Constructivist political theory, championed most prominently by John Rawls, builds up a conception of justice from the minimal requirements of political life. It has two powerful attractions. It promises a kind of civic unity in the face of irresolvable differences about the good life. It also offers a foundation for human rights that is secure in the face of those same differences. The very parsimony that is its strength, however, deprives it of the resources to condemn some atrocities. Because it focuses on the political aspect of persons, it has difficulty cognizing violence done to those aspects of the person that are not political, preeminently the body. Constructivism thus can be only a part of an acceptable theory of justice.Constructivism develops an account of human rights on the basis of a thin conception of the person and her needs, abstracting away from controversial conceptions of human flourishing, and then deduces basic rights from this thin conception. The hope is that these rights will remain robust whatever ends the actual people who comprise a society turn out to have. This strategy works well for some rights, notably the right to free speech. But people have urgent needs that go far beyond what is necessary to exercise their moral powers or to participate in democratic dialogue.I will focus on one extreme human rights case: the practice of female genital mutilation (FGM), which, most agree, violates basic human rights. Doubtless Rawls was appalled by the practice. Yet his theory cannot generate a basis for condemning it. A satisfactory conception of human rights must draw upon some normative source beyond that offered by constructivism. This conclusion is reinforced by considering the work of another political liberal, Martha Nussbaum, who offers a more coherent basis for rejecting FGM. Nussbaum accomplishes this goal, I will show, only by silently abandoning constructivism.
Why do we grant religious exemptions? Many distinguished scholars and judges have been drawn to the idea that conscience is entitled to special protection, because a person in its grip cannot obey the law without betraying his deepest, most identity-defining commitments. The weakness of this justification is shown by philosopher Harry Frankfurt's account of what he calls “volitional necessity,” which clarifies the structure of the argument that invocations of conscience imply. Frankfurt shows that a person can be bound in this way by allegiances that there is no reason to respect; volitional necessity can arise from anything at all that a person cares about. Conscience is thus a poor basis for claims upon other people. Accommodation must rather depend on some idea of the value of religion.
The political ideal of neutrality toward conceptions of the good is unsustainable at the extremely abstract level proposed by some liberal theorists. Neutrality is nonetheless a valuable political ideal. One of the many ways that government can go wrong is to take a position on some question that it would, all things considered, be better for it to abstain from deciding. The classic example is the question of which (if any) religion is true. The idea of neutrality holds that government ought to avoid this pathology.
Once upon a time, not very long ago, there were more states where a same-sex couple could enter into a civil union or domestic partnership than states where they could marry. 1 In the wake of United States v. Windsor, 2 the federal government has largely ended its discriminatory policy of denying recognition to 1. In July 2011, nine states, plus the District of Columbia, permitted same-sex couples to form civil unions or domestic partnerships that provided full or virtually full state-level spousal rights, while only six states, plus the District of Columbia, permitted same-sex couples to marry; at that time, there were three additional states that had created alternative statuses that provided partial spousal rights. See Marriage Equality & Other Relationship Recognition Laws, Hum. rts. campaIgn (July 6, 2011), http://www.hrc.org/state_maps (on file with author). Analysis of data from the 2010 census suggests that, at that time, there were approximately 220,000 same-sex couples in formal legal relationships, split almost evenly between those who were married and those who were in civil unions or domestic partnerships.
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