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Articles 1 - 14 of 14
Full-Text Articles in Law
Liberal Feminist Jurisprudence: Foundational, Enduring, Adaptive, Linda C. Mcclain, Brittany K. Hacker
Liberal Feminist Jurisprudence: Foundational, Enduring, Adaptive, Linda C. Mcclain, Brittany K. Hacker
Faculty Scholarship
Liberal feminism remains a significant strand of feminist jurisprudence in the U.S. Rooted in 19th and 20th century liberal and feminist political theory and women’s rights advocacy, it emphasizes autonomy, dignity, and equality. Liberal feminism’s focus remains to challenge unjust gender-based restrictions based on assumptions about men’s and women’s proper spheres and roles. Second wave liberal legal feminism, evident in Ruth Bader Ginsburg’s constitutional litigation, challenged pervasive sex-based discrimination in law and social institutions and shifted the Supreme Court’s interpretation of the Equal Protection Clause to a more skeptical review of gender-based classifications. Liberal feminists have developed robust conceptions of …
The Constitution, The Common Good, And The Ambition Of Adrian Vermeule, Sotirios Barber, Stephen Macedo, James E. Fleming
The Constitution, The Common Good, And The Ambition Of Adrian Vermeule, Sotirios Barber, Stephen Macedo, James E. Fleming
Faculty Scholarship
Public trust in the U.S. government has declined steadily over the last sixty years, from 73% in 1958 to 17% in 2018 (Pew 12/9/20). Public support for the U.S. Constitution has remained higher. When support for the government dipped to an all-time low of 15% in 2010, support for the Constitution stood at 74%. But the gap has narrowed. From 2010 to 2017 support for the Constitution fell from 74% to around 50%—a drop of 24 points in seven years (AP/NCC 8/12; Rasmussen 2017). These figures suggest that if Americans continue to believe that their government isn’t working, they’ll eventually …
Can Religion Without God Lead To Religious Liberty Without Conflict?, Linda C. Mcclain
Can Religion Without God Lead To Religious Liberty Without Conflict?, Linda C. Mcclain
Faculty Scholarship
This Article engages with Ronald Dworkin’s final book, Religion Without God, which proposes to shrink the size and importance of the fierce “culture wars” in the United States between believers and nonbelievers – theists and atheists – by separating out the “science” and “value” components of religion to show these groups that they share a “fundamental religious impulse.” Religion Without God also calls for framing religious freedom as part of a general right to ethical independence rather than a “troublesome” special right for religious people. This article compares the argumentative strategy of Religion Without God with prior Dworkin works, such …
Against Agnosticism: Why The Liberal State Isn't Just One (Authority) Among The Many, Linda C. Mcclain
Against Agnosticism: Why The Liberal State Isn't Just One (Authority) Among The Many, Linda C. Mcclain
Faculty Scholarship
This article takes up the gauntlet thrown down by Professor Abner Greene’s recent book, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy, to those scholars, politicians, and activists who believe that realizing the ideal of e pluribus unum (out of many, one) as well as constitutional principles of liberty and equality require a robust role for government. Government, Greene argues, is just one source of authority among many others, and citizens – or even public officials – have no general moral duty to obey the law. The political and constitutional order of the United States, he contends, …
Respecting Freedom And Cultivating Virtues In Justifying Constitutional Rights, Linda C. Mcclain, James E. Fleming
Respecting Freedom And Cultivating Virtues In Justifying Constitutional Rights, Linda C. Mcclain, James E. Fleming
Faculty Scholarship
What’s new in the long-standing debate between civic republicans and liberals about how best to understand and justify rights? This article picks up the thread with political philosopher Michael Sandel’s recent, internationally-renowned book, Justice: What’s the Right Thing To Do? The article evaluates the sharp contrasts his book draws between justice as cultivating virtues and justice as respecting freedom, using his example of contemporary arguments for and against opening up civil marriage to same-sex couples. Sandel contends that “liberal neutrality” and a public square denuded of religious arguments and convictions are impossible on this issue. Drawing on Aristotle, he contends …
From Words To Worlds: Exploring Constitutional Functionality By Beau Breslin, Robert L. Tsai
From Words To Worlds: Exploring Constitutional Functionality By Beau Breslin, Robert L. Tsai
Faculty Scholarship
This is a review of Beau Breslin's book, "From Words to Worlds: Exploring Constitutional Functionality" (Johns Hopkins, 2009). As an antidote to what he believes to be scholarly marginalization of the "unique" aspects of a written constitution, Breslin focuses attention on seven functions of such a legal text: transforming existing orders, conveying collective aspirations, designing institutions, mediating conflict, recognizing claims of subnational communities, empowering social actors, and constraining governmental authority. This review briefly critiques Breslin's functional approach and discusses two of the more pressing goals of modern constitutionalism: managing social conflict and preserving cultural heritage.
Some Abcs Of Feminist Sex Education (In Light Of The Sexuality Critique Of Legal Feminism), Linda C. Mcclain
Some Abcs Of Feminist Sex Education (In Light Of The Sexuality Critique Of Legal Feminism), Linda C. Mcclain
Faculty Scholarship
This essay offers some ABCs for a framework for sex education informed by feminist and liberal principles, in contrast to the conservative sexual economy underlying abstinence-only sex education. It embraces affirmative governmental responsibility to foster sexual and reproductive agency and responsibility and stresses the aims of capacity, equality, and responsibility. An adequate program of sex education should also address how gender role expectations and stereotypes may stand in the way of adolescents developing capacities for responsible self-government and acquiring a sense of personal agency with respect to intimacy and sexuality. The Essay then evaluates such a feminist project in light …
Negotiating Gender And (Free And Equal) Citizenship: The Place Of Associations, Linda C. Mcclain
Negotiating Gender And (Free And Equal) Citizenship: The Place Of Associations, Linda C. Mcclain
Faculty Scholarship
This article focuses on the place of associations within John Rawls's political liberalism and in feminist liberalism. It revisits crucial components of political liberalism in light of feminist criticisms, such as those of Susan Moller Okin and Martha Nussbaum, that political liberalism's protection of associational life hinders women's free and equal citizenship. Offering a different reading of Rawls, it finds greater potential to draw on political liberalism to support such citizenship. It then brings liberal feminist ideas about the place of associations into dialogue with recent feminist work on gender, rights, and culture calling for models of rights within culture …
The Parsimony Of Libertarianism, James E. Fleming
The Parsimony Of Libertarianism, James E. Fleming
Faculty Scholarship
I want to begin by congratulating Randy Barnett on writing The Structure of Liberty,' one of the most radical and provocative works of political and legal theory that I have ever read. I consider myself to be a liberal who prizes liberty. Barnett claims to provide an account of the structure of liberty along with "[t]he liberal conception of justice" and the rule of law.2 His is a radical libertarian account centrally concerned with protecting the fundamental natural rights of property, first possession, freedom of contract, and self-defense. In Barnett's world, the fabled libertarian night-watchman state has been downsized and …
Reconstructive Tasks For A Liberal Feminist Conception Of Privacy, Linda C. Mcclain
Reconstructive Tasks For A Liberal Feminist Conception Of Privacy, Linda C. Mcclain
Faculty Scholarship
If liberal conceptions of privacy survive appropriately vigorous feminist critique and re-emerge in beneficially reconstructed forms, then why haven't more feminists gotten the message and embraced, rather than spurned, such privacy? If liberal privacy survives feminist critique, does it face an even more serious threat if contemporary society has both diminishing expectations of and taste for privacy? Does the transformation of the very notion of "private life," due in part to the rise of such new technologies as the Internet and its seemingly endless possibilities for making oneself accessible to others and gaining access to others, suggest the need for …
'Atomistic Man' Revisited: Liberalism, Connection, And Feminist Jurisprudence, Linda C. Mcclain
'Atomistic Man' Revisited: Liberalism, Connection, And Feminist Jurisprudence, Linda C. Mcclain
Faculty Scholarship
One of the major strains of feminist jurisprudence has criticized American law, and the liberal jurisprudence and political philosophy on which it is said to be grounded, as male or masculine.' A central theme of the critique has been that the law embodies a masculine perspective in emphasizing autonomy and the individual over interdependency and the community. Liberalism has been viewed as inextricably masculine in its model of separate, atomistic, competing individuals establishing a legal system to pursue their own interests and to protect them from others' interference with their rights to do so. Hence, it is said that liberal, …
Chapter 4 - Self-Ownership And The Political Theory Of Elizabeth Cady Stanton (Previously Published Article), Elizabeth B. Clark
Chapter 4 - Self-Ownership And The Political Theory Of Elizabeth Cady Stanton (Previously Published Article), Elizabeth B. Clark
Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America
The emphasis on freedom or enslavement of the body, and the issues that sprang from that focus, were feminists' contribution to nineteenth-century American liberalism, as well as their link to radical thought. Elizabeth Cady Stanton drew arguments from the realm of political liberty and religious tolerance to make the case for choice in private life. But the vision of individual autonomy in sexual and domestic matters served also as the basis for her definition of citizenship and as a paradigm for relations among citizens and between citizens and the state. Self-ownership was the unifying theme that ran through Stanton's political …
Self-Ownership And The Political Theory Of Elizabeth Cady Stanton, Elizabeth B. Clark
Self-Ownership And The Political Theory Of Elizabeth Cady Stanton, Elizabeth B. Clark
Publications
The emphasis on freedom or enslavement of the body, and the issues that sprang from that focus, were feminists' contribution to nineteenth-century American liberalism, as well as their link to radical thought. Elizabeth Cady Stanton drew arguments from the realm of political liberty and religious tolerance to make the case for choice in private life. But the vision of individual autonomy in sexual and domestic matters served also as the basis for her definition of citizenship and as a paradigm for relations among citizens and between citizens and the state. Self-ownership was the unifying theme that ran through Stanton's political …
Review Of Red, White, And Blue: A Critical Analysis Of Constitutional Law By Mark Tushnet, David B. Lyons
Review Of Red, White, And Blue: A Critical Analysis Of Constitutional Law By Mark Tushnet, David B. Lyons
Faculty Scholarship
Mark Tushnet's new book offers no such counsel. Mainly a critique of interpretative theories, its conclusions are profoundly skeptical. Tushnet's central claim is that judicial review and constitutional theory cannot possibly perform their assigned functions, and that liberalism is to blame. This review will focus on those facets of the book.