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Debating Democracy's DiscontentEssays on American Politics, Law, and Public Philosophy$
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Anita L. Allen and Milton C. Regan

Print publication date: 1998

Print ISBN-13: 9780198294962

Published to Oxford Scholarship Online: November 2003

DOI: 10.1093/0198294964.001.0001

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The Right of Privacy in Sandel's Procedural Republic

The Right of Privacy in Sandel's Procedural Republic

(p.248) 19 The Right of Privacy in Sandel's Procedural Republic
Debating Democracy's Discontent

James E. Fleming

Linda C. McClain

Oxford University Press

To the extent Sandel hints at substance, his republican virtues suitable for multiple-situated selves sound suspiciously liberal or at least compatible with liberalism, raising the question whether there is a significant distance between his pluralistic republicanism and the most attractive form of liberalism. If republicanism’s concern is simply that citizens engage in morally worthy social practices, then a regime that places no value on choice could simply assign citizens to engage in those practices; if Sandel objects that forcing persons into particular relationships and practices compromises the moral worth of those practices, he must implicitly assume that there is some value attached to the element of choice, autonomy, or personal self-government. Sandel does not comment on perhaps the most republican aspect of the joint opinion in Planned Parenthood v. Casey: the latitude that it gives to the state to shape women’s decision-making process in favor of childbirth over abortion to encourage “wise” or responsible decisions, in part because of the “consequences” of the abortion decision for the women, the community, and prenatal life. Toleration need not be grudging and fragile if its proponents persuasively make a moral argument for it and its possible tempering of the formative project: autonomy is a human good, as are diversity, equal citizenship, and toleration itself, and a commitment to protecting those goods should often (but not always) constrain government from coercively acting to make citizens lead good lives by compelling “moral” and prohibiting “immoral” choices. It remains an open question whether we should wish to revitalize the republican tradition and to search for a substantive republic, but even if we should, most of the work of developing a moral reading of the Constitution of the substantive republic remains to be done.

Keywords:   abortion, choice, Constitution, distance, fragile, grudging, Planned Parenthood v. Casey, reading, toleration, value

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