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Thursday, October 19, 2006

Illiberal Groups in the Liberal State

My Southwestern colleague Angela Riley is an expert on Indian law (and, as it turns out, also serves as a Justice on the Supreme Court of the Citizen Potawatomi Nation of Oklahoma).  Lately she's been exploring the liberalism/illiberalism debate with special attention to its application to Indian tribes.  Her article Sovereignty and Illiberalism, forthcoming in the California Law Review, should make a significant contribution to the discussion.  She's teaching a seminar next semester called Illiberal Groups in the Liberal State, very much the kind of course several on this blog would give their eyeteeth to teach, or at least attend.  Here's her summary description:

Democracies within which ethnic, indigenous, religious or national minorities exist attempt to impose on them the values of the dominant society.  Illiberal groups respond to this pressure with claims for equality, fair representation in the political process, and, perhaps most importantly, autonomy. This seminar will discuss the challenges of accommodating the rights and needs of illiberal groups within the liberal state.  It will focus, in particular, on the pressing philosophical and legal questions.  Of particular import will be an examination of U.S. Supreme Court jurisprudence (e.g., Boy Scouts of America v. Dale; Santa Clara Pueblo v. Martinez; Wisconsin v. Yoder; etc.) in which the claims of illiberal groups have been examined by American courts.

After the jump, I'm posting the very interesting reading list she's provided to her students.  (And props for including some visual material, namely Amish in the City!  A hidden one-season gem for those of us who have taught law and religion.)  I post it both because it's a terrific set of readings that should be of interest to many here, and because Prof. Riley would welcome any additional reading suggestions.  If you have any suggestions of additional reading, either to supplement or to replace readings currently on the list, feel free to pass them along.  And I encourage those who are interested in these issues to check out Angela's superb paper. 

The list follows the jump, with apologies for any formatting issues:

Class #1

Background & Introduction

Thomas Franck, Are Human Rights Universal?; Ronald Dworkin, Liberalism in Liberalism and Its Critics (ed. Sandel); Larry Alexander, Illiberalism All the Way Down: Illiberal Groups and Two Conceptions of Liberalism, 12 J. Contemp. Legal Issues 625 (2002); Nomi M. Stolzenberg, The Return of the Repressed: Illiberal Groups in a Liberal State, 12 J. Contemp. Legal Issues 897 (2002). *Will Kymlicka Contemporary Political Philosophy (2002), Ch.2: Liberal Equality.

Class #2

Women’s Rights in a Multicultural Society

Santa Clara Pueblo v. Martinez (1978); Angela R. Riley, Sovereignty and Illiberalism, Cal. L. Rev. 2007 (forthcoming); Susan Moller Okin, Is Multiculturalism Bad For Women?, 22 Boston Rev. (Oct./Nov. 1997); Reynolds v. United States (1879); Nancy L. Rosenblum, Democratic Sex: Reynolds v. U.S., Sexual Relations, and Community, in Sex, Preference, and Family: Essays on Law and Nature (eds. Estlund and Nussbaum) (1997). *Will Kymlicka Contemporary Political Philosophy (2002), Ch. 9: Feminism

Class #4

Religion & (Il)Liberal Education

Bob Jones Univ. v. U.S. (1983); Judith Resnik, Living Their Legal Commitments: Paideic Communities, Courts, and Robert Cover: An Essay on Racial Segregation at Bob Jones University, Patrilineal Membership Rules, Veiling, and Jurisgenerative Practices, 17 Yale J. L. & Human. 17 (2005); Michael W. McConnell, “God is Dead and We have Killed Him!”: Freedom of Religion in the Post-Modern Age, 1993 B.Y.U. L. Rev. 163 (1993); Wisconsin v. Yoder, 406 US. 205 (1972); James D. Gordon III, Wisconsin v. Yoder and Religious Liberty, 74 Tex. L. Rev. 1237 (1996); *Will Kymlicka Contemporary Political Philosophy (2002), Ch. 4: Libertarianism.

Class #5

Religion and (Il)Liberal Education continued….

Bd. Of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994); Abner S. Greene, Kiryas Joel and Two Mistakes About Equality, 96 Colum. L. Rev. 1 (1996); Stephen G. Gilles, Liberal Parentalism and Children’s Educational Rights, 26 Cap. U.L. Rev. 9 (1997). * Will Kymlicka Contemporary Political Philosophy (2002), Ch.8: Multiculturalism.

Class #7

The Freedom of (Illiberal) Association

United States v. Jaycees; Boy Scouts of America v. Dale (2000); Madhavi Sunder, Cultural Dissent, 54 Stan. L. Rev. 495 (2001); Chemerinsky & Fisk, The Expressive Interest of Association, 9 Wm. & Mary Bill Rts. J. 595 (2001): Evelyn Brody, Entrance, Voice, and Exit: The Constitutional Bounds of the Right of Associaton, 35 U.C. Davis L. Rev. 821 (2002); Southern Baptist Convention Passes Resolution Opposing Women as Pastors, N.Y. Times (June 15, 2002); John Boyette, Augusta National Membership ‘We Will Not Be Bullied,’ Chairman Says, Augusta Chronicle (Jul. 10, 2002).

Class #9

Intimate Relationships

Loving v. Virginia (1967); Lawrence v. Texas (2003); Pamela S. Karlan, Loving Lawrence, 102 Mich. L. Rev. 1447 (2004); Laurence H. Tribe, Lawrence v. Texas: The “Fundamental Right” That Dare Not Speak Its Name, 117 Harv. L. Rev. 1893 (2004); Cass R. Sunstein, The Right to Marry, 26 Cardozo L. Rev. 2081 (2005).

Class #10

Sexual Preference Discrimination and the (Il)Liberal State

Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004); Stephanie Simon, Christians Sue for Right Not to Tolerate Policies; Many Codes Intended to Protect Gays from Harassment are Illegal, Conservatives Argue, L.A. Times (April 10, 2006); Gay Marriage Ban Polarizes Views, Navajo Times, June 9, 2005; Lisa Hicks, JAT Dismisses Same-Sex Marriage Injunction, Cherokee Phoenix and Indian Advocate, Feb. 2006; Rumsfeld v. FAIR (2006), 126 S. Ct. 1297 (2006); Erwin Chemerinsky, The Kennedy Court: October Term 2005, 9 Green Bag 2d 335, 340, 341-343 (2006); Patrick J. Smith, Solomon’s Mines, 79 St. John’s L. Rev. 689 (2005).

Class #11

Depictions of Illiberal Groups in Popular Culture

Big Love; Amish in the City; Nadya Labi, The Gentle People, Legal Affairs (Jan-Feb 2005). 


Class #13

International Perspectives/Problems

Kwame Anthony Appiah, The Case for Contamination, in The New York Times Sunday Magazine (Jan. 1, 2006); Fareed Zakaria, The Future of Freedom:Illiberal Democrazy at Home and Abroad (2003), pp. 89-118; Susan Moller Okin, Feminism and Multiculturalism: Some Tensions, 108 Ethics 661 (1998); Martha C. Nussbaum, Feminism, Internationalism, Liberalism, Sex & Social Justice (1999); Ratna Kapur, The Tragedy of Victiminazation Rhetoric: Resurrecting the “Native” Subject in International/Post-Colonial Feminist Legal Politics, 15 Harv. Hum. Rts. L. J. 1, (2002); Noah Feldman, Imposed Constitutionalism, 37 Conn. L. Rev. 857 (2005); Madhavi Sunder, Enlightened Constitutionalism, 37 Conn. L. Rev. 891 (2005); *Will Kymlicka Contemporary Political Philosophy (2002), Ch. 7: Citizenship Theory.

Posted by Paul Horwitz on October 19, 2006 at 08:08 PM in Teaching Law | Permalink


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Ten Little Indians by Sherman Alexie

I enjoyed Amish in the City way more than I expected to, considering that it was on the WB.

Posted by: Kristen | Oct 21, 2006 8:57:27 PM

Can you point me to where this author or others define "illiberal" first? It seems to me that one definition would be that liberal means as "tolerant of others' rights to have different beliefs and lifestyles, and unwilling to use STATE POWER to force compliance with some orthodoxy." If that is the case, and the essence is the group's wish to use State power if they ever gained State power, then the ILliberal groups would be, perhaps, the Communist Party USA, certain Islamists, certain Christians (but by no means all, and not even those who are often accused of this), and so on. But that definition would NOT include those groups such as the Amish, who wish to be exempt from modern State-control, such as compulsory education and Social Securtiy etc., but have no designs (as far as I know) on using State power to make us all adopt their lifestyle. In that respect, it seems to me that they are the true liberals, by the classic liberal definition: "you do your thing and I'll do mine." The State's demands upon them -- let us indoctrinate your children the State's way -- are the illiberal part of the equation.

Thus, it's about whether our currently illiberal State will tolerate demands for old-school liberalism, or whether we have enough remnants of our liberal tradition to say that "yes, our latest orthodoxy is about X, but we have enough room to allow others to teach their kids a different view."

Some demands upon groups might still be justified under my narrower definition above, i.e., we cannot allow Communists to advance their agenda because if they get power, the First Amendment is toast. Or, we can't allow Catholic schools to even teach doctrine against homosexual activity because those kids may then gain State power to deny others the right to marry, etc., so we have to indoctrinate them to buy into the new marriage paradigm, or whatever.

But then the argument needs to be constructed in that defensive way, i.e., get the Amish before they take away our freedoms.

But if the argument is NOT constructed that way, as collective defense of a norm, then is seems to me that we have to be honest about saying, when we impose an orthodoxy on the Amish, or Catholics, or whomever, that we are not exercising "liberalism over an illiberal group," but instead, we are saying "here is where our liberalism ends, as some values are so important that we will impose them."

In contrast to my whole system, it seems that another definition of liberal is that it concerns not willingness to use State power, but simply concerning a basket of values that are termed liberal, e.g., gender equality, gay-friendliness, etc. In that sense, the Amish and Catholics and whoever are indeed illiberal. But that definition is then saying, again, "we have certain dominant values, and how far do we allow dissent from those values? Do we allow a 'sexist' regime in the Catholic church, or does the State try to force ordination of women, in the name of the "liberal" value of gender equality?

And that seems to be the rub in many modern debates -- does liberal still mean libertarian on certain issues, or does liberal just mean "value preferences that certain people self-described as liberal happen to share" ?? And in the latter case, how illiberal are we in imposing liberal views?

Posted by: just me | Oct 21, 2006 10:13:51 AM

Find out how other Americans feel. Our foreign policy index is an amazing way to gage public opinion about American foreign policy and the current state of affairs, and from the way things look, the public may just be at a tipping point. Read on…

Here at Public Agenda, we’ve created a new tool to track Americans’ opinions on foreign policy issues, providing a basis for political commentary. Similar to the Consumer Confidence Index, the Foreign Policy Anxiety Indicator provides policy makers, journalists and ordinary citizens with the public's overall comfort level with America's place in the world and current foreign policy.

An essential tool updated twice a year, the Indicator will consistently provide much-needed information on the public’s perception of more than two dozen aspects of international relations.

In a world strewn with violence and highly-charged international issues, Americans are broadly uneasy about U.S. foreign policy. The September 2006 shows the Foreign Policy Anxiety Indicator at 130 on a scale of 0 to 200, where 0 is the most confident, 200 the most anxious and 100 neutral.

Eight in 10 Americans feel the world is becoming a more dangerous place for Americans, yet they're also skeptical about most of the possible solutions, such as creating democracies or global development. Only improved intelligence gathering and energy independence have substantial support, with energy firmly established as a national security problem
for the public.

In fact, the public lacks confidence in many of the measures being taken to ensure America’s security. Less than 33% of Americans give the U.S. government an “A” or a “B” grade for its execution of the following foreign policy issues: reaching goals in Iraq and Afghanistan, maintaining good relationships with Muslim countries and protecting U.S. borders from illegal immigration. And these are just a few of the findings of the survey.

These are some of the other startling findings:

- 83 percent say they are worried about the way things are going for the United States in world affairs (35 percent worry "a lot", with an additional 48 percent saying they worry "somewhat.")

- 79 percent say the world is becoming more dangerous for the United States and the American people

- 69 percent say the United States is doing a fair or poor job in creating a more peaceful and prosperous world

- 64 percent say the rest of the world sees the United States negatively

- 58 percent say U.S. relations with the rest of the world are on the wrong track

Want to learn more? Go to http://www.publicagenda.org/foreignpolicy/index.cfm to download the report.

Public Agenda is a nonprofit, nonpartisan group devoted to public opinion and public policy. The confidence in U.S. Foreign Policy Index is developed in cooperation with Foreign Affairs with support from the Hewlett and Ford foundations.

Posted by: William Hallowell | Oct 20, 2006 2:46:48 PM

Sarah Song (in Poli Sci at MIT) has done some outstanding work in this area, focusing on the "cultural defense" in some criminal cases in the U.S. I think her major piece on it was in the APSR.

Posted by: Frank | Oct 20, 2006 9:21:58 AM

This class looks great. One suggestion: it seems to me that the course should include materials not only on religion and *education*, but on the church-autonomy principle (which includes, of course, the right of religious communities to structure themselves in "illiberal" ways, in accord with "illiberal" norms) more generally. In particular, the debate about the ministerial exception might be a good "way in" to the debate.

Posted by: Rick Garnett | Oct 20, 2006 9:19:19 AM

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