 1 (1973), 33-34, n74, quoting Dunn v. Blumstein, 4005 U.S. 330, 336 (1972). Dunn invalidated Tennessee's requirement that, as a condition of voting, citizens reside at least one year in the state and three months in the county, on the grounds that dura- tional residence requirements curtail the citizen's fundamental interest in voting and burdens his or her right to travel.

3. John Hart Ely, Democracy and Distrust (Cambridge: Harvard University Press, 1980). 4. Or, rather than dispensing with the criterion of citizenship, we might seek a different notion of citi-

zenship, one sufficiently differentiated to encompass categories of persons now excluded from such membership. But what would such citizenship look like?


under some circumstances perhaps even non-resident aliens) as well as residents might fix immigration policies and define standards of community membership. According to Michael Walzer, "initially, at least, the sphere of membership is given: the men and women who determine what membership means, and who shape the admissions policies of the political community, are simply the men and women who are already there."5 And yet we should not privilege a fiction: a Time Zero, a fixed state of equilibrium, when in fact the "men and women who are already there" are not identical over time. In many modern societies some, often many, residents of communities were themselves once immigrants into that community.

Continuous change marks host and immigrant communities alike. The established community may well expect newcomers to make themselves more like the established community. It may expect that anyone participating in the fixing of immigration policies be "less than alien" (or simply "less alien"). For that reason Will Kymlicka believes that the state need not provide immigrants the "legal status and resources needed to become national minorities": "most immigrants (as distinct from refugees) choose to leave their own culture."6 Immigration entails the loss of some rights, certainly those inhering in the now abandoned citizenship. It also entails various obligations toward the host community. The question is: do the obligations the host community has toward the immigrant community include inclusion in some forms of political participation?

An inclusive understanding of suffrage recommends itself on democratic participatory grounds. In 1809, in the first reported case in the United States on local voting by non-citizens, a Justice Blackenridge wrote: "It is the wise policy of every community to collect support from all on whom it may be reasonable to impose it; and it is but reasonable that all on whom it is imposed should have a voice to some extent in the mode and object of the application."7 In determining the boundaries of communal membership, we might identify a vantage point of enlightened localism, for example economic interdependency. From such a vantage we could see how mutual rights might further the satisfaction of relevant inter-linked needs. Res- idents would no longer appear as the only persons justified in answering these questions; resident aliens, too, might appear to deserve a voice (and, under special circumstances, perhaps even non-resident aliens).

In light of these considerations, courts of enlightened localism would interpret laws in ways that include more rather than fewer groups if they orient themselves on two interdependencies: (a) rights and obligations and (b) needs and their satisfaction.

5. Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983), 43.

6. Will Kymlicka, Multicultural Citizenship. A Liberal Theory of Minority Rights (New York: Oxford Uni- versity Press, 1995), 95.

7. Stewart v. Foster (2 Binn. 110 (Pennsylvania, 1809)), quoted in Jamin Raskin, "Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage," University of Pennsyl- vania Law Review 141 (1993):1391-1470, 1443.

Benjamin Gregg 287

(a) With respect to the interdependence of rights and obligations, immigration entails both the loss of some old rights and the gain of some new ones. And immigration entails both obligations toward the host community and rights over against it. Courts could facilitate a range of practical solutions, on the principle that the host community is never more obligated to the immigrant community than the immigrant community to the host. Any contrary principle would undermine the logic of pre- serving and stabilizing populations already resident. All political standpoints today want to encourage, not discourage, stable communities, which means first encouraging stability within the existing population, and only then settling immigrants.

(b) In the interdependence of needs and their satisfaction, immigrants and the host community may construct a relationship of mutuality, of satisfying each other's needs.8 Courts would allow neither the host nor the immigrants to trump the other, because to do so would destroy rather than recognize their possible interdependency. The possibility of that interdependence would itself be a criterion for allowing or disallowing immigration: the more likely the interdependence, the stronger the grounds for admitting the immigrants. Some exceptions might be made for human- itarian reasons, where likely interdependence would not be excluded as a relevant criterion, but would not be a primary criterion, either.

Proposal 2: Construe narrowly those statutes that represent interest groups alone

If legal communities have certain kinds of interests, they have certain kinds of rights, as we shall see. The notion that collectivities as such have easily identifiable interests is hardly self-evident. Such interests are likely predicated on the contingencies of their particular institutional environment, whether economic, political, or cultural. The interests may themselves be contingent and changeable. But interests need not be fixed, or permanent, or unchanging to be real interests, or strong interests, or interests to which we might appeal in answering questions about the desir- ability or usefulness of this or that political arrangement. The contingency and changeability of interests need not entail that groups with such interests have a cor- respondingly fluid understanding of their identity and interests. Contingency and changeability imply nothing about a group's openness, or closure, to rationally evaluating its interests, or even to revising some of them.

Further, the realization of interests of multiple communities is problematic where those interests are at cross-purposes, are mutually incompatible, or draw on limited resources, or otherwise compete with each other. Should they be granted

8. In "Proceduralism Reconceived: Political Conflict Resolution Under Conditions of Moral Pluralism," Theory and Society 31 (2002): 741-76, 1 flesh out this proposition with respect to Muslim immigrant communities and their relationship to state and society in France, Germany, and England today.


equality before the law, such that all interests might compete equally, at least in a formal sense of equality? In fact, formal equality may well keep company with substantive inequality. Indeed, it may not only allow but indeed facilitate the differen- tial use of the rights and privileges of citizenship (for example, formal equality before the law may allow the wealthy party to prevail over the economically weak party, solely on the basis of the former's capacity to purchase superior legal repre- sentation). In this way formal equality may generate (or at least maintain) forms of substantive inequality. Structures of participatory democracy then privilege participants of economic and educational advantage over disadvantaged participants.

The problem that plagues formal conceptions of equality also plagues formal conceptions of freedom. The legal permission to do as one pleases is meaningless without de facto freedom, yet the freedom of many rights-bearers is not supported materially in an environment they control. The realization of their rights may then depend on governmental support. When, however, the government intervenes paternalistically in the unfair contingencies of life, to ensure a more equal distribution of actual individual liberties, it may impair the very autonomy for the sake of which it intervenes. Thus some welfare-recipients become dependent on welfare. Others may be required or encouraged to adopt state-approved ways of life as a condition of receiving welfare, as in the current Bush administration's proposal to encourage unmarried female recipients with children to marry.

In rejecting governmental paternalism, we return to our starting point: competition among interest groups. And we return, then, to one of the social problems posed by interest groups: they can make powerful, often contradictory demands on the community. Consider two different groups, both interested in rights, yet rights understood at two different levels. Groups promoting general individual rights compete with defenders of local cultural traditions, just as advocates ot local traditions conflict with certain groups opposing traditional forms of discrimination. Thus a community cannot provide both equal rights for men and women and equal rights for all different cultural practices toward women, because some cultural practices preclude sexual equality (for example, cultural understandings that inform legislation such as the exclusion of pregnancy from medical insurance coverage,9 the exclusion of women from combat,'? or the exclusion of women from all-male public secondary military schools," but also the exclusion of men from all-female public nursing schools,'2 statutory rape laws applicable only to men,'3 or requirements that only men pay alimony upon divorce'4).

9. Geduldig v. Aiello, 417 U.S. 484 (1974). 10. Rostker v. Goldberg, 453 U.S. 57 (1981). 11. U.S. . Virginia, 518 U.S. 515 (1996). 12. Mississippi University for Women v. Hogan, 458 U.S. 718 (1982). 13. Michael M. v. Superior Court, 450 U.S. 464 (1981). 14. Orrv. Orr, 440 U.S. 268 (1979).

Benjamin Gregg 289

Hence interest groups legally equal in a formal sense may be unequal to each other in a substantive sense. Unless courts interpret narrowly statutes that represent interest groups only, the law remains a manipulable instrument of advantage or privilege. To interpret the law so as to include more rather than fewer groups (as I urged in the preceding proposal), courts must allow interest groups full and free participation in deliberation and decision-making, while somehow disallowing narrow self-interest. Narrow self-interest is apparent in any group's attempt to use the state apparatus to realize its private goals at the expense of common interests.

The private sphere, the ambit of self-interest, concerns individual autonomy along two dimensions: the free development of beliefs and preferences, and freedom to act in accordance with them. The realization of private autonomy depends directly on the individual's knowing about available opportunities: it depends on the possession of adequate information, for both preference formation and preference satisfaction. The poor and uneducated person who does not know that he or she possesses certain legal rights, and that governmental institutions are charged with recognizing and protecting those rights, enjoys little autonomy of the private realm. The person raised in a restrictive community, such as the Old Order Amish, which does not allow its youth to attend public or private school after the eighth grade, has no autonomous private sphere if she or he does not know that she or he has a legal right of exit from that community, at least upon reaching the age of majority. And someone never exposed to cultural forms beyond the most banal, unimaginative, "dummifying" culture of so much popular broadcasting is blocked in his or her free development of preferences. Thus the capacity to realize private autonomy is a function of any number of background conditions (such as current law, access to information, patterns of consumption, and the way wealth is distributed in society); conditions that may depend on either private power (such as position in the market) or public power (such as influence within the government); or on both. The right of private property does not violate the constitutional guarantee of freedom of expression, but in some forms, such as media monopolies that proffer only narrow versions of news and culture, the individual consumer can hardly form or satisfy autonomous preferences. On the other hand, the government's monopoly on the legal use of force allows it to control information as well, such as news about military operations, and this control may equally deprive the individual of the access to full information necessary for autonomous preference formation in political mat- ters. Protecting the individual's autonomy from power both private and public is a political concern of the public realm, in the following sense.

The public realm, the ambit of common interest, is one of collective goals and collective aspirations. Sometimes, in some areas, the government knows better than some individuals what is in their best interests. The contentment of a population is not itself reason to accept the status quo. Where private preferences perpe- trate injustice (where, for example, a media monopoly systematically limits access to information, or corporate interests use their unmatchable campaign contribu-


tions to sway an election), the common interest is in governmental regulation (such as antimonopoly laws or campaign finance reform). On the one hand, the public realm must not be defined by the self-interest of socially powerful groups, nor by dictatorial paternalism, nor by the imposition of the parochial concerns of this or that group. On the other hand, and precisely with regard to collective action problems, the formation and satisfaction of private preferences is, curiously, sometimes facilitated by governmental regulation, not destroyed.'5 Sometimes the private choices of consumers may limit or destroy autonomy in the private sphere, in such areas as politics, culture, or the environment. Thus regulation is in the common interest where it defeats racial or sexual discrimination in housing or labor markets; where it ensures that the distribution of broadcasting licenses includes voices from beyond the racial or ethnic majority, and quality greater than what purely market-driven forces usually provide; and where it protects the environment, both human and natural, from industrial and other forms of pollution. In these cases the public realm seeks not only to protect the viability of autonomous preference formation; ironically, at the same time it attempts to influence private preferences and beliefs, in the sense for example of fostering a political culture that

rejects racial or sexual discrimination (in housing or labor markets); or of expos- ing the populace to a wider rather than a narrower range of broadcasting choices; or of making a moral claim about the value of the natural environment despite freedom of contract and a maldistribution of wealth in society. Here the public realm, not the private, facilitates the general population in obtaining what it wants, and does so in the form of governmental regulation, which, of course, has a coercive quality.

The public realm impinges on the private realm in a second way as well: it con- trols competition among self-interested private groups in James Madison's sense of factionalism: "a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community."'6 The "control" of special-interest bargaining and

simple log-rolling cannot suppress the presence of self-interest in government- but it conceives constitutionalism as something beyond self-interest. Thus Cass Sunstein argues that "interest-group deals reflect existing preferences and existing distributions of wealth and authority" and that, on the "American conception, the

15. Cass Sunstein offers the case of "littering in a park. It may well be in everyone's self-interest to litter, since the individual benefits may outweigh the individual costs. But if everyone litters, the aggregate costs may dwarf the aggregate benefits. If this is so, the preferred outcome, for most or all citizens, is a situation in which everyone can be assured that no one will litter.... Here the force of law is necessary to allow people to obtain what they want." Sunstein, After the Rights Revolution: Reconceiving the Regulatory State (Cambridge: Harvard University Press, 1990), 43.

16. James Madison, "The Federalist No. 10," in Alexander Hamilton, John Jay, and James Madison, The Federalist: A Commentary on the Constitution of the United States (New York: Modern Library, 1937), 54.

Benjamin Gregg 291

function of law is far more ambitious."l7 Madison, primus inter pares among the authors of American constitutionalism, champions two ideas of enlightened localism: first, respect and support for diversity, "in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnum- ber and oppress the rest." And second, localism: "By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects."'8

Courts of enlightened localism would reject the goal of equality of interest groups among each other, and seek instead an equality of citizens despite the politics of interest groups. Of course no one advocates legislation purely to the benefit of this or that interest group. Courts would need (a) criteria for distinguishing interest group legislation from non-interest group legislation and (b) a range of plausi- ble courses for action by courts.

(a) Legislation oriented on this or that interest group assumes parochial forms of localism; legislation not oriented on the particular interests of particular groups may take forms of enlightened localism. Whereas the former pursues the benefit of one group at the expense of others, the latter seeks the benefit of other groups through the privileged treatment of any one group. In the latter case, "privileging" the local group can actually benefit other groups. What is "best" for the host community may also be "best" for the would-be immigrant. In this sense, among others, the potential immigrants are hardly served where their presence would destroy prevailing ways of life in the host community. Immigrants are most likely to flourish where their presence also advances the flourishing of the host community. Difficult will be those cases where immigration is to the partial benefit, but also to the partial disbenefit, of the host community. But the principle of enlightened localism still recommends allowing immigration where, on balance, the benefits outweigh the disbenefits. Of course any proposed "balancing" will rest on presuppositions likely to be contested, at least by some of the participants. The most promising proposals for balancing will be those with the least contested presuppositions, whereby the interests of the host community should enjoy an edge over those of possible immigrants.

(b) A range of approaches consistent with enlightened localism would include the following (which I develop in later pages). With respect to education, courts would not privilege the interests of the state over parents, or of parents over the state. They would privilege the interests of the children over those of parents or the state. In most cases, localism's main concern is with those individuals whose interests are the most "local."

17. Cass Sunstein, Democracy and the Problem of Free Speech (New York: Macmillan, 1993), 241. 18. Madison, "Federalist No. 10," 61, 60.


Proposal 3: Pursue forms of political and legal decentralization

In the presence of multiple communities, to decide which community's norms are to govern is to determine which norms to follow in settling a particular issue or dispute.'9 To specify a community is to specify a norm. Specifying boundaries of the relevant normative community determines the boundaries of the individual's responsibility. Political decentralization may allow finer, more sensitive specification of boundaries and responsibilities.

Ever fewer citizens today are actively involved in the self-determination of their communities through electoral and legislative politics. In many democracies today much of the electorate doesn't even bother to vote. Such "civic privatism" may reflect popular alienation from institutionalized politics and the administration of law. Local citizens might be lured out of their privatism if they felt they could effec- tively contribute to decisions about which rights best suited their community. A community's legal system is more likely to express a self-understanding constitutive for the community if the system is shared, intersubjectively, by many more rather than fewer members of the community. By increasing the extent of such sharing, the community might limit the normative indeterminacy of the legal process and uncertainty about what some laws mean or how best to apply them.20

Indeterminate for example are supposed "community standards" regarding obscenity. In 1957 in Roth v. United States2' the Supreme Court established a test of obscenity according to putative "contemporary community standards." In 1973 in Miller v. California22 the Court found no national standard implied by this test because "our nation is too big and too diverse." In Smith v. United States23 the Court in 1977 ruled that "juries must be instructed properly so that they consider the entire community and not simply their own subjective reactions or the reactions of a sensitive or of a callous minority." Similarly in 1978 the Supreme Judicial Court of Mass- achusetts24 held that, in an obscenity prosecution, a "defendant is entitled to rulings or instructions [to the effect] that, if the trier of fact cannot determine [Massachu- setts's] norms, [then] the defendant is entitled to a finding in his favor."

19. Chief Justice Burger in Pinkus o. United States confirmed the correctness of jury instructions in a trial court to consider whether allegedly pornographic pictures "appeal to the prurient interest of the average person of the community as a whole or the prurient interest of members of a deviant sexual group." Neither court entertains even the possibility that "persons of deviant persuasion" might also be community members, even if not "average" members (436 U.S. 293 (1978), 302).

20. In Coping in Politics with Indeterminate Norms, I treat at length problems posed, and opportunities created, by indeterminacy.

21. 354 U.S. 497. 22. 413 U.S. 15. 23. 431 U.S. 291, 305. 24. Commonwealth v. Trainor (374 Mass. 796, 374 N.E. 2d 1216), 1219.

Benjamin Gregg 293

In these as in all such cases, for practical purposes of determining what is and is not a crime-hence in determining guilt, innocence, and liability-a community must identify its representative standards. But courts, unable either to discover or devise a method of legal interpretation or reasoning to identify the general normative standards alleged to exist in a given community, have sought guidance in social science. In 1986 in State v. Kam the Supreme Court of Hawaii25 held that the "jury must be instructed that before a defendant can be convicted, the jury must determine that a community standard exists and that the material in question violates that standard. As a result of Kam, a public opinion survey... has been used by the city prosecutor's office to convict four people of pornography distribution. These district court decisions are expected to be appealed by the defense, who had also submitted a poll purporting its view of the community standard."26 Yet different polls following the same guidelines for legal relevance and admissibility easily convey different outcomes. Moreover, statistical or survey findings are not self-interpreting; two or more well-intentioned or dispassionate interpretations of statistical findings can lead to different results irreconcilable with each other. Even in its rigor, statistics is nonetheless interpretive.

In the case of criminal law, enlightened localism seeks a positive correspon- dence between provisions of the criminal code and expectations or intuitions of the relevant community, generating respect for the law and a genuine willingness to obey it. A code that "fits well" with the community to which it applies achieves three goals shared by law and community. First, in a utilitarian sense, a code freely embraced by the community has moral credibility in the sense that legal conviction and communal condemnation coincide. The moral credibility of the law discour- ages anyone who seeks social acceptance from violating the law, and thus acts as a deterrent (and a cost-efficient one because much less expensive than prosecution, probation, or incarceration). Second, a code "fits well" with the community where the community sees itself reflected in the code, where the code resonates with the normative convictions and intuitions of the community as they relate to criminal law. This is the Kantian sense of freedom of binding oneself to self-legislated rules: where the addressees of the law are also its authors.27 To understand a rule to be morally valid itself provides motivation to follow it, and to regard as legitimate those public authorities (judges, police, legislators) who abide by it as well. Third, a code "fits well" with the community where the rules of criminal liability correspond pos-

25. State v. Kam (748 P.2d 372 (Haw. 1988)). 26. Trudie Tongg, "State v. Kam: Do Community Standards on Pornography Exist?," University of

Hawaii Law Review 9 (1987):727-41, 741. 27. Immanuel Kant, Grundlegung zur Metaphysik der Sitten, 3rd. ed. (Hamburg: Felix Meiner Verlag,

1965 [17921). Significant contemporary versions of Kantian ethics include John Rawls, "Kantian Construc- tivism in Moral Theory" The Journal of Philosophy 77 (1980):515-72; and Jurgen Habermas, Faktizitdt und Geltung. Beitrage zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats (Frankfurt: Suhrkamp Verlag, 1992).


itively with communal views of justice. In this case the system of criminal justice is more likely to gain the cooperation of persons involved (not only jurors and wit- nesses but even offenders). A community may believe that the degree of the offender's culpability-ranging from negligence to purposeful commission- should influence the liability and penalty assigned the offender, or that justifiable conduct frees a person from liability respecting behavior otherwise punishable, or that certain incapacities (such as mental illness) exculpate the offender. Criminal law that did not consider degree of culpability, or rejected justifications of self- defense, or punished offenses committed by persons suffering certain debilitating abnormalities, criminalize unjustly in the eyes of the community and thereby forfeits its moral credibility-in the specific instance, but also with respect to the entire code and the system charged with enforcing it.28

Enlightened localism can be applied to criminal law in the sense of pursuing a

"good fit" between code and relevant community. First, the moral intuitions of the community (state or other jurisdiction) should be studied, social-scientifically, as one element in the process of drafting the criminal code, and alternative draft proposals should be tested against these studies. Here the drafters should be guided as much as possible by the community's moral intuitions. Second, wherever the code turns out counter-intuitively, the authorities must inform the community of this fact and seek to persuade it, in deliberative fashion with informed arguments, of the merits and moral validity of the counter-intuitive provisions. The code should accommodate the community's normative intuitions as much as possible. Courts of law, on the other hand, must insure that constitutional provisions are nowhere com-

promised in the code, and that communal moral intuitions violative of constitutional provisions be disallowed, including discriminatory mores or traditions of the local community.29 Top-down courts trump bottom-up localism when the latter is

parochial, not enlightened. Even as communal self-determination remains problematic, several conclusions

offer themselves. First, political decentralization allows for greater popular participation in communal self-determination, and so contributes to a legal system expres-

28. By contrast, one empirical study found "instances in which the Model Penal Code, which as drafted in the 1950s (and promulgated in 1962), no longer reflects community social mores. The subjects do not treat consensual intercourse with an underage partner as the very serious offense that the Code treats it as; they give no mitigation because of prior promiscuity of an underage partner, though the Code does; they do not give the significant mitigation to forcible rape that the Code gives where the victim is a voluntary social companion. Recall that if subjects see the violated individual as the non-consenting victim of a sexual assault, they regard-the act as incurring approximately equal liability whether or not a previous sexual relationship existed and the women was on this occasion a voluntary social companion. [Here] ... the opin- ions of society have genuinely changed. In fact, current state codes now reflect this change in public opinion; most have recently dropped the spousal exclusion, voluntary social companion mitigation, and so on." Paul Robinson and John Darley, Justice, Liability, and Blame. Community Views and the Criminal Law (Boulder: Westview Press, 1995), 204.

29. Such as those infamously found constitutional in 1896 in Plessy v. Ferguson (163 U.S. 537).

Benjamin Gregg 295

sive of the community's self-understanding. Decentralization emphasizes "local- ness," which is more likely to encourage participation-in elections, for example- than any non-local alternative. Citizens are much more likely to find entre to the processes of community self-determination through local organizations, organizations not only political but also civic, commercial, educational, recreational, and philanthropic, among others.

Further, decentralization is better attuned than centralization to the existence of a multiplicity of smaller communities within larger ones. Decentralization is possible through the legal pluralism of different types of institutions defining community in various contexts and to different ends. Here courts are not the only relevant types of institutions, of course. And legal decentralization may allow sub-communities within the larger community to express their norms by acknowledging the variety of normative sources, by soliciting multiple perspectives, and by regulating at more rather than fewer levels of society.

Multiple levels of legal and political authority can increase the availability of alternative venues and forms of legal and political recourse to all groups within the community, a fact of particular importance to some marginalized or minority groups. Allocating governmental power to different levels, and allowing overlapping jurisdictions to each of those levels, may provide different communities greater possi- bilities both of gaining a hearing of grievances and of challenging various forms of intolerance of non-mainstream groups. Multiple institutional authorities may provide a kind of informational web, calibrated (less crudely than a more centralized legal authority) to receive the weaker voices of less powerful groups.

Arguments for political and legal decentralization must address critics like Grant McConnell and Theodore Lowi.30 They argue that recognizing and empowering smaller collectivities-communities within the community-allows parochial interests to tyrannize over dissenting individuals; that it permits informal economic and social power to dominate; that it allows for intolerance of unconventional norms; that it tolerates the denial of constitutional rights and equal access to political participation. Similarly, Ronald Kahn argues that devolving legal determination of human rights from the federal Supreme Court to the several states constricts the breadth, and thereby quality and efficiency, of normative discourse on pressing problems and sensitive issues.31 And in one case in point, Martha Minow notes that decentralization generally has not enhanced the political power of the various African American communities.32

30. Grant McConnell, Private Power and American Democracy (New York: Vintage Books, 1970); and Theodore Lowi, The End of Liberalism: The Second Republic of the United States (New York: Norton, 1979).

31. Ronald Kahn, "Pluralism, Civic Republicanism, and Critical Theory," TulaneLaw Review 63 (1989): 1475-1500.

32. Martha Minow, "Pluralisms," Connecticut Law Review 21 (1989):965-78.


I would respond that decentralized political and legal institutions do not necessarily empower intolerant mini-majorities at the local level. Decentralized institutions need not entail the abandonment of alternative forms of dispute resolution, of alternative fora for the expression of (locally) dissenting viewpoints, of alternative venues for (locally) unconventional ways of life, of alternative jurisdictions for appeal. On the contrary, precisely decentralization-unlike the conventionalism of Lowi, McConnell, and Kahn-takes account of the fact that the various forms of governmental power and authority do not coalesce in a series of neatly concentric cir- cles, each larger one covering the smaller ones within it, each centralized source of authority subsuming local sources. Local parochialism is the major potential danger posed by political and legal decentralization, but one that decentralized institutions can meet head-on by allowing for alternative, non-local sources of authority. By recognizing that spheres of social authority are not all nested, hierarchically, in each other, but that some overlap or are partially redundant, a locally aggrieved group or individual can seek recourse and remedy in alternative spheres of authority.

Think about this point in the context of the second of my two examples. Com- pulsory elementary and secondary education renders the state, not the parents or the children, the final arbiter of what is best for the children. Even though the state does not force parents to send their children to public schools, it does establish minimum standards of compulsory education for all schools to which parents may send their children. For example in 1972 in Wisconsin v. Yoder33 the Supreme Court noted the long history of the Amish as a "successful and self-sufficient segment of American society" as well as the "adequacy of their alternative mode of continuing informal vocational education in terms of precisely those overall interests that the State advances." Even parents financially able to send their children to private schools are limited to schools that meet the state's accreditation standards (a limitation less for- tunate parents might envy). In private schools, too, the state limits parental control over the content of children's education. Decentralized, locally elected school boards typically do not place compulsory education largely under parental control, even as the courts have shown great deference to the principle of locally controlled public education.34 Parents have no right to withhold their children from school independent of the constitutional guarantee of freedom to exercise one's religion.35

The claims of Lowi, McConnell, and Kahn-that decentralization can lead to the tyranny of local parochialism-are always valid potentially, as we find for example

33. 406 U.S. 205 (1972); cf. also 213. 34. For example, in 1974 the Supreme Court in Milliken v. Bradley argued that where a "particular

remedy is required, the State cannot hinder the process by preventing a local government from imple- menting that remedy" (418 U.S. 717; cf. also 741-742).

35. According to Yoder; yet in 1990 in Employment Division, Dept. of Human Resources v. Smith (494 U.S. 872) the Court claimed that "We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate."

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in the enduring American debate over federalism, at once a form of localism and pluralism alike. The Federalists feared local oppression just as the Anti-Federalists feared centralized oppression. History has shown both fears to be justified, in the form of federalism in a country that has sometimes protected rights even as it also enabled slavery and the denial of basic civil rights to nonwhite Americans.36 But claims that decentralization can lead to the tyranny of local parochialism are never valid necessarily. The example of decentralized school boards does not bear out such claims. In the area of compulsory education, state rights still prevail over the preferences of those parents or those children who oppose compulsory education as presently constituted. On the other hand, locally controlled education to some extent represents the presence of communal norms, and the courts' deference to such control provides one example of how courts might pursue forms of decentralization. Other kinds of decentralization are possible, such as those that devolve to local parents, and perhaps even to their children, some measure of school-board power. In any case, decentralization encourages thinking in terms not of majorities and minorities but of multiplicity. And the meaning of decentralization may include decentralization both within and among groups.

I turn now to two further premises, on which I base my fourth proposal. First, law can contribute to communal equality, if only to a limited extent. Equality under conditions of normative heterogeneity entails equal access to society's available primary goods, toward enabling the individual to realize his or her own lifestyle and corresponding notions of the good life. Second, sometimes law can serve as one means among others to communal tolerance as well as to communal equality, again if only to a limited extent.

Proposal 4: Facilitate social cooperation, not merely social coordination

While courts are hardly the best institutions for encouraging cooperation rather than simply coordination, they can play a positive, if limited, role. Communities may be reinforced where law relates members to each other "horizontally" rather than "vertically," that is, where it affects persons in ways that do not privilege some over others. Where law relates persons to each other in vertical ways, there it places persons and groups in a hierarchical relationship to one another.

Positivist models depict law as a closed, recursive system of rules related to citizens only vertically: citizens are "below" and receive the law from "above." From this perspective, courts can only be paternalistic. One vertical legal relationship is state recog-

36. In this sense of ambiguity, Katz and Tarr introduce their volume on federalism by asking: "Does federalism promote or undermine rights?" Ellis Katz and G. Alan Tarr, eds., Federalism and Rights (Lanham, MD: Rowman and Littlefield, 1996), ix.


nition of each individual as such, regardless of his or her embeddedness in a particular web of socio-economic relationships. At the high end of vertical relationships, the state assumes responsibility on behalf of the community as a whole. Constitution- drafters, legislators, and judges are related vertically to the mass of individuals affected by their choices and decisions. Constitution-makers claim to represent society as a whole; judges often, and legislators frequently, make the same claim. Lower levels of political and legal organization also relate to the community vertically. Policing, for example, conceives the community it is to protect in largely legal terms.37

Horizontal relationships refer to relations among individuals, each in his or her web of personal relationships; they do not refer to individuals' abstract relation to the state. In a vertical relationship, we may claim legitimacy by appealing to the law; in horizontal relationships, however, we cannot claim legitimacy persuasively simply by appealing to the law. Here governmental authority is minimal (it may enforce the legal equality of citizens, but these relationships are largely private) and therefore hardly a resource for obtaining goods or services for the community or for direct intervention on its behalf. By contrast, governmental regulation, which is a strong form of authority, describes a vertical relationship.

Vertical relationships can lead to horizontal ones. Legislation and judicial opinion are two among various normative structures of government. Where the enact- ment of a new law or a decision by a court eventually changes citizens' hearts and minds, the corresponding normative structure becomes part of the community's structure, but now "de-governmentalized" and perhaps even "community-ized." In this sense, Will Kymlicka argues that "liberal institutions can only really work if liberal beliefs have been internalized by members of the self-governing society."38 Internalization is one form of shaping hearts and minds. Although law is inherently limited as a means toward inculcating norms and values into its addressees, courts of enlightened localism can relate law to the horizontal relations among members of a community by introducing into the community's division of power the horizontal relations among persons as citizens. Examples of this reorganization include decentralizing authority from the state to the community (such as allowing each community to determine for itself standards of toleration for sexually explicit

37. Not all relationships between law and the community may be analyzed as being either horizontal or vertical. One example: the "state through its law and policies influences the private sector... by impos- ing rules, but private interests operate to 'bend' the law away from these norms" (Talcott Parsons, "Law as an Intellectual Stepchild," in Harry Johnson, ed., Social System and Legal Process [San Francisco: Jossey- Bass, 1978], 40). Another example: community crime control involves the vertical relationship of policing, but policing employed "horizontally," that is, by the community rather than by the professional police force, reconstituting "criminal law to permit local boards and groups to come to grips with crime problems as they see fit," supporting the initiatives of grass-roots coalitions on issues of "drug abuse, parental responsibility and security in public spaces" (Fred Strasser, "Searching for a Middle Ground," National Law Journal 14 [3 February 1992]: 1, 28-29, 29).

38. Kymlicka, Multicultural Citizenship, 167.

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expression); the state's outlawing forms of discrimination that exclude socially disadvantaged groups (such as women and racial minorities) from participation in the public sphere; and the Supreme Court's declining to decide, in favor of public deliberation and decision through referenda, some very socially contentious issues, from a woman's right to abortion, or a terminally ill persons' right to physician-assisted suicide, to the right of same-sex couples to marry, to the right of homosexuals to adopt children, or-given the ambiguity in the Constitutional document-the right of citizens to bear arms.39

This reorganization would permit social integration not only through the hierarchically organized power of the state. It would allow social integration not only through the decentralized organization of the market. It would permit integration horizontally, by citizens oriented to the common weal, through solidarity among citizens (minimally in the sense of popular acceptance, even by the losing side, of fair voting outcomes, and more ambitiously in the sense of citizens increasing mutual understanding and sometimes even agreement through public discussion and openness to rational argument). Courts would then seek not only the coordination of private interests but also their cooperation against tendencies toward privatiza- tion that tends to depoliticize community life and hollow out democratic culture.

Citizens respect horizontal relationships where they respect each other, and solidarity is a form of mutual respect. Integration through solidary relations among participants is similar to a person's socialization into his her culture and language: a matter of identity. By contrast, integration in a vertical sense may be more akin to the training received by the military recruit: coerced into accepting the proffered training without question or dissent, even as it sometimes sticks in his throat. Simi- larly, Frank Michelman characterizes strategic interaction as seeking merely "coordination rather than cooperation," bidding "each person to consider no one's interest but her or his own," promoting "not argument but bargain," seeking to persuade "not [with] claims and reasons but [with] conditional offers of service and forbearance."40 He contrasts strategic interaction with a deliberation that presupposes a "certain kind of civic friendship, an attitude of openness to persuasion by reasons referring to the claims and perspectives of others." Courts that facilitate social cooperation in this way encourage deliberating citizens to interpret and eval- uate issues and problems also from the standpoint of other participants, persuading at least some interlocutors rationally, rather than through coercion, to modify their original perspective, toward agreement about and compromise on issues and solu-

39. The Second Amendment states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Few gun owners are members of militias and those that are, if recent history is any guide, tend to embrace violence over the political process.

40. Frank Michelman, "Conceptions of Democracy in American Constitutional Argument: Voting Rights," Florida Law Review 41 (1989):443-90, 448.


tions. Courts might grant equal weight to the integrity of the community, and that of the individual, as citizens recognized each other both as individuals and as members of the community.

Revisit the example of immigration, an example different from the one I dealt with earlier. Conventional Western policy on refugees and immigration is oriented on claims to rights. It gives primacy to a community's right to determine its own membership. Rights-based relationships are vertical (groups and individuals are "below" and receive, or are denied, claimed rights from "above"). Here the relevant questions include: Should migrants enjoy free movement into communities with which they have actual and significant ties (what Michael Walzer calls "communities of character"41)? Do potential immigrants have rights, for example should states recognize a right to family unity? Do immigrants have duties, such as assimilation into the receiving community's culture?

Courts of enlightened localism would likely answer "yes" to all of these questions. In contrast to conventional policy, the concept of enlightened localism urges a principle of equal consideration of interests, consideration that entails more of a horizontal relationship among affected persons and among groups. An equal consideration of interests does not presuppose the primacy of one side over the other, such as the primacy of current residents' interests over those of would-be immigrants. An equal consideration of interests, then, would not grant a simple veto power to the current residents but would be prepared to give, on the merits, some weight to outsiders' interests. Successful immigration is a matter of local cooperation. It is a lengthy and complex process in which the immigrant or refugee family carves out a niche for itself in the host society. The process requires significant support from other family members or from a network of friends. From the community it requires a climate in which people in close proximity-immigrant as well as members of the host community-are willing to tolerate the frictions inevitably gen- erated. Many, even widely divergent, perspectives would agree that the interests of the resettled refugees should be balanced with the interests of the population of the receiving community. "To balance" is to invoke a standard. For enlightened localism that standard will be local not national, and related to community members horizontally not vertically. Like all standards, it will be interpretive, should therefore be open to contestation, and would then be contingent on the distribution of the power of authoritative interpretation.

When we speak of communities we need to remember that subcommunities- whether marginal or mainstream-are by no means necessarily closed or homoge- neous. Consequently the host and immigrant communities are not always, or necessarily, or exclusively, related dichotomously. Some members of the host community-new immigrants as well as long-time residents-may be interested in

41. Spheres of Justice.

Benjamin Gregg 301

securing the entry and residence of their "foreign" family members, or other com- patriots, or other outsiders.

Whereas a rights-oriented vertical relationship focuses on competing goals, a horizontal relationship centers on reciprocity (and not solely on economic reciprocity) between residents and non-residents, for example in relations of mutual dependence. For Walzer, the right to exclude-as a matter of a "particular community's understanding of self" (itself a form of self-determination)-should be subject to a principle of mutual regard, in the sense of a politics that acknowledges mutual dependence between and among different countries.42 For example, a country whose citizens seek to emigrate in significant numbers imposes a burden on the countries to which these persons seek admission, and the foreign policy of the receiving countries might design aid programs in part to ameliorate the reasons for such flight. Both sending and receiving countries are dependent on the other, if in different ways. To follow this principle is to be guided by already-existing relations of reciprocity, emphasizing non-governmental relations oriented on communal norms. The fact of mutual dependence implies a mutual interest in satisfying that dependence-a state's obligation to re-admit its nationals, for example, or not to create refugees. Courts that relate law to these horizontal relations would introduce into the community's division of power-into the division of power between residents and would-be immigrants-the horizontal relations between the two groups. Courts would encourage both groups to pursue resolution not through statutes or regulations or even court holdings, that is, not from the state "above" (coordinating private interests), nor through the decentralized market. Rather both groups could seek resolution through cooperative deliberation among affected populations. Such deliberation would allow for interpreting and evaluating relevant issues from the vantage of other participants, from the view of the opposite side. It would move interlocutors rationally rather than coercively. It could work with whatever relations or reciprocity already exist between the two groups.

In these various ways, enlightened localism urges that less local sources of authority defer to sources more local. This conclusion entails a range of recom- mendations: that (a) on the principle of decentralization, authority should flow from the lower to the higher level; that (b) if, as enlightened localism suggests, multiplicity of small communities urges diversity in normative adjudication, then there can be multiple "flows" of lower-to-higher, not just one; that (c) in the presence of intolerant mini-majorities, checks in the other direction are needed: some authority must flow from higher to lower levels. Enlightened localism does not contradict itself where it opposes intolerant localisms or other vicious forms of parochialism. (d) Enlightened localism emphasizes overlapping or partially redundant spheres of authority. At the intersection of higher and lower spheres of authority, authority

42. Spheres of Justice, 51.


might flow in both directions, from lower to higher (in the form of self-determination, that is, localism) as well as from higher to lower (as checks on local tyranny and other forms of pernicious localism).

Consider now the two premises on which the final three of my proposals are based. First, the various ways in which law is inherently limited as a tool and resource also urge that communities limit, as best they can, the ways in which law itself may become a social problem instead of a (means to a) solution. Second, the norms of democratic societies are better established, and once established are better interpreted, by ordinary citizens than by courts of law.

Proposal 5: Approach the constitution more as procedure than as purveyor of non-procedural values

Proceduralism can facilitate equality through what I elsewhere develop as a theory of "normative thinness."43 Proceduralism can encourage tolerance of difference for the same reason, namely as a form of freedom from substantive commitments. In the case of compulsory schooling, proceduralism rejects the substantive values of both state and parents. School officials do not merely exercise authority voluntarily conferred on them by individual parents; rather, they further publicly mandated educational and dis- ciplinary policies. But by providing teachers a measure of curricular and pedagogical independence, courts could substantially mitigate the potential for govemmental indoctrination through compulsory education. Independence of this sort can be real- ized through curricular guidelines that are more procedural than substantive.

Second, any argument for extending to students the right not to hear (that is, not to receive instruction on this or that topic) must reconcile such a right with the basis of compulsory education. That basis assumes that an approved, government-supported standpoint may be forced on students in public schools. American courts have long distinguished kinds of speech that students must hear from kinds they may refuse to hear. Only if some area is carved out of the curriculum and insulated from state indoctrination can, for example, religious choice be protected in the context of a compulsory educational system monopolized by the secular state. Such choice is preserved through a procedural right to be free from indoctrination in general.

Third, proceduralism allows that self-awareness and self-control must be nur- tured, not elicited by command, even though some external conditions (such as compulsory education) provide the plateau necessary for unconstrained choice. Philosophically liberal culture and education are likely to be more open, tolerant, and rational means of persuasion than everyday politics and law, which tend to be more partisan or strategically oriented toward attaining the goals of special interests.

43. Benjamin Gregg, Thick Moralities, Thin Politics: Social Integration Across Communities of Belief (Durham: Duke University Press, forthcoming 2003).

Benjamin Gregg 303

Still, proceduralism cannot solve many of the problems relevant to this issue. For example: Is compulsory education necessarily indoctrinating and, if so, should some forms of state indoctrination be permitted? To some extent some instruction reflects value judgments, judgments that may affect significantly the child's self- image and view of society. The relatively hierarchical and authoritarian structure of most schools may preclude the strong protection of students' freedom of belief, lim- iting their opportunity to hear or articulate viewpoints at variance with those expressed by school officials, and rendering students even more vulnerable to the influence of teachers and other school authorities who wield significant power over them. The state may also want children to be educated in a particular way: after all, governmental employees in public schools are paid to educate children to the school-board-approved "truth" about society and the world. Moreover, the state's compulsory education laws and the school's internal rules, respectively, require most pupils to attend school and particular classes, and to read books included in the school's curriculum as a matter of assignment. Students subject to compulsory education are a captive audience. While courts interpreting the First Amendment44 have long argued that members of a captive audience have an especially important interest in avoiding exposure to expressions of beliefs, ideas, or words to which they object, students who might want to challenge curricula generally have no constitutional recourse available to them.

Proceduralism, a kind of autonomy of form from substance, cannot solve all our problems because the notion and practice of autonomy cannot solve all of them either. Yet some forms of liberalism posit autonomy, rather than tolerance, as the core value of the liberal state, for example as the capacity of groups to be independent of some unwanted traditions, practices, and beliefs of their society. Here the principle of autonomy is intolerant of intolerance, that is, does not allow state or society to disallow group dissent or exit, or otherwise to insist that all of society's members accept only approved or traditional practices, roles, or beliefs. In that case autonomy is also the capacity of individuals to be independent of unwanted traditions, practices, and beliefs of groups of which they are members.

Complete autonomy of the collectivity would mean that the state would never intervene, even to protect some members from others. But does a group's cultural self-preservation necessitate such autonomy, for example as a collective right to limit individual rights to modify, reject, or recast aspects of the group? On the basis of liberal principles of justice, Kymlicka argues for "certain forms of special status for national minorities."45 He concludes that liberal groups may not impose liberalism on illiberal groups and still be true to liberalism; this conclusion rules out any form of state intervention designed to advance liberalism that might be regarded as

44. Which states in part that "Congress shall make no law... abridging the freedom of speech, or of the press...."

45. Multicultural Citizenship, 171.


coercive by its addressee. But even a liberalism that eschewed all forms of coercion, under all circumstances, might in some cases still facilitate oppression. For example, the complete abolition of compulsory education might mean that school officials would be permitted to educate only by persuasion, never by compulsion, likely rendering all unpersuaded children "mere subjects of their families and of the social hierarchy in which their families are implanted."46 Here, complete autonomy of the collectivity would be to the children's disadvantage, and to that of the society rely- ing on them once they came of age.

Denise Reaume notes that "deference to internal decision makers is not always autonomy respecting"; sometimes protecting a group's autonomy requires the state to interpret the group's own principles or self-understandings.47 The norms of a group are not necessarily the same as the interpretation of those norms by the most powerful faction within the group. In that case, to "refuse to intervene in all cases would sometimes have the effect of ratifying the exercise of raw power within the group rather than protecting an autonomous normative system." Kymlicka recognizes (and accepts) that by providing rights to collectivities, the state may be abet- ting the denial of rights to dissenters.

Chandran Kukathas argues that minority cultures may make all sorts of demands on their members, indeed legitimately may deny rights to group members that those members otherwise possess outside the group (such as a right to education), or to discriminate against members (on the basis of age or sex, for example), so long as these cultures always allow individuals a right to exit.48 But exit may not be a viable option if posed as the choice between membership in an unjust group to which one's identity nonetheless is tied, and assimilation to a majority with which one cannot identify. Further, says Leslie Green, exit itself may be a kind of denial of rights, if not some other form of injustice: "It is risky, wrenching, and disorienting to have to tear oneself from one's religion or culture; the fact that it is possible to do so does not suffice to show that those who do not manage to achieve the task have stayed voluntarily, at least not in any sense strong enough to undercut any rights they might otherwise have."49

These various arguments support the claim that, if the state grants rights to minority communities or to other groups, it should grant similar rights to "internal" minorities as well. Here rights of a more procedural character offer better prospects than rights of a more substantive character because their relative freedom from substantive normative commitments make them more likely to be acceptable to both

46. Walzer, Spheres of Justice, 216. 47. Denise Reaume, "Common-Law Constructions of Group Autonomy: A Case Study," in Ethnicity and

Group Rights, ed. lan Shapiro and Will Kymlicka (New York: New York University Press, 1997), 279, 260. 48. Chandran Kukathas, "Are There Any Cultural Rights?," in The Rights of Minority Cultures, ed. Will

Kymlicka (New York: Oxford University Press, 1995), 238. 49. Leslie Green, "Internal Minorities and Their Rights," in The Rights of Minority Cultures.

Benjamin Gregg 305

"external" and "internal" minorities. What is normatively acceptable to both sides of a divide is more likely to obtain on both sides. Courts of enlightened localism facilitate such rights by approaching the constitution more as procedure than as purveyor of substantive values.

Proposal 6: View rights as created not discovered

Ideally the judgments of local citizens would lead eventually to the legislative process; ideally these would be judgments about what goals and norms lie in the common interest of all; ideally such judgments would organize the common life of a community. Membership in such a community would be more a legal than an ethical relationship;50 rights would derive from the prevailing political will, not from some transcendental "higher law" revealed only to "special" persons. Rights derived from the prevailing political will must conform to the constitution, and the constitution is inspired, in its drafting before its adoption and its interpretation there- after, by the evolving normatiave intuitions of a people which, in turn, may challenge the acceptability of already ratified constitutional provisions. The Thirteenth Amendment to the U.S. Constitution outlaws slavery as of 1865, that is, rejects the Constitution as ratified in 1789 (including Article I, providing in part that "Represen- tatives and direct Taxes shall be apportioned among the several States ... according to their respective Numbers, which shall be determined by adding to the whole number of free Persons... three fifths of all other Persons") and as amended by the "Bill of Rights" two years later (which extended no rights to 3/5-persons). The rejec- tion of slavery might be understood as the better realization of the Constitution's guiding moral lights, such as the ideas of a sovereign people's self-determination in ways that allow liberty and autonomy also to groups other than the majority (such as groups that lose at the ballot box). If minorities are to be protected from over- bearing majorities, then denying the franchise to any group of adult citizens-slaves or non-slave women-contradicts the Constitution properly understood even as it was improperly drafted (and even as the improper draft was ratified). And if slaves are to enjoy the franchise, they can be slaves no longer. But this particular interpretation of the Constitution has force of law only because it was adopted positivisti- cally; signers to the document of 1789 did not share this interpretation and pre- sumably did not sign the document certain that their own interpretation would "expire" forever after seventy-five years. If newly identified or newly recognized minorities find real protection in a constitution, it is only in the document as authoritatively interpreted or amended. They find no practical protection in some transcendental "higher law" or some generic rights-principle until such as been posi-

50. That is, membership would be characterized by what in Thick Moralities, Thin Politics I develop as "thin normativity" in distinction to "thick." The former facilitates political and social cooperation in normatively diverse societies, whereas the latter often hinders it.


tivized by amendment to the constitution or (what in practice is the same thing) adopted as its authoritative interpretation. Minorities find real protection in a relationship more legal than ethical.

Where rights do derive from the prevailing political will, how can we identify it? With Michael Walzer we might discover a will that already exists, "latent" in individuals' lives, in the form of principles that a community might "recognize and adopt." Alternatively, with Ronald Dworkin we might create a new will in the form of principles the community accepts "because they seem right rather than because they have been captured in some conventional practice."5' According to Walzer, principles exist prior to explicit, rational decisions and are discoverable just as membership in the relevant community is discovered not created. We do not choose race, ethnicity, or family; few people choose their religious faith. Even apparent exercises of free choice-the town we live in, our friends, our profession-may reflect prejudice, habit, or contingency more than deliberate choice. Many associations are not so much products of choices, as choices are products of association. Here the "game" does not follow its "rules" so much as the "rules" follow the "game," where normative prescriptions are actually post facto descriptions in terms of which participants make sense of their community and perhaps rationalize it to outsiders.52 Community of this sort is membership one discovers. But if Walzer is right and Dworkin wrong, if normative or political discourse presupposes community rather than creating it, we can ask only rhetorically: "Where can we possibly hope to find the unprescribed yet pre-dialogic 'community' required for undominated dialogue"?53 Maybe Dworkin is right after all. Perhaps communal principles must be consciously chosen if community is to be a rational, even self-critical, association. Principles that guide a rational community need not be "true to an order antecedent to and given to us."54 Ideally the legislation and interpretation of laws would both guide and reflect, critically, the more rational, and less affectual, aspects of communal relationship. The principles that guide a critical community allow for growth, even revision encompassing self- revision: "re-visioning" oneself so thoroughly as to change oneself somewhat, yet to do so on the basis of one's present beliefs and understandings. Communities of choice are associations in which individuals can accept or reject the moral claims made on them by community. In communities of found attachments, by contrast, moral claims on individuals have a validity independent of the individual's will. If courts view rights as created not discovered, then the political will, from which those rights derive, should itself express conscious choice, not putative discovery.

51. Ronald Dworkin and Michael Walzer, "Spheres of Justice: An Exchange," New York Review of Books 30 (21 July 1983):43-46, 44, 46.

52. I develop a general theory about the manner in which this happens in "Using Legal Rules in an Indeterminate World: Overcoming the Limitations of Jurisprudence," Political Theory 27 (1999):389-410.

53. Margaret Jane Radin and Frank Michelman, "Pragmatist and Poststructuralist Critical Legal Prac- tice," University of Pennsylvania Law Review 139 (1991):1019-1058, 1042.

54. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), 3.

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Dworkin's claim that community principles should be chosen rather than found coincides with what might seem an unrelated view: regardless of group convention or tradition to the contrary, courts should not treat groups or communities as having a moral or political value greater than that of the individuals who compose them. Dworkin's position entails the freedom of individual choice. In communities, freedom of this sort-even if limited-might imply that members, as agents of choice, take moral and political precedence over the collectivity, that some rights of the individual trump those of the supra-individual whole. Chandran Kukathas defends this view: groups "matter only because they are essential for the well-being of the individual" and not independently of whatever goods, goals, and benefits that individuals might derive from groups.55 But even if, as Michael Hartney argues, "all goods are individual as far as their ground or justification is concerned,"56 it does not follow that a collectivity has no rights against the larger society, or against the state, simply because it has no interests distinct from those of its members. Nor does it follow that no legal rights are entailed by the claims, interests, or identity of any particular collectivity.

A different question is whether "cultural rights" in particular follow from such claims, and whether the state should provide special protections to cultures. Kukathas answers in the negative57 because he, like Hartney,58 assumes that the normative justification of a legal right can inhere only in individuals. Yet making individuals foundational to the justification of collective rights does not contradict or preclude collective rights so founded. For that reason we may defend group identity and membership as an integral aspect of individual human flourishing. Such identity may entail rights at the level of groups (a right to self-preservation, for example) without necessarily invoking rights irreducible to the rights of individuals. We do not dispar- age rights of individuals within the membership, nor do we diminish rights of minorities within minorities, by making the following claim: group autonomy exists only where the group's norms and practices need not conform either to majority practices or to the center of the political spectrum. For would-be immigrants into a community this implies, first, that each has rights in the potential host community even though he or she is a member of an outside group: a right to preserve aspects of that group identity. Hence assimilation to the culture and ways of the host community need not be complete and entire for the immigrant to become a full member. Second, each member of the immigrant group is not bound by the identity of his or her group; each has a right in the host community not to preserve the identity of the

55. "Are There Any Cultural Rights?," 233. 56. Michael Hartney, "Some Confusions Concerning Collective Rights," in The Rights of Minority Cul-

tures, 207. 57. "Are There Any Cultural Rights?," 245. Kukathas recognizes the possibility of "legitimate claims of

cultural minorities in a liberal social order" (250) as claims sustainable on grounds solely of freedom of association (and exit), but not on grounds of cultural rights.

58. "Some Confusions Concerning Collective Rights," 212.


outside group. Whereas immigrant and host have mutual obligations to each other with respect to the preservation of respective group identities, individual members of the immigrant group have none toward each other. Rather, group identity offers itself to the individual most viably where it contributes to individual human flourishing. Courts of enlightened localism would recognize individuals first as individuals and only secondarily as members of distinct groups. They would regard group membership as chosen not given, and rights as created not discovered.

Proposal 7: Remand to the legislature or regulatory agency, for reconsideration, laws that cannot find broad community support

Given normative indeterminacy within communities, among communities, and even with respect to the very definition of community, judicial resolution of contentious social issues allows to the court significant scope to impose its norms on the community. Hence in earlier pages I urged a certain understanding of what might be called "judicial restraint." In a related sense, legislative rather than popular political resolution of contentious issues allows for the imposition of the legisla- tor's norms. Significant reliance on the courts to resolve, or at least decide, contentious social issues and strong normative disagreements, undermines the citizenry's participation in political processes. Judicial allowance of laws that cannot find broad community support thereby erode the law's legitimacy and debil- itate the community's role in public life. Some form of "legislative restraint" forms the logical pendant to judicial restraint.

Ideally such restraint would encourage the alternative of broad, popular participation in politics, by focusing the citizenry's attention on elected representatives and their responsibility for legislation both responsive and responsible. Additionally, such restraint might focus the attention of all participants on ways in which individuals and groups might participate in self-determination beyond reliance on elected and other representatives. "Judicial restraint" allows space for potentially better forms of "rights-talk," but also for perspectives beyond it.

For students, parents, and schools, such restraint would mean that the state's legal authority might function more as a reserve to protect against the violation of the rights of the weaker players-parents, but above all students-and less as the enforcer of the state's will (most likely the school). Turn now to our other example. For immigrants and potential host communities, such restraint could reinforce the host community by favoring legislation supportive of communities coalescing, as much as possible, around a set of shared identities. In this way it could encourage communities to attempt to get clear about their identities, which might include attempts by communities to construct a shared, rational, political identity. Potential host communities that had undertaken this kind of construction would have less reason to fear the impositions of what might otherwise appear to them as "foreign"

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law, or the interpretations of "foreign" courts, and might be more willing to work with immigrants. For their part, potential immigrants would see that the law properly looked first to the needs and interests of "insiders," that is, to existing communities, but need not therefore be hostile or unfair to "outsiders," to those desirous of settling in the community.

Courts are not the community but the government, and should respect private ordering within and among communities where that ordering is not violative of the laws or the common good as elaborated in earlier pages. Parochial or perverse incentives can characterize the government no less than the private sector, and no less than communities. Narrow, self-serving factional or regional interests, or venal- ity or ignorance can mark spheres both public and private, both governmental and citizen-based. Under these circumstances social and economic regulation, such as the redistribution of resources, may well distort communal preferences or moral intuitions, and in any case may diminish economic productivity without achieving meaningful redistribution. Social allocations of goods and resources, the organization of schools and treatment of immigrants, are best left to the affected communities themselves. Participatory, deliberative democracy at the communal level is the most promising venue for dealing with contentious social issues such as public school curricula; dilution of the voting strength of racial minorities through particular electoral arrangements, such as multimember or at-large districting; a politically controversial arrest or shooting; programs for revitalizing depressed urban neigh- borhoods; rent-control and landlord-rights; or whether a municipality should extend health-care benefits to same-sex couples. Courts and legislative bodies act best when they act on the basis of communal understanding-not forming or engi- neering that understanding, but reflecting it wherever it is not parochial, unconsti- tutional, or contrary to the common good.

The Law and Courts of Enlightened Localism

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