Recovering the Conservative Liberal Nation State

Liberal constitutional theory, and liberal political theory in general, have increasingly defended the status of often newly created or invented minorities. These are defined more expansively with each new theoretical formulation, as the means to resolve all political and legal tensions.

Known by many names, including group rights, “aggregate collectivities” rights, multiculturalism, and the like, these approaches to governmental policy have tended not to diminish political tensions or promote democratic processes, especially in what Arend Lijphart has described as “deeply divided societies.”[1] At the heart of the matter is the divorcement of these theories from the historical realities that originally created the tensions, and a lack of appreciation for two things: the need for the rule of law, and the wisdom of diffusing governmental power.

Of the new theorists, Will Kymlicka has become a major and representative advocate of a liberal multiculturalism as the guiding principle of such pursuits.[2] Kymlicka takes the construction of artificial minorities further than other scholars, integrating the political theory of multiculturalism with the insights of empirical political analysis. Liberal multiculturalism, he argues, is an outgrowth of the longstanding emphasis upon human rights in international politics, and is not based upon notions of cultural relativism.

Kymlicka’s philosophical mission is to analyze “the current process of internationalizing multiculturalism” and the obstacles to implementation of the concept. He explores the success of liberal multiculturalism and the decline of traditional views of the state, sovereignty, and ethnic politics. His scholarship is devoted to explicating the “logic of liberal multiculturalism” and an exploration of the potential threat that “liberal multiculturalism” poses to existing understandings of human rights and state sovereignty.

As with most of the new liberal theorists, Kymlicka earnestly desires that international organizations utilize liberal multiculturalism in practice to promote political stability through a defense and ennobling of ahistorical groups of citizens. Although attempts to implement these theories have proven to be less than salutary, they have gained much influence in the academy—even as some of the more perspicuous national leaders in the West, including former British Prime Minister David Cameron and German Chancellor Angela Merkel, have stated that multiculturalism in all its modes has failed.

Yet a sophisticated and timely book, The Cultural Defense of Nations: A Liberal Theory of Majority Rights, offers a new twist on the conundrum of multiculturalism, especially in regard to the central issue of cultural assimilation. Liav Orgad, associate professor of law at Interdisciplinary Center Herzliya University near Tel Aviv, and a Marie Curie fellow at the Freie Universität Berlin, poses a significant challenge to the prevailing new liberal theories of the state and immigration by arguing for a majoritarian, cultural defense of global assimilation and migration.

Orgad, writing from within the liberal tradition, nonetheless posits that contemporary liberalism provides solutions that only exacerbate current domestic and international tensions. The amalgamation of lenient immigration policies and the retention of national cultures is the gravamen of the work. For the author, “managing global migration” denotes one of the greatest challenges to liberal constitutional and political theory.

The first half of The Cultural Defense of Nations is devoted to an analysis of the current international immigration situation, with an emphasis on the extraordinary nature of the issue in contemporary society and politics. Accordingly, the dynamic and ever-changing dimensions of global migration, especially between majority and minority groups, require scholars of international relations and political theory to envision new solutions. Religious, cultural, and political methods for confronting public hysteria related to immigration are presented with great clarity. The second half (chapters four, five and six) of the book serves as a guide for differentiating between “justifiable and unjustifiable” defenses of the liberal state and deserves closer scrutiny.

There Orgad rather convincingly argues that contemporary liberal theory violates the very values professed by liberals. In fact, he urges liberals to find an alternative to these patterns of theoretical and practical self-contradiction that has embodied liberalism’s response to most political and social crises in American and in Europe. In this attempt to “‘liberate’ the illiberal” from contemporary liberal thought, the author energetically provides his own corrective, a philosophical and policy-oriented triage of sorts, seeking to resuscitate liberal theory through emendations that will allow for new modes of defense and conflict-resolution.

Among the problems that liberal regimes and liberal theory must confront anew, Orgad believes immigration is the most vital, and immigration is also an issue that a more imaginative liberalism could best resolve. The juxtaposition of America’s neglect to evaluate an aspiring immigrant’s faith in liberalism, on one hand, as a citizenship requirement, and, on the other, the imposition of just such a requirement by most European countries, demonstrates the need for revisiting liberal theory’s contribution to a potential remedy.

The denaturalization cases, especially Knauer v. United States (1946) and Baumgartner v. United States (1944), along with pledge cases, suggest to Orgad that this country has lost its willingness to require potential citizens to affirm liberal values, but Europe has failed the cause to an even greater degree, preferring to exhibit a “muscular liberalism” to forcibly implant liberal values upon individuals seeking citizenship.

To defend a rejuvenated liberalism from external threats, and to ameliorate immigration challenges, Orgad turns to three elements of a potential recovery: state neutrality, liberal tolerance, and policy motivation. While state neutrality is an oxymoronic formulation in most cases, he suggests the concept has importance when it serves as the basis for limiting “non-neutrality,” and the manner in which the restrictions are employed.

His delineation of liberal tolerance is much clearer, and includes an appreciation of the need for religious tolerance as part of his defense of a revised liberal theory, and assumes the form of an invitation to immigrating populations to adopt a very amorphous moral code that has been transferred from one generation to another.

The final element to recovering liberal theory, policy motivation, serves as a “cultural defense” of liberal norms and values. With any cultural defense, however, certain immigrants may be refused citizenship because of an unwillingness to adopt or accommodate a particularist narrative of a country’s understanding of liberal theory and practice.

Given the intrinsic limits to the policy-motivation approach, Orgad articulates another related means of aiding liberal theory: the sharing and acceptance of “constitutional stories.” In accord with the necessity of possessing some aspect of a shared understanding of a political and constitutional order, these stories would provide the theoretical sinew necessary to allow for the successful assimilation into a liberal regime, while also prohibiting those seekers of citizenship who might be capable of “future intolerant behavior.”

In borrowing from other approaches for promoting a sense of political and moral community, including communitarian and narrative-inspired social thought,[3] Orgad advances the moral and ethical potentialities of liberal responses. As is the case, however, with the proposals of other theorists, the vitality of the community that is needed for a narrative movement to succeed contradicts liberalism’s established purpose. Liberalism “sanctifies individual freedom” more than other pursuits.

Liav Orgad’s reformulation of a liberal constitutionalism that can resolve longstanding issues is certainly commendable and useful. Regrettably, the innovations he proposes cannot resolve the problems he wishes to ameliorate. The author’s attempted return to the fundamental principles of truly protecting majority political activity within a constitutional order offers more promise, but it remains a remedy that will be unappealing to contemporary liberals.

[1] Arend Lijphart, “Majority Rule Versus Democracy in Deeply Divided Societies,” Politikon 4:2 (December 1997), 113-126.

[2] Will Kymlicka, Multicultural Odysseys: Navigating the New International Politics of Diversity (Oxford University Press, 2007).

[3] See Stanley Hauerwas, The Peaceable Kingdom (University of Notre Dame Press, 1983).

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on January 04, 2017 at 21:58:58 pm

As an agent for We the [Civic] People of the United States, it seems constitutional and political theory scholars should first ask, am I a citizen-person? Abraham Lincoln said, “[Why not] patient confidence in the ultimate justice of the people? Is there any better or equal hope in the world?”

The political goals are stated in the preamble to the constitution for the United States. It divides citizens according to trust and commitment in those goals or not. The statement is neutral to religion, so unlike in European trends, areligion or secularism is not required. By the same token it does not attempt to convert thought, a civic duty and responsibility, into conscience or conformity to an imposed ideology.
So far, We the People of the United States has neglected the preamble and thereby neglected justice, failing Lincoln’s hope.

The present discussion is bemused by failure to define terms with respect to the preamble, which states,
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Can there be “liberal” preamble theory? Does “liberal,” as Dr. Cheek uses it, refer to “liberty” or to “equality”? A civic people, those who do not neglect the preamble, promote prosperity but do not assure equality; they want liberty for their children and themselves. John Rawls equivocated justice to fairness, but I doubt the preamble affirms the semantic injustice to justice.

Also, the preamble cites no authority on which to iteratively collaborate to achieve the goals. There’ no reference to the Bible or to English common law, or Blackstone. Thus, the people claim the freedom to know the standards by which their achievements of the goals are to be evaluated. However, since most inhabitants in 1789 were former loyal subjects of England, Protestantism, Blackstone, and slavery were default starting points.
After 228 years’ operation, a few realities have become self-evident, including the following:

1. The preamble may be used by the people to coordinate civic morality, and religious morality is not involved.
2. The-indisputable-facts-of-reality rather than dominant-opinion may be the people’s standard.
3. Civic persons pursue fidelity . . . to the facts, self, family, extended family, the people, the nation, the world, and the universe both respectively and collectively.
4. Real-no-harm religions may flourish according to believers’ pursuits; however, religious-canon must conform to US statutory law.
5. Capitalism may reform so that each newborn person has the opportunity to emerge a civic young adult fully prepared and intent for a full life as both consumer and stakeholder in capitalism.
6. Persons who decline the opportunity cannot expect equal consequences and may avoid subjugation to statutory law.
7. Immigrants may understand that in America, in addition to earning a living, people in the civic culture iteratively collaborate for justice both in daily living and in the city, county, state, and federal governments. They may join the USA provided they do not expect to preserve past practices of their group that do not conform to the civic culture.
8. English is the civic language here.
9. The USA offers freedom from oppression so that each person has the liberty to civically pursue private hope and dreams.

The above principles preserve the rule of law according to the people in their states and the USA. They are empirical for 2017 yet hold the hope for the totality We the People of the United States. Individual-independence of his or her unique person is possible. No one expects their welfare to be assured by others. The rest of the world may mimic these principles within their ethnic histories. The wonder of a civic culture is that coercion by groups no longer lessens a person’s opportunity to make the most of his or her lifetime according to his or her preferences.

A civic culture as described above is problematic for classical liberals but less than for contemporary liberals. We speculate that 2/3 of US citizens tacitly strive for a civic culture but cannot appreciate each other because of past differences. However, the people may have tacitly expressed the preamble’s principles when Trump won 3084 of America’s 3114 counties.

Regardless, neither isolated-scholars nor foreign governments can grasp the promise America holds for the world. Only civic citizens of the USA understand.

read full comment
Image of Phil Beaver
Phil Beaver

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.