Document Type

Article

Publication Title

Fordham Law Review

Abstract

In what follows, I will describe three sorts of liberalism, each of which attempts to side-step deep disagreements by appealing to our shared intuitions about the right process or institution for resolving disputes. I will call two of these theories “Millian” and “Madisonian” liberalism after their most famous proponents, John Stuart Mill and James Madison. These two versions of liberalism dominate constitutional doctrine and scholarship, although constitutional theorists do not always recognize them as theories about neutral decision-making processes. But the third theory, which I will dub “Westphalian” liberalism, after the Peace of Westphalia that is its most famous and, perhaps, earliest example, has a much more muted presence in constitutional law. The essence of this form of liberalism is that, recognizing that citizens have passionate and irreconcilable religious or ideological differences, the U.S. Constitution devolves decisions about these differences to an intermediate level of government—states, provinces, cantons, etc. The burden of this essay will be to suggest that this strategy is a genuinely liberal strategy for defusing deep disagreements, by substituting conflicts over proper jurisdiction for conflicts over ultimate decisions that the relevant jurisdictions should make. Recognizing the liberal aspirations of such a doctrine helps one understand its strengths and weaknesses as a rival to the Millian and Madisonian versions of liberalism that so dominate constitutional debate today.

First Page

769

Volume

75

Publication Date

2006

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