Monday, April 15, 2013
Corey Brettschneider has an interesting book out, called When the State Speaks, What Should it Say? How Democracies Can Protect Expression and Promote Equality. As I hinted at in this paper, there is a lot to welcome and embrace in Brettschneider's book, but there are also a lot of places where I'd have to disagree. In any event, Paul Horwitz has a characteristically thoughtful and charitable post up, at Concurring Opinions, in which he poses a laundry list of questions about the book. Definitely check out his post, which gives voice to (and better expresses than I would have) many of my own reservations.
Here is just one (of 13!) of Paul's detailed questions:
1) Much of Brettschneider’s book argues that the state has an obligation to publicize “the justification for those rights protected by law–namely, their basis in the values of free and equal citizenship.” Elsewhere, he refers to “reasons” for rights, which seems to indicate there might be several, but the overall emphasis seems to be on the idea that there is a particular correct view of the justifications underlying rights. Is it sensible or advisable to argue on the basis that there is a single best justification for rights, and that promoting that particular justification–and arguing against viewpoints that contradict that single justification–is an obligation of the state and of individual citizens and state officials? Most people, I should think, believe (correctly) that rights are subject to a variety of overlapping justifications, including religious ones. Why are we better off starting with a monist approach to rights justifications rather than with a pluralist view that rights are subject to a variety of potential justifications, and that much of the consensus around the importance of rights stems precisely from incompletely theorized agreements about rights from a variety of perspectives? If the justifications for rights are importantly plural, would that not affect the kinds of policy recommendations Brettschneider makes, and perhaps chasten the nuanced but strong recommendations that he offers for a more active, non-viewpoint-neutral state? In particular, why should citizens who, in Brettschneider’s view, have an obligation to engage in a “persuasive response” to speech that undermines free and equal citizenship be obliged to offer what he thinks is the “correct” view of free and equal citizenship and the way in which it supports rights? Wouldn’t it be better if they advanced a variety of views about why rights are right, so to speak, and why hateful and discriminatory views are wrong?
Here is an additional wrinkle: If Michael Perry and others are right (and I think they are, about this) then the best (and maybe the only) "reason for rights" -- that is, the only reason why it is true that the claims rights-talk makes about persons are plausible -- are "religious" . . . then the modern liberal state -- if it is supposed to publicize the "reasons for rights" -- is kind of in a bind.
Paul's follow-up post -- which focuses on the implications of Brettschneider's arguments for religion and religious liberty, is also a must-read, and is available here.