Legal Pragmatism: Community, Rights, and Democracy

One. What’s Right with Rights and Wrong with Communitarianism

[ ∏ ] o n e What’s Right with Rights and Wrong with Communitarianism? We are di√erent and we don’t know exactly why. And this is America, where the rights of the minority are protected. —Erin Wiser, Los Angeles Times Seventeen-year-old Erin Wiser belonged to the ‘‘Gay/Straight Alliance ,’’ a club started at her high school by a fellow student so that students could talk to each other about sexual identity. This innovative club was not well-received, however, by the Salt Lake City Board of Education. They voted to ban the club.1 In fact, the board voted to ban all extracurricular clubs, including the chess, Latino, Frisbee, and Bible clubs. Since the board was concerned that an order to ban only the Gay/Straight Alliance might not survive a constitutional challenge of viewpoint discrimination, they decided to ban every extracurricular club.2 State Senator Charles Stewart expressed the prevailing political sentiment: ‘‘I think this is such a threat to our society, our children and our families that if the only way to keep these clubs from organizing is to ban all clubs, I’ll vouch for that.’’3 It is surprising that a high school club, with a mere sixteen members , is capable of threatening our whole society, but Senator Stewart talks as if the horrifying nature of this threat is patently obvious. Ms. Wiser, in her statement, emphasizes that although the individuals in what’s right with rights and wrong with communitarianism? [ π ] her club are ‘‘di√erent,’’ they belong to a country that protects ‘‘difference ’’ and protects minorities from political pressure to conform.4 In her view, Senator Stewart’s concern for ‘‘civilization’’ represents a threat not only to her student club, but also to America’s pluralistic democracy. This particular debate is symbolic of a larger struggle presently taking place in American society. As Ms. Wiser and her friends are exploring questions of self-identity, so too is America. Politicians on the far right, such as Patrick Buchanan, have described their cause as the ‘‘taking back of America.’’5 They believe that the once-great American identity has been splintered by disruption of traditional institutions , such as the family, and an increasing willingness to confer legitimacy upon ‘‘inappropriate’’ lifestyles, such as homosexuality.6 On the left, worries abound that traditional institutions, particularly our schools, now languish in chaos. The Clinton administration supported widespread drug testing in schools, and President Clinton lobbied for school uniforms in his 1996 State of the Union address.7 One might be tempted to dismiss such events as ‘‘politics as usual,’’ but upon closer inspection, it appears that what is ‘‘usual’’ is changing. There is a palpable sense in the present political dialogue that our grand tradition of protecting individual rights is interfering ever more with our ability to construct a well-ordered society. If we cannot protect such symbols of national unity as the flag from public desecration, it is asked, how can we expect to build or even maintain a community? If, as a nation, we are incapacitated by the Supreme Court from pronouncing on the substantive human goods embodied in prohibiting abortion and promoting heterosexual marriage, then it must not be any surprise that our communities remain fragmented. Under such circumstances, individuals are left to float adrift without secure objects of moral and emotional attachment by which to orient their social lives. Under the weight of such concern, there has been an explosion of sociopolitical literature. At the popular level, books like The Moral Compass by William Bennett8 and The Closing of the American Mind by Allan Bloom9 have sought to provide direction toward these objects of moral attachment. Bennett’s compilation emphasizes the importance of early education in the formation of a strong moral character informed with conservative virtues, whereas Bloom seeks to recover a discourse of truth for a system of higher education that has been legal pragmatism [ ∫ ] swallowed in the sea of relativism. Both authors subscribe to a version of the thesis that the good life, for individuals, is a function of their participation in the larger community. Joining them in this regard are several members of the left who champion ‘‘communitarianism’’ over what they see as the radical individualism of the present. These writers, like Mary Ann Glendon and Michael J. Sandel, believe that liberalism has gone too far down the path of protecting individuals in their choice of a conception...