Democracy's Discontent: America in Search of a Public Philosophy.
Historians of the United States have traced eclipses of community by individualism as far back as the 1650s. In Democracy's Discontent, Michael Sandel presents the last half-century as a period of such civic breakdown, rewriting U.S. history as a morality play. The forces of good are republicans, by whom "liberty is understood as a consequence of self-government" (p. 26), who are focused on the common good, who think government should be concerned with the characters and civic virtues of its citizens, and who espouse an "encumbered" concept of the self - as "obligated to fulfill ends we have not chosen" (p. 12). The negative forces are liberals, who believe that persons are "free and independent selves, unencumbered by moral or civic ties they have not chosen" (p. 6), with rights that should "trump" majority decisions, and who think government should avoid questions of morality and the good life and not concern itself with its citizens' character. The good players include Jefferson, Lincoln, Brandeis (most of the time}, F.D. Roosevelt before Keynesianism corrupted him, Martin Luther King, and Robert Kennedy (in his last few years). The bad players include the majority of Supreme Court justices from 1943 on, Lyndon Johnson, John Rawls, and Ronald Dworkin, all of whom reflect the baneful influence of Kant or J.S. Mill. A deep and primary source of the discontent that afflicts the citizens of the United States is "the theory implicit in our public life" (pp. x and 278), the triumph of liberalism over the republicanism that shaped our society.
Sandel's Manichean worldview requires distorting the views of virtually all he discusses. In fact, all the main actors on both sides of his moral war were liberals and republicans, by most of his criteria, and none were republicans by one of them. All thought that freedom depends on both individual rights and representative government; that governments inevitably legislate some moral matters, affecting the character of their citizens, but should avoid many controversial religious and moral positions; and that political and legal decisions should take some commitments and characteristics of persons into account, but not others. Yet, none thought rights were important only insofar as they foster civic virtue.
In this book, however, liberals are not concerned with government's effects on citizens' values, thinking instead that government should be neutral and merely protect individual liberty, which is "defined in opposition to democracy" (pp. 25, 28). Thus, Sandel's Mill apparently never wrote "On Representative Government," in which the real Mill clearly states that the most important criterion of good government is the intellectual and moral improvement of its citizens and explains how self-government contributes to this end. As for Kant, he does indeed state the "memorable" view Sandel quotes: that "the problem of setting up a state can be solved even by a nation of devils" (p. 322). Kant means, however, as he says, "setting up," and he goes right on to say (whereas Sandel does not) that while "we cannot expect . . . moral attitudes to produce a good political constitution; on the contrary, it is only through the latter that the people can be expected to attain a good level of moral culture" (Kant's Political Writings, ed. Reiss, 1970, pp. 112-3). Likewise, you would never know from Sandel's account of Rawls's liberalism that Rawls explains at considerable length in both of his books how a well-ordered society must maintain a sense of justice and other political virtues in its citizens.
Republicans, according to Sandel, begin "by asking how citizens can be capable of self-government" (p. 27) and are concerned with individual rights only insofar as these promote the common good or foster the civic virtues needed for self-government. Thus, Sandel's Jefferson seems not to have written the Declaration of Independence, which of course begins with the "self-evident" truths that the Creator gave to men "unalienable Rights" to life, liberty, and the pursuit of happiness and then states that governments are instituted to "secure these rights." Neither does Sandel's Brandeis much concern himself with individual freedoms except as aids to self-government, though the real Brandeis not only defended "the right to be let alone," as Sandel notes (p. 95), but also named it "the most comprehensive of rights and the right most valued by civilized men (Olmstead versus United States, 277 U.S. 438, 478 )." Brandeis, like Jefferson, while a strong believer in republican self-government, clearly thought of it largely as the best means of preserving the freedom essential to individual happiness, rather than thinking of "freedom [as] essentially connected to the good of self-government" - a meaning Sandel imputes to the passage he quotes by diverting its first, key clause into a footnote (p. 79 and n. 116).
Even helped by such scholarly techniques, Sandel's account of the twentieth century's liberal eclipse of republicanism is unpersuasive. The timing of the supposed eclipse keeps changing: Sometimes it ranges from the late 1930s until the 1960s (though the public philosophy that allegedly inspired it was not articulated until the 1970s); sometimes it is attributed to "the last fifty years"; sometimes it is traced to the Lochner era of constitutional law, beginning in 1905. But whichever the period Sandel's evidence fits poorly. Why do we find the civil rights movement, which Sandel (eccentrically) labels "republican," arising in the 1950s and 1960s, a period of supposed liberal ascendancy? Why was the civic-spirited republican Kennedy so popular with voters in 1968? Why did almost all the programs that Sandel suggests may reinspire the civic virtues originate in the 1940s, 1950s, 1960s and 1970s - the decades of liberal civic impoverishment? As for the supposed influence of political theory over practice, does it explain why between 1940 and 1943 the Supreme Court's attitude about compulsory flag salutes by school children suddenly shifted from republican to liberal? Several passages of the Court's opinion in the latter case - with which, Sandel announces, "the procedural republic had arrived" (p. 54) - indicate that it was the shadow of Hitler, rather than that of the teenaged John Rawls or the infant Dworkin (or even the words of the long-dead Mill) that hung over the Court's abrupt change of heart (West Virginia State Board of Education versus Barnette, 319 U.S. 624, 627 and 641).
In Sandel's account of the recent history of freedom of religion and speech, privacy rights, and family law, courts and legislatures have moved ever farther toward conceiving of persons as freely choosing, unencumbered selves. While earlier defenses of religious freedom (such as Jefferson's and Madison's) "had nothing to do with a right to choose one's beliefs" (p. 65), recent defenses are infused with notions of choice, which Sandel finds offensive to the true religious believer. Most of the Supreme Court's errors arise from its refusal to take seriously people's "encumbrances," such as deeply rooted moral or religious beliefs.
The problem with the diagnosis emerges as soon as Sandel presents his cure. For in suggesting how the Court should have deliberated, he takes account only of those "encumbered selves" with whom he is most sympathetic. Thus, in the Skokie free speech case, we hear of encumbered Holocaust survivors but not encumbered civil libertarians; in Hardwick, the case of homosexual privacy, Sandel attends to the encumbered homosexual (so long as he is monogamous) but ignores the encumbered homophobic religious believer; in advocating new divorce laws, he favors the encumbered traditional wife over the encumbered feminist or role-sharing husband. Since the reason these cases are difficult is that they involve persons or groups with conflicting deeply held beliefs, no solution can result from focusing on the encumberedness only of those on one side.
Liberalism's worst fault, as Sandel presents it, is its failure to engage the serious moral issues of political life. Thus, we might expect Sandel the republican to engage them, but he does not. The closest he comes is to "gesture towards" some positions and away from others. On abortion, for example, he never comes out firmly against choice, but he likens leaving this moral decision to women to leaving the similarly serious moral issue of slavery to the states to decide. He does not actually recommend denying subsistence to children because of their parents' sexual behavior but, again, his gestures come perilously close. He chastises the Supreme Court both for upholding and for restricting religious freedom, in similar circumstances. While the Court was apparently wrong not to force the Jehovah's Witness child to salute the flag (he asks: "If not by compulsory flag salutes, how may the state cultivate a common citizenship?" [p. 54]), the Court's refusal to permit an Orthodox Jew to wear his yarmulke in the military was also wrong, since it failed to take account of the Jew's encumbered self. But what happened to common citizenship here? If not in its armed forces, where can the virtuous republic foster it?
What civic virtues matter here and now? Given that those lauded by Sandel's republican heroes include conflicting ones (such as deference to authority and independence of thought and character), we expect, but do not get, guidance as to which he thinks we should foster and why. Neither, though he worries about the present scale of economic power, does he engage the tough question of whether the independence required of republican citizens can coexist with capitalism on any scale at all. Instead, he states: "The civic virtue distinctive to our time is the capacity to negotiate our way among the sometimes overlapping, sometimes conflicting obligations that claim us" - not an easy task, for "it is easier to live with the plurality between persons than within them" (p. 350). This view, however, depends on a curious, morally solipsistic refusal to recognize that we are not only persons each with his or her oven potentially conflicting loyalties. We also live in a country and an era in which a plurality of conceptions of the good life among persons is a fundamental fact - one with which liberal conceptions of justice and rights have had far more success in dealing than have republican conceptions of encumbered selves.
If Sandel argued throughout that there have always been strong liberal and republican currents in U.S. political discourse (as he once briefly and partially acknowledges [p. 6]), and that these currents often coexist in the beliefs of the same thinker, his book would be far more plausible. If he tackled and declared himself on the difficult moral issues, it would be more engaging and far more courageous. As it is, Democracy's Discontent provides neither a reliable history of political thought in the United States nor a coherent argument about civic virtue.