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Ordered Liberty

Ordered Liberty

Rights, Responsibilities, and Virtues

James E. Fleming, Linda C. McClain

ISBN 9780674067455

Publication date: 01/01/2013

Many have argued in recent years that the U.S. constitutional system exalts individual rights over responsibilities, virtues, and the common good. Answering the charges against liberal theories of rights, James Fleming and Linda McClain develop and defend a civic liberalism that takes responsibilities and virtues—as well as rights—seriously. They provide an account of ordered liberty that protects basic liberties stringently, but not absolutely, and permits government to encourage responsibility and inculcate civic virtues without sacrificing personal autonomy to collective determination.

The battle over same-sex marriage is one of many current controversies the authors use to defend their understanding of the relationship among rights, responsibilities, and virtues. Against accusations that same-sex marriage severs the rights of marriage from responsible sexuality, procreation, and parenthood, they argue that same-sex couples seek the same rights, responsibilities, and goods of civil marriage that opposite-sex couples pursue. Securing their right to marry respects individual autonomy while also promoting moral goods and virtues. Other issues to which they apply their idea of civic liberalism include reproductive freedom, the proper roles and regulation of civil society and the family, the education of children, and clashes between First Amendment freedoms (of association and religion) and antidiscrimination law. Articulating common ground between liberalism and its critics, Fleming and McClain develop an account of responsibilities and virtues that appreciates the value of diversity in our morally pluralistic constitutional democracy.


  • Critics of liberalism—including communitarians, civic republicans, and progressives—charge that the American constitutional order, and the liberal theories of rights on which it is based, idolize individual rights while marginalizing personal responsibility, civic virtue, and the welfare of the community. In this new work, Professors James Fleming and Linda McClain respond to these critics by developing a liberal account of rights in which responsibility and virtue also play a role. Government may properly encourage citizens to make socially responsible decisions, to participate in democratic self-government, and to live virtuously—but it may not compel citizens to sacrifice the core of their personal autonomy. Fleming and McClain illustrate the interplay of rights, responsibilities, and virtues by exploring such timely issues as same-sex marriage, abortion, education, assisted suicide, religious institutions’ discriminatory practices, and hate speech. They consider, in particular, cases in which the Supreme Court and lower federal courts have determined the extent of government power in these fields, and they discuss how judges committed to ordered liberty might approach the same questions. Ordered Liberty thus offers readers a lively and readable synthesis of political theory, legal philosophy, and constitutional interpretation.

    —Harvard Law Review


  • James E. Fleming is Professor of Law and The Honorable Frank R. Kenison Distinguished Scholar at Boston University School of Law.
  • Linda C. McClain is Professor of Law and Paul M. Siskind Research Scholar at Boston University School of Law.

Book Details

  • Harvard University Press