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From the October, 2007
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A Two-Legged Stool by David L. Tubbs

A Two-Legged Stool

Is Democracy Possible Here? Principles for a New Political Debate
by Ronald Dworkin
Princeton University Press, 2006
(192 pages, $19.95, hardcover)

reviewed by David L. Tubbs

How significant are the “culture wars” for American politics? In Is Democracy Possible Here?, the distinguished legal scholar Ronald Dworkin contests the idea that a “comprehensive and unbridgeable cultural gap” now defines our political life.

He acknowledges cultural differences, but suggests that unsavory public figures exaggerate them for political gain. The results, he says, are deeply worrying: fierce partisanship, much acrimony, insubstantial public discourse.

Dworkin’s Remedy

Is there a remedy? Dworkin thinks so. He wants to promote serious political argument, with “argument” understood “in the old-fashioned sense in which people who share some common ground in very basic political principles debate about which concrete policies better reflect these shared principles.”

To this end, he puts forth two principles, which he believes capture essential attributes of human dignity. The principles are not wholly new; their roots lie in centuries of reflection in the West on politics and morality, and they have more specific antecedents in the Declaration of Independence and the Constitution. Crucially, he submits that most Americans—regardless of their political or religious convictions—can endorse these principles.

The first is called “the principle of intrinsic value,” the second “the principle of personal responsibility.” Dworkin applies them to different questions of policy, including terrorism and civil liberties, taxation and social justice, and religion and public life, including public education. Taken together, they are meant to secure the largest possible area of personal freedom for each citizen, encompassing both political and “lifestyle” liberties. (Economic liberties, however, are patently less important to Dworkin.)

In every big controversy, applying the two principles yields liberal outcomes. Dworkin endorses abortion rights, the extension of marriage to same-sex couples, a highly progressive income tax, a modest role for religion in public life, and an extensive array of legal protections for terrorists and suspected terrorists.

He concedes that the uniformly liberal outcomes will surprise some readers, but asks non-liberals to reflect on both the principles and their application and to explain where his arguments go wrong. Among such readers, he pays special attention to a large group. In contrast to much of his earlier work, this book engages the views of the religiously devout, including observant Christians, and his tone is generally respectful.

Broad Principles

Nevertheless, Dworkin’s arguments will trouble many. Most Americans, Christian and non-Christian alike, could endorse his two principles, but the principles are broad enough, or elastic enough, to yield outcomes different from those he favors. Consider each in turn.

The principle of intrinsic value holds that every human life has objective value. The value is more than subjective in the same way that a gross injustice is regarded by all persons as objectively bad. Thus, “a human life’s success or failure is not only important to the person whose life it is.”

The principle of personal responsibility posits that each person is responsible for the success of his or her life. That responsibility entails exercising judgment about the values that inform one’s own notion of a successful life. More specifically, this means that someone must not

accept that anyone else has the right to dictate those personal values to him or impose them on him without his endorsement. He may defer to the judgments codified in a particular religious tradition or to those of religious leaders or texts or, indeed, of secular moral or ethical instructors. But that deference must be his own decision.

This statement may well accord with the way that most Americans understand religious liberty. But Dworkin wants to extend the principle of personal responsibility far beyond religious freedom.

Here is one example. When assessing the arguments for and against same-sex marriage, he notes that the cultural meaning of marriage is being transformed through “organic processes,” including “secular developments” in science and politics.

He welcomes such changes and argues that it would be dangerous—that is, unjust—for the traditional understanding of marriage to be “frozen” by law. Why? Because the “values” of our society belong to “no one and to everyone.” In other words, individual choice or “personal responsibility” should be the presumption.

A Third Principle

Irrespective of the way he applies them, Dworkin’s two principles capture fundamental aspects of human dignity. But another question must be asked of them before we could accept them as the “common ground” for our political life: Can they stand alone?

Many Americans will say no. They will insist on the need for another principle: that the law has an important role in promoting morality and discouraging certain vices and immoralities. This third principle has a long history. As Princeton professor (and Touchstone editor) Robert P. George argues in Making Men Moral, it represents the “central tradition” in Western thinking about law, politics, and morality.

The evidence for this view is substantial. Aristotle and Aquinas and other seminal thinkers in the West affirmed it. It is also embodied in the US Constitution, which gives the legislatures of individual states the authority to promote public health, safety, and morals.

Thus, for most of American history, states could prohibit pornography. They could do so on the grounds that it undermines public morals and was never meant to be protected by the Constitution’s Free Speech and Free Press Clauses.

The third principle is in tension with the two principles put forth by Dworkin. But Americans have lived with the tension for a long time, and we have little reason to suppose that this state of affairs has become unmanageable.

Dworkin is well aware of these matters. The absence of a straightforward discussion of the third principle and its implications for American politics gives rise to a curious account of democracy, which he calls “partnership democracy.” He believes that the legitimacy of contemporary democracy depends on its affirmation of his two principles.

When making and evaluating policy, democratic citizens must accept the applications Dworkin derives from the two principles. Failure to do so “de-legitimizes” the policy. In such circumstances, he argues, courts should be empowered to invalidate the relevant legislation.

Judicial Power

This broad assertion of judicial power is among the most controversial aspects of Dworkin’s book, and many well-informed persons will argue that such power for the judiciary is both undemocratic and unconstitutional. He would have done well to face this argument squarely.

He laments the culture wars and the sad state of our political discourse, but fails to point out one important source of them: widespread disagreement about the proper role of the judiciary in our democracy, including the legitimacy of profound changes in law and public policy effected by courts.

The irony here should be noted. Dworkin says that he wants a culture of argument, but he shies away from tackling several fundamental questions. This makes Is Democracy Possible Here? a frustrating book. So notwithstanding his worries about the nation’s civic health, his model of “partnership democracy” can only aggravate the maladies he documents.

David L. Tubbs is a Fellow of the Witherspoon Institute (www.winst.org) and assistant professor of politics at King’s College in New York City. He is the author of Freedom’s Orphans: Contemporary Liberalism and the Fate of American Children (Princeton University Press, 2007).

Letters Welcome: One of the reasons Touchstone exists is to encourage conversation among Christians, so we welcome letters responding to articles or raising matters of interest to our readers. However, because the space is limited, please keep your letters under 400 words. All letters may be edited for space and clarity when necessary. letters@touchstonemag.com

 

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