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A TENSION IN THE MIND: MEDITATIONS ON
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SCRIPT”

A TENSION IN THE MIND: MEDITATIONS ON
ASCRIPTIVE CITIZENSHIP, THE GENERAL WELFARE, AND RAWLSIAN
JUSTICE IN THE EDUCATION OF CITIZENS

By

Jewel E. Smith

A DISSERTATION

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

DOCTOR OF PHILOSOPHY

Department of Curriculum Teaching and Education Policy

2004

 

 

   

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ABSTRACT
A TENSION IN THE MIND: MEDITATIONS ON
ASCRIPT IVE CITIZENSHIP, THE GENERAL WELFARE, AND RAWLSIAN
JUSTICE IN THE EDUCATION OF CITIZENS
By
Jewel E. Smith
A socially stratified state fails to meet the standard for liberal legitimacy due to the
irrationality and social injustice of its basic structure. America is a socially stratified state
with a history of pursuing ascriptive social policies. Its compulsory schooling system
ofien buttresses and rationalizes its structure, but such a system is detrimental to the
development of critical rationality and autonomy, particularly with respect to those least-
advantaged under existing stratification schemes. Such a system cannot be structured to
champion equal dignity and equal citizenship, cannot sincerely commit itself to preparing
its young for self-govemment consistent with democratic ideals, and cannot substantively
promote these ideals within the culture of its own political enterprise. Alternatively, John
Rawls’ political philosophy provides the basis for a morally defensible—though
incomplete—model for conceptualizing the ideal, liberal democratic state. It makes social
justice the first virtue of social institutions and rejects stratification. A philosophy of
education consistent with this political theory—but constructed for the real world—is
Offered as part of the reconstruction of America’s socially stratified society. The
phi1°30l’11y serves as a moral guide for practical reasoning to correct unfair privilege and
unfair deprivation in education. Citizens are urged to support the reconstruction of
society by embracing its inclusively defined, democratic ideals in the interest of equal

dignity, equal citizenship, and the general welfare.

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Copyright by
JEWEL E. SMITH
2004

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For My Parents,
HDJ-I. Smith and J. Smith
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T 0 All Who Struggle

In the Greatest Struggle of All . . .

And T 0 Their Heirs

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ACKNOWLEDGMENTS
I extend my appreciation to Martin Benjamin, my dissertation director, for his critical
reviews and editorial advice on the drafts of my dissertation, for the quality of our
exchanges, and for the intellectual space within which to create something that I value.
Thanks to Mary Kennedy, the chair of my committee, for her thought-provoking
questions on every chapter, and for her support in the stages leading up to my proposal
defense. Thanks also to the remaining members of my committee for their diverse and
candid perspectives and for their openness to my views: Chris Dunbar, Steve Esquith,
Bob Floden, Bmest Morrell, and Rand Spiro. I would be remiss if I did not also express
my gratitude to Bill Lawson for formally introducing me to the disciplines of social and
political philosophy during my two independent study courses with him, and I especially
thank him for assigning John Rawls’ A Theory of Justice—the contents of which I had
only the faintest impressions prior to that time.

Special thanks to my family, and extended family, for their support and
encouragement throughout this process. In particular, thanks to Erni and Mano Orso for
the space to retreat, for the humor and good music, and for the occasional chess game.
Special thanks also to Isabel Jasper for the countless conversations that helped to clarify
my thoughts on many issues, for the research support, and for just being a great human
being. Finally, thanks to all whose understanding and sacrifices made it possible for me

to undertake and complete this phase of my journey and to enjoy it as much as I did.

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PREFACE

When you’re in a brick cell, locked up, and you haven’t done anything to anybody but
still you’re locked up there and sometimes words just begin to come to you and you begin
to sing. Like one of my favorite songs, ‘This Little Light of Mine, I’m Going to Let It
Shine.’

----Fannie Lou Homer
To be human, at the most profound level, is to encounter honestly the inescapable
circumstances that constrain us, yet muster the courage to struggle compassionately for
our own unique individualities and for more democratic and free societies.

----Cornel West

Abstract political theories tend to advance tmiversal ideals about the good life and the
good society. However, actual membership status is often contingent upon the differential
value ascribed by those in authority to variations in members’ race, gender, class, religion
or other social categories. This is referred to as ascriptive citizenship. This form of
citizenship has characterized American citizenship since its inception, particularly with
respect to its centuries of slavery.

Chattel slavery and ascriptive citizenship can be understood as part of a tradition of
social stratification buttressed by the inappropriate use of the state’s coercive powers and
by the acceptance of its abuses among the vast majority of its citizens. Social
stratification coexists with principles of liberty and equality in America’s political
evolution, but such principles have a tendency to be formal rather than substantive. For
those who are disfavored within the norms of the ascriptive divide, liberal ideals of
democratic citizenship continue to lack the radical significance and value in shaping
social life that official declarations portend. On the contrary, citizenship becomes an

instrument for systematically exploiting and stratifying members of society in the interest

of privilege, and the ascriptive pattern transcends many generations. The result is a

vi

 

s.

 

socially fragmented and conflicted society that seems bent on dividing against itself. This
is the critical historical context that animates my thesis.

Pervasive social injustice in society negates liberal legitimacy. Deprivation
prompts many to reconsider the proper role and functioning of government and to
repudiate its illiberal and undemocratic agenda. When government’s priorities sustain
patterns of neglect in the protection of rights and liberties, the quality of life is
undermined in all areas of human activity. Of particular concern are the forms of neglect
of children that we see under govemment—sponsored compulsory education. Abuses and
potential abuses of power in this area epitomize the failings of government and the
precariousness of the general welfare.

One is compelled to inquire about the nature of the “common good” for which
government requires its young citizens to attend its schools. Unfair privilege underlies
educational policies and practices that bestow more benefits on some young citizens and
more burdens on others. In the zero-sum game of liberties, unfair privilege for some
means unfair deprivation for others, but there are alternatives to the irrationality of this
brand of liberalism. The pursuit of alternatives is, for many, a worthwhile and necessary
undertaking. Ultimately, the success of such alternatives depends on the strength of the
citizenry’s commitment to creating a socially just state. An engaging example of an ideal,
flexible model of such a state is reflected in the political philosophy of the late John
Rawls. His philosophy focuses on realizing social justice and equal citizenship within
society’s basic structure.

A philosophy of education based on Rawls’ theory of justice is reconstructive. I

characterize the application of distinctive features of Rawls’ political liberalism to the

real world (the nonideal) as “Rawlsian.” My interpretation of the Rawlsian reconstructive
project promotes political autonomy and empowerment among diverse segments of the
population in the interest of eradicating social stratification and ascriptive citizenship.
Egalitarian aims, cognitive and moral reasoning skills, and non-authoritarian school
processes characterize the Rawlsian education project (also referred to as the prescriptive
project in education). In this context, public schooling makes a vital contribution to the
healthy development of all young citizens. This “thick” democracy in education is
realizable when the people summon the moral courage and the political will to create it—
a tension in the mind that seeks to translate ideals into socially just material conditions.
The quest for a social order that is far less tolerant of needless suffering and
misery underlies the modest contribution that this thesis makes to the generations of
struggle for equality and freedom. It is an extraordinary quest that many ordinary people
share, a quest for which they have devoted their energies and given their lives, a quest
around which we can strengthen the fabric of our divided society, transgressing the limits
that the past repeatedly imposes on the present—carrying forward the legacy of resistance

to suffering and injustice.

viii

List of Table
introduction.

(hrpterl

Citizenship: A
The Four
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Chapter 2
Th State and
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CONTENTS

List of Tables ......................................................................................... xi

Introduction .......................................................................................... 1

Chapter 1

Citizenship: A Matter of Denial and Degree ................................................... 6
The Founding and Ascriptive Citizenship .............................................. 19
The Reconstruction and Ascriptive Citizenship ....................................... 30
The New Deal and Ascriptive Citizenship .............................................. 51
The Civil Rights Era and Ascriptive Citizenship ..................................... 59
Conclusion .................................................................................... 70

Chapter 2

The State and Compulsory Education: Some Moral Considerations ................... 78
The Need for Social & Racial Justice .................................................... 98

Chapter 3

Rawls’ “Well-Ordered” Society: A Flexible Method of Inquiry ........................ 106
Introduction ................................................................................. 108
The Well-Ordered Society ............................................................... 110
Rawls’ Principles of Justice .............................................................. 119
Well-Ordered Society and Antecedent Justice ....................................... 127
Justice Mid-Stream: Rawls’ Moral Judgments and the Nonideal ............... 129
First Critique: Abstracted Ideals ....................................................... 131
Revisiting Chapter 1 ....................................................................... 140
Extending Prescriptions .................................................................. 145
Group Status and Primary Goods ...................................................... 150
Racial Minority Status/Female Status and Primary Goods ....................... 156
Public Reason ............................................................................... 163

Second Critique: Public Reason Hegemonic/Too Restrictive................l65
Third Critique: Public Reason Too Permissive ............................... 175

Chapter 4

Projections Onto A Critical Geography: A Rawlsian Topology ........................ 190

Chapter 5

“The Unexamined Life is not Worth Living:” Philosophy of Education, Citizens,

and the “Rawlsian” Society ..................................................................... 240
Views on a Contextualized Philosophy of Education ................................ 242
The Aim: Reconstructive Education for the Masses ................................. 242
Dispositions as “Liberating Powers” in the Project of Reconstruction .......... 247
Methods ...................................................................................... 261

ix

(onclusion
A Tension in
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Notes ..........

Bibliography .

 

Conclusion

A Tension in the Mind ........................................................................... 275

In the Interest of Freedom ............................................................... 281

Notes ................................................................................................ 292

Bibliography ....................................................................................... 304
x

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TABLES

Table 1 .......................................................................................... 123

xi

There is a basin in the mind where words float around on thought and thought on sound
and sight. Then there is a depth of thought untouched by words, and deeper still a gulf of
formless feelings untouched by thought.

--Zora Neale Hurston

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INTRODUCTION
Eternal vigilance is the price of liberty, and it does seem to me that notwithstanding all
these social agencies and activities there is not that vigilance which should be exercised
in the preservation of our rights.
----Ida B. Wells
Injustice anywhere is a threat to justice everywhere. We are caught in the inescapable
network of mutuality, tied in a single garment of destiny. Whatever affects one directly,
affects all indirectly.
----Martin Luther King, Jr.
Chapter 1 provides a historicized critique of American citizenship that highlights patterns
of ascriptive partitioning in four significant and innovative periods of America’s history.
These patterns are ofien suppressed in our collective memory and in the discourse of
mainstream liberalism. I stress the collective moral failings reflected in these pattems—
particularly the many missed opportunities to rectify the inequalities and injustices within
the basic structures—as the principal factors undermining and circumscribing the
democratic project. In this context, I argue that citizenship status often serves as a means
of exploitation and social fragmentation within America’s stratified society. I maintain
that “group exploitation” is neither an anomaly in American liberalism nor a misinformed
interpretation of its tenets but, rather, it is a dominant manifestation of this paradigm as
understood and reflected with the basic institutions of our society. Coming to grips—as a
nation—with the suppressed memory of collective injustice is a prerequisite to
establishing the moral accountability of our social institutions and making liberalism a
viable political theory in the quest for equal dignity and equal citizenship within a just
society.
In Chapter 2 I discuss four possible conflicts between government’s interests and

the public interest that arise when state power is used to advance illiberal and

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undemocratic ends. I consider what these conflicts imply for how we ought to theorize
the state and for how we ought to interpret its role in the compulsory schooling process,
particularly given its purported objective to prepare children for democratic citizenship. I
explore the serious obligations confronting government in this process, the heightened
accountability and transparency requirements that exist, given the compulsory nature of
schooling and the constitutional guarantees purportedly afforded to all citizens. I
conclude that the state must be substantively committed to social and racial justice in
order to bring a measure of legitimacy to its sponsorship of compulsory education.

In Chapter 3 I pursue three objectives. First, I provide a detailed and critical
explication outlining Rawls’ theory of justice, interspersed with references to preceding
chapters—particularly Chapter 1. The references provide historically specific contexts for
the moral judgments contained in Rawls’ prescriptions. I explain the fimdamental intent
of his political philosophy in a manner that farniliarizes the reader with his theory of
“domestic justice,” with its inward-looking conceptual framework. In so doing, I
highlight Rawls’ explicit normative focus, particularly his aim to establish a just and
stable democracy pursuant to public principles in support of a fair social system. I use the
following major works of Rawls to explore his ideas on the just society: A Theory of
Justice (1971/ 1999b), Political Liberalism (1993), Law of Peoples (1999a), and Justice
as Fairness: A Restatement (2001).

Second, I entertain and respond to two lines of critique of Rawls’ theory:
challenges to its usefulness in the real world (the nonideal) given its abstractness, and
claims regarding the ostensibly negative impact of his deliberative process (public

reason) on the viability of divergent religious, philosophical, and moral world views. In

response to the first critique, I discuss distinctive and complementary aspects of Rawls’
ideal theory vis-a-vis the nonideal. In response to the second critique, I clarify and defend
Rawls’ deliberative process by pointing to its underappreciated libratory possibilities and
to the increasing flexibility of its discursive constraints.

Finally, I suggest two ways in which Rawls’ theory can assist us in linking moral
judgments to social change under nonideal conditions: complementing the protections of
“individ ‘ ” basic rights and liberties with “group” protections, and taking into account
racial minority status and female status together with the focus on material wealth when
considering institutional factors that undermine liberty and justice for all. I characterize
this framework as “Rawlsian” to link it to the issues raised in Chapter 1 and to distinguish
it from Rawls’ ideal theory. The Rawlsian framework rejects all permutations of social
stratification and ascriptive citizenship as irrational and immoral forms of social
organization. In my estimation, the general character of a just society under nonideal
conditions (Rawlsian) reflects moral and political commitments that substantively
champion equal dignity and equal citizenship for all.

Chapter 4 maps the four concerns that were raised in Chapter 2 (government
abuses of power under ascriptive citizenship) onto a different political landscape. For this
purpose, I reintroduce and expand the descriptive and explanatory “Rawlsian” framework
discussed in Chapter 3. Its critical geography historicizes and conceptualizes the purposes
of the reconstruction. With respect to each of the four concerns raised, I argue that the
moral judgments stemming fi'om Rawls’ two principles of justice constrain government’s
coercive powers and explicitly impose a standard of public justification on public policy

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resulting level of public accountability reduces the potential for ascriptive government
agendas within the basic structure of society, but it does not devitalize the state. That is,
the state retains sufficient power to meet its obligation to its citizens to be an instrument
for justice in protecting their rights and liberties. It effectuates these purposes by actively
regulating the basic institutions of society to insure that they provide the background
justice needed for a fair system of social organization; among other things, this amounts
to an on-going, substantive commitment to securing equal dignity and equal citizenship
pursuant to Rawlsian moral principles.

In Chapter 5 the same set of contextualized moral judgments that were employed in
Chapters 3 and 4 to guide ambitions in the Rawlsian reconstruction are revisited in order
to anchor one aspect of its prescriptive project: its philosophy of education. That is, the
critiques of social stratification and ascriptive citizenship that animate my thesis provide
the inspiration, in Chapter 5, for a normative education philosophy grounded in a

commitment to equal dignity and equal citizenship. The prescriptive project urges

government to be, among other things, an instrument for the realization of positive rights.

The aims of the schooling proj ect-the moral content of education—and the political
implications of those aims are integral to the realization of positive rights within the
Rawlsian framework. A contextualized philosophy of education provides the moral
vision that guides reconstructive thinking about schooling within a circumscribed
democratic project, and beyond.

In the final section, the Conclusion, I propose an alternative policy ethic. It
establishes certain moral antecedents for government within the Rawlsian reconstruction

project. The state must respect these antecedents within its basic structure in order to

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have a chance of meeting Rawls’ moral standard of liberal legitimacy in its sponsorship
of compulsory schooling; absent these antecedents, the state cannot provide a morally
defensible response to those who contend that govemment-controlled schooling is
inherently repressive and intellectually enervating. I note that the implementation of the
Rawlsian ethic requires the political will and moral agency of the public, particularly to
the extent that the public has an interest in promoting substantive equality in the
distribution of social benefits—educational opportunity, for example.

With the citizenry’s moral vigilance, the state can be reconstructed; it can become
an instrument for justice—its sanctioning and “normalizing” powers used pursuant to
moral principles consistent with Rawls’ political theory, as interpreted within the
Rawlsian framework. The reconstruction project establishes background justice by
removing obstructions to equal dignity and equal citizenship within the basic structure—
specifically, social stratification and ascriptive citizenship—and doing so in the interest
of all people irrespective of race, class, gender, and other invidious distinctions. Citizens
are encouraged to collectively embrace and advance the reconstruction of society

pursuant to a democratic project that functions in the interest of social and racial justice.

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CHAPTER 1
CITIZENSHIP: A MATTER OF DENIAL AND DEGREE
Whatever the ideological gratifications that the mnemonic evocation of an original and
pure citizenry may have, it is unconvincing and ultimately an uninteresting flight from
politics if it disregards the history and present actualities of our institutions.
-—-Judith N. Shklar
In other words, one would be taking the historical reality of a partitioned social ontology
as the starting point rather than the ideal abstraction of universal equality, qualified with
an embarrassed, marginal asterisk or an endnote to say that there were some exceptions.
----Charles W. Mills

The ideal conception of American citizenship evokes a powerful sense of belonging. It
suggests fiill membership in a polity pledged to uphold equal rights and to permit its
members the freedom to pursue their ends on fair terms. It repudiates hereditary privilege
and the social castes of Europe that severely limited the amount of freedom that could be
realized among participating members in society and even predetermined the life chances
of the unborn. The social stratification of European society marginalized the interests of
the masses and imposed a system of differential human value.

Nineteenth-century historian George Bancroft sharply distinguishes stratified
societies from the ideal that is often associated with American’s constitutional republic:

The Constitution establishes nothing that interferes with equality and

individuality. It knows nothing of differences by descent, or opinions, of favored

classes, or legalized religion, or the political power of property. It leaves the

individual alongside of the individual. . . . As the sea is made up of drops,

American society is composed of separate, free, and constantly moving atoms,

ever in reciprocal action . . . so that the institutions and laws of the country rise

out of the masses of individual thought which, like the waters of the ocean, are

rolling everrnore.l

In order to insure liberty, the special obligations of American citizenship are understood

to exist alongside specific limits on govemment’s coercive power. For example, it is

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limited in its ability to restrict freedom pursuant to oppressive laws. Oppressive laws are
those that are unjustly harsh or are unjustly applied in a differential manner. The liberal
ideal of American citizenship secures the equal dignity of the person against the tyranny
of the majority in government and in civil society. Citizenship as ‘political status’
protects its members from individual and private abuses that interfere with their
fundamental interests in life, liberty, and the pursuit of happiness.

According to Bancrofi, the Constitution provides the foundation for uniting
citizens in a shared sense of democratic ideals that shape the basic institutions of
American society. He notes that America’s unique character results from the
contributions made to its laws and institutions by free and equal members. Citizenship
status within this project incorporates its constituents as individuals and as members of
pluralistic communities. This suggests that our basic institutions reflect our public status
as free and equal citizens who pursue collective and particularistic interests.

Social institutions contribute to citizens’ self-understanding and to their relations
as social beings. Bancroft’s citizens are less likely to doubt their equal membership status
in the polity in light of the inclusive interpretations that are routinely attributed to the
ideals contained in the Declaration of Independence, the Preamble to the Constitution and
its Bill of Rights, the Federalist Papers, and other public rhetoric widely understood to
express an egalitarian ideology. These institutional proclamations are conspicuous
representations that are presumed to establish the purpose and legitimacy of the political
system. Within this liberal ideal, government functions pursuant to these proclamations

and responsibly undertakes its obligations to all of its citizens, and citizens responsibly

 

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contribute to the moral and political character of government. The stage is set for the
much-touted exceptionalism that purports to challenge and inspire the rest of the world.

Perhaps the relationship between the ideal of American citizenship and the
compulsory project in education is not apparent. Perhaps it is not known that a
fundamental rationale for mass education in America is the formation a democratic
citizenry. That is, the education project is theoretically guided by liberalism’s
Enlightenment rationalist and romantic notions of citizenship (Gutek, 1987). One aspect
of this project receives increasing amounts of attention in the school curriculum during
times of national crisis; it is known under various titles including “citizenship education”
and “civics” (Butts, 1980). The purpose of this subject area is to impart specific political
knowledge and to cultivate political virtues that help shape the ideal of civic identity
(Branson, 1998). Affective aims that are integral to this learning process include
patriotism, social cohesion, and loyalty to democratic institutions (Banks, 1997).

It is clear that educating citizens for democratic citizenship involves more than a
course or a series of courses. The citizenship project in education can be better
understood as part of an evolving and protracted process of mass socialization that is
designed to influence citizens’ interpretation of the social world and to assign them a
place within its structures. It is at least implicitly informed by dominant historical and
contemporary conceptions of American citizenship, by how “citizenship status” shapes
(and is shaped by) our public institutions and social mores. Further, the nation’s moral
and political commitments in structuring education for citizens can be understood

through the lens of citizenship. The citizenship socialization project embeds schooling

within a larger social and political order that has its theoretical roots in the Constitution.

 

 

Power relations provide an illuminating referent that balances the more narrowly focused
consumer models of schooling that are increasingly identified with contemporary
conceptions of liberalism’s education project.

For Bancroft and others, it is the idealized characterization of democratic strivings
in America that exists within our collective historical memory. This characterization
appears to reflect a continuity of commitment to egalitarian ideals and social policies, but
this interpretation of history necessitates minimizing the enduring presence of social
conflict and exploitation. A careful examination of the history and civics texts that
dominate the curriculum in public schools bears this out (Evans, 2004; Patrick and Hoge,
1991), as do the bitter feuds among cmriculum developers who are responsible for
identifying the type of knowledge to include (and exclude) in standardizing the history
curriculum.

There is a pervasive tendency for textbook publishers and curriculum developers
to avoid disturbing the ideal of citizenship. They tend to filter “controversial” subjects
that demonstrate serious institutional transgressions of rights and liberties. If
transgressions of citizenship rights are acknowledged at all, they are often presented as
“anomalies” or “hiccups” in an otherwise unblemished historical record of inclusion
(Hurst and Ross, 2002) However, this characterization of citizenship obscures the grave
contradictions between the idealization of membership and the material conditions of
students’ lives, where citizenship (as social and political equality) is expected to have
substantive meaning. In order to critically explore these contradictions, we must move
beyond the reverence that the concept of democratic citizenship evokes in the ideal, and

privilege the experiences that occur in the actual lives of people.

This thesis explores citizenship experience as a profoundly fragmenting social and
political odyssey within the framework of conflicting expressions of basic liberal
democratic ideals. It reflects a departure from much of mainstream discourse on the
subject. It does not defend simple overtures to what Judith Shklar, political theorist, refers
to as “the mnemonic evocation of an original and pure citizenry.”2 Its focus on power
relations suggests its critical orientation. This political landscape is ofien neglected in
academia (Mills, 1998) but is important to those who are interested in grasping the
profound impact of citizenship status, or the lack thereof, on the life chances of human
beings.

The material conditions for equality in America appear to be more accurately
reflected—and potentially understood—when the long-established ideal of citizenship is
complemented by discourses on the nonideal of citizenship—a matter of denial and
degree. This characterization is amply reflected in the juridico-political, social, economic
and cultural dimensions of American citizenship that manifest in the basic structure’s
differential impact on citizens’ lives. This difference appears to result from the moral and
cognitive reasoning that flourishes within a system of social hierarchy that ascribes value
to the human properties of race, class, and gender distinctions (among others). The
consequence of these ascriptions of value is that some citizens in a given society receive
more rights and liberties than other citizens in the same society. Membership has its
privileges, but not all members have the same privileges.

Citizenship that ascribes differential intrinsic value to human beings is
experienced as part of a system of unequal distributions of benefits and burdens. These

experiences persist as a result of government’s ongoing ascriptive social policies and

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practices and as a result of the deep social cleavages among voting members of the polity.
Ascriptive patterns of social organization not only reveal degrees of belonging but also
degrees of social alienation. Citizenship in such a society is referred to as ascriptive
citizenship (Smith, 1997). America has a long history of ascriptive citizenship, which
appears to explain its many missed opportunities and failures to advance freedom and
equality for all. Indeed, its continuing ascriptive reasoning is easily detected in its
contemporary social initiatives (Parenti, 2002; Klinkner and Smith, 1999; Oliver and
Shapiro, 1995). It is important to explore how this reasoning impacts the citizenship
experience in America.

It is possible for a fundamentally immoral social code to be intertwined with
moral principles. The tensions inherent in this contradiction often negatively manifest as
mistrust and animosity among citizens (Moody-Adams, 1997; Smith, 1997). The
cleavages that form from ascriptive relations reflect the frustrations of partial inclusion on
the one hand, and the tenuousness of full membership on the other. In a society conscious
of its stratified historical origins but, perhaps, no longer willing to openly acknowledge
them, the meaning of membership is hollow on both sides. That is, differentiated political
standing within a socially stratified society undermines the formation of an inclusive
community and contributes to the development of a problematic and fragmented civic
identity. In American Citizenship, Shklar points to the duplicitous origins of membership
in American society and to the persistence of ascriptive practices:

From the first[,] the most radical claims for freedom and political equality were

played out in counterpoint to chattel slavery, the most extreme form of servitude,

the consequences of which still haunt us. . . . [Since that time] what has been
continuous is a series of conflicts arising from enduring antiliberal dispositions

that have regularly asserted themselves, often very successfully, against the
promise of equal political rights contained in the Declaration of Independence and

11

its successors, the three Civil War amendments. It is because slavery, racism,
nativism, and sexism, often institutionalized in exclusionary and discriminatory
laws and practices, have been and still are arrayed against the officially accepted
claims of equal citizenship that there is a real pattern to be discerned in the
tortuous development of American ideas of citizenship.3
Shklar’s claim that “antiliberal dispositions have regularly asserted themselves” is
intriguing to me despite the intuitive resonance of her position. Perhaps it is because she
uses the word ‘tortuous’ in describing the development of citizenship. The “twists and
turns” and deceptions that the term suggests irmnediately brought to my mind another
word: ‘torturous.’ I linked the “twists and turns” and deceptions that Shklar implies, to
the human suffering—the torture—that befalls the unfortunate members of the society in
which the “twists and turns” systemically occur.

I have registered the impossibility of discerning all of the patterns that are
imaginable in the development of American citizenship (even upon close examination),
so no such attempt is made in this thesis. The pattern of ascriptive citizenship that I will
examine—and to which Shklar’s comments refer—is more focused; it reflects an
exploratory lens of my choosing. Specifically, I am interested in the complexities of race,
class, and gender stratification as perceived through the lens of ascriptive citizenship. I
can discern a significant and historicized pattern of exclusion and privilege that
overshadows the myth of abstract belonging. My interest in the nature of membership and
the resulting differential access to society’s resources necessitates a more reflective and
critical probing of history than can reasonably be expected from a more patronizing
citizenship discourse. Ironically, what appears to make the pattern of American

citizenship coherent is what it is revealed to glaringly and consistently lack: substantive

equality for the masses of citizens who occupy subordinate positions within the social

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hierarchy. Surely a conceptual fiamework that—without fail—enables such
“particularity” despite its passionate declarations in favor of universal freedom warrants
further examination.

The Constitution, the Supreme Court’s interpretations of it, and certain legislative
and executive measures combine to define the aims and limits of justice within the
political institutions of a constitutional democracy. These public testaments provide the
historical and moral contexts for American thought on equality, race, gender, and other
social constructs that are operative within our basic institutions. While it is admittedly a
“view from above,” it is one that is not wholly detached from—and inattentive to—the
nonideal, the ordinary lived experiences of people. Indeed, it is the majority among these
ordinary people that determines who will be privy to the “view from above”—and for
how long.

The character of the official leadership and the nature of the leadership that they
provide are matters of basic justice that people can, and do, directly influence with their
ballot and through their organized opposition (or support) with respect to the status quo.
If the resulting government safeguards some citizens’ freedoms at the expense of other
citizens, it is the government and the citizenry that must be called into question. Together
they perpetuate the patterns of social stratification and ascriptive citizenship that give rise
to a caste-like system of constraints on freedom. These constraints are perhaps more
evident to those persons who are part of (or who identify with) the growing numbers of
excluded and subordinated citizens. Their predicament is aptly captured in Martin Luther
King Jr.’s reference to the millions of people “languishing in the cemers of American

society.”4

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We can explore significant examples of institutionalized stratification in
America’s pattern(s) of ascriptive citizenship. Indeed, our branches of government house
the collective memory from which to readily retrieve them (Wolin, 1989). I draw from
these examples in supporting my contention that citizenship status has fundamentally
served as an instrument for promoting social and racial exploitation. Differential
political status has been a means by which some citizens have been used to advance the
immoral ends of others, and, indeed, it is ascriptive citizenship that is suggested in the
“pattern of antiliberal dispositions that have regularly asserted themselves” in American
history (Shklar, 1991). These dispositions continue to inform our public understanding of
equality of opportunity, and do so in ways that adversely impact the construction of moral
and just institutions. Creating a democratic project that transcends traditions of privilege,
myth, and ascriptive exclusions requires that we reject the continuing misrepresentations
of systemic exploitation as isolated examples of “improper conduct” within discrete
social practices.

Systemic exploitation is indicative of a much larger problem that goes to the very
foundation of social organization. It reflects an unjust moral code that guides practical
reasoning in the structuring of basic social institutions. This code effectively and
persistently counters efforts to forge a collective citizenship identity based on equal
dignity and social justice that can ground our—otherwise—superficial territorial union.
Many continue to be victimized by the dysfirnction within our government and by the
suppressed memory of generational exploitation and denial. Consider the following four
remarkable periods of innovation in America’s constitutional project: the founding era,

the Reconstruction, the New Deal, and the Civil Rights era. The examples that I will

14

provide of denials and degrees of denial of basic rights—pursuant to social stratification
and ascriptive citizenship mandates—are drawn from them.

The four periods have a number of noteworthy similarities: each captures a
defining moment in America’s judicial, political, economic, and cultural history; each is
socially reconstructive to some degree and is animated by populist support, sustained by
the “common peoples’” demands for change; each reveals high expectations for just
reforms in government and for equal citizenship rights; each provides a “window of
opportunity’ ’—now sealed in time—when a critical mass of society seemed galvanized
and poised to alter its course in the interest of a thick democracy; and each represents an
expansion of federal power that could have been harnessed for democratic purposes in
response to a troubled citizenry’s demands for a new direction in a time of great social
angst.

In each of the four periods we can ascertain something about the fundamental
character of the nation. What are its moral assumptions and principles? What are its
“problems,” and how are they framed? What are the choices for action in response to the
problems? How are they determined, and what are their political implications? It is the
ascriptive responses to these questions that will vest some citizens with a renewed sense
of American exceptionalism and will vest others with a daunting project within a
proj ect—a vital quest for democratic freedom within a dominant quest for ascriptive
fi'eedom; the former will be measured in lifetimes and centuries of struggle.

The first period is the founding era, which needs little introduction. Clearly it is
the point of origin for the constitutional project in America. That is, the object of the

founding is the Constitution; it captures the hopes of many for liberty and equality in the

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new nation. It also codifies the dominant ideology of American society (Shklar, 1991),
the ideology that is to guide the country in the proper functioning of government. It
provides a collective moral lens through which practical reasoning executes its mission
and through which its outcomes are evaluated. This moral lens is significant because it
creates “the given” frame of reference, the controlling set of moral and cultural
assumptions about persons and personhood that inform politics within the basic
institutions of society.

The second period is the Reconstruction; it follows on the heels of the Civil War
(1861-65)—-the most costly war, in terms of lives lost, in American history. Its aftermath
promises to be a time of public reflection on the evils of slavery and on the need for
atonement. It appears that the collective moral conscience of the nation might seize this
opportunity to redefine and reorganize its priorities. It is an inflection point in the
nation’s history, one that could mark its rejection of all future efforts to sacrifice human
freedom in pursuit of unjust and immoral ends. Specifically, the Civil War Amendments
make the Reconstruction possible by (theoretically) extending equal citiZenship to the
formerly enslaved black population. A “second” Constitution is within the nation’s
reach—that is, if its citizens choose a new direction. Of course, this new direction ought
to be nothing short of a democracy anchored in equal dignity and equal citizenship. If
pursued, such a project brings the nation closer to an antiracist, antisexist, and anti-elitist
set of organizing principles that incorporate the best of what the “first” Constitution

offered the few—filters the rest——and distributes the benefits (and burdens) of freedom to

everyone on an equal basis.

16

The New Deal marks the third period from which I will provide examples of
ascriptive citizenship. It begins approximately fifty years after the Civil War and signals
an economic rebirth on a never-before-seen scale. It fuels the public’s Optimism, giving
them hope with its promises to secure the social welfare of the working people following
the ravages of the Depression. Again, it is a time of great anticipation because so many
believe that their suffering and poverty will be ameliorated, that their degraded condition
will dramatically improve. The prospect of a redistribution of wealth is, perhaps, greater
than ever before in the nation’s history. One can imagine their exuberance at the thought
of finally sharing more equitably in the promise and prosperity of an emerging industrial
power.

Some twenty years later, however, the Civil Rights era—the fourth and final
period under consideration—forces the nation to take a collective “look in the mirror”
and come to grips with its repeated failings. A large segment of its population has been
long overlooked in the nation’s promises and cycles of goodwill and is publicly outraged
and defiant. It is their struggle that is “the project within a project.” Their movement is a
truly populist one, and its members openly repudiate the forces of stratification and
ascription. Their organizational clarity and persistence is striking. The excluded—those
whose ancestors gave their lives for the cause of freedom in America’s revolution, for the
cause of human dignity and social justice in America’s Civil War, and for “the cause,”
however defined, in all of America’s other wars—again demand liberty and mount a
struggle unlike anything seen before or since in America.

Ordinary people with courage and moral purpose provide the catalyst for

extraordinary social and political reforms in the Civil Rights era. It is a movement

17

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powerfirl enough to convince many that an inflection point in America’s history is
imminent and unavoidable, a point that marks, for example, the demise of Jim Crow and
Black Codes. In this period of social unrest and national reflection there is yet another
opportunity for the majority of the citizens to choose to substantively alter their nation’s
course. If they choose to commit themselves to eradicating social stratification and

. ascriptive citizenship, America’s “new” priorities—social and racial justice—can create a
renaissance of sorts within the state, one that captures the authentic spirit of freedom that
all prior commitments reduced to mere rhetoric or exercises in partitioned privilege.

I write this thesis because each period failed, egregiously, to fulfill its promise. To
the extent that each failed to do so, they are “parallels of arrested development,”
examples of squandered political capital that could have been spent to firrther equal
dignity and equal citizenship. They provide a wealth of examples of obligations
neglected, dreams deferred, and lives cast aside. The obvious historical gaps that the four
periods evidence suggest that my comments are not offered as a seamless account of
every major event, as some historians might labor to provide; such a treatment is far
beyond the scope of this project and the argument that it advances. My objective is to
provide significant examples that reflect the social history of stratification and ascriptive
citizenship in America, that demonstrate the pattern of exploitation reflected in the
denials (and degrees of denial) of personhood and citizenship rights as experienced by
many citizens in the “project within a project.” i

The pattern of denial suggests Some of the challenges that confront efforts to
promote critical discourse on citizenship. The citizenship project in education, for

example, dates back to Thomas Jefferson (Gutek, 1987, 153-159, 360-365) and reminds

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us that, theoretically, the ideal is often blinding and very difficult to set aside (Evans,
2004). This reluctance to change traditional thinking and practices in education is well
documented (Cuban, 1984; Tyack, 1974; Jackson, 1990). However, the tendency to
prefer simplistic and unreflective continuity to substantive transformation does not
diminish the educative value of critical, interdisciplinary analyses of citizenship; this is
particularly the case in the current climate of confusion, conflict, and impasse in
curriculum development. In my estimation, a critical focus on a concept so fundamental
to our collective identity, potentially increases the moral value of the contribution that the
field of education can make to reconstructive societal aims. Critical discourses on
citizenship can and should serve as referents for the theoretical reasoning that directly
informs the citizenship project in education and, of course, the democratic project

generally.
I. The Founding Era and Ascriptive Citizenship

The seeds of division and denial are sown into the very document that is to define the
moral framework of the new nation. At the Constitutional Convention of 1787 the
founders voted to deny equal political status and equal dignity to specific persons based
on ascription. The most egregious manifestations of this denial are embodied in the
provisions of the Constitution that are specifically constructed to perpetuate or
accommodate the institution of black chattel slavery in America. These provisions
nationalize the denial of black personhood and freedom while conveniently overlooking
the contributions blacks made to the liberation of the colonies from British rule. The
successfirl liberation struggle is not followed by democratic freedom; it is followed,

instead, by a national codification of black subjugation. Donald E. Lively, Professor of

19

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Race:5

0 Article 1, section 2, which apportioned representation in the House on the basis
of population count, and considered slaves as three-fifths of a person.

0 Article 1, sections 2 & 9, which required apportiOnment of direct taxes among
the states pursuant to the same fractional formula [listed above].

0 Article 1, section 8, which vested Congress with power to suppress insurrections
including those by slaves.

0 Article 1, section 9, which immunized the slave trade from congressional
restriction until 1808 [twenty-one years after the date of the Convention]

0 Article 1, sections 9 & 10, which exempted exports, including the output of slave
labor, from federal and state taxation.

0 Article TV, section 2, which precluded states from liberating firgitive slaves and
required their return upon demand [the fugitive slave clause].

0 Article IV, section 4, which obligated the federal government to protect states
from domestic violence, including slave insurrections [my emphasis].

0 Article V, which insulated constitutional provisions concerning the slave trade
and direct taxes.

The charter provisions required the approval of at least the majority of the
convention delegates and required ratification by a majority of the states. George
Washington and Thomas Jefferson (later to become the first and third United States
Presidents, respectively) were among the supporters of these provisions; they provide but
one example of two men who may have been on opposite sides of the political aisle—
Washington, a Federalist, and Jefferson a Republican—but were, as slave owners, on the
same side of the moral reasoning underpinning the “peculiar institution.” Neither seems
to have possessed sufficient moral qualms about the trafficking of human beings to

repudiate the practice, even in a society purportedly founded on liberty. These men joined

20

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others in continuing an institution that had already exploited and degraded black labor for
more than one hundred and fifty years at the time of the Convention. The founders chose
to identify slavery more closely with the expressed aims of the “liberated” nation. They
sanctioned slavery and many increased their personal fortunes by heavily investing in it.
By accepting this Constitution, the majority of Americans chose to build the “new”
nation on old ideas—on slave labor—and chose to make presidents of men who were in
the business of trafficking in human beings.

George Washington, Thomas Jefferson, and other founding members used their
power and positions of leadership to deprive other people of life, liberty, and the pursuit
of happiness. For Washington and Jefferson, in particular, slavery was both a public and
a private matter. Even among those who may not have been slave owners, the “peculiar
institution” was often no less sanctioned. The Federalist Papers suggest that some
believed that abolishing slavery would divide the nation (Hamilton, Madison, and Jay,
1961; Smith, 1997). This implies that the charter provisions that severed blacks’
humanity from the status of full personhood actually helped to keep the society that the
founders envisioned, “united.” Consider Winthrop Jordan remarks: “The Convention
could not consider even the eventual termination of domestic slavery; propositions on this
head would have sent half the delegates packing” (Lively, 1992, p. 4). From the outset,
political expediency appears to have provided sufficient utilitarian rationale for
dismissing the human rights of an entire class of persons. While some citizens were
condemned to involuntary servitude others joined forces to form “a more perfect union.”
The dye was cast for the moral framework that would guide the tortuous development of

the new nation:

21

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Accommodation of slavery, in greater or lesser terms, resulted from what were
perceived as overarching societal interests. Concessions were made to a focused
and fixed southern faction in the cause of establishing a union; what was
considered as less significant was traded off for what was perceived as more
important [my emphasis].6
As we will see, the historical pattern of social stratification provides us with many
occasions to revisit the calculated “bargaining away” of the rights and liberties of blacks
in the dominant pursuit of a “greater good” that never seems to include their freedom as
equals.
The 1787 Constitution also did little to positively alter the plight of the Indian
population (Smith, 1997). Before the ratification of that document the Indians’ fate lay in
the hands of settlers who ruled the territories and eked out their existence by usurping
greater and greater amounts of Indian land. Although many treaties were signed that
contained promises to recognize Indian rights and sovereignty, the promises repeatedly
proved false. Coercion increasingly replaced overtures to agreement and consent. The
initial usurpation of Indian land was followed by the settlers’ mounting pressure on
Indians to? move farther and farther west in order to make way for even more settlers. The
methods of “persuasion” involved a combination or force, more treaties, and domestic
policies. Referring to the treatment that Indians received during the period prior to the
Constitution, historian Howard Zinn sums it up this way:
They had been ignored by the fine words of the Declaration, had not been
considered equal, certainly not in choosing those who would govern the
American territories in which they lived, nor in being able to pursue
happiness as they had pursued it for centuries before the white Europeans
arrived.7

After the Constitution was ratified, Indian land and Indian self-determination continued to

erode. Other than Article I, section 10, which prohibited the states from signing treaties

22

I -i

with Indians—reserving this power for the federal govemment—the Constitution did
little to obstruct state confiscation of Indian land.8

The Constitution recognized the Indian population as a separate society for
purposes of regulating commerce with them, but the document seems to have otherwise
regarded them as dependents. As such, they were excluded from political participation
within the emerging social order; they continued to be viewed as less human than the
white settlers. For its part, the federal government retained the right to control the fate of
the Indian people without recognizing them as full members of society. Even where
representation was apportioned by virtue of their numbers and even when taxes were
levied against them, they did not have equal political rights. The Constitution did nothing
to protect the Indians’ rapidly disintegrating way of life.

The status of white women did not improve after the ratification of the
Constitution. In fact, the document contained no direct references to them.9 Many
continued to work in various capacities such as spinners, shopkeepers, morticians and a
variety of other occupations, but they were generally not permitted to participate in
government, not pemritted to own property as some had done during colonial times, and
not permitted to enter into contracts. In these endeavors, they were considered to be duly
represented by their fathers, husbands, and other male members of the family and were
forced to resign themselves to the anonymity of the home (Okin, 1994). Roger M. Smith,
Professor of Government, sums up the plight of women——post-Constitution——this way:

The salient fact, however, was that the Constitution left intact the state

constitutions that denied women the franchise and other legal and political

privileges. Hence their status was unaltered. Neither the convention delegates nor
Publius [the Federalist Papers] commented on that circumstance.lo

23

Despite the gendered liberalism of the ruling male elite that codified the lowly
political status of women relative to men, upper-class white women enjoyed more
freedom than did women of color and working-class white women. In A People 's History
of the United States." I492-Present, Zinn includes a chapter entitled “The Intimately
Oppressed,” in which he writes: “When feminist impulses are recorded, they are, almost
always, the writings of privileged women who had some status from which to speak,
more opportunity to write and have their writings recorded.”ll As an example, he notes
that on the eve of the Declaration—seemingly in anticipation of the Constitutional
Convention—Abigail Adams wrote a letter to her husband, John Adams, in which she
reminded him of the need for greater empowerment of “the ladies”:

In the new code of laws which I suppose it will be necessary for you to make, I

desire you would remember the ladies, and be more generous to them than your

ancestors. Do not put such unlimited power in the hands of husbands. Remember,
all men would be tyrants if they could. If particular care and attention are not paid
to the ladies, we are determined to foment a rebellion and will not hold ourselves
bound to obey the laws in which we have no voice of representation.”
Adams’ sentiments were not taken seriously by the majority of the men in positions to
alter the status of women, including her husband (Smith, 1997, 76). Thomas Jefferson,
for example—already noted as a slave holder—commented that women would be “too
wise to wrinkle their foreheads with politics.”13

Despite Abigail Adarns’ threats of insurrection, women were routinely
disfianchised in every state constitution drawn up after the Revolution. Sometimes their
previously recognized rights within the states were rescinded as in the case of New
J ersey.l4 Historically, the English common law subordinated women to men, and the

Articles of Confederation built on this foundation, so there was little widespread support

for women’s empowerment in the newly liberated state republics. Perhaps it should be no

24

surprise that the delegates to the Convention did nothing to hinder this form of state
violence against women given their general tolerance for the dehumanizing conditions of
slavery. In the entrenchment of the gendered status quo, it would take more than one
hundred years (until 1920) and ten additional amendments to the Constitution before
women finally obtained the most basic right of modern democratic citizenship: the right
to vote. In the meantime, Abigail Adams and her associates were largely expected to
remain at home-—out of sight, and under control. These expectations were rationalized as.
measures designed to “protect” women’s virtue and for reasons of “biology” that men
concocted and understood. 1 5
Women were bound by corsets and petticoats and the rhetoric of purity—at least

some of them. As a subordinate class, they were socialized to passively submit to their
designated inferior status. Their place was largely in the home, and government was of
little help to them because laws generally did not interfere in “private” matters. Women
were trapped in a culture of exploitative differentiation at the hands of the political (white
male) majority. Again we can discern a pattern of exclusion, a pattern that would be
repeated over and over as a defining characteristic of America’s sociopolitical history. It
is the pattern of ascriptive citizenship. Shklar writes:

In truth, from the nation’s beginnings as an independent republic,

Americans were torn by glaring inconsistencies between their professed

principles of citizenship and their deep-seated desire to exclude certain

groups permanently from the privileges of membership. These tensions

constitute the real history of its citizens.16

As previously indicated, the founders were primarily comprised of an elite class

of white males who shared particular interests. Slavery was not the sole interest that this

group sought to protect within the provisions of the Constitution. Charles Beard, a

25

twentieth-century historian, goes to great lengths to connect the founders’ federal
priorities to a wide variety of personal economic interests, which Zinn sums up this way:
The manufacturers needed protective tariffs; the moneylenders wanted to
stop the use of paper money to pay off debts; the land speculators wanted
protection as they invaded Indian lands; slave owners needed federal
security against slave revolts and runaways; bondholders wanted a
government able to raise money by nationwide taxation, to pay off those
bonds.l7
Note that these priorities contradict Bancroft’s claim that the Constitution “knows
nothing of differences by descent, or opinions, of favored classes, or legalized religion, or
the political power of property . . . .”‘8 However, Beard is convinced that the founders’
wealth and power necessarily predisposed them to be anxious about social conflicts and
uncertainties that might endanger their social group’s economic interests. It is
foreseeable, he argues, that they would attempt to secure their property interests within
the fundamental law of the land—the Constitution. Consider the following comments by
James Madison, one of the founding members and a co-author of The Federalist Papers:
But the most common and durable source of factions has been the various and
unequal distribution of property. Those who are creditors, and those who are
debtors, fall under a like discrimination. A landed interest, a manufacturing
interest, a mercantile interest, a moneyed interest, with many lesser interests,
grow up of necessity in civilized nations, and divide them into different classes,
actuated by different sentiments and views. The regulation of these various and
interfering interests forms the principal task of modern legislation and involves
the spirit of party and faction in the necessary and ordinary operations of
government.19
Alexander Hamilton, another founding member and co-author of The Federalist
Papers—and later Secretary of the Treasury in the Washington Administration—is a bit
more direct:
All communities divide themselves into the few and the many. The first are the

rich and well-bom, the other the mass of the people. . . . The people are turbulent
and changing; they seldom judge or determine right. Give therefore the first class

26

a distinct permanent share in the government. . . . Nothing but a permanent body
can check the irnprudence of democracy.20

As Zinn suggests, it is reasonable to conclude that some (if not all) of the
founding members were as concerned about private wealth preservation in the drafting of
the Constitution as they were about anything else. Perhaps they had cause to be even
more concerned about safeguarding their privilege in light of the potential for chaos as a
result of the interests that were clearly undermined by the document. Under the
circumstances, according to Beard, the founders’ reasoning was quite rational. In An
Economic Interpretation of the Constitution, he seems to echo the political sentiments of
Madison and Hamilton:

Inasmuch as the primary object of government, beyond the mere repression of
physical violence, is the making of the rules which determine the property relations
of members of society, the dominant classes whose rights are thus to be determined
must perforce obtain from the government such rules as are consonant with the
larger interests necessary to the continuance of their economic processes, or they
must themselves control the organs of government.21
“In the nature of things,” the Constitutional Convention of 1787 provided a small elite
group of white Anglo-Saxon males with a forum within which to further their interests
and maintain their political power. There were no public principles to which these
individuals subscribed that precluded their misuse of government; they formed their own
private society of “insiders” whose increased liberties generally came at the expense of
the basic rights of “outsiders,” as already noted.

The forgoing examples demonstrate how the founding period nationalized the

material conditions of membership based on systemic race, class, and gender

exploitation. These tragic beginnings combined with overtures to principles of equality

and liberty. This obvious contradiction is at the root of what Shklar refers to as the

27

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“tortuous development of American ideas of citizenship.”22 Despite the fact that some
Indians, some blacks, and all whites (wealthy and poor) may have been recognized as
“citizens” in the states in which they resided, any inclusive notions of state and national
citizenship were virtually nonexistent at the time of the signing of the Constitution.23
Even in those states where subordinate group members were permitted to vote, were
afforded certain economic rights, and were taxpayers who were counted for purposes of
representation, they continued to be second-class citizens.

Long after the Constitution was ratified, even “free” blacks continued to be
denied freedom of movement and the right to enter certain Northern states. They could
not obtain a passport to travel outside of the country, either. “Free” blacks did not enjoy
national citizenship—where ‘national’ is understood to mean equal citizenship rights to
those afforded other native born inhabitants and that are protected at the federal level
from state infringements. According to Kenneth Karst, the restrictions on “free” blacks’
freedom of movement served a particular purpose beyond the individual abridgements:

If free blacks were citizens of the nation, they could travel freely to slave states,

where their very presence as free persons would not only undermine the theory of

racial caste but remind slaves that their own status was not ordained in nature but
imposed on them.24
The denials and degrees of denial of rights that were legitimated in the founding
documents of the American polity continue to haunt and cripple the modern democratic
project (Shklar, 1991). Ascriptive citizenship continues to undermine the symbols and the
rhetoric of nationhood in America (Smith, 1997); for many, both are hollow reminders of
the political expediency that lies at the heart of the “more perfect union” and that

rationalizes continued social partitioning (Mills, 1997). Perhaps nowhere is this

continuing pattern of partitioning and systemic inequality more evident than in the

28

structure of our socially stratified public school system despite the fifty years that have
passed since the Supreme Court (“the Court”) rendered its decision in Brown v. Board of
Education in 1954 (Balkin, 2001). My comments, here, only hint at the unfortunate
aftermath of the Court’s intervention, but I will take up this issue in some detail later in
this chapter.

As a review of the discussion thus far, consider the following synopsis of the
founding era:

The original possessors of the land—the Indians—are subdued through conquest
and their land is taken; the occupation coincides with the forced “importation”
and dehmnanization of a race of people from the shores of Africa—enslaved and
forced to labor for more than three centuries, without reparations; the antecedent
conditions of conquest, occupation, and enslavement remain in place as the
colonists fight to become an independent “liberated” civil society (with the help
of those enslaved). Eventually, the colonists are free from the control of the
oppressive foreign government that failed to recognize the self-evident truth of
the colonists’ equal status, or their God-given inalienable right to live free and
pursue happiness; out of this liberated collectivity—now unto itself—a privileged
group (some of them slaveholders) forms a federal constitution purportedly
founded on principles of universal liberty and equality in the new nation.

Aristocrats dominate the new leadership and the slaveholders among them
continue to profit from trafficking in human beings (having drafted a constitution
sanctioning slavery). The liberty to enslave is just one of the liberties that free
men secured through the laws that they choose to enact. The poor and working
classes are largely excluded from political power but are patemalistically advised
by the wealthy, “more enlightened” members of society; likewise, the mothers,
wives, daughters, sisters, and other female members of the new nation of settlers
form a pseudo-citizenry. They are excluded from public decision making because
of “biological reasons” and are deemed unworthy of the equal social and political
status enjoyed by some of their male counterparts. They are recognized as
partners in intimacy, not power, and otherwise reduced to spectators and
ornaments.

From this perspective, the social order is irrational and socially unjust. It is
structured by a qualified social contract that—incredibly—even the most oppressed in the

society are expected to accept. The qualified contract manifests in the patterns of

29

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ascriptive citizenship practices. Both partition society on the basis of race, gender, and
class categories—dehumanizing and humanizing simultaneously. Liberal principles
sanction fleedom and slavery with equal fervor. The moral flamework subordinates equal
dignity to the dictates of power. It alienates “inalienable” rights in order to pursue
political bargains and ascriptive utility (Allen and Pope, 2003). This is the historical,
critical flame of reference that situates my thesis. The persistent pattern of social
stratification and ascriptive citizenship within a purportedly flee republic underscores the
fundamental irrationality of the political system. Examples of this pattern will be
revisited in each of the periods that I examine. The next set of examples is drawn flom

what some describe as the most turbulent and revolutionary period in American history.
[1. The Reconstruction Era and Ascriptive Citizenship

The Supreme Court’s groundbreaking decision in Dred Scott v. Sanford (195 7) created an
explosive context for the Civil War and the Reconstruction. The Court’s “states’ rights”
position on slavery called into question the power of Congress to make laws limiting the
spread of this institution, so its judicial opinion in this case fueled the growing tensions
that increasingly divided the North and South. The divisions became more and more
intense, prompting Lively (1992) to conclude that the “failure of the political (legislative
and executive) and judicial branches to resolve the issues of societal division led
inevitably to civil war.”25 My discussion of the Dred Scott case will focus on the nature
of Scott’s claim to citizenship and on Chief Justice Taney’s majority opinion in response
to this claim. Most importantly, this case provides a compelling example of the extent to
which the forces of institutional racism permeated the highest levels of government and

reinforced the pattern of official dehumanization of blacks on a national scale, a scale that

30

can be traced back to the charter provisions of the Constitution. I will begin with a brief
account of the plaintiff’s (Dred Scott’s) claim to fleedom and citizenship, including an
outline of how the case made its way to the Supreme Court.

Dred Scott was a slave in Missouri who brought a claim before the state court of
Missouri (in the early 1840’s) alleging that after having been transported flom Missouri
(a slave state) to live on a fort in Louisiana (a flee state), he became emancipated.
Louisiana was located in the Northwest Territory on federal land that prohibited slavery
as part of the Missouri Compromise of 1820. When Scott returned to Missouri, he
asserted his claim to fleedom and, specifically, to Missouri citizenship. He argued that his
flee status could not be reverted to slave status because this would violate comity
agreements between the states and would violate other Missouri precedents. The state
court of Missouri (the Circuit Court of Missouri County) agreed with Scott’s claim, but
the Missouri State Supreme Court reversed this decision on appeal.

In rendering its reversal, the Supreme Court of Missouri deferred to state law.
Missouri law denied slaves’ claims to flee status when such claims were based on having
resided in a flee state. The case was remanded to the lower court. Prior to the lower court
taking any further action on the case, however, Scott brought a new claim before the
United States Circuit Court (federal) alleging that he (along with his wife and their
children) had been physically assaulted by John Sanford, his new “owner,” who was a
resident of New York. In this suit, Scott argued that he and his family were subjected to
physical assault and imprisonment in violation of his rights as a citizen under the
diversity of citizenship clause of the Constitution. Sanford responded to all charges by

arguing that slaves were the lawful property of their masters and that, therefore, he

31

(Sanford) had a right to “restrain” Scott and his family and conceded that he had “gently
laid his hands upon [them].”26 The federal court took jurisdiction of the case. It rejected
Scott’s diversity claim to citizenship and denied his assault and imprisonment allegations,
as well. Scott appealed this decision to the Supreme Court (“the Court”).

The Court dismissed Scott’s assault charges against Sanford. It ruled that the
lower courts had no jurisdiction to hear Scott’s original claim or to pass judgment on it
since Scott was not a citizen of the state of Missouri pursuant to the State Supreme
Court’s decision. Accordingly, Scott had no standing to bring the claim into the Missouri
courts in the first instance and, similarly, had no standing to bring cases before the United
States Supreme Court. From this determination one might infer that the Court’s ruling
was fully rendered—completed—that there was no firrther basis for comment on the
Scott case, but such a conclusion—though quite reasonable—was contradicted by Chief
Justice Taney’s explosive, and now infamous, protracted and bitter denunciation of black
personhood, presumably underscoring the rationale for the denial of Scotts’ claim. For
many, the judicial opinion in Dred Scott is unforgettable because of the overt racism and
white supremacy ideology that its majority opinion contained, but for others it is a
forgettable chapter in the collective memory of injustice—and for the very same reason.
Taney appears to have concluded that it was the Court’s (his?) duty to posterity to set the
record straight on the true nature of “belonging” in America. He restated and rationalized
the white ascriptive privileges that the founders had already seen fit to nationalize
seventy years earlier. I quote Taney at length:

The words “people of the United States” and “citizens” are synonymous terms,

and mean the same thing. . . . The question before us is, whether the classes of

persons described in the plea in abatement [Scott’s citizenship claim] compose a
portion of this people, and are constituent members of this sovereignty? We think

32

they are not, and that they are not included, and were not intended to be included,
under the word “citizens” in the Constitution, and can therefore claim none of the
rights and privileges, which that instrument provides for and secures to citizens of
the United States. On the contrary, they were at that time considered as a
subordinate and inferior class of beings, who had been subjugated by the
dominant race, and, whether emancipated or not, yet remained subject to their
authority, and had no rights or privileges but such as those who held the power
and the Government might choose to grant them. . . .' It does not by any means
follow, because he has all the rights and privileges of a citizen of a State, that he
must be a citizen of the United States. . . . They [blacks] had for more than a
century before been regarded as beings of an inferior order, and altogether unfit to
associate with the white race, either in social or political relations; and so far
inferior, that they had no right which the white man was bound to respect; and
that the Negro might justly and lawfully be reduced to slavery for his benefit. . . .
This opinion was at that time fixed and universal in the civilized portion of the
white race. It was regarded as an axiom in morals as well as in politics, which no
one thought of disputing or supposed to be open to dispute.27

Derrick Bell, Professor of Law, contends that Taney’s opinion was “excessive
even for its time.”28 Bell’s use of the word ‘excessive’ is directed at the effirsive white
supremacist ideology that the opinion exudes and that was offered as legitimate
jurisprudence, but it is Taney’s judicial imprudence overshadows any competence that
might otherwise be attributed his legal reasoning. Bell’s “even for its time” reference
refers to the historical context within which Taney’s opinion is to be examined.
Presumably Taney violated established conventions, which, according to Bell, meant that
Taney went beyond the bounds of “permissible utterances” by a public official.

Bell’s contention that Taney’s remarks exceeded the implied boundaries of
decency—even under the depraved moral and social conditions of chattel slavery—is
intriguing. My interpretation of the social mores and moral tendencies of Taney’s time
leads me to conclude otherwise. For example, there appears to have been no moral outcry
among the majority of American citizens about having a chattel slave system

underpinning the very foundation of their “fleedom-loving” society so long as they were

33

 

 

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not also enslaved by it (Shklar, 1991). Absent this infamous and tragic fact of human
history more than two centuries prior, Bell and I would not have a Dred Scott decision to
ponder. Furthermore, one is hard pressed to discern any public outrage about the fact that
Taney’s racist declarations were offered not as personal opinion but, rather, as national
jurisprudence. There was no indication of a collective and public repudiation of his
contention that white America—indeed, the whole of white Western civilization—openly
embraced white supremacy ideology and believed it to be a foregone conclusion that
blacks were inherently inferior to whites (Lively, 1992). Why the silence?

For many, Taney’s decision is part of a bygone era of institutionalized racism that
is best forgOtten, but for others, Taney’s position as the chief justice of the highest court
in the land, coupled with the malicious and damning nature of his comments, provide
sufficient rationale for remembering. They further note that his views are embedded in a
long tradition of racial stratification and domination, an ideology that may explain the
motivation for approximately one hundred and fifty years of dejure and defacto racial
segregation and continuing violations of blacks’ civil rights. These denials are glaringly
evident, today, in the areas of housing and public schooling (Powell et al, 2001). Taney’s
views were neither extremist nor excessive for his time. Are they now?

, Indeed, the ideology that Taney espoused in Scott was well within the purview of
the racist ideas that unified the states’ rights agenda of the J effersonian and J acksonian
parties of the early to mid-nineteenth century, with the decision to designate blacks as
three-fifths of a person (two-fifths property) at the Constitutional Convention of 1787.
Jefferson was a “founding father” and a wealthy slave owner, and Taney—also a slave

owner (Lively, 1992)—was a Jackson appointee to the Supreme Court. Indeed, Smith

34

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describes Taney’s decision as “the masterwork of J acksonian racist constitutionalism”
(1997, 245). Taney’s declarations in Scott echo Jefferson’s many racist assertions about
blacks in his Notes on the State of Virginia published in 1787. Some of Jefferson’s
statements became part of the public record of the first Congress when a South Carolina
representative offered them in support of slavery during a debate on this issue (Smith,
1997)

The Scott majority opinion evidences the organic nature of racism within the basic
institutions of American society. Taney audaciously exposed this unflattering
characteristic for generations to analyze. Dred Scott‘s quest for fleedom was derailed by
an institutional pattern of degradation buttressed by the public’s acceptance of a racist
exclusionary norm existing within the “collective” psyche of the political majority
(Lively, 1992). Where do we look for evidence that might support a claim that this
context has substantially changed? Such evidence seems all the more difficult to come by
since race, institutional racism, and slavery are not topics of serious public discussion
inside or outside of government, especially across racial lines.

Perhaps the citizenry could provide evidence of a liberated collective psyche by
choosing to elect egalitarian-minded public officials who are willing to emphatically
repudiate American slavery and Taney’s racist ideology (including the “neoTaneyan”
varieties). Perhaps new leadership could speak on behalf of the people, just as Taney
purported to do in his judicial capacity—only in support of just ends. If government were
then able to combine this rhetoric with specific policies and practices, its actions could

provide proof of its intention to serve as an instrument for fleedom rather than for

oppression; this could give rise to a revolutionary pattern of another kind: government

35

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protection of the substantive rights and liberties of black citizens and all other citizens
through the enforcement of egalitarian public policies (Walzer, 1995). In my estimation,
these actions would suggest of level of moral development sufficient to constitute the
beginnings of a social transformation.

The overtly racist moral and political flarnework that the majority of American
citizens endorsed or condoned made it possible for the majority of the justices in Scott to
declare that even if Dred Scott had been “entitled” to his fleedom as a result of being
transported to a flee state, he would still lack standing to bring a case before the federal
courts because he was black. The Court concluded that people of African descent—slave
or flee—could never be considered “national” citizens and, therefore, could not seek
federal redress. That is, the descendents of Africans could forever be excluded flom
citizenship within the provisions of the Constitution (60 US. 393 at 406). Taney’s
rationale for advocating racial exclusions flom national citizenship status simply
underscored what appears to have been accepted premises within the ideology of the
white majority: that “black chattel slavery stood at the opposite social pole flom full
citizenship and so defined it,”29 that “the existence of a racially identified slave caste
served to heighten the sense of social equality among whites,”30 and that “People of the
United States” and “citizenship” were not only synonymous with each other, as Taney
contended, but were synonymous with whiteness.31

Probing the cogency of the doctrine of racism and appreciating its force in the

patterns of ascriptive denials of black personhood in America requires that we not only

reclaim our collective memory but that we also “give injustice its due” (Shklar, 1990).

36

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Michelle Moody-Adams, Professor of Philosophy, suggests that racism and racial
stratification have an underlying logic that must be demystified:
We must acknowledge the existence of a complex internal perspective on the
legally supported exclusion of Black people flom the social mechanisms for
affirming self-respect. A complex set of beliefs and attitudes, transmitted flom
one generation to another for at least three hundred years, helped shore up the
institution of American slavery, and the legally protected discrimination of
subsequent periods.32
Despite the centuries of devastation that may be attributed to what Adams refers to as a
“complex internal perspective” that sanctions the ascriptive denials of citizenship and the
repudiations of black human dignity, Taney still managed to conjure up an “appropriate”
basis on which a one-way relationship could exist between native-bom “beings of an
inferior order” and the country which so designated them. Referring to blacks and their
African ancestors, Taney remarked that “the Afiican race, however, born in the country,

”33—an internal

did owe allegiance to the Government, whether they were slave or flee
perspective that Moody-Adams rejects: “But no social order can command the respect of
people whom it continually fails to respect and for whom (as a consequence) both self-
mistrust and widespread mistrust of social institutions come to seem a rational adaptation
to circumstances.”34
For many, the fundamental irrationality of the “relationship” that Taney advocates
is transparent. Moody-Adams’ comments simply underscore the absurdity of such a
notion being openly expressed as public policy. The political “understanding” that Taney
implies would necessitate yet another sacrifice of a subordinate group’s self-interest in
the interest of a political expediency favoring the dominant group—a familiar pattern in

America’s sociopolitical history. A Taneyan political understanding would negate the

moral force and legitimacy of a host of acts of resistance: slave revolts, abolitionist

37

movements, “underground railroads,” Harriet Tubman’s heroism, assault and
imprisonment claims against slave owners, the Civil Rights Movement, and any other
deliberate efforts to firrther black self-determination and fleedom. As evidenced by these
(and other) continuing acts of defiance in American society, one can only conclude that
many blacks (and others) find Taney’s racial reasoning absurd.

Within five years after the Scott decision was rendered, the nation found itself in a
civil war. Months into Abraham Lincoln’s presidency a number of Southern states
seceded flom the Union fearing that Lincoln—whose party was sometimes referred to as
a “Black Republican” party, by white Southemers—would undermine their system of
chattel slavery.35 The South’s secession was clearly unacceptable to Lincoln. As a
political expediency, however, he was willing to recognize states’ rights on the issue of
slavery if slavery were confined to designated areas, and—like the founding fathers A
before him—he was willing to offer federal protection flom “interference.”36 Apparently
the seceding Southern states had little faith in Lincoln and little interest in negotiating
with his Republican administration. They continued to recognize themselves as a
Confederacy, a separate nation under the Confederate flag. Lincoln was determined to
keep the Union together.

Shortly before the North’s victory over the South in 1865 Lincoln (and the
government) began another chapter in the tortuous (and torturous) development of
citizenship by implementing policies that simultaneously acknowledged and undermined
the rights of blacks. The Emancipation Proclamation (1863), for example, was a
harbinger of the irrationality that this new chapter in American social policy held for

blacks. First, the effect of the Proclamation was to flee only those slaves residing in the

38

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Southern states that seceded flom the Union and to allow slavery to continue in the
“loyal” Southern states. (Lincoln recruited large numbers of black soldiers flom the
group of fleed slaves—more than 180,000.”) This raises the question: Why did Lincoln
recognize the right to fleedom for blacks in some states and continue to sanction their
enslavement in neighboring states, particularly when the central issue motivating the
seceding states to rebel was their desire to perpetuate slavery? It is an irrational policy
flom the standpoint of liberal principles even if, as some argue, the immorality of the
institution of slavery did not figure into the Proclamation policy.

Second, following the conclusion of the war, the Thirteenth Amendment to the
Constitution was ratified. It officially ended involuntary servitude. During the
deliberations on the Amendment, however, Congress chose to deny reparations of any
kind to the newly fleed slaves. Even a permanent land redistribution scheme along the
lines of the promised “forty acres and a mule” was denied, despite Congress possessing
the power—and the land—to offer reparations under the Confiscation Acts of 1861 and
1862.38 These Acts authorized government to take land flom rebel fighters, flom their
supporters, and flom others found guilty of treason.

Instead of redistributing some of the confiscated land to former slaves-—
particularly given that they were the principal irnprovers of it (a Lockean concept)—
Congress decided that the heirs of the rebels should have it. Perhaps Congress reasoned
that since the rebels were already losing some of their “property” due to the abolition of
slavery, they should be allowed to retain the land (Smith, 1997), but this raises another
question: Of the untold acres of land that blacks had improved through centuries of

coerced flee labor, on what land were they to build homes and start a new life for

39

res as “flee” people? Part of the answer may be inferred flom the fact that the
L‘onfiscation Act endorsed the colonization of newly fleed blacks, a policy that
advocated according to Smith (1997): “But in 1862, the President still thought it
ate to work on colonization schemes, chiefly to Central America and Haiti. . . ,
ring loyal states aid for abolition and colonization.“9
Nhy did Congress oppose land redistribution to newly fleed blacks? It cited the

ic and human devastation that the country had already suffered in the bitterly

d war, as a negating factor. This prompts some to ask: Where is the consideration
cononric and human devastation that blacks suffered during two hundred fifty
chattel slavery—improving land all over the South, under the most brutal

ns, and possessing virtually none of it? It is uncertain whether (or if) Congress
red this question, but instead of distributive justice it decided to establish the

tn’s Bureau in 1865. Its purpose was to provide rations of food and clothing to
Lucated and impoverished former slaves, to assist them in the procurement of

’ and employment—often working on plantations performing the same tasks that
i performed during slavery.

t is difficult to see how the poorly-funded Freedman’s Bureau could assist blacks
ring the means to purchase land of their own and live independent lives. The

of labor in the South was prohibitive. The lack of background justice virtually
the persistence of white domination irrespective of the presence of the Bureau.

this entrenched asymmetry of power, Southern states swiftly responded to what

ceived to be lavish “federal handouts” to blacks, by instituting Black Codes.

40

The codes reinstated a system of violence and violations of constitutional rights
based on the racial partitioning of Southern society. The codes dictated the time, place,
and manner of blacks’ movements—predating, yet paralleling in many respects, South
Africa’s apartheid system (Marx, 1998). The South instituted curfews for blacks, required
them to carry identification, denied them the right to assemble, the right to bear arms, the
right to participate on juries, and the right to seek gainful employment without first
passing special tests in order for them to procure certain licenses. The procurement
process had the effect of preserving “for whites only” the occupations that paid better
wages.

Blacks were forced by law and custom to revert to their old occupations within
the South’s racial order. They were conflonted with pervasive abuses of power and with
government’s refusals to protect them flom the violence that was constantly being
perpetuated against them, often at the hands of public officials. They were routinely
subjected to what is now characterized as domestic terrorism and hate crimes that
included the spectacle of public lynchings and burnings often attended by large crowds of
exuberant white adults, children, public officials, and photographers (Litwack, 2000).
The resulting precariousness of black life was everywhere apparent. Their prospects for
survival were uncertain given the reinstatement of their pre-Civil War slave status.40
Congress finally responded to the crisis by passing legislation to protect the civil rights of
blacks.

The Civil Rights Act of 1866 was intended to complement the Thirteenth
Amendment and to abolish Black Codes. Its language appeared to renounce the white

supremacy rhetoric in Dred Scott. The Act stated, in part:

41

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[A] 1] persons born in the United States and not subject to any foreign power,

excluding Indians not taxed, are hereby declared to be citizens of the United

States: and such citizens, of every race and color [including former slaves], shall

have the same right, in every State and territory of the United States, to make and

enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease,
sell, hold, and convey real and personal property, and to full and equal benefit of
all laws and proceedings for the security of person and property, as is enjoyed by

white citizens. . . .

Congress also passed the Reconstruction Acts in 1867 that, among other things, placed
the South under martial law and required Southern states to draft new constitutions that
recognized the rights of black citizens. Additional political rights came in the form of the
Fourteenth and Fifteenth Amendments to the Constitution. The Fourteenth Amendment
(again) made all native-bom inhabitants citizens, and the Fifteenth Amendment
guaranteed the sufflage to the male segment of the black population. The Thirteenth,
Fourteenth, and Fifteenth Amendments are sometimes referred to as the Civil War
Amendments.

The Fourteenth Amendment constitutionally guaranteed the mandate contained in
the Civil Rights Act of 1866. Like the Act, the Fourteenth Amendment specifically
identified the class of persons designated “citizens” of the United States. The language,
“All persons born and naturalized in the United States,” formally contradicted the Court’s
earlier citizenship ruling in Dred Scott by equating blacks’ state citizenship with national
citizenship: “All persons . . . are citizens of the United States and of the State wherein
they reside.” Finally, the Amendment (Article 14, Section 1) invalidated Black Codes and
other such policies by declaring, in part, the following:

No State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.42

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The Civil War Amendments along with the Acts of 1866 and 1867, among others,
created protections for blacks’ exercise of their newly acquired political liberties. The
voting rights afforded to black males increased blacks’ political influence and
representation in the halls of power. Not surprisingly, black political support usually went
to white Republican candidates—the party of Lincoln—but in many areas blacks had the
voting power to elect each other to public office for the first time in America’s history.
Once there, the newly elected representatives attempted to make their political power
visible in the legislative measures that they championed, which included the
establishment of charitable organizations, flee and integrated public schools, and the
rebuilding of bridges and ferries.43

The period of political liberalism that was ushered in by the Civil War
Amendments was short lived, however, lasting for approximately nine years flom 1869-
1877 (Cowan & Maguire, 1994, 105). Black equality (black citizenship) was a difficult
pill for white Southerners and white Northemers to swallow (Du Bois, 1935). It is an
underappreciated fact that the revolutionary changes facilitated by black citizenship status
sparked violent race riots in the North; indeed, the black flanchise that the North was
forcing the South to accept was enforced in only a handful of states in the North.44 As W.
E. B. Du Bois noted in Black Reconstruction in America, the political will of the white
majority—irrespective of geography—was not in support of blacks exercising their newly
acquired civil rights.

The nation’s experiment with inclusive liberalism was finally derailed by political
expediencies and abuses of government power. For example, in 1872 the Freedman’s

Bureau was abolished because it lacked support in the Congress.45 Recall that this agency

43

was charged with helping blacks begin to make the transition flom slaves to citizens——
apparently in lieu of reparations. Its services included support for their basic needs such
as assistance in obtaining shelter of their own and advocacy for the protections that
secured their emerging independence and newly acquired civil rights. Surely the Bureau’s
mission could not have been accomplished in seven years (after nearly three centuries of
chattel slavery) even if it had actually been fimded to realize its charge.

Indeed, some scholars maintain that the success of the Freedman’s Bureau was
never part of the post-Reconstruction agenda because government lacked of requisite
intent to act in support of black empowerment. They point to the expansion of legislation
affecting the acquisition of confiscated lands in the South which permitted white
Confederate supporters to “compete” with former slaves to gain land grants simply by
taking an oath stating that they had not fought for the Confederacy or aided its fight.
However, as economists Melvin Oliver and Thomas Shapiro point out in Black
Wealth/White Wealth: A New Perspective on Inequality, “This opened the door to
massive white applications for land. One estimate suggests that over three-quarters (77.1
percent) of the land applicants under the act were white.”‘“5 Other scholars, such as law
professor Kenneth Karst note that the Freedman’s Bureau even assisted in the efforts to
confine black labor to the South (in low paying jobs) in order to allay the fears of
Northern whites that flee black migration (resulting flom greater citizenship privileges)
would create unwanted competition for their j obs.47 Such schemes, according to one
scholar,

not only displayed a lack of genuine commitment to flee labor precepts; it

expressed more virulently racist white beliefs about black inferiority. Only such
racial hostility explains why so many whites, even many bureau officials,

 

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believed that economic stability required subjecting blacks to labor systems
resembling the slavery they otherwise condemned as immoral or inefficient.48

In another policy decision that seems irrational to many and that firrther
undermined the political equality of blacks, the federal troops that had been placed in the
South following the Civil War were removed in 1877 (Cowan & Maguire, 1994). Ten
years of federal intervention were apparently sufficient to counter centuries of hate,
violence, and notions of privilege that persistently doomed blacks’ chances to live and
prosper as flee citizens, but there are signs that such moral reasoning never entered the
political equation. That is, federal troops were not withdrawn as a result of deliberations
about the well-being of blacks or as a the result of research findings (employing ethical
guidelines) that tended to show that background justice had been established in the South
such that military force was no longer warranted.

The federal troops were withdrawn flom the South in a political compromise
between white Republicans and white Southern Democrats (the Hayes-Tilden
Compromise) to secure Rutherford B. Hayes’ presidency in 1877.49 In exchange for
Hayes’ election, the Republicans agreed to end martial law in the South and to allow the
states to return to business as usual. Of course, the resistance that blacks mounted could
not equal the level that the federal troops provided prior to “the Compromise.” The
political expediency of 1877 facilitated the foreseeable unleashing of white rage that
many Southerners harbored. Racial persecution and violence reigned once again on a
massive scale in the South. Although Taney died before the Civil War ended, his racism
seemed to gain new currency after the war, and its effect was to deepen the social

cleavages formed by previous centuries of racial exploitation.

45

In yet another blow to equal citizenship rights that signaled the demise of the
Reconstruction project, the Civil Rights Act of 1875 outlawing discrimination against
black citizens’ use of public venues was nullified by the Supreme Court’s ruling in the
Civil Rights Cases of 1883. The Court stated that the violations in question resulted flom
the ‘fivrongful acts of individual[s] . . . private wrong[s]. . . . not sanctioned in some way
by the State, or not done under state authority [my emphasis].”50 Pursuant to this line of
thinking, “state action” had to be involved in order for the Fourteenth Amendment to
apply. The Court’s public justification for this reading of the Amendment appears to
entail the following reasoning: When “some” citizens obstruct “other” citizens’ use of
public facilities on the basis of race, such actions do not rise to the level of a violation of
rights protected by the Fourteenth Amendment if the state is not the source of the denial,
if it does not make laws limiting (black) citizens’ use of public facilities.

This “state action” limitation on the Fourteenth Amendment’s effect was later
applied to the interpretation of the Fifteenth Amendment as well (Karst, 1989). With
respect to both Amendments, the Court determined that constitutional protections do not
apply where individual citizens interfere with the public ’s use of public facilities. This is
how the Court chose to flame a pervasive injustice that blacks repeatedly faced within a
system of racial stratification and ascriptive citizenship. The “private” nature of the
violation made the resulting harm fall outside of “state action” and, therefore, outside of
federal constitutional protections. Of course, it remains unclear what the Court
understood the role of the state’s to be in such instances. How did the so-called “private”

nature of the violations relieve states of their responsibility for protecting the rights of

citizens living within their borders?

46

We are left to conclude that the state is “neutral” when citizens violate other
citizens’ constitutional rights in the use of public spaces. Perhaps this line of reasoning
relieved Southern states (in the opinion of the Court) of any responsibility for the pattern
of lynchings in the South that, according to one estimate, amounted to over three
thousand unlawful killings of black men, women, and children within a thirty-five year
period.51 Perhaps the “state action” requirement also exonerated Congress of any wrong-
doing when the majority of its elected officials failed to intervene on behalf of black
citizens to protect their right to life, despite being aware of the lynching flenzy occurring
in many of their districts; federal antilynching legislation was repeatedly blocked or
filibustered (Cowan & Maguire, 1994). This official neglect prompted Ida B. Wells
Barnett, a black woman born into slavery in 1862, to risk her own life and safety to do
what elected officials would not: undertake a serious antilynching campaign repudiating
the murders of blacks. Soon others joined her in a movement to end what appears to have
been a popular spectacle of death.

In the late-nineteenth century, the outspoken Ida B. Wells Barnett published a
pamphlet, The Red Record, and became co-owner of the Memphis Free Speech
newspaper. In each of her publications and in many public speeches, she made lynchings
a public matter and spoke out against its atrocities: “Nowhere in the civilized world, save
the United States,” she noted, “do men [private individuals] go out in bands, to hunt
down, shoot, hang to death a single individual.”2 (Wells later became one of the
founding members of the National Association for the Advancement of Colored People
(NAACP)—a civil rights organization founded in 1909 that continues to combat racially

ascriptive citizenship and to promote the cause of racial and social justice in America.)

47

The history of blacks’ citizenship status in America is a history of persistent
denial and degrees of denial. Their political membership excluded protections against
restrictions on movement, on the use of public venues, on political rights—even the right
to life, itself—if abridgrnents occurred at the hands of private citizens and could not be
shown to involve ”state action.” The Court’s record on protecting rights and liberties has
flequently left much to be desired. John Rawls, a political philosopher whose theory of
justice (to be discussed in Chapter 3) gives the Court a prominent role in guiding moral
reasoning on matters of basic justice and constitutional issues, concedes that it has often
been on the wrong side of fairness:

It must be said that historically the [C]ourt has often failed badly in this role. It

upheld the Alien and Sedition Acts of 1798 and one need only mention Dred Scott

(1857). It emasculated the Reconstruction amendments by interpreting them as a

charter for capitalist liberty rather than the liberty of the fleed slaves. . . .53

Approximately forty years after Dred Scott and thirteen years after the
nullification of the Civil Rights Act of 1875, the Court handed down its decision in the
case of Plessy v. Ferguson (1896). This decision further narrowed and qualified the
Court’s (and the public’s) conception of “equal” citizenship. Its ruling upheld a Louisiana
statute forbidding blacks (i.e. Homer Plessy) and whites flom occupying seats in the
same section of passenger trains. The state statute required that “separate but equal”
accommodations be provided for blacks and whites and assessed penalties on both for
violations of the seating arrangements. In upholding the statute the Court problematized
the clear intent of the Fourteenth Amendment and its social implications. Writing for the
majority, Justice Brown’s opinion included the following:

The object of the amendment [the Fourteenth Amendment] was undoubtedly to

enforce the absolute equality of the two races before the law, but in the nature of
things it could not have been intended to abolish distinctions based upon color, or

48

to enforce social, as distinguished flom political equality, or a commingling of the
two races upon terms unsatisfactory to either. Laws permitting, and even
requiring, their separation in places where they are liable to be brought into
contact do not necessarily imply the inferiority of either race to the other, and
have been generally, if not universally, recognized as within the competency of
the state legislatures in the exercise of their police power. The most common
instance of this is connected with the establishment of separate schools for white
and colored children, which has been held to be a valid exercise of the legislative
power even by courts of [s]tates where the political rights of the colored race have
been longest and most earnestly enforced [my emphasis].54

shrugging its judicial shoulders, the Court concluded:

”

If the civil and political rights of both races be equal one cannot be inferior to the
other civilly or politically. If one race be inferior to the other socially, the
Constitution of the United States cannot put them upon the same plane.55

the Court’s ascriptive reasoning results in irrational jurisprudence. Unlike the

g of the Court five years early in the nullification of the Civil Rights Act of 1875, in

stance the state of Louisiana was, in fact, the “source” of the laws that abridged the

and liberties of black citizens. This time, it was a coercive “state action” that

rted blacks exclusion flom certain seats on the train. Despite this added fact, “in the

: of things” the Court defied its own logic and conjured up a rationale for the state’s

: to enforce constitutional protections. Justice Harlan’s dissenting Opinion

)riately pointed out that the railroad made use of public highways and that the

fation owning the railroad engaged in a public function. He then proceeded to

iS his disapproval of government involvement in making racial distinctions among

182

In respect to civil rights, common to all citizens, the Constitution of the United
States does not, I think, permit any public authority to lqiow the race of those
entitled to be protected in the enjoyment of such rights. . . . I deny that any
legislative body or judicial tribunal may have regard to the race of citizens when
the civil rights of those citizens are involved. Indeed, such legislation, as that here
in question, is inconsistent not only with that of rights which pertains to
citizenship, National and State, but with the personal liberty enjoyed by every one

49

within the United States. The Thirteenth Amendment does not permit the
withholding or the deprivation of any right necessarily inhering in fleedomf’6

Harlan’s dissenting opinion champions the formal rights of black citizens. It
the arguments put forth to exclude blacks flom equal treatment on the basis of
violation of their constitutional rights. However, even his argument takes an
mate turn as he forcefully drives home his point about racial injustice and
ship, by employing a striking comparison:
There is a race so different flom our own that we do not permit those belonging to
it to become citizens of the United States. Persons belonging to it are, with few
exceptions, absolutely excluded flom our country. I allude to the Chinese race.
But by the statute in question, a Chinaman can ride in the same passenger coach
with the white citizens of the United States, while citizens of the black race in
Louisiana, many of whom, perhaps, risked their lives for the preservation of the
Union, who are entitled, by law, to participate in the political control of the State
and nation, who are not excluded, by law or by reason of their race, flom public
stations of any kind, and who have all the legal rights that belong to white
citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a
public coach occupied by citizens of the white race.5
’3 comments echo Taney’s racist dogma espoused more than ninety years earlier in
'cott. Harlan, like Taney, condemns all Chinese people, even native-bom Chinese,
etual exclusion flom American citizenship on the basis of race. The Chinese—like
11316 of African descent in Dred—are deemed to be forever outside of the meaning
sons” in the Constitution. According to Harlan, they are just too “different” flom
iority white population in the United States to enjoy equal citizenship. With
’5 comments duly noted, the Plessy majority nationalized state-sanctioned racial
rtion, and the decision remained the law of the land for almost sixty years until

v. Board of Education (1954) reversed it—or, more accurately, reversed it to a

. Brown will be discussed in the section following the New Deal.

50

III. The New Deal and Ascriptive Citizenship

The New Deal marks the period in American history when President Roosevelt put forth
a series of legislative initiatives that attempted to stabilize the economy following the
depression. The initiatives were also intended to stem the tide of wildcat strikes and
social unrest among growing numbers of angry, poverty-stricken Americans who were
beyond the point of flustration. Indeed, many workers were taking matters into their own
hands—taking over work sites and “liberating” raw materials that could be exchanged for
much-needed services or food. Such insurgency was already underway by the time
Roosevelt came into office in 1933 after overwhelmingly defeating Herbert Hoover in the
presidential election of 1932.

Roosevelt immediately initiated reforms targeting widespread poverty,
joblessness, low wages and the spontaneous rebellions by working class citizens.58
Among Roosevelt’s reforms were the National Recovery Act, The Wagner Act, the Fair
Labor Standards Act, the Social Security Act, and the federal housing programs. His
promises raised expectations and, according to political scientist Michael Parenti,
prompted many to look to his administration to “solve the problem of the depression,
raise the impoverished, redistribute income, extend equality and countenance racial
discrimination and segregation, make business more responsible to social welfare, and
reduce businesses’ preeminent political power.”59

The New Deal gave the federal goverrnnent a more prominent role in securing
economic prosperity for citizens. In this respect, it was not unlike the role of government

flequently identified with social liberalism (V oet, 1998). That is, government intervenes

in the economy in order to reduce the hardship of long-term unemployment and

51

.44'

ity, and to otherwise provide a safety net to protect citizens flom abject poverty.
my, Roosevelt’s equal opportunity agenda seemed to reflect this conscious
.tion. Equally important, his policies seemed to affirm the dignity of all human
and to embrace a wider community of citizens—particular ordinary citizens—in
ranse of the common good on an equal basis. In this climate, workers’ rights to
wages and safe working conditions officially became important matters of
11 concern that connected Roosevelt’s agenda to fundamental notions about
ratic citizenship. Among these notions Shklar explains the following:
The dignity of work and of personal achievement, and the contempt for
aristocratic idleness, have since Colonial times been an important part of
American civic self-identification. The opportunity to work and be paid an earned
reward for one’s labor was a social right, because it was a primary source of
public respect. It was seen as such, however, not only because it was a defiant
cultural and moral departure flom the corrupt EurOpean past, but also because
paid labor separated the flee [person] flom the slave.60
Shklar’s comments only suggest how significant the devastation might have been
millions who had long been denied the opportunity to earn a decent living. One
. impression of how optimistic citizens might have been about Roosevelt’s
als. Unfortunately the optimism soon turned to despair as the hopes of many were
by the pattern of greed, social division, discrimination, and racial violence in
:3. Despite the New Deal’s revolutionary pronouncements, its actual impact was
Lily skewed in favor of the status quo in ways that greatly disadvantage the least
aged—most prominent among them were those persons just sixty years removed

hattel slavery: the black population (Bernstein, 1969; Klinkner & Smith, 1999;

man, 1995; Powell, 2003; Williams, 1998).

52

Roosevelt’s policies may have done little to change the nature of things in the
distribution of benefits and burdens. The pattern of discrimination that perverted the
founding era and the Reconstruction appears to have plagued the New Deal as well
(Lively, 1992; Powell, 2003; Weir, 1995). Howard Zinn’s comments on the effects of
Roosevelt’s “progressive” social policies on black advancement suggests a persistent
pattern of racially ascriptive citizenship:

Some blacks got posts in the administration, but most blacks were ignored by the

New Deal programs. As tenant farmers, as farm laborers, as migrants, as domestic

workers, they didn’t qualify for unemployment insurance, minimum wages, social

security, or farm subsidies. Roosevelt, careful not to offend southern white
politicians whose political support he needed, did not push a bill against lynching.

Blacks and whites were segregated in the armed forces. And black workers were
discriminated against in getting jobs. They were the last hired and the first fired.61

Michael Parenti (2002) agrees,
In regard to school desegregation, open housing, fair employment practices,
voting rights for blacks and anti-lynch laws, the New Deal did nothing. Blacks
were excluded flom jobs in the Civilian Conservation Corps, received less than
their proportional share of public assistance, and under the NRA (National
Recovery Act) were flequently paid wages below the legal minimum [The NRA
permitted the exclusion of blacks flom unions, so they were not represented in
labor relations negotiations].‘52
It appears that the primary beneficiaries of the “New Deal” were the members of
the “old guard”: white wealthy individuals, the business class—“the moneyed few”——not
the poor or working classes. Businesses were subsidized with billions of dollars flom the
public treasury, and regulatory schemes were devised to protect their class interests. To a
large extent, the logic underlying economic policies flom previous generations remained
in effect and power differentials were unaltered. Indeed, a great disparity between New

Deal rhetoric and fimdamental economic justice is suggested in Zinn’s summary of the

New Deal’s impact:

53

When the New Deal was over, capitalism remained intact. The rich still controlled
the nation’s wealth, as well as its laws, courts, police, newspapers, churches,
colleges. Enough help had been given to enough people to make Roosevelt a hero
to millions, but the same system that had brought depression and crisis—the
system of waste, of inequality, of concern for profit over human need—
remained.63
The Supreme Court’s role in the New Deal appeared to be consistent with the
conservative brand of activism that characterized its judicial decisions during the
Reconstruction. Rawls’ disappointment with the Court’s rulings during these periods
reflects this view; according the him, the Court “emasculated the Reconstruction
amendments by interpreting them as a charter of capitalist liberty rather than the liberty
of the fleed slaves; and flom Lochner (1905) through the early New Deal years it did
much the same?“

One final example flom the New Deal furthers my argument that citizenship
status has fundamentally served as an instrument for social and racial exploitation and
flagrnentation. The “antiliberal dispositions that have regularly asserted themselves”65
manifest in ascriptive policies that unjustly reduce the fair value of political liberties that
particular groups of citizens receive. Equality among citizens has been repeatedly
sacrificed due to interpretations of citizenship that unjustly link the concept to ascriptive
constructs such as race. In February of 1942 during the Second World War, President
Roosevelt issued Executive Order 9066, which authorized the military to

prescribe military areas and define their extent, flom which any or all persons

may be excluded, and with respect to which the right of any person to enter,

remain in, or leave shall be subject to whatever restrictions the Military

Commander may impose in his discretion [my emphasis].66

The purpose of the order was to provide “protection against espionage and against

sabotage to national-defense material, national-defense premises, and national-defense

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utilities.”67 This order was strengthened by the passage of the Act of March 21, 1942 (56
Stat. 173), which made violating the order punishable by fines and/or imprisonment.68
Three days later, Commander DeWitt issued exclusion orders that included an area
designated as “Military Area No. 1.” People were prohibited flom “entering” this area.
Then on March 27 DeWitt issued another order prohibiting persons of Japanese ancestry
flom “leaving” the same area (Military Area No. 1); the effect of this second order was
that some people received conflicting directives regarding the designated area, and when
the prohibition was lifted, it was the Japanese who were told that their eventual
“voluntary migration” flom the area would be facilitated by the military in order to insure
their safe and orderly evacuation.

The Japanese were singled out for special “military escort” based on Dewitt’s
determination that they posed a threat to national security. Such differential procedures
continued to be in effect on May 3, 1942 when Dewitt finally issued Exclusion Order 34
which stated that “after 12 o’clock May 8, 1942, all persons of Japanese ancestry, both
alien and nonalien, were to be excluded [required to leave] flom a designated portion of
Military Area No. l.”69 The General’s orders required that all persons of Japanese
ancestry report to “a Civil Control Station for instructions to go to an Assembly Center,
and added that any person failing to comply with the provisions of the order who was
found in the described area after the date set would be liable to prosecution under the Act
of March 21, 1942.”70

On May 30, 1942, Fred Korematsu was charged with violating the Act of March
21, 1942 because he remained in a restricted portion of Military Area No. l—a portion in

which he lived. He refused to leave the area because Dewitt’s second proclamation

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required evacuees to report directly to an Assembly Center and to remain there under
military control. Korematsu believed that the relocation and detention orders violated his
constitutional rights to equal protection, but he was found guilty in District Court in
California for violating the Act of March 21, 1942. Although sentenced to five years
probation, he was “at once taken into military custody and lodged in an Assembly
Center.”7| Korematsu appealed.

In Korematsu v. United States, the Court rejected Korematsu’s claim that his
constitutional rights had been violated. It found that the military was authorized to carry
out its exclusion orders because the orders had a “definite and close relationship to the
prevention of espionage and sabotage.”72 Being at war with Japan convinced the Court
that, “the properly constituted military authorities feared an invasion of our West Coast
and . . . there was evidence of disloyalty on the part of some . . 3’73 Korematsu, the Court
concluded, was given adequate notice to evacuate the area.

It is unclear why the Court refused to combine the two orders that regulated
Korematsu’s movements at the time in question. The facts show that the military issued
an exclusion order and a relocation/detention order. Complying with the first order meant
submitting to confinement in a detention center pursuant to the second order. Korematsu
opposed the confinement order, so he ignored the relocation order and remained in the
restricted area The Court’s finding was that the two orders were separate and distinct; it
ruled that the relocation/detention order was unrelated to the evacuation order and that

Korematsu’s lower court conviction was beyond the purview of the Court.

56

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Justice Murphy wrote one of the three dissenting opinions. I find Murphy’s

:e most instructive with respect to government power, civil rights, and racially

)tive citizenship, so I include his opinion and quote him at length:
This exclusion of “all persons of Japanese ancestry, both alien and non-alien,”
flom the Pacific Coast area on the plea of military necessity in the absence of
martial law ought not to be approved. Such exclusion goes over “the very brink of
constitutional power” and falls into the ugly abyss of racism. . . . That this forced
exclusion was the result in good measure of this erroneous assumption of racial
guilt rather than bona fide military necessity is evidenced by the Commanding
General’s Final Report on the evacuation flom the Pacific Coast area. In it he
refers to all individuals of Japanese decent as ‘subversive,’ as belonging to ‘an
enemy race’ whose ‘racial strains are undiluted,’ and as constituting ‘over
112,000 potential enemies . . . at large today’ along the Pacific Coast. In support
of this blanket condemnation of all persons of Japanese descent, however, no
reliable evidence is cited to show that such individuals were generally
disloyal . . . . Individuals of Japanese ancestry are condemned because they are
said to be ‘a large, unassimilated, tightly knit racial group, bound to an enemy
nation by strong ties of race, culture, custom and religion.’74

thy points out that the disloyalty that existed among some people of Japanese

:nt was also to be found among “many persons of German, Italian and even more

:er stock in our country.”75 However, exclusion, relocation, and detention orders

not issued to Germans or Italians living in the United States even though war was

red against Germany and Italy as well. Murphy concluded his opinion forcefully: “I

it, therefore, flom this legalization of racism. Racial discrimination in any form and

y degree has no justifiable part whatever in our democratic way of life.”76 Of the

300 Japanese removed flom their west coast homes and detained in military

ition centers for three years, over sixty percent (about 7 O, 000) were American-bom

1686 citizens.77

The Korematsu case is another illustration of how the three branches of the

nment can unite to achieve a desired end. The question is whether this type of

57

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government coordination desirable. We can think of circumstances under which such
coordination would have been advisable—for example, during the Reconstruction or the
New Deal eras in support of the expansion of civil and social rights—but under the
circumstances in Korematsu, government coordination is cause for grave concern.
Imagine the following military order after the attacks of September 11, 2001: “All
persons of Saudi Arabian or Afghani ancestry, alien and nonalien, living on the east coast
report to. . . .” Would the public have accepted such an executive order? Would the
military have been able to execute it on the basis of an assertion that this class of
individuals constituted “a large, unassimilated, tightly knit racial group, bound to an
enemy nation [or group] by strong ties of race, culture, custom and religion”? Would
Congress have provided the supplemental legislation, and would the courts have upheld
its penalties?

Pursuant to Murphy’s reasoning, many contend that the post-911 executive
branch has already gone “over the very brink of constitutional power” and is dangerously
close to painting all Arab Americans and persons of the Muslim faith, as terrorists. Others
worry that all Americans are now subject to greater and more intrusive surveillance than
before (flom neighbors and even public library employees) as a result of sweeping
executive orders and complementary legislation such as the Patriot Acts. They fear that
citizens’ civil rights are being eroded in the name of national security in what appears to
be an indeterminate and ever-expanding war on terrorism.

Executive Order 9066, the Act of March 21, 1942, and Korematsu v. United
States make for an unsettling trilogy of state action that lacks the checks and balances

that the Constitution included to restrain government power. When coordinated state

58

power unnecessarily abridges fleedom under the guise of the advancing the common
good, the public is not well served. Nevertheless, the examples that I have given thus far
demonstrate that such coordination often occurs.

In 1988, the surviving Japanese intemees received a formal apology flom the
United States government and, among other things, reparations in the amount of $20, 000
for each survivor, and an education fund in excess of one billion dollars.78 Fred
Korematsu’s conviction was overturned forty years later on a finding of government
misconduct (Karst, 1989, 255 n26). The reparations are hardly just compensation for
more than three years’ false imprisonment coupled with the substantial loss of assets
during the war. “The relocation” according to Parenti (1980), “left many of them
destitute, and almost all their land was grabbed by agribusiness firms.”79 However, their
reparations amount to a windfall when compared to the $300 that Congress gave fleed
slaves in the District of Columbia in 1862, at the end of slavery in that territory.80 It
amounted to less than one dollar for each year of bondage and unpaid slave labor,
excluding the extent to which that institution—buttressed by federal law—deprived them
and their ancestors of the right to accumulate wealth. It is easy to see how torturous racial
ascription can be and how its patterns contribute to the “tortuous development of

”81

American ideas about citizenship [my emphasis]. We revisit both concepts in our next,

and last, historical period: the Civil Rights era.

IV. The Civil Rights Era and Ascriptive Citizenship

One scholar describes the Civil Rights era this way:
[I]t was a matter of utmost irony that the United States Constitution, virtually
meaningless with regard to black rights, was rediscovered in a powerful surge of

creative energies that melded Ghandian teachings (the “satyagraha,” or the “truth-
love force”), civil disobedience, American style, as defined by Henry David

59

Thoreau, Protestant Christianity and its focus on the Gospels, with the affecting
rhetorical arts of black preaching and witness; in short, the entire period . . . was
one of the century’s most vital lessons in a living democracy.82
v scholars and activists debate the exact origins of the Civil Rights Movement.
ng the differing perspectives, some date its beginnings flom the Potsdam Conference
45 (Spillers, 2003); some put the correct date at 1953, the year that blacks lead a
roots movement to boycott segregated buses in Baton Rouge, Louisiana (Morris,
; Balkin, 2001); others identify its origin with the Brown v. Board of Education
ion in 1954 (also referred to as “Brown ” or “Brown I”) or with the lynching murder
urteen year old Emmett Till in Mississippi in 1955; and still others link the
mings of the Civil Rights Movement to the Montgomery Bus Boycott in 1956.
rps similar divergences may be found with respect to the “closing” of the era. Did it
vith the conclusion of the Vietnam War (or some other identifiable marker) or is it
[going movement that ebbs and flows, as was suggested by many speakers at the
:th anniversary commemorating the August 1963 March on Washington?
Inquiries into the time span of the Civil Rights Movement are relevant on multiple
3, but they are not the focus of my discussion. For my purposes, this unique period
:ial protest provides the final historical context for examples in support of my claim
:itizenship status (or lack thereof) has served as an instrument for social and racial
litation reflected in the deeply engrained ascriptive hierarchies that continue to alter
ational moral flarnework (Powell et al, 2001; Weir, 1998). Brown v. Board of
ation (hereafter referred to as Brown or Brown I) is a reminder of the continuing

n of racially ascriptive citizenship in the provision of government services,

fically state-sponsored educational opportunities.

60

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Contemporary debates about education policy and practice can be understood
through the lens of Brown, a lens that extends my discussion of the phenomenon of
ascriptive citizenship flom its origins in the founding of the republic into its
contemporary contexts. Brown is instructive for at least three reasons: 1) It acknowledges
the group phenomenon of systemic racial subordination within American social policy
and its adverse effect on the citizenship rights of the discriminated; 2) it establishes a
groundbreaking constitutional precedent that asserts citizens’ civil rights against states’
rights initiatives such as those discussed in Plessy; and 3) it is a landmark decision in
education that declares the unconstitutionality of state-sponsored racial segregation in
public schooling as a violation of the Fourteenth Amendment.

Under the direction of Thurgood Marshall the NAACP initiated Brown on behalf
of black school children. (Thirteen years later Marshall would become the first black
Supreme Court justice in United States history). Brown consolidated complaints
contained in four separate appeals flom four separate federal district court decisions in
four states—Kansas, South Carolina, Virginia, and Delaware.83 Each case raised the same
legal issues: the constitutionality of state-sponsored, inferior, segregated schools. The
complaint alleged that segregated public schools violated the children’s equal protection
rights guaranteed under the Fourteenth Amendment, and deprived them the opportunity
to attend schools in their neighborhoods.84 The NAACP’s claim in Brown was part of the
long tradition of NAACP advocacy for racial justice and equal educational opportunity
between the races, dating back to its beginnings in 1909 under the leadership of W. E. B.

Du Bois, and others.

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All four lower court decisions upheld the segregationist state education policies.
In three of the four decisions, the lower court relied on the legal precedent established by
Plessy in 1896. Therefore, the Court could not decide Brown without directly conflonting
Plessy (known in some circles as “Brown’s evil twin” because of its regressive position
on virtually identical legal issues).85 The country was riveted to this case because the
mounting pressure for civil rights set the stage for a history-making decision on public
education. Not only did the Court have to consider the constitutionality of a legal
precedent that had served as a canon of jurisprudence for more than sixty years, but it
also had to acknowledge the link between national policy, national citizenship, and states’
rights, and do so in the context of overt racial stratification. Justice Warren wrote the
majority opinion. It stated, in part, the following:
In approaching this problem [the effect of segregation on public education], we
cannot turn the clock back to 1868 when the Amendment [Fourteenth] was
adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider
public education in the light of its full development and its present place in
American life throughout the Nation. . . . Today, education is perhaps the most
important function of state and local governments. Compulsory school attendance
laws and the great expenditures for education both demonstrate our recognition of
the importance of education to our democratic society. It is required in the
performance of our most basic public responsibilities, even service in the armed
forces. It is the very foundation of good citizenship. . . . Such an opportunity
[education], where the state has undertaken to provide it, is a right which must be
made available to all on equal terms [my emphasis].86
Before rendering its ruling, the Court referenced the lower courts’ consideration of the
social science research brought before it concerning the damaging effects of segregation
on black children’s motivation to learn (a controversial finding that the lower courts did

not dispute but that, nevertheless, resulted in four lower court decisions in favor of the

defendants), then proceeded with its finding:

62

We conclude that in the field of public education the doctrine of “separate but
equal " has no place. Separate educational facilities are inherently unequal.
Therefore, we hold that the plaintiffs and others similarly situated for whom the
actions have been brought are, by reason of the segregation complained of,
deprived of the equal protection of the laws guaranteed by the Fourteenth
Amendment. . . . We have now announced that such segregation is a denial of the
equal protection of the laws [my emphasis].87

In the wake of the Court’s decision in Brown, it appeared that the ideal of
democratic equality in education had triumphed at last. It appeared that the rhetoric of
national unity was affirmed—for the sake of the children, at least. In the language of
Martin Luther King Jr., it appeared that the “check” containing the promise of justice in
America would finally to be “cashed” in the sphere of education, but appearance and
reality proved to be tragically at odds. As in previous generations, under previous
admuristrations, the promise of democratic equality did not materialize. The hope and
renewed faith that had hung in the balance were shattered in the familiar pattern of racial
reasoning and ascriptive citizenship.

According to Zinn, ten years after the Brown decision, “75% of the school
districts in the South remained segregated.”88 Brown 11’s mandate (the remedial phase of
Brown I) that “all deliberate speed” be taken in ameliorating the constitutional violations
found in Brown I, opened the door to a process that proceeded at a (geriatric) snail’s pace.
Apparently it did not occur to the Court in Brown H—or perhaps, in Brown I either—that
recognizing the importance of education in our democratic society, recognizing
segregation’s violation of equal protection, and recognizing the long term psychological
harm that black children may suffer under forced racial partitioning, constituted sufficient

grounds for “treat[ing] the cases as class actions and offer[ing] class-wide relief.”89 The

failure to do so, according to one constitutional scholar, “meant that only the named

63

plaintiffs were entitled to a remedy and that each individual school district would have to
be sued separately.”90

The Court in Brown 11 did not set clear guidelines for compliance with the ruling
in Brown I, nor did it require immediate relief. As a result, there was a great deal of
confirsion (often disingenuous) about how school districts were to meet the requirements
of the ruling, and the Court’s ambiguity provided ample room for noncompliance and
delay. To the dismay of many, “the Court allowed these questions to simmer in the lower
courts for over a decade. It did nothing to significantly intervene in remedial issues until
its 1968 decision [thirteen years later] in Green v. New Kent County School Board.”91
According to historian, Milton Viorst, Brown I “was the first time . . . that the Court had
vindicated a constitutional right and then deferred its exercise for a more convenient
time.”92 The overwhelming disparities—the “savage inequalities”—in the education
afforded to black and white children did not sufficiently shock the moral conscience or
the judicial sensibilities of the Court to prevent the debacle of Brown 11.

To add insult to injury, approximately twenty years after rendering its
groundbreaking decision in Brown, the Courts began to limit the scope of its
desegregation ruling. For example, in the case of Pasadena City v. Spangler (1976) it
held that “resegregation of a school district, following implementation of a desegregation
decree, was not constitutionally offensive absent proof [on the part of the complainants]
of discriminatory motive [my emphasis]?93 A similar burden of proof was imposed on
complainants in the case of Board of Education of Oklahoma City v. Dowell (1991). In

addition, there was a major shift in the Court’s focus in reviewing such cases, a shift

away flom the substantive equal protection issues that were at the heart of Brown

(Balkin, 2001). Consequently, assuming that “motive,” or some other burden of intent,
could be found and proven to the Court’s satisfaction, there was no guarantee that the
constitutional issues raised by such a finding would be given the consideration afforded
to them in Brown. A pattern was established such that “the Court’s subsequent decisions
on school segregation were phrased almost entirely in terms of the forms of remedy
available to courts rather than in terms of the rights of black schoolchildren.”94

The post-Brown remedies provide us with ineffective and insufficient responses to
the equal protection problems identified in Brown and that continue to haunt us today.
Perhaps there is some utility function that is served by the diminishing scope of the
Court’s interests in desegregation cases; perhaps its narrowing judicial focus makes its
work less demanding—politically and morally—and makes its oversight role as protector
of citizenship rights and liberties less consuming. However, in the actual lives of people
this departure flom Brown is an anemic response to the inferior education afforded to
black children in America’s compulsory government school system.

While many ponder the motivations behind the Court’s actions in the post-Brown
era, the fair value of citizenship further erodes. The obvious departure flom what
appeared to be a clear mandate in Brown is a sad commentary on American liberalism
and a reminder of the continuing presence of racial ascription in government’s
distribution of benefits and burdens among its citizens (Weir, 1998; Skocpol, 1995).
While the Court rejected Plessy ’s “separate but equal” standard, it replaced it with
something more obstructive: a “separate but unequal” standard (Bell, 2001). Where does

this leave the millions of young citizens who are required by the state to attend school

despite the state’s obvious neglect of their interests? Do educators have a moral

65

obligation to provide them with an explanation as part of the education process? Should
educators be required to study (and incorporate) education-related civil rights laws?

This year (2004), the seventeenth of May marked the fiftieth anniversary of the
Brown decision. Imagine the children of Brown I who have long since reached adulthood
and who are, perhaps, now conflonting the educational opportunities available to their
grandchildren and, certainly, the grandchildren of their generation. What has transpired in
the interim? Are the rights and opportunities that fueled their parents’ struggle for justice
in the cornts more secure? By all accounts, they are not. Indeed, the succeeding
generations would appear to have much to deplore (Kozol, 1991; Ogbu, 1994; Orfield,
2002).

Admittedly, the racial character of today’s educational landscape is somewhat
different. There are no “whites only” signs; no governors blocking entrances to school
buildings; no federal troops escorting children to school through angry crowds that hurl
ripe tomatoes and insults, but segregated housing patterns and the property tax schemes
based on them continue to exist and are indicative of the same central problem: the
problem of the “color line.”95 It would seem to be foreseeable that if firnding and
districting policies are structured on what is, arguably, the most segregated aspect of
American life—housing—then the outcome of such policies is more likely to produce
segregated schools (Denton, 2001; Orfield, 2001) and grossly inequitable education
resources. Whether or not this policy outcome is intentional is not nearly as important as
the outcome, itself; it is the consequences of policies that impact the actual lives of

citizens, particularly when racial justice is at issue.

66

Absent social justice, segregated education works for some but not for others.
“De facto” racial segregation is indistinguishable, in distributive justice effect, flom the
unconstitutional dejure racial segregation that was rejected in Brown. Should not social
justice be the focus of our concern? The current state of education suggests not only a
lack of appreciation for the moral content contained in this question but also suggests the
overall lack of political currency remaining in the Brown decision. Balkin writes:

Brown was a case about public school desegregation, but by the end of the

twentieth century many public schools in the United States remained largely

segregated by race. Indeed, the United States has been in a period of resegregation

for some time now.96
Balkin also cites a 1997 report by the Harvard Project on School Desegregation entitled,
“Deepening Segregation in American Public Schools,” to draw attention to the increase
in another form of social partitioning: “The present tendency toward segregation of
Latinos is, if anything, even more pronounced than that with respect to blacks.”97
According to Balkin, the Harvard study indicates that during the 1994-995 school year,
“67.1 percent of blacks and 74.0 percent of Latinos attend[ed] predominantly. minority
schools.”98 There appear to be no limits to the permutations of exclusion under. ascriptive
citizenship.

It is not surprising that today many scholars are ambivalent about the significance
of Brown ’s contribution to furthering social and racial justice. It is clear that court action
was needed in light of the constitutional issues involved, but ambivalence was fireled by
the Court’s handling of the issues. Its lack of specific guidelines for school districts to
follow, for example, facilitated anti-desegregation initiatives in the aftermath of Brown.

Some continue to argue, however, that Brown forever changed the context of the debate

about segregated education (and led to the demise of segregated public facilities,

67

generally) by extending constitutional protections to public schooling, and that it provides
a weapon in the fight for greater democracy, but others disagree. They contend that the
Court’s position in Brown was a feeble response to systemic exploitation and neglect and
that the Court failed to act responsibly when ordering relief. Both interpretations are
plausible in the “giveth and taketh away” entrenchment of American social policy
(Klinkner & Smith, 1999; Weir et al, 1988). I can discern truth on both sides of the issue,
but “how much” truth to attribute to “which side” depends on each individual’s moral
compass.

Brown remains an historic judicial decision no matter how its outcome is viewed.
It is part of our collective memory of the libratory potential of government in education,
law, political science, and social policy, among other areas. It is certainly relevant to our
critical understanding of equality, justice, citizenship, and the rights that ought to extend
flom these concepts. It is a judicial decision that must be a moral and legal referent in our
current deliberations on educational equity.

The moral impact of Brown does not appear to have radically altered the
foundational social and political ideology of ascriptive citizenship to which Dred Scott
and Plessy gave forceful expression. Should such a transfonnative impact be expected
flom Brown given that the moral flamework on which it relies (not completely overruling
Plessy) dates back to the founding era and, in the case of Dred Scott, to the beginnings of
Western civilization—at least, according to Taney? It seems unlikely that we will realize
a consistent and substantive equality in America without conflonting the very illiberal
and undemocratic underpinnings of our government and exploring why ascriptive

patterns persist. The current levels of racial inequality in education in the aftermath of

68

Brown have so multiplied the injustices that initially conflonted the Court, as to, perhaps,
reduce the value that can be derived flom a singular focus on this case—or on
integrationist idealism, generally (Bell, 2001).

Looking at Brown through the critical lens of stratification in America, it is equal
educational opportunity that is desperately needed in order to begin to improve the life
chances of children flom subordinate groups—distributive justice—not black forced
integration. The pursuit of democratic equality as a right of citizenship requires that many
more citizens direct their efforts to the task of building America’s political will and moral
agency in the interest of a pluralistic, anti-subordinating collectivity. If moral principles
based on justice guide our public judgments, we are more likely to establish a
“representative” government that pursues the substantive and transparent implementation
of constitutional guarantees by championing (fair) equality of opportunity. Rawls implies
that additional requirements, beyond careers open to talents, are needed to ensure this
outcome:

The thought here is that positions are to be not only open in a formal sense, but

that all have a fair chance to attain them. Offlrand it is not clear what is meant, but

we might say that those with similar abilities and skills should have similar life
chances. More specifically, assuming that there is a distribution of natural assets,
those who are at the same level of talent and ability, and have the same
willingness to use them, should have the same prospects of success regardless of
their initial place in the society system. . . . The expectation of those with the
same abilities and aspirations should not be affected by their social class.99

If Brown stands for nothing else, it stands for the proposition that having a “fair
chance” to access careers open to talents implies a fair system for developing talents and
a fair stage on which to display them. State-sponsored education—particularly

compulsory schooling—must give all young citizens the equal chance to discover their

abilities and to pursue their goals flee flom social stratification. This means that

69

government should not restrict the benefits of quality education to only those children
whose parents can afford it—irrespective of this (favored) group’s academic potential or
intellectual ability—and not do the same for the children of low-income parents or racial
minorities; otherwise, the school system promotes injustice by reproducing a caste-like
social structure through educational deprivation. In an ascriptive policy climate, equality
of opportunity is viewed as a radical position (to say nothing of “fair” equality of
opportunity), but history reveals that fairness is typically viewed as an extreme demand
by those who are privileged within the status quo; history also reveals that the major
advances in social and racial justice that have occurred, occurred when such conflicting

moral visions were aired and resulted in the conscious repudiation of “the given.”
Conclusion

I have presented many examples that demonstrate how American citizenship has served
as an instrument for social and racial exploitation and flagrnentation. Its meaning has
been understood—flom the beginning—within a system of social stratification, within a
culture of subordination where denials and degrees of denial of basic rights are the norm.
Consequently, a pattern of ascriptive citizenship has evolved that has enabled the
enjoyment of rights and privileges by some citizens at the expense of others, with little or
no outrage among the majority of the population or its “representative” leadership. With
great regularity, valid claims to extend the substantive rights of citizenship to include an
excluded group have been begrudgingly recognized by one branch of government, only
later to be reinterpreted, minimally, by that same branch or constricted or nullified by
another. Substantive citizenship rights—the rights that are actually experienced in the

lives of people, not simply read in books or heard in speeches—should be a function of

70

one’s national origin, or of a naturalization policy pursuant to ethical guidelines. Such
rights should not be determined by the xenophobic reactions of power to the kind and
degree of diflerence that is ascribed to a person or group. If substantive rights and
liberties are arbitrarily manipulated by those individuals and groups in positions to do so,
we will never have social and racial justice in America.

As this discussion has shown, during four of the most significant and politically
innovative periods of American history, many native-bom inhabitants (citizens) have
been exploited and relegated to second-class citizenship status. Great “innovation” did
not result in an inclusive democracy, which does not bode well for social justice
initiatives. Whether the issue is personhood, voting rights, office holding, representation,
education, employment, wealth accumulation, or the protection of life and limb flom
unspeakable violence (state and civil), those who are labeled “permanent outsiders”
within a stratified social order have had to struggle for what the Constitution guarantees
to “insiders.” The social hierarchy reflected in white supremacy ideologies often provides
the rationale for social policies and practices that are simply dehumanizing and that could
never win the consent of all of the people who are affected by them.

State and civil opposition to egalitarianism undermines fundamental changes
designed to create a genuine democracy in America, but it is this perpetual quest that
links contemporary reconstructive efforts to the generations of struggle for fleedom.
Perhaps the enormous political challenges that underlie Shklar’s reference to the
“tortuous development” of citizenship are just so many “complex internal perspectives”
that the ideological “twists and turns” of ascriptive reasoning serve. The struggle for

change brings to mind the words of Fredrick Douglas:

71

The whole history of progress of human liberty shows that all concessions yet
made to her august claims, have been born of earnest struggle. This struggle may
be a moral one, or it may be a physical one, and it may be both moral and
physical, but it must be stntgogle. Power concedes nothing without demand. It
never did and it never Will.

My critique of ascriptive patterns of citizenship in no way suggests that America
lacks counterexarnples, examples of how formal citizenship status has been expanded
flom its exclusive origins, or how it has furthered equal political rights. My argument is
not based on absolutes—but pattems—so I see no cause to suggest that we lack instances
of citizenship reflecting hints of democratic equality in America. Indeed, my discussion
refers to a number of such instances, and they are central to my argument. The Civil War
Amendments, the Civil Rights Act of 1866, and the executive orders that sent federal
troops into the South to protect black schoolchildren and enforce desegregation laws
during the Jim Crow era, are but a few examples. My focus, however, is on a pattern, a .
decipherable pattern of citizenship status serving as an instrument for social and racial
exploitation (and flagnentation) throughout American history—in particular, during four
goundbreaking periods of constitutionalism. This pattern is significant because it reflects
the tortuous and tortuous development of citizenship in America and its impact on the
realization of substantive rights and liberties in the lives of many oppressed and
marginalized citizens.

In this section (the Civil Rights era) I have directed my attention to the racially
ascriptive citizenship pattern that is decipherable in our current social policies in
education. I have registered the destructive impact of this pattern of denial on the

realization of equality of educational opportunity. I have suggested that, here again,

supremacy doctrines underlie the systemic patterns of ascriptive inequality, and I have

72

further suggested that such patterns have deep roots in America’s social mores.
Subordination is pervasive enough in (un)civil society to sustain ascriptive patterns in the
basic social institutions despite centuries of “democratic” processes. I have illustrated
how advances in political equality have consistently had to contend with America’s
entrenched, socially stratifying moral and political flamework.

Some may argue that racism is not as pronounced today as it once was, and that
overtly racist statements and views are outside of the mainstream of public discourse. I
would agree to an extent, but it is clear that racial stratification and exploitation are far
flom obsolete, particularly in the field of education where “separate and unequal”
continues to be the standard (Bell, 2001; Kozol, 1991; Ogbu, 1994). Racially ascriptive
citizenship has a long and deep history in America and manifests in the pattems of denial
and degrees of denial of citizenship rights (Christopher, 2000; Losen & Orfield, 2002;
Klinkner & Smith, 1999). It is clear that the patterns will not simply disappear with time,
so rather than waiting for unforgettable memories to fade away, why not reject the
ascriptive traditions and myths that hinder political maturity? This appears to be the only
way to reasonably maintain that the racial contract is beginning to resemble an inclusive
social contract (Mills, 1997).

It is interesting that law professor, Derrick Bell, identified Taney’s white
supremacist dogna as “excessive even for its time,” presumably outside of mainstream
public discourse in mid-nineteenth century America, but was it really? Consider the
following: The “excessiveness” of Taney’s ideology did not prevent him flom obtaining
judicial confirmation and holding a seat on the Supreme Court—actually becoming the

Chief Justice until his death just prior to the end of the Civil War (Smith, 1997); also, his

73

“excessiveness” did not sufficiently shock the moral conscience of enough Americans to
warrant a public reprimand from other government officials seeking to distance
themselves—and government service generally—flom Taney’s racist judicial harangue in
Dred. Lastly, we must not overlook the fact that Taney’s “excessive” remarks represented
the majority opinion and remained the law of the land in America for almost twenty years
until the Civil War Amendments. The point is this: The relevance of racist dogna uttered
by disguntled individuals is one thing (unless such individuals comprise a tyrannical
majority), but such ideas, when advocated by people in positions of authority—by public
figures who are empowered to make, interpret, and execute the laws of the land—is quite
another, ‘excessive’ or not.

Some contend that the Reconstruction Amendments redirected our society
towards more-inclusive social policies and marked a sigrificant departure flom racially
ascriptive ideologies. The Reconstruction certainly had the potential to do these things,
and to do so in a substantive way, as I have argued. Clearly the end of chattel slavery
after the passage of the Thirteenth Amendment was one of the most important events in
America’s social and political history. It was a positive inflection point in the pattern of
black exploitation that characterized the social conditions leading up to its passage. As
previously stated, Dred ceased to be a controlling legal precedent after the passage of the
Fourteenth Amendment, and the Fifteenth Amendment set the stage for reconstruction
and greater opportunities—though brief—for exercising a most basic right of citizenship
in a democracy: the right to vote.

However, the Reconstruction Amendments did not alter dominant social mores or

eliminate the deeply rooted racial doctrines that structure our social institutions (McGary,

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1999); it by no means erased America’s color line. The Thirteenth Amendment did not
end ascriptive citizenship—i.e. white, male, and elite privilege. To a large extent,
“democracy for the few” remained, and remains (Parenti, 2002). Recall that the impact of
the amendments were vehemently resisted by white Southerners and Northemers (Du
Bois, 1935; Karst, 1989), and in the South, Black Codes and Jim Crow laws restored the
pre-Civil War levels of racial subordination, with little public objection or opposition.

The Fourteenth Amendment’s Equal Protection clause was not enough to protect
civil rights, particularly given the Court’s narrow interpretation of its scope. Federal
congressional actions were also needed to noticeably impact entrenched, segregationist
policies and legal castes structures (Smith, 1997). More often than not, states’ rights and
political bargains ruled, and the federal government did little to alter the social dynamics.
The short-lived period of political liberalism of the Reconstruction came to a screeching
halt when federal troops were removed flom the South pursuant to the Hayes-Tilden
Compromise of 1877. Just nine years after the ratification of the Fourteenth Amendment,
suffering and hardship intensified for America’s black citizens.

Finally, the “separate-but-equal” doctrine of Plessy was handed down within a
generation after the ratification of the last Civil War Amendment. Are we to understand
Plessy as a “milder” version of the dogna in Dred—its predecessor by approximately
forty years? Recall that the Plessy decision upheld state-sanctioned social inequality and
restrictions on fleedom of movement that clearly violated constitutionally protected rights
and liberties. Nevertheless, Plessy remained the law of the land for more than sixty years.

Brown—the much touted civil rights decision—reversed Plessy ’s separate-but-equal

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doctrine only with respect to one area of human activity: public education, and I have
argued that its success (even in this limited sphere) is ambiguous, at best.

Today, public schools are becoming increasingly resegregated (Balkin, 2001).
They remain glaring examples of ascriptive citizenship and the continuing retreat flom
Brown ’s Fourteenth Amendment guarantees (Hochschild & Scovronick, 2003; Losen &
Orfield, 2001). Advances in political equality continue to compete with ascriptive moral
judgnents and the racial reasoning that spawns the doctrines guiding practice within the
basic structure of American society—what Moody-Adams (1997) refers to as “a complex
internal perspective . . . transmitted flom one generation to another for at least three
hundred years.”101 This “internal perspective” is antithetical to minority-group fleedoms
and to democracy; it amounts to an unspoken, but ever present, undermining force in the
centuries-old quest for social and racial justice in America.

The internal logic of social stratification—its ascriptive irrationality and spurious
moral foundation—must be demystified in order for the faintheartedness and timidity that
it masks to be rejected in favor of achieving something geater. This requires no less than
an overhaul of our social institutions and necessitates individual and collective overhauls
as well. Perhaps studying the psychology of social stratification may firrther reveal the
contributions that individuals collectively make to what is “deeply entrenched in the
institutional and ideological structures of the United States,”'02 but this much seems
clear: The anti-political—“bury our heads in the sand”—Tocquevillian celebrations of

traditions in civil society lack relevance and appeal under circumstances of pervasive

inhumanity and social injustice (Walzer, 1995; Smith, 1997).

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Fundamental change is unlikely to be soon realized, and progress may fall prey to
the patterns of retreat, as history has shown, even when a sufficient number of like-
minded individuals and groups take up the cause of fleedom. These projections do not
diminish the sigrificance or the urgency of the work to be done if America’s democratic
experiment is to survive. Indeed, the changes that demystification and political integity
afford may be the best hope for the billions of people around the world seeking
fleedom—the fate of their dreams hinging on ours, and imaginatively captured in a

familiar poet’s queries . . . here at home:

What Happens to a Dream Deferred?
Does it dry up

Like a raisin in the sun?

Or fester like a sore—

And then run?

Does it stink like rotten meat?
Or crust and sugar over—
Like a syrupy sweet?

Maybe it just sags

Like a heavy load

Or does it explode?

—-Langston Hughes ’ “Harlem, ” Selected Poems of Langston Hughes

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CHAPTER 2

THE STATE AND COMPULSORY EDUCATION: SOME MORAL
CONSIDERATIONS

I, for one, am unsatisfied with the hope of an ultimate “political” solution sometime in
the indefinite future while, in the meantime, countless children unjustifiably receive
inferior educations that ‘may affect their hearts and minds in a way unlikely ever to be
undone}

----Justice Thurgood Marshall, United States Supreme Court

The Fourteenth Amendment, as now applied to the States, protects the citizen against the
State itself and all of its creatures—Boards of Education not excepted.

----Justice Jackson, United States Supreme Court
The preceding discussion considered several historical issues pertaining to ascriptive
citizenship in America. Specifically, it outlined the moral flamework underpinning
America’s democratic project and its impact on social organization. The principal
considerations were the degree to which some goups in America experience systematic
denials of equal dignity and equal fleedom in attempting to determine their own ends and
the impact of ascribed status on the protections citizens are afforded flom government
abuses and flom illiberal majorities. I argued that citizenship status in America has served
as an instrument for exploitation and flagnentation and has fundamentally been
understood within an ascriptive paradign that supports a social hierarchy structured to
maintain privilege.

Differential citizenship status perpetuates inequality in America rather than
champion fleedom. Ascriptive distinctions reproduce unjust privilege and manifest as
raced, classed, and gendered exclusions (among others)—the antithesis of democratic
equality. These categories of exclusion support a very “thin” democracy such as existed

in classical Athenian societies. There, full citizenship was reserved for a small segnent of

78

the male population—the excluded majority being comprised of slaves, women, children,
and the poor. I suggested that social stratification underlies both the social injustice that is
furthered by ascriptive citizenship and the thin democracy that is reflective of it. It is
ascriptive reasoning that produces anemic responses to the repeated calls for social
justice.

The dualism that appears to exist between politics and morality in the dominant
interpretation of democracy (Dewey, 1922) gives American citizenship what is, perhaps,
its most disturbing feature: exploitation. The quest for substantive equality—equality of
rights and privileges in the real world—and the inclinations of government with respect
to the pursuit of these, are issues that have serious implications for a just democracy and
for democratic projects in compulsory schooling. Thus, the public’s interest in
substantive equality and the government’s interest in political power are central to the
discussion in this chapter. I conclude that if the state is to exercise coercive and
persuasive power in the administration of schooling, certain moral imperatives ought to
be adhered to-—namely, social and racial justice—in education policy. (I use the phrase
“the state” broadly to encompass state and federal government as well“ as certain publicly
financed institutions. This meaning is suggested, for example, in the Court’s ruling in
West Virginia State Board of Education v. Barnett (1943)..)

Constitutional democracies are theoretically predicated on self- governance through
elected representation. Citizens elect representatives to protect and preserve their rights
and liberties and to secure the general welfare. In order for citizens to be self-governing,
it is assumed that they should possess certain kinds of knowledge. First and foremost,

they should know that they have unique interests and be able to identify them. They

79

should also know or be able to determine the types of policies and protections that further
their interests and the individuals (and goups) that may best articulate and pursue them.

To the extent that citizens’ interests can be affected by the state’s distribution of
benefits and burdens, citizens should know or be able to determine how their
individual/group interests can be enabled or disabled by existing (and antecedent) state
and federal policies. This implies that citizens should be able to critically assess their
government’s past and present actions concenring these interests, which further implies
that they should establish a “critical distance” between themselves and their government.
Assuming these factors are present, citizens (individuals and groups) are in a better
position to make use of their knowledge to determine their political objectives and to
determine the initiatives that it would be prudent for them to pursue.

The effective pursuit of specific initiatives in the public realm requires some
consideration for broader public interests. This means that individuals need to be able to
entertain wider purposes, deliberate broadly, and organize an effective public presence
because the marketplace of ideas contains complementary and competing interests. It is
also helpful for citizens to be aware of the “public mood” and how they might impact it
to positively alter social conditions. A healthy dynamic relationship is desirable between
individual and collective interests, and between state and civil society. Thus, we can
locate citizens within the polity by reference to their individual interests and to their basic
judgnents about what is in the public interest. A lack of self-regard and ambiguous (or
tenuous) connections to public life are public deficits that tend to undermine citizens’
powers to influence government and contribute to the expansion of the democratic

project.

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The Constitution makes no mention of a federal function in education. When
government functions are not explicitly delegated to the federal government and are not
explicitly precluded flom state control, they become the domain of the states pursuant to
the Tenth Amendment. Thus, it is widely understood that the administration of schooling
is the prerogative of the states, subject only to limits that protect the constitutional rights
and liberties guaranteed by the Constitution. Brown v. Board of Education (1954) is an
example of the federal judiciary intervening into state education policy in response to
citizens’ claims that their fundamental rights and liberties were being violated. Virtually
every state has exercised its Tenth-Amendment prerogative and has established some
manner of mass schooling.

From the beginnings of America’s republic there has been considerable
speculation about the government’s proper role in schooling. It is not surprising that
many in the newly-formed nation were anxious to link education to the security of the
general welfare, as Gerald Gutek, education historian, suggests:

American intellectuals sought to devise an educational system that would serve

the cause of nation-building by inducting young republicans into a new political

and social experience. Old loyalties had to be transformed into new values and

commitments based on the republican concepts of self-govemment.I
Consequently, the focus of schooling shifted flom the religious sectarianism that was
prominent in the seventeenth and eighteenth centuries, to the nationalism of the
nineteenth century. The former was reflected in the educational objectives of the
Calvinists, for example, and the latter in the education philosophy of Thomas Jefferson.

When Horace Mann, Henry Barnard, and other state education administrators

managed to obtain sufficient consensus to create a compulsory school system (the

“common” school) in the mid-nineteenth century, the link between the aims of schooling

81

and the desire to develop an educated citizenry was systematically forged (Gutek, 1987).
Defining what ‘educated citizenry’ means, however, and determining what its needs are,
is a political decision. It is a decision that is heavily influenced by power, such as the
business community’s interest in worker productivity and maximum profits; it is also
influenced by “majority values” proponents seeking to integrate “outsiders” into a
preexisting American ideal as part of a larger nation-building project (Spring, 1988). The
power asymmetries that these and other interests reflect make education, particularly
education for democratic citizenship, an inherently political enterprise.

Western governments have recognized, flom at least the time of Plato, that
political interests can be furthered through compulsory schooling. In America, states have
increasingly wielded their power to regulate the schooling process through their
respective legislatures and gowing bureaucracies (Tyack, 1976). States exert their
control in many ways: by establishing attendance and cunicular guidelines, by overseeing
textbook selection processes (adoption committees), by scrutinizing teaching materials,
by establishing standards for the certification of teachers, by accrediting post-secondary
education programs, and by authorizing particular k-12 schools to operate based on the
degree to which they meet the various standards that it sets.

In effect, the states make decisions that affect how much educational opporturnity
will be available to whom and what it will consist of (Apple, 1979; Hurst & Ross, 2000).
These decisions are impacted by how the states collectively view themselves and their
role in structuring national interests. Interstate policy coordination efforts suggest that
national interests are perceived to exist. In education, these interests are furthered by such

orgarnizations as the National Governors’ Association, the Council of Chief State School

82

Officers, and the Education Commission of the States (Spring, 1994). Their decisions
impact how much support will be given to the many divergent and competing interests in
education. That is, the states make national policies that affect how—and to what
extent—competing interests are managed and how these interests are reflected in the
overall character of education. This centralizing characteristic is identified with the
“state-center ” vision of schooling that has dominated American education policy for
most of its history, in addition to dominating policy in other Western democracies
(Meyer, 2001).

Lately the states’ discretion in regulating compulsory schooling (including
nationalizing it) has been eroded by the federal government. The traditionally
, decentralized education system that was selectively linked by mutual (individual) state
interests is becoming centralized pursuant to federal interests. This departure appears to
result flom the federal government’s determination that there are “strong connections
between education and national defense, welfare, civil rights, and social justice.”2

One early indication of federal influence in education policy is reflective of its
varied national interests. The Smith-Hughes Act of 1917, for example, established
vocational education and training and set federal standards for state implementation
(Ross, 2000). The National Defense Education Act of 1958 allocated substantial federal
funds to the states to encourage them to increase the numbers of students pursuing math
and science in response to Russia’s launching of Sputnik in 1957. Of course, Lyndon
Johnson’s Great Society programs of the mid-19605 resulted in never-before-seen levels

of federal intervention in the area of education for purposes of increasing equity and

access,3 but during the Reagan Administration the policy focus shifted flom equity to

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“excellence.” This shift was, in part, a response to growing international competition,
particularly with J apan—the “Toyota problem,” as it was sometimes referred to, but it
was also prompted by scathing indictments about failing schools and poor-quality
teachers; perhaps the most noteworthy indictment appeared in a federal report in 1983
entitled “A Nation at Risk: The Imperative for Education Reform.” (1 will say more about
this document later.)

Subsequent federal irnitiatives exerted considerable pressure on the states to
, implement higher standards, increase accountability, and establish school-choice plans.
Each of these measures had the effect of directing resources away “flom social and
welfare concerns to economic and productivity concerns.”4 This expanding federal
interest in productivity is also evident in the Clinton administration’s Goals 2000: The
Educate America Act of 1994. It established eight national goals for education that
included standards for virtually all k-12 subject areas, and the current Bush
administration’s No Child Left Behind Act of 2001 accelerates this push for national
standards, although critics complain that it is an expensive and unfimded mandate.

States are not required to implement federal education policies but are likely to do
so in order to obtain federal subsidies and maintain an “amicable” relationship with the
federal government. The growing connection between education and federal policy and
the far-reaching implications of government’s coercive powers on the life prospects of
citizens, requires that we think seriously about both the compulsOry nature of schooling
and the possible undesirable implications of government’s regulatory role with respect to

it. I argue that there are at least four such undesirable implications that raise concerns for

84

citizens who have an interest in substantive democracy and equality of educational
opportunity.

. First, the state’s interests and the public interest may be seriously at odds. These
interests are not inherently compatible although such coordination is often assumed.
Within the democratic ideal, for example, government is characterized as being, of the
people, by the people, and for the people. However, in Disobedience and Democracy:
Nine Fallacies on Law and Order, in a chapter entitled “The Ninth Fallacy on Law and
Order,”5 Howard Zinn rejects the presumptive compatibility between the state’s interests
and the public interest. In making his argument, he points to the explicit reservations
about government that are contained in the Declaration of Independence and in the
second of John Locke’s T wo Treatises of Government.

Lockean theory draws on natural law to assert that human beings have
intrinsic rights in the state of nature (pre-civil society). Locke then combines these rights
(natural rights theory) with contract theory to argue that the role of government is to
protect the natural rights of the governed and that the governed ought to remain loyal to
their government if it meets its obligations. That is, government must protect citizens’
rights and liberties in order to fulfill its fundamental purpose for existence and retain their
support. It is noteworthy that this long-established quid pro quo for the allegiance that
citizens are asked (and expected) to extend to government was denied in Taney’s remarks
in Dred Scott.

The Declaration and Locke’s second treatise both acknowledge—and attempt to
guard against—the distinct possibility that government may antagonize the peoples’

interest in liberty, with fatal implications for government. The dissolution of government

85

can occur when conflicts over the protection of rights and liberties “so jeopardizes” the
life, liberty, and pursuit of happiness of the people that the hypothetical social contract is
voided. Determining if, and when, this threshold has been met necessitates that a critical
distance exist between citizens and government. Zinn writes:

The government is not synonymous with the people of the nation; it is an artificial

device, set up by the citizens for certain purposes. It is endowed with no sacred

aura: rather, it needs to be watched, scrutinized, criticized, opposed, changed, and

even overtlnrown and replaced when necessary.6
Any government is capable of acting contrary to its mandate in the pursuit of its own
elitist or authoritarian ends. If history is any indication, the potential for such abuses of
authority will repeatedly materialize as evidenced by the various patterns of unlawful
state abridgements that were discussed in Chapter l.The state’s coercive powers are more
likely to be used to pursue illiberal and undemocratic ends if the state is not consciously
guided by the public’s interest in equal dignity and equal citizenship.

The three remaining undesirable (possible) implications of government power are
aCtually a variation on the first, but provide a more direct link between antagonistic
government agendas and the compulsory schooling process. The second conflict arises
When government (state policy) becomes unduly influenced by wealthy, powerful
individuals and groups. Government policy decisions may tend to favor the wealthy and
compromise the substantive value of the rights and liberties of the masses. Those who
have less political power or who are disempowered would then have much less impact on
Pliblic policy and much less representation in government (W alzer, 1995).

Freedom is precarious if government can sacrifice citizens’ interests in order to

eStablish lucrative partnerships with powerfirl elites who demand more representation

than their “one person, one vote” would otherwise afford them. Their class interests then

86

become detrimental to the public interest. Public officials who engage in such political
bargains undermine substantive equality and contribute to the further erosion of public
confidence in government. The lack of equality and public confidence combine to
weaken the sense of political community and problematize the consent and legitimacy
criteria long-associated with liberal ideology. Does anyone reasonably believe that
individuals who seek a just democracy would consciously and fleely consent to
government practices that erode their rights and liberties through political bargains or
would agree that government ought to be permitted to function in this manner,
unchallenged? If such consent were given, it would suggest levels of oppression,
ignorance, disregard, and exploitation that would signal the demise of democracy and the
rise of some other political system.

Third, a conflict of interest occurs when government’s pursuit of illiberal and
undemocratic agendas implicates compulsory schooling in a process that thwarts the
development of dissident views and critical rationality. If cultivating independent,
rational tlninking is not a priority in schooling, then “desirable” citizenship qualities may
be identified with passivity and compliance, but citizens exhibiting these dispositions are
too trusting (or too fearful) of government and therefore too submissive to its authority.
Trusting and submissive citizens tend to conform to existing conditions and not question
government’s use of power. They are unlikely to scrutinize, criticize, or oppose their
government, irrespective of its many abuses. This type of citizenship is inconsistent with
self-govemment.

The Enlightenment project in education is predicated on the idea that schools can,

and should, alter the way that people think and behave (Gutek, 1987). America’s mass

87

education movement of the mid-nineteenth century is a manifestation of this idea. That is,
government schooling is desigred to produce behavioral and cognitive changes in
individuals, and the changes tend to enable or disable citizens’ capacities for self-
governance. Thus, we need not ask whether government schooling’s intervention will
systematically affect how students function. Rather, we ought to ask the following: What
effect is being sought by the intervention? Why is it being sought? Is it working and who
benefits? Where government has the authority to regulate education and make its
regulations compulsory, citizens must be very concerned about how these questions are
answered. In particular, they must be concerned about the extent to which government
schooling jeopardizes the political integity and autonomy of school-aged citizens.
Specifically, the schooling process should not develop compliant, obedient citizens who
lack an appreciation for their own interests and for the political liberties that are
presumed to protect them.

To the extent that government is ascriptive, govemment-controlled institutions are
likely to pursue an ascriptive agenda. As noted in Chapter 1, ascriptive agendas are often
hostile to democratic ideals and diverse interpretations of the good. Government schools
structured on the basis of ascriptive citizenship adopt undemocratic institutional practices
that encourage conformity and suppress “differences” that transgress the official norm.
By suppressing difference, government schools do not encourage or explore diverse
perspectives about the social world. Such schools may implicitly (or explicitly) endorse
textbooks, teaching practices, curricula, and even methods of teacher feedback and

encouragement that serve a prevailing view that is ascriptive and rarely open to critique.

88

The Common School Movement of the mid-nineteenth century was a government
schooling initiative that embraced an ascriptive agenda. The resulting policies and
practices were oppressive to racial, ethnic, and religious minorities, among others. Blacks
were, perhaps, the most disfavored in the ascriptive hierarchy because of the stigna of
slavery; they were not considered firll citizens, and their children were excluded flom
participation in the “common” schools in both the South and North.

Later when blacks were permitted to attend government schools, they did so on an
ascriptive basis—a segregated, poorly funded basis (that continues to exist today). Under
these conditions of social partitioning, Booker T. Washington, educator and social
activist, sought to fill the “education void” by creating schools especially for blacks. His
education agenda focused on the acquisition of work-related practical skills—not political
and social equality. He was largely successful in soliciting funds flom wealthy
philanthropists and small donors (Washington, 1932), but many opposed Washington’s
education agenda, and W. E. B. Du Bois, his contemporary, accused him of making
damaging political concessions to whites in exchange for their support.

The common school project openly pursued other forms of ascriptive exclusion
that suppressed “difference.” For example, Mexican, Chinese, and Japanese children
were also segregated from whites because children of color were not considered part of
white America’s norm, and it was this norm that determined who could attend public
schools. European immigrants, such as Italians, were initially segegated as well; they,
too, were viewed as a threat to the dominant Anglo-Saxon culture. Religious persecution
in Protestant-Controlled government schools contributed to the establishment of the

private Catholic school system that continues to exist today. Educational opportunity

89

structured on the basis of exclusion, and degees of exclusion, made the schools complicit
in society’s larger project of racial and social stratification, a project that had long
preceded the advent of the “common schools.” Historian, Lawrence Cremin writes:

, The assumption was that white ethnic immigrants were assimilable and indeed
needed to be assimilated as rapidly as possible. Clearly, however, the assumption
of the dominant white community with respect to blacks and Indians, and indeed
with respect to all peoples of color, was that they were essentially inassimilable
. . . The prevailing assumption was clear: people could be educated to transcend
the barriers of ethnicity and religion in order to become full-fledged members of
the American community, but they could not be educated to transcend the barriers
of race.7 -

A fourth, and final, conflict of interest occurs when the state is so intimately
structured around corporate interests that .a “corporate culture” emerges and government
adopts a business ethic. Business principles tend to encourage individual competitive
advantage among citizens and downplay the government’s role as an instrument for
promoting equality and eliminating goss power differentials (Apple, 2001; Walzer,
1995). Too great a focus on individual or private ends tends to‘reduce citizens’ concerns
about important public ends. It is these ends, however, that encourage citizens to
collectively deliberate about public matters and to develop a sense of mutuality.

If government schools adopt a business ethic, or become consumed in a
corporate-culture orientation, what is to become of perspective taking and other inclusive
processes? Instead of these cooperative skills, students may learn to value forms of self-
promotion that jeopardize the rights and liberties of others (Hursh, Goldstein, & Griffitlns,
2000; Kincheloe, 2000). To the extent that schooling has this effect, it undermines the
development of democratic sensibilities that are needed to champion equality, create

democratic institutions, and oppose special interests when these jeopardize citizens’

fleedoms.

9O

If liberal democratic institutions are needed to insure that civil rights are equally
recognized and protected, then neglecting the development of such institutions puts civil
rights at risk. When citizens (including elected officials) lose sight of their common
interest in democratic institutions, they are more likely to overlook the fact that
government schools provide poor quality education to some citizens. They may support
equal opportunity, in theory, but fail to support irnitiatives that actually promote equity
and distributive justice. They are likely to fail to insist that their elected officials protect
all citizens’ rights to receive high quality education on an equal basis (Hochschild &
Scovronick, 2003).

It is common knowledge that many children regularly attend schools that are
inferior, poorly ftmded, and generally lacking sufficient staff, texts books, computers and
other educational resources that have been shown to improve learning opportunities for
many students (New York Times, 27 July, 2000). Frequently, these same children suffer
flom chronic health conditions, lack medical care, and have other health-related
problems. All of these factors seriously undermine their opportunity to learn; yet there
appears to be no collective concern about their plight, no public outrage expressed by the
majority of voters in response to these circumstances. Citizens possessing sufficient
financial resources simply leave the cities and send their children to suburban public
schools, or to private schools, where the opportunity to learn is far better (Hochschild &
Scovronick, 2003; Spring, 1994). Of course, parents have a right to take evasive actions,
but they should also support efforts to improve the schooling conditions of those families
left behind. Rhetoric unaccompanied by action is of little value to those who are trapped

in a failing school system.

91

The disparities in funding between inner-city schools and suburban schools are
flequently staggering (Christopher, 2000). The often-cited research findings in Jonathan
Kozol’s Savage Inequalities: Children in America ’s Schools detail many of these
disparities and the obstacles they present to realizing equal education for the children of
the poor. He, like many others, brought national attention to the goss inequalities in
school expenditures and identified this as a major factor contributing to race and class
inequality in education. Robert Reich also documented inequalities in public schooling in
The Work of Nations: Preparing Ourselves for 21 ‘" Century Capitalism. He attributes
educational inequality to corporations’ need for cheap labor and to the socially
reproductive aspirations of “well-off” parents who have an interest in passing on their
socioeconomic status to their children.

According to Reich’s research, many middle-class and upper-class parents
support educational stratification—not democratic education—because poorly educated
children create a future “worker pool” flom which their children (educated in elite
schools) will likely obtain cheap labor. This climate of competitiveness individualism and
social reproduction deepens social division and compounds the difficulties facing
millions of parents whose children have little hope of receiving an equal opportunity to
discover and develop their potentials (Mitchell & Salsbury, 2002; Spring, 1994; Walters,
2000). Government, for its part, is often restrained and does little to favorably alter the
social context of schooling. It does not, for example, create mechanisms to insure that all
schools are equally funded and that the funds are properly managed in the interest of the
equal educational opportunity. When it chooses to act, the impact of its policies often

exacerbates inequalities rather than reduce them (Weir, 1995).

92

Low-income parents lack the means to simply choose good schools for their
children when government does not make such schools widely available (Apple, 2001).
Choice plans and vouchers may help some citizen-outsiders find refuge on the “inside”
but are insufficient and ineffective responses to the massive educational disparities that
are widely acknowledged. These simple measures cannot begin to accommodate the
rrnillions of children-receiving inferior education on a daily basis; students cannot wait for
their inferior schools to “take a lesson flom the private” sector and shape up (Hochschild
& Scovronick, 2003). It is as if these children are expendables in a game in which their
government compels their participation until they are old enough to choose to quit.

If our focus on competitiveness in the market economy encourages us to neglect
the public welfare, government schools will continue to deteriorate. If we neglect public
schools by failing to demand justice flom government, democratic principles are reduced
to platitudes in the actual lives of citizens. By continuing to ignore the plight of the
masses, we may one day find ourselves living in a society where the only remnants of
democratic memory are found in the Andy Warhol-like symbolism of American flags
(Thirty-two Flags?) displayed on the hoods, bumpers, dashboards, belt buckles, and
lapels of a tattered citizenry—the last vestige of agency. Indeed, the flag may become a
substitute for fleedom, and “sports” a substitute for participation. We may be left witln
stirring renditions of patriotic songs that we unite in singing (lip syncing?) just prior to
enjoying “permissible” displays of genius that do not require a public commitment to
educational equity—fixing our gaze upon the flag, of course, and not on each other.

What does it mean when certain government policy measures such as ethical

funding schemes and management procedures improve learning conditions or reduce the

93

wealth gap between rich and poor in America (New York Times, September 5, 1999), but
government is focused on other priorities? What are the lasting implications of Brown if
government continually chooses not to pursue egalitarian measures in its schools and
increasingly abdicates its responsibilities by shifting its role to the private sector? What
type of civic community will emerge if citizens are not taught to appreciate or understand
that there are alternatives to unresponsive governance and that citizens can, and ought to,
influence state power in the public interest (Parenti, 2002; Walzer, 1995)? What message
does it send about our society’s well being when privileged parents do not take the plight
of “other peoples’ children” seriously (Delpit, 1995; Hochschild & Scovronick, 2003)?
As I alluded to earlier, the release, in 1983, of the National Commission on
Excellence in Education report, “A Nation at Risk: The Imperative for Educational
Reform,” was part of the reflarning of the education agenda that signaled the virtual
abandonment of government’s earlier focus on equal educational opportunity. The new
agenda reinstated the 195 Os preoccupation with competition and individual achievement
based, in part, on the report’s official announcement that America was losing its global
competitive edge: “Our nation is at risk. Our once unchallenged preeminence in
commerce, industry, science and technological innovations is being overtaken by
competitors throughout the world.”8 It advised policymakers to focus educational
resources on excellence, standards, and assessment. The report did not chronicle,
however, the government’s active and infamous role in perpetuating inequalities and
systerrnic discrimination in the distribution of educational opportunities, the opportunities

that would—presumably—be needed to pursue excellence.

94

A Nation at Risk did not spark (and has not sparked) a robust public discussion
about the relationship between the general welfare and public education—something that
this thesis seeks to generate. It did not raise questions about what citizens should expect
flom their government in support of quality schools or challenge the efficacy of funding
schemes based on local property taxes. It did not lead to a change in state policies in
response to societal deprivation and forms of discrimination that directly impact
schooling, despite the fact that discrimination is strongly linked to segegated housing-
pattems, for example, and these reproduce segegated schools. What the report appears to
have done is to contribute to the “winners and losers” binary of the education market. The
‘Nvinners” keep competing, and the “losers” have the liberty to exist on the margins or
exit the market altogether. Referring to the report’s flaming of the issues Michael Apple,
curriculum and policy scholar, writes:

We see the crisis as reconstructed around particular themes: international

competition, capital accumulation, a reassertion of “toughness” and standards.

The crisis is not one of the immense inequalities that are so visible in American

society. Instead, it is redefined by dominant groups to fit their own interests.9

The Commission’s report influenced policy decisions by altering the debate on
the problems facing government schooling and by establishing recommendations for
solving them. It is unclear why “excellence initiatives” rarely include the resource
allocations and administrative procedures sufficient to give equal educational opportunity
a fighting chance. It is only when we provide all students with an equal opportunity to
learn that we can finally glimpse what ‘excellence’ really means. In Wittgensteirnian
fashion, our use of the word ‘excellence’ in reference to the aims of compulsory

government schooling in America’s separate and unequal socio-historical context has

given the word an ascriptive meaning; if we alter the context, perhaps we will find that

95

our current ascriptive standards of “excellence” are quite inadequate, and that the word
‘excellence’ takes on a whole new meaning under conditions of justice.

As yet, however, our society remains close to the surface of a lesser standard for
human achievement, aflaid to undertake measures that fly in the face of privilege—aflaid
to fly. Meanwhile our civil society spirals and flagnents, and the remains of our
democratic project are increasing difficult to identify. We dwell in a policy space that
appears content to nibble around the edges of a lesser standard, pursuing lesser collective
possibilities. Joseph Kahne, a policy analyst, notes this disturbing trend:

Currently, policy analysts emphasize a different agenda. Assessments of
educational quality focus on individual rather than group achievement and on
standardized and meritocratic notions of equality. [I argue that the individual
focus on quality is equally suspect] Indeed, policy analysts lack the vocabulary,
the conceptual frameworks, and the technical procedures needed to consider
systematically and articulate concern for these alternative ideals. Important
questions regarding the relation between schooling and the promotion of
democratic communities are not the subject of systematic analysis. . . . Despite the
respect Dewey commands among educators, those assessing educational policy
generally ignore the social concerns of democratic communities [my emphasis].10

William Boyd, another outspoken policy analyst, echoes Kahne’s concern about theshift
to private interests in policymaking. He, too, laments the increasing commodification of
education but distinguishes his position flom the mainstream by taking a critical stance
on the present climate of markets and bottom lines:

School reform is usually flamed in narrowly economic and technocratic terms
(developing human capital and economic competitiveness); humanistic values,
democracy and community are neglected or pushed to the periphery. The
overwhelming concern of business leaders and policy makers is with improving
the workforce and economic competitiveness. Moreover . . . mainstream policy
analysis adds to the problem: It is so technocratic that it lacks both the vocabulary
and the inclination to examine important questions of democracy, community and
social justice.11

96

I have now presented four concerns about possible conflicts of interest between the
government and “the people” that stem flom the adverse implications of government
actions on substantive equality: authoritarian government agendas, tolerance for undue
influence on policy by powerful elites, arrested development of rationality as a
government (or interest goup) expedient, and a corporate culture climate in government
that encourages competition and atomism. Each concern raises issues that go to the heart
of government’s integity and to how it should function if it is to regulate schooling,
particularly compulsory schooling. These are moral questions that problematize
government’s use of its coercive power.

I have argued that citizens have a role to play in conceptualizing and effectuating
the fundamental educational aims (and broader aims) that are appropriate for government
to pursue (the inputs)——whether it be the development of loyal citizens, critical thinkers,
philosopher kings, or rugged individuals, for example—but have noted that their ability
to do so is significantly impaired to the extent that they do not first define the type of
society that they want to create. I have reasoned that a political theory that champions
democratic principles is capable of linking inclusive ideals to institutional practices and,
consequently, can more accurately project a vision of our society that inclusively expands
individual and collective possibilities. Our ideas about government’s role in a modern
democracy directly affect our expectations of its functioning, our perceptions about its
inadequacies, and our level of tolerance when conflonted with its failings. The extent and
nature of the divergences—if any—between our perceptions about ideal government and
our understanding of how it functions in our lived experiences are significant public

concerns that have implications for social change.

97

The Need for Social & Racial Justice

If a state does not view all citizens (or goups of citizens) within its boundaries as '
intrinsically valuable (equally worthwhile in themselves), then it does not view them as
intrinsically equal (Wall, 2001). This implies that citizenship status does confer equal
moral and legal rights. For example, recall that in Dred Scott Taney’s majority opinion
reflected the dominant institutional ideology that blacks were “beings of an inferior
order” such that the descendents of Aflicans and the descendents of Europeans were not
viewed as intrinsically equal beings. Consequently, the moral and legal rights that the
state conferred on blacks (possibly, individual state citizenship) could never be equal to
the moral and legal rights conferred on whites (state and national citizenship).

This implies that even if Dred Scott somehow managed to gain citizenship status
within a particular state, or group of states, national citizenship (citizenship in “the” state)
would be forever denied to him. The denial would result flom the majority’s
interpretation of the original intent of the Constitution regarding the status of blacks. As a
result of this conception of nationhood and personhood, Dred Scott was among a class of
individuals who lacked the requisite relationship to “the state” to guarantee that his
liberties would be protected. Thus, if his liberties were recognized in one state, they could
be denied in another. So the fact that the nation did not view all citizens (or goups of
citizens) as intrinsically valuable resulted in citizenship status that did not confer upon all
citizens, equal moral and legal rights.

Absent substantively equal moral and legal rights, however, citizens are denied
equal standing within the state. Continuing with Dred Scott: According to the majority

opinion, the type of citizenship that could be conferred on persons of Aflican descent in

98

the state of Illinois—a state that forbade slavery—did not include the moral and legal
rights that Illinois conferred on white citizens. The differential moral and legal rights
meant that certain remedies that were not available to Dred Scott would have been
available to his white counterparts, according to the Court’s majority opinion. An
opportunity to receive a hearing in the federal courts was one such remedy. This meant
that Dred Scott’s alleged owner—but not Dred Scott—could receive a hearing in federal
court. The “owner” could assert his claim to human property, but Scott could not counter
with a claim to human liberty. Thus, the absence of substantively equal moral and legal
rights between the class of citizens to which Dred Scott was assigned and the class of
citizens to which his alleged “owner” was assigned translated into differential standing
before the Supreme Court and the lower courts.

The denial of equal standing among all citizens (and goups of citizens) within the
state precludes the possibility that they will receive equal treatment within the state’s
basic social institutions. Citizens who lack full standing within the state do not have the
same relationship to the state that is enjoyed by those who do have full standing. Where
the nature of the relationship to the state is expressed in terms of substantive rights and
liberties, difi’erential relationships will mean differential substantive rights and liberties
within the state. This implies that the rules guiding the state’s choice of action in response
to equal circumstances—involving citizens (or groups of citizens) who possesses
differential substantive rights and liberties—will not require that the state provide an
equal response. This means that citizens (or goups of citizens) who bring the same

claims before the state may receive different (unequal) treatment. The denial of equal

99

standing among citizens within the state implies that they will not be treated equally
within its basic social institutions.

In addition to racial distinctions, wealth has long been perceived as one of the
rubrics in American society for distinguishing the social standing of citizens. Material
wealth is a source of social division that suggests that poor citizens are more equal to
each other than to their wealthy counterparts. For example, we can capture a glimpse of
this sentiment by revisiting the political philosophy of (founding member) Alexander
Hamilton: “All communities divide themselves into the few and the many. The first are
the rich and well-bom, the other the mass of the people . . . . Give therefore to the first
class a distinct permanent share in the government. . . 3’12 Indeed, under American
capitalism’s enormous disparities of wealth between the rich and the masses, there is
growing concern among many that the “campaign chest” that is required to effectively
compete for public office virtually secures for the wealthy the “distinct and permanent
share in the government” that Hamilton advocated.

A New York Times article entitled, “Gap Between Rich and Poor Substantially
Wider,” cites several interesting, yet disturbing, findings by the Center on Budget and
Policy Priorities, which is “a nonprofit organization in Washington that advocates Federal
tax and spending policies.”13 In reading the article, one is struck by passages such as, “. . .
this year the richest 2.7 million Americans, the top 1 percent, will have as many after-tax
dollars to spend as the bottom 100 million,” and “The poorest one-fifth of households
will average $8000 of income this year, down flom $10,000 in 1977,” or the distributive
imbalances reflected in statements such as “more than 90 percent of the increase [in

national income] is going to the richest 1 percent of households, which this year will

100

average $515,600 in after-tax income, up from $234, 700 in 1977.”14 Is it safe to say that
the poor are even more disadvantaged, now, than they were five years ago? How do such
inequalities in wealth impact the quest for democracy in America?

Private wealth affords the wealthy better treatment within the basic institutions of
society relative to the working classes. As previously indicated, where the nature of the
relationship between the state and its citizens (or groups of citizens) is expressed in terms
of the substantive rights and liberties that are afforded to them, wealthy individuals are
likely to experience a differential relationship to the capitalist state, one that affords them
more (rather than fewer) substantive rights and liberties. As one scholar expresses it,
“Since choice requires money, the more money we have, the more free we are. In a
market economy the rich not only have more money, they have more freedom.”15

In particular, wealth often brings more freedom as a result of the substantial
influence on public policy that money and power seem to command fi'om elected
officials. The differential citizenship status that the “more substantive” rights and liberties
reflect, translates into favorable policy consideration within the state. Frank Levy, an
economist at the Massachusetts Institute of Technology, suggests that so-called
“competitive markets” are not the sole reason why the economy works as it does in
distributing wealth. He notes that the govemment—Congress, specifically—plays a
major role in determining where wealth gets concentrated by structuring rules that
regulate free trade and union activity, for example, and such rules, according to Levy,
“are determined by the political process . . . shaped by money donated to political

candidates.”16

101

Pervasive deprivations of citizens’ substantive rights and liberties within a
democratic project indicate that the state is socially unjust. I find John Rawls’ definition
of social justice helpful. His focus is on state power and its implications for justice in

the basic structure of society, or more exactly, the way in which the major social

institutions distribute fundamental rights and duties and determine the division of

advantages from social cooperation. . . The justice of a social scheme depends

essentially on how fundamental rights and duties are assigned and on the

economic opportunities and social conditions in the various sectors of society.17
The presence of social injustice implies that the division of advantages is more likely to
be based on discrimination and ascriptive privilege rather than equality of opportunity or
merit. The basic institutions of society may even undermine each other in promoting
social injustice. What the Supreme Court “giveth,” through its interpretation of the
Constitution, the Congress may “taketh away” through its laws, or lack thereof. For
example, the Reconstruction Amendments recognized the formal rights of black citizens
to equal protection from the state, but Congress took away this right by failing to properly
empower and maintain the Freedmen’s Bureau, among other things. The Bureau was the
primary government agency charged with championing the constitutional rights of blacks
in the South after the Civil War, so it can be argued that the initial injustice of receiving
merely formal rights from the “second” Constitution was compounded by Congress’
failure to follow through on the limited protections afforded by such rights.

Social injustice erodes the moral and political legitimacy of the state. Opposition
to the wide divergences between social justice and social practice fueled the mid-
twentieth century Civil Rights Movement. This movement galvanized‘hundreds of

thousands of American citizens from various communities and associations across the

country. Their fundamental demand was that the state live up to the rhetoric of social and

102

political equality and that it extend the rights of citizenship equally to all of its citizens.
The pervasive conditions of social injustice deprived the state of its moral legitimacy and,
therefore, of its moral authority to compel compliance. The civil disobedience
demonstrated by the civil rights activists in the South was a manifestation of this
repudiation of state authority. Some argue that by retaliating against civil rights activists,
the state’s authority was further exposed as a sham maintained by a brute force comprised
of vicious dogs, sadistic peace officers, and corrupt elected officials, all conspiring (the
dogs included) to protect a racist, segregationist culture.

When social struggles reflect efforts to overturn state sanctioned social injustice,
pragmatic-sounding phrases such as “keeping the peace” or “restoring order” find their
true meaning in the suppression of legitimate claims for equal rights and liberties. The
citizens who are “disturbing the peace” are, in fact, demanding that the government
uphold constitutionally guaranteed rights. “Restoring order,” then, is an immoral act if it
has the effect of simply reinstating an illegitimate status quo. The violence that the South
unleashed on the peaceful demonstrations by civil rights activists—under the guise of
keeping the peace—was just another manifestation of the illegitimacy and immorality of
the state’s use of its coercive power, as Rawls incisively points out:

If justified civil disobedience seems to threaten civic concord, the responsibility

falls not upon those who protest but upon those whose abuse of authority and

power justifies such opposition. For to employ the coercive apparatus of the state
in order to maintain manifestly unjust institutions is itself a form of illegitimate
force that [people] in due course have the right to resist.18

State policies should be promulgated to effectuate antisubordination practices

(antiracist, antisexist, et cetera)——not merely be principled—in order for the state to be

worthy of its citizens’ respect and worthy of the power to regulate certain aspects of their

103

lives. As Moody-Adams reminds us, “No social order can command the respect of people
whom it continually fails to respect.”19 The Civil Rights Movement in the South is a
recent reminder that when a state is devoid of its moral authority due to its perpetuation
of violence in response to its citizens’ quests for justice, it cannot morally (or always,
physically) compel participation in its ascriptive social order. Its coercive sanctions and
punishments, or threats of such, are often not enough to change the minds and
inclinations of those rightly opposed to social stratification.

We arrive at the conclusion that in a democratic project, the rational state ought
to operate within a framework of moral principles that champion social and racial justice.
It ought to pursue both causes in good faith if its jurisdiction over compulsory schooling
is to have any claim to legitimacy. We cannot thoughtfully discuss any facet of the
schooling enterprise (curriculum, teaching, learning, policy, or administration, for
exarnple)——particularly, with respect to developing a democratic citizenry—if we do not
first confront the underlying irrationality of the socially stratified state within which this
enterprise is structured. Social justice is a flmdamental obligation of a fiinctioning
democratic state and a fundamental expectation that binds citizens to it, and to each other
(Walzer, 1995).

Government cannot morally relinquish its obligation to provide quality education
to all citizens on an equal basis by simply “setting other priorities” and choosing to
experiment with one of the many varieties of choice plans that are now in vogue—in lieu
of distributive justice. It cannot morally endorse privatization schemes within a market
climate if this feeds into, or is parasitic on, violations of social justice. Quality education

should not be predicated on the luck of a lottery draw, or on one’s level of risk aversion,

104

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distribution of benefits and burdens in society irrespective of race, class, gender, sexual
orientation, or other invidious distinctions.

One implication of having a just moral framework that structures the compulsory
schooling process is that it creates obligations for state agents. Those who are instruments
of the state’s power to compel compliance, and who are otherwise part of the education
enterprise are morally obligated to renounce bad faith in education policies (unfair
privilege and unfair deprivation) wherever they find it within the enterprise. They are also
morally obligated to adjust their professional commitments, accordingly, in the interest of
fairness. Government, and its agents, cannot morally relinquish their obligation to
provide quality education for all on an equal basis; they must be accountable for their
contribution to the functioning of the existing ascriptive system.

In the next chapter, I will provide an overview of John Rawls’ theory of justice.
As part of my explication, I will respond to several criticisms concerning his theory. The
political principles underlying Rawls’ just state are reflected in his conception of the
“well-ordered” society. His interpretation is instructive as a flexible model for examining
the continued irrationality of our government’s social policies under social stratification
and ascriptive citizenship. We will see in Chapters 4 and 5 that the moral foundation of
Rawls’ political philosophy contributes constructively to our understanding of the role of
social institutions in a just (and unjust) constitutional project. In Chapter 5, I will discuss
the theory’s reconstructive implications for realizing a democratic project in education,

particularly for the philosophy of education that can guide it.

105

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CHAPTER 3
RAWLS’ WELL-ORDERED SOCIETY: A FLEXIBLE METHOD OF INQUIRY
Political philosophy may contribute to how a people think of their political and social
institutions as a whole, and their basic aims and purposes as a society with a history—a
nation—as opposed to their aims and purposes as individuals, or as members of families
and associations.
----John Rawls
The level of culture that can be achieved in the United States is a life-and—death matter
for the large masses of suffering humanity. This too is a fact that must color any
discussion of contemporary institutions.
----Noam Chomsky
John Rawls (1921-2003)
John Rawls is widely regarded as one of the most distinguished philosophers of the
twentieth century. Some consider him to be the greatest political philosopher of his time
(N agel, 1999). Philosopher, Jonathan Wolff goes so far as to say that “contemporary
English-language political philosophy began in 1971 , with the publication of Rawls’ A
Theory of Justice. . .”’, and Robert Nozick, one of Rawls’ chief critics and also a
philosopher, writes:
A Theory of Justice is a powerful, deep, subtle, wide-ranging, systematic work in
political and moral philosophy which has not seen its like since the writings of
John Stuart Mill, if then. It is a fountain of illuminating ideas, integrated together
into a lovely whole. Political philosophers now must either work within Rawls’s
theory or explain why not.2
Clearly, not all philosophers share the above sentiments, but many do, and there are
many others outside of the discipline who also applaud Rawls’ achievements. In 1999,
for example, he was awarded the National Humanities Medal by, then President, Bill
Clinton. In awarding this honor, Clinton expressed his admiration for Rawls and for his
contribution to political philosophy:

John Rawls is perhaps the greatest political philosopher of the 20th century. In
1971, when Hillary and I were in law school, we were among the millions moved

106

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by a remarkable book he wrote, “A Theory of Justice, ” that placed our rights to
liberty and justice upon a strong and brilliant new foundation of reason. Almost
singlehandedly, John Rawls revived the disciplines of political and ethical
philosophy. . . . He has helped a whole generation of learned Americans revive
their faith in democracy itself.3
As evidenced by Clinton’s remarks, Rawls’ works have had an interdisciplinary impact.
In addition to philosophy, they are studied in such varied fields as economics, sociology,
and psychology. A Theory of Justice (1971) has been translated into more than twenty
languages and was revised in 1999.

I became familiar with Rawls’ political philosophy in 2002 when I read A Theory
of Justice. At the time, I did not anticipate that his theory would have anything to do with
my thesis, to say nothing of its being at the center of it. I immediately found the book
absorbing and elegant. Even its glossy paperback cover and the texture of its pages were
intriguing. Reflecting on these experiences in my encounters with Rawls’ texts and in
thinking through my thesis, I can say that it has been a very captivating intellectual
journey, indeed, and it is easy for me to understand why his readership has become so-
broad and diverse. Simply stated: Rawls decided that it was time to think about
something more than the analysis of concepts, experiences, and ideals in “mainstream”
philosophy, that it was time to explore—and actually take positions with respect to—the
feasibility of normative political commitments, so he altered the landscape of political
philosophy and rehabilitated a forgotten, but vital, discourse.

Rawls’ normative, political theory emphasizes a different set of issues and raises a
different set of questions. Perhaps this change in the direction of inquiry, alone, explains

some of the attention that he has garnered from diverse populations around the world that

might not otherwise read his books. He engages their intellects whether or not they agree

107

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with his position—and they often do not. Decades after the publication of his
groundbreaking theory of justice, there remains much to uncover, discover, and enjoy
about this new direction in “mainstream” philosophy. The thousands of scholarly journal
articles and other publications generated in response to his contributions underscore this
fact, but do not alter it. It seems appropriate that an interdisciplinary, normative political
philosophy like Rawls’ ought to be at the center of an interdisciplinary, normative
education thesis like mine. I, too, am eager to rehabilitate a forgotten, but vital, discourse
in “mainstream” education theory, to consider the feasibility of normative political
commitments—to take a position—and do so in the interest of justice as fairness.
Introduction I

Rawls’ ideal theory of justice prescribes certain fundamental conditions for social
organization within a constitutional democracy. I maintain that these conditions lay the
foundation for a morally defensible, rational, and relational mode of collective existence
in sharp contrast to America’s ascriptive democratic project. Exploring these contrasts are
among the three principal objectives that I undertake in this chapter. First, I provide an
introductory and critical explication of Rawls’ theory of j ustice interspersed with
references to preceding chapters, particularly Chapter 1. The references provide
historically specific contexts for the moral judgments contained in Rawls’ prescriptions. I
explain the fundamental intent of his political philosophy in a manner that farniliarizes
the reader with his theory of “domestic justice,” with its inward-looking conceptual
framework. In so doing, I highlight Rawls’ explicit normative focus, particularly his aim
to establish a just and stable democracy pursuant to public principles in support of a fair

system of cooperation. I use the following major works of Rawls to explore his ideas on

108

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F inal]:
lUdgments to
“indin'dmlu h
racial Minor“
institutional fl,
framework as

from Rawls: i

justice: A Theory of Justice (1 971/ 1999b), Political Liberalism (1993), Law of Peoples
(1999a), and Justice as Fairness: A Restatement (2001).

Second, I entertain and respond to two lines of critique of Rawls’ theory:
challenges to its usefulness in the real world (the nonideal) given its abstractness, and
claims regarding the ostensibly negative impact of his deliberative process (public
reason) on the viability of divergent religious, philosophical, and moral world views. In
response to the first critique, I discuss distinctive and complementary aspects of Rawls’
ideal theory vis-a-vis the nonideal (the actual world). In response to the second critique, I
clarify and defend Rawls’ deliberative process by pointing to its underappreciated
libratory possibilities and to the increasing flexibility of its discursive constraints.

Finally, I suggest two ways in which Rawls’ theory can assist us in linking moral
judgments to social change under nonideal conditions: complementing the protections of
“individual” basic rights and liberties with “group” protections, and taking into account
racial minority status and female status together with material wealth when considering
institutional factors that undermine liberty and justice for all. I characterize this
fiamework as “Rawlsian” to link it to the issues raised in Chapter 1 and to distinguish it
from Rawls’ ideal theory. Admittedly, these additions, alone, do not respond to all forms
of social injustice; they deliberately reflect my continuing focus on the distinct issues that
structured Chapter 1, but as I clearly indicated there, and in Chapter 2, I reject all
permutations of social stratification and ascriptive citizenship as irrational and immoral
forms of social organization. My interpretation of the general character of a just, nonideal
framework (Rawlsian) is that its moral and political commitment is to equal dignity and

equal citizenship for all.

109

l'ne “Hell-Ora
It is clear that i
groups of peop
justice asfairr.
geography. cor
“fundamental j
The society is
Within it is “ef
public C011C€p1
cooperation [r
justice‘ Rawls
Opportunities ;

An am
Within Rawls‘
through the in
that are key e1

lUStiCe,’ and t

The “ Well-Ordered " Society

It is clear that we cannot contemplate a viable society of any kind absent identifiable
groups of people who are somehow related to one another. Within Rawls’ ideal theory of
justice as fairness, society is defined as a group of persons related to one another by
geography, conditions of material scarcity (limited resources) within this geography, and
“fundamental political ideas viewed as implicit in the public culture of a democra[cy].”4
The society is well-ordered to the extent that the relationship between persons living
within it is “effectively regulated by a public conception of [social] justice” such that the
public conception “specif[ies] the central organizing idea of a society as a fair system of
cooperation [my emphasis].”5 Recall from the last chapter that by the phrase ‘social
justice’ Rawls refers to the “division of advantages” pertaining to rights, duties, economic
opportunities and social conditions, generally.

An amazingly intricate and comprehensive network of meanings is couched
within Rawls’ definition of a well-ordered society. One way to explore the network is
through the intertwined and complex relationship among the following three concepts
that are key elements of this conception: ‘effectively regulated,’ ‘public conception of
justice,’ and ‘fair system of cooperation.’ The meanings of these concepts are particular
to the conditions within which we find them; they evolve as part of the unfolding network
of the theory that they explain. I will not attempt to fully elaborate this network within
the scope of my thesis. The extent to which I undertake to do so is, in some respects,
introductory, but I trust that my treatment of the subject will be sufficiently engaging and
thorough to make the provocative and distinctively moral force of Rawls’ political vision

of justice transparent to the reader.

110

A societj
or rich good rea
defined in a pan
social and econc
RCCEPIS. and knc
reflects Rawls‘ ;
conception of jL
Certain amount l
are Operative w
the PeOple Who:

Furlher.
basis for public
private beliefs‘
matters ofbasic
infuse “Como:
decisi0n5_ It 315

A society is eflectively regulated if its basic structure is publicly known to satisfy,
or with good reason is believed to satisfy, public (political) principles of justice as
defined in a particular society. The basic structure refers to a society’s basic political,
social and economic institutions. The term ‘public’ in this context conveys that everyone
accepts, and knows everyone else accepts, the same (political) principles of justice. It also
reflects Rawls’ intent that these principles be part of the same public (political)
conception of justice that is operative within the basic structure of society. This brings a
certain amount of order and coherency to the social system. Whatever terms or conditions
are operative within the system are understood, or are capable of being understood, by
the people whose lives are affected and organized by them.

Further, the public conception of justice is ‘political.’ This means that it forms the
basis for public justification of citizens’ public judgments—as distinct from their purely
private beliefs—when these judgments express claims about constitutional essentials and
matters of basic justice.6 The rationale for public justification stems fi'om the desire to
infuse “common ground” principles into deliberations about important public policy
decisions. It also reflects the recognition that such deliberations usually involve
conflicting claims that might otherwise result in deliberative impasse and policy inaction.
That is, left to their private beliefs or, as Rawls refers to them, comprehensive doctrines,
citizens may rely solely on their individual religious, philosophical, or moral convictions
to guide their judgments about public justice and, consequently, impose on other citizens
their private notions about the overall purpose of life and the best way to realize it.

Comprehensive doctrines are clearly important and necessary for their “grounding

effect” in our lives, despite restrictions in their scope for addressing public issues that

111

afiect pluralist
irreconcilable—
goal of public
“truth" as uric
at reasonable;
When we bring
comprehensiy
Consistent wit;-

Even r
equilibrium I
Ordistoned. It
Vary Widely fr
those alternati-
Reasoning that
cornprehensiW
the Public Cult
there is a gr eat
rmisions to the
the closer We C

Public ,
Perhaps, the W

and Cannot be r

we may be lefi ‘

affect pluralistic societies. According to Rawls, ‘pluralistic’ societies are characterized by
irreconcilable——but reasonable—moral, religious, and philosophical doctrines. Thus, the
goal of public deliberation within a political conception of justice is not to arrive at the
“truth,” as understood within any particular comprehensive doctrine, but, rather, to arrive
at reasonableness by employing reflective equilibrium. Reflective equilibrium occurs
when we bring our most deeply held private views about justice (within our
comprehensive doctrines) in line with a public conception of political justice that is most
consistent with them.

Even more desirable, however, is what Rawls refers to as wide reflective
equilibrium. This occurs on due reflection when our capacity to reason is least obstructed
or distorted. It includes reflection on diverse, alternative political conceptions that may
vary widely from our own, as well as reflection on the force of the arguments in favor of
those alternatives. Specifically, Rawls identifies wide reflective equilibrium with
reasoning that results when our political judgments are in harmony with both our
comprehensive doctrines and with the “fundamental political ideas viewed as implicit in

”7 When trying to achieve wide reflective equilibrium

the public culture of a democra[cy].
there is a greater likelihood that our ideological “comfort zones” will be challenged and
revisions to them entertained. The more successful the process of reflective equilibrium,
the closer we come to Rawls’ ideal of public reason.

Public reason is a vital element in Rawls’ political conception of justice. It is,
perhaps, the most vital element—despite his acknowledgement that its scope is limited

and cannot be relied upon to resolve all public political disputes. Nevertheless, without it

we may be left with no recourse to the deliberative chaos that might ensue when radically

112

divergent persr
disagreements :
differently and
others—what F
DeSpite
gmtlp can Clair
because of the
human fallibili
burdens of judg
justice would f
C00Iteration of
Would also be 1
agreement) strc
mom the poll
Strains Of C Om"
Ravi-15' .
SITUCIuj-e‘ TheS§

together to me

“Summons a:

divergent perspectives create obstacles to agreement on public policy. These
disagreements may easily arise given the fact that people interpret social phenomena
differently and can have reasonable interests that often conflict with the interests of
others—what Rawls refers to as reasonable pluralism.

Despite our best efforts and intentions, we remain fallible beings. No individual or
group can claim to possess the insight needed to capture the whole “truth” of a situation
because of the various ways in which our judgments are burdened or compromised due to
human fallibility—the burdens of judgment. Absent public reason’s recognition of the
burdens of judgment and the fact of reasonable pluralism, the political conception of
justice would fail to embody core principles capable of securing the respect and
cooperation of persons holding irreconcilable, reasonable comprehensive doctrines; it
would also be less successful in creating an overlapping consensus (or interlocking
agreement) strong enough to ensure the stability of the social system. Absent public
reason, the political conception of justice would be unable to effectively minimize the
strains of commitment—the various reasons why people fail to honor their promises.

Rawls’ well-ordered society focuses attention on the institutions within its basic
structure. These institutions form a system of political coherency because they fit
together to form a web of social organization. The social, political, and economic
institutions are understood to provide the basis for background justice in civil society
sufficient to mitigate “contingencies” (adverse social conditions) that would otherwise
create unacceptable levels of inequality. Further, the basic structure is assumed to have a

profound influence on the dispositions of persons living therein.

113

If the 5:
become “reaso
rationalize inet'
social. or fortu
democratic prc
dominant, ascr
rhetoric and or
[hm members
“”951 The soc
Unstable union

The see
requires mOl’e 1
knowledge that
the system Can
given, or, at 16a

social interactio

If the system is socially and racially unjust, for example, then “differences” can
become “reasons” that are constructed and introduced into the system in order to
rationalize inequalities. Consequently, genuine inequalities that result from natural,
social, or fortuitous contingencies are exacerbated. Suppose this occurs within a
democratic project. The status of the disfavored members may be undermined by a
dominant, ascriptive ideology and by the existing contradictions between principled
rhetoric and oppressive material conditions within the state. The dispositions of many of
these members vis-a-vis the social whole may manifest high levels of apathy and social
unrest. The social bonds that manifest in the absence of liberty mask a tenuous and
unstable union.

The scenario discussed above reveals why justice within a democratic project
requires more than “stability,” more than “effective regulation,” more than the public’s
knowledge that the system operates in a “certain” way. This is because stability within
the system can also result from coercion and manipulation such that consent is not freely
given, or, at least, is problematized; thus, we need to firrther elaborate the meaning of
social interaction within this system. As the theory goes, the system of social
organization must be fair in order to warrant the cooperation of its potential members and
reduce the occurrences and the pervasiveness of civil disobedience or conscientious .
refusal. If the system is fair, and is perceived as fair, there is less chance of citizens losing
faith in their prospects for realizing their interests within the system, and this diminishes
the likelihood of societal instability. Rawls is seeking justice and long-term stability, so

he incorporates fairness at the base of his well-ordered society; understanding this

114

incorporation
otherwise kno
In Rays
coining togeth
agreement—d
timothetical o
arrZ'Jigerrrent. t
10 b€~fiee an
themselves am
race. class‘ anc
dictates and “.1
mClUSiVely fre‘
musical. merit.
the ‘09er to b
intended to pro
the original p05
ParliCulan‘tl-es b
tarot
within 1
Principles forth
Political Pfinci

D

a
monomous age

prlIlClpies fiOm .

incorporation requires that we delve into its theoretical justifications and principles—
otherwise known as the original position.

In Rawls’ ideal system of social organization, the representatives that he envisions
coming together to select basic principles for social union—the “parties” to the original
agreement—do so within a hypothetical context of choice and within an equally
hypothetical original position of equality, freedom, and rationality. Within this
arrangement, the parties forming the union are perceived to be—and perceive each other
to be—free and equal beings. Such persons are presumed to be capable of thinking for
themselves and directing their own lives. They are not stratified beings within a system of
race, class, and gender hierarchy, and they are not subordinate beings subject to the
dictates and whims of other beings of a, purportedly, “superior” order. Beyond their
inclusively fi'ee, equal, and rational status, they possess no knowledge of their individual
physical, mental, or psychological characteristics, or their possible social standing within
the society to be formed. Rawls refers to this circumstance as the veil of ignorance; it is
intended to procure a level playing field and an equal bargaining position for all parties in
the original position. If individuals are prohibited from knowing their personal
particularities behind a veil of ignorance, they cannot seek to skew the system in their
favor.

Within this framework of fairness, the representatives start by selecting the first
principles for the system’s functioning from a list of options in order to arrive at the
political principles of justice. During this process, each representative—although an
autonomous agent—may be understood to put forth, or to propose, their choice of

principles fi'om a given list of options.8 In this limited context, they may also be

115

underStom
another in
cornmitrne
hisher chc
persons—i
proposals.
formative 5
(Strains of c
lfiTSt princir
If tht
particular pr
bl acknowle-
referred to as
Procedures ur
the rEsulting a
Smcture Ofso.
With them. For
the ideally inst
functions aCCon
Before g,
POSitiOIL Iwill f1
loaned Well

‘Orde.

indicated, them.

understood to offer each other reasons for the adoption of one set of principles over
another in arriving at their eventual agreement. In order to avoid the strains of '
commitment that would undermine such an agreement, each offers only those reasons for
his/her choice of principles that he/she believes other representatives—as free and equal
persons—would deem reasonable,9 this precludes irrational or wholly self-serving
proposals. A perceived lack of respect for each other’s equal status and rationality at this
formative stage would certainly jeopardize deliberations with other representatives
(strains of commitment) on whom each must rely in hopes of forming the foundation
(first principles) for a lasting system of social organization.

If the representatives are to ultimately come to an agreement (contract) on the
particular principles that are to guide their union and its institutions, they need to begin
by acknowledging each other’s basic humanity and common sense. This prerequisite is
referred to as reciprocity.lo Assuming that this is present, all members regard the
procedures under which the terms of agreement are reached as “fair,” and, further, regard
the resulting agreement as “fair.” This is called procedural justice, assuming the basic
structure of society is formed pursuant to the selected principles and functions in accord
with them. For the sake of discussion, let us assume that both conditions are met—that
the ideally just society is formed pursuant to the agreed upon principles and that it
firnctions according to them.

Before going into a discussion of the principles that are selected in the original
position, I will first explain their general implications for citizens within the newly
formed well-ordered society, including the implications for elected officials. As

indicated, the principles guiding the system are publicly known. Citizens accept the

116

principles 2
as an indicz
to each othe
representatil
were decidir
reasons that .
free and equz
the strains of
that will struc
SOCial relation
As unc‘
express

benefit
rESpect

The ide
IS also Present 1-
that citizens in 2

Upon the “mars
manner of relarjc
hem-gen citiZens
sensibility is def]
t33th pcr30n h as a

referred to as a P

principles and expect them to govern their institutions and their dealings with each other
as an indication of fair cooperation. When citizens apply the political principles of justice
to each other, they are implicitly observing the same criterion of reciprocity that the
representations in the original position observed. Recall that when the representatives
were deciding which first principles to select, they offered reasons for their choices,
reasons that each could reasonably expect other representatives to (reasonably) accept as
free and equal persons. The reciprocity built into the original position not only minimizes
the strains of commitment but also culminates in an agreement on principles of justice
that will structure society. Later, these principles serve as the organizing principles for
social relations among citizens in a well-ordered society. Rawls explains:

As understood in justice as fairness, reciprocity is a relation between citizens

expressed by principles of justice that regulate a social world in which everyone

benefits judged with respect to an appropriate benchmark of equality defined with

respect to that world. ’1

The idea of fairness that is contained in reciprocity (and in the veil of ignorance)
is also present in another concept: a sense of justice. A sense of justice is a moral capacity
that citizens in a well-ordered society are presumed to possess. This sensibility, according
to Rawls, “involves an intellectual power, since its exercise in making judgments calls
upon the powers of reason, imagination and judgment.”12 A sense of justice applies to all
manner of relations requiring cooperation and reasonableness between citizens, and
between citizens and the state, within the basic structure of a just society. However, this
sensibility is deficient if it is not complemented by a capacity that reflects the notion that

each person has a rational advantage to pursue in life, a rational plan—sometimes

referred to as a person’s “good.”

117

By defin
dictated by 0th?
reasonable choir
pursued within ‘
Thus. citizens a
social cooperati
justice \is-a-yis
their ovm goals
(rationality).

We see
“0t COoperating
Conform to a p
collectiyists er
Status (1110 pror
Claritication is
nonideal €0de

By definition, a rational plan of life is not fixed, nor is it externally generated or
dictated by others. It reflects each individual’s pursuit of happiness within a system of
reasonable choice. The fundamental restriction is that a rational plan of life must be
pursued within the political framework organized by the public principles of justice.
Thus, citizens are perceived to be both reasonable and rational persons who engage in
social cooperation within a fair and stable system. They are expected to exhibit a sense of
justice vis—a-vis other citizens (reasonableness) while simultaneously seeking to advance
their own goals from the standpoint of their own advantage and their own private values
(rationality).

We see from the foregoing assumptions that citizens in a well-ordered society are
not cooperating simply to avoid forms of persecution; they are not cooperating in order to
conform to a pretentious public cohesion designed to expediently effectuate state
collectivists ends; and they are certainly not cooperating to further the privilege that the
status quo provides to a majority or to a few elite members of society. Perhaps this
clarification is obvious given the preceding discussion, but it is quite possible, under
nonideal conditions, for public principles of justice to be propagated within a partitioned
social world.13 In such instances the public principles fully apply to only one segment of
the (cooperating), population fi'om which certain groups of minorities (racial, ethnic,
religious, political, for example) are excluded or—worse yet—included as inherently
unequal.

Some scholars suggest that social partitioning based on personhood and
“subpersonhood”14 designations explains how American society became enamored with

chattel slavery while at the same time professing obeisance to lofty principles of freedom

118

    

arid‘nalienable rig;
social cleavages lo.
commentary. Cons
of a slave in the p:
portion of his 1nd
Negro,“ dCllVCTE‘l
What to t
[them] rr
Which [it
Your boa
YOU! sor
brass-fr
your re'
decept'i
dngrac
Practic
this \‘e
Perhaps Ra“.r
the baSlC Stm
great ChallEr
Pertaining tc
‘he Political
C0 ‘ .
HSIltutIOn
Ra . .
MS Prir
R
E”tall that

that’ “the le

and inalienable rights (Mills, 1997; Patterson, 1991). Much degradation results from the
social cleavages formed by these contradictions; history provides its own critical
commentary. Consider Frederick Douglass’ sobering remarks about the existential plight
of a slave in the partitioning phenomenon of American liberalism. It is taken from a
portion of his Independence Day speech entitled, “The Meaning of July Fourth for the
Negro,” delivered on July 5, 1852:
What to the American slave is your Fourth of July? I answer, a day that reveals to
[them] more than all other days of the year, the gross injustice and cruelty to
which [they] are the constant victim[s]. To [them] your celebration is a sham;
your boasted liberty an unholy license; your national greatness, swelling vanity;
your sounds of rejoicing are empty and heartless; your denunciation of tyrants,
brass-fronted impudence; your shouts of liberty and equality, hollow mockery;
your religious parade and solemnity, are to [them] mere bombast, fraud,
deception, impiety, and hypocrisy—a thin veil to cover up crimes which would
disgrace a nation of savages. There is not a nation [on] the earth guilty of
practices more shocking and bloody than are the people of these United States at
this very hour. '5
Perhaps Rawls entertained partitioning themes such as these when he decided to focus on
the basic structure from the standpoint of a decontextualized original position featuring
individual choosers. The concrete conditions of human existence under injustice pose
great challenges for ideal theory, as Rawls concedes. I will discuss some of Rawls’ ideas
pertaining to the nonideal later in this chapter. Let us now resume the process by which
the political principles of justice are chosen, and fiom which Rawls’ “well-ordered”
constitutional democracy emerges.
Rawls ’ Principles of Justice
Recall that in the original position the representatives engage in a process whereby they

consider several options for first principles. In explaining this process, Rawls points out

that, “the leading idea is that the original position connects the conception of the person

119

and its cc
justice" (,
factor for
them in c:
personal ;
assumed t
members 1
identifies i

(i) The bag
Others.

(it). Freedc
Oppom
effect t.

(iii) POW’er}

(i‘) IDCOmé
genera]

(V) The SOC
normall
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Raw
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[hen argUES t

utility theme

(paTUCUIafly f

and its companion conception of social c00peration with certain specific principles of
justice” (Rawls, 1996, 304). Rawls introduces the idea of primary goods as a motivating
factor for the representatives to consider in making their choices. Primary goods assist
them in coming to an agreement on one set of principles over another in the absence of
personal preferences (the veil of ignorance). ‘Primary goods’ are the goods that are
assumed to be necessary for free and equal rational persons to be fully cooperating
members of society who seek to advance their interests under fair conditions. Rawls
identifies five categories of primary goods:16

(i) The basic rights and liberties: freedom of thought and liberty of conscience among
others.

(ii). Freedom of movement and fiee choice of occupation against a background of diverse
opportunities, which opportunities allow the pursuit of a variety of ends and give
effect to decisions to revise and alter them.

(iii) Powers and prerogatives of offices and positions of authority and responsibility.

(iv) Income and wealth, understood as all-purpose means (having an exchange value)
generally needed to achieve a wide range of ends whatever they may be.

(v) The social bases of self-respect, understood as those aspects of basic institutions
normally essential if citizens are to have a lively sense of their worth as persons and
to be able to advance their ends with self-confidence.

Rawls contends that representatives in the original position believe that more,
rather than fewer, primary goods are desirable in pursuing one’s rational advantage, so in
choosing principles, they seek to maximize the primary goods that are available. Rawls
then argues that utilitarian-based principles are rejected because their support for social
utility theoretically permits gross violations of liberty. Specifically, utilitarian-based

principles may tolerate obstructions to the enjoyment of some members’ primary goods

(particularly members of a political minority), if such obstructions are perceived to

120

benehu
rational
sen'itu
indiyic

utilita

rep,
per:
Soc
Cir:

50C

rep
inb.
Ran

benefit the political majority. Rawls concludes that even chattel slavery may be
rationalized as a “good” under utilitarian principles if it is determined that involuntary
servitude maximizes the happiness of the greatest number of people. This suggests that
individual (and group) rights are of negligible import in the scheme of things, under
utilitarianism. In countering utilitarian principles, Rawls writes:

Each person possesses an inviolability founded on justice that even the welfare of

society as a whole cannot override. For this reason justice denies that the loss of

freedom [basic freedom, in my example] for some is made right by a greater good

shared by others. 17

The very real possibility of a society permitting denials of rights and liberties for
some persons in order benefit others makes utilitarian principles untenable to free and
equal representatives. They are interested in fair terms of cooperation under the
assumption that people in the pursuit of “just” ends want the playing field to be level.
They want to advance the interests of the people that they represent, and, presumably, the
representatives in “this” framework make up a genuinely inclusive collectivity so that all
persons are actually recognized as persons, and are represented equally—unlike the
socially stratified structure of the Constitutional Convention of 1787. Under inclusive
circumstances, the representatives’ choice of principles to guide the formation of
society’s institutions provides protection for the rights of all members from the abuses of
government and tyrannical majorities in civil society.

Collective injustices are not acceptable to the representatives in the original
position despite how advantageous injustice may prove to be for some. To the
representatives, the rights of citizens should be morally prior to social expediencies and

inbuilt forms of ascriptive privilege. Taking into account all of the above considerations,

Rawls’ representatives come to agreement on the following two principles of justice:18

121

1.13ach pers
liberties.

2. Social an
attached t
opporturu
members

It is importa

basic liberric

determined.

principle. A:

Where inequ;

are to satisfy

Principle is (1

basic liberties

ordefing of th

In Rawls
With the lOWCS
aSimillistic ex
Vegetarians, th
of citizens in SC
each stoop Und.
b)’ the [mm A.
Pertaining to th
distributed Wua

be
made belt er (

1. Each person has the same indefeasible claim to a fully adequate scheme of equal basic
liberties, which scheme is comparative with the same scheme of liberties for all; and

2. Social and economic inequalities are to satisfy two conditions: first, they are to be
attached to offices and positions open to all under conditions of fair equality of
opportunity; and second, they are to be to the greatest benefit of the least-advantaged
members of society (the difference principle).

It is important to note that the principles are lexically ordered. The first principle—the

basic liberties—is to be secured before the social and economic arrangements are

determined. In the second principle, fair equality of opportunity is prior to the diflerence
principle. As far as possible, then, the idea is to first promote equality of life chances, and
where inequalities occur—where there are differences in social rewards—such disparities
are to satisfy certain conditions favorable to the least-advantaged. The difference
principle is designed to secure distributive justice within the basic social institutions after
basic liberties and fair equality of opportunity have been satisfied. The two-tiered, lexical
ordering of the principles is deliberate.

In Rawls’ system, the least-advantaged are “those belonging to the income class
with the lowest expectations.”19 For added clarity, I provide the following hypothetical as
a simplistic example of the application of the difference principle: Suppose the
Vegetarians, the Carnivores, and the Omnivores represent three socio-economic classes
of citizens in society X. The units reflected in Table l are economic resources allotted to
each group under various distribution schemes. These distribution schemes are denoted
by the letters A-F. Given: The difference principle is operative in all discussions
pertaining to the distributions in Table 1. Distribution “A” obtains when all resources are

distributed equally. We assume two additional conditions: 1) the least-advantaged must

be made better off if there are inequalities in the distribution, and 2) the least-advantaged

122

are

1111

the

Te

Car

0m

are not better off with equal distributions, assuming the first condition is met. Using the
information provided in Table l, we will consider which scheme is most desirable under

the difference principle.

 

 

 

 

 

A B C D E F
Vegetarians 10 20 20 15 15 50
Carnivores 10 5 , 10 12 14 75
Omnivores 10 5 10 20 18 3,000,000

 

 

 

 

 

 

 

Table 1 - Application of Rawls’ Difference Principle
If A and B are the only distributions that are available to us, then, as between

these two, the difference principle requires that we reject distribution B in favor of A.
Under B the Vegetarians increase their advantage to the detriment of the other two
groups. That is, the Vegetarians’ advantage is not to “the greatest benefit” of the least-
advantaged—the Carnivores and the Omnivores, in this instance—because the least
advantaged lose out. If we add Distribution C to our available choices, the difference
principle requires that we select Distribution A over Distribution C for the same reason.
Again, the resulting inequalities do not benefit the least advantaged—in this case, the
Carnivores and Omnivores—so the equal distribution (Distribution A) is considered most
desirable and just.

Assume next that Distributions A-E are available to us. Distributions D and E
provide greater amounts of primary goods for all three groups than do Distributions A-C.

However, we must reject Distribution D in favor of B because the least-advantaged in

123

 

both distributions—the Vegetarians and the Carnivores—jointly fair better under
Distribution E. We can see this by noting how the benefits of the increase in units are
more generous and more evenly distributed in E, than in D. This makes Distribution E the
distribution offering the least-advantaged the greatest benefit. Finally, if we have the
entire chart available to us, and we must choose the distribution that is the greatest benefit
to the least-advantaged, the difference principle requires that we reject all others in favor
of Distribution F as the most just among the options. According to the difference
principle, Distribution F clearly yields the greatest amount of benefit for the least-
advantaged than under any other scheme.

Note that the increase in the benefit that the Omnivores realize is exponential.
Clearly Rawls does not intend for this result to occur and perhaps it is less likely to occur
because of the principles of justice that govern permissible actions within the basic
economic structure. However, the fact that such a distribution “could” be selected as the
best alternative because it is not categorically ruled out by the application of the
difference principleZO—as long‘ as the least-advantaged “benefit”—is cause for many
critics to doubt the economic justice that it purports to establish.” After all, why would
the least-advantaged not be better off with an equal distribution even if it means that they
receive fewer units of primary goods under equality—if such gross differentials are
possible? Arguably, however, such extreme inequalities are lessened by virtue of the two
choices for economic arrangements that are permissible within Rawls’ theory of justice:
the property owning democracy, and liberal socialism.

The property-owning democracy and the liberal socialist model both prohibit

unrestrained market capitalization and gross disparities of wealth. Both prohibit the

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means of production from being in the hands of private individuals—as they now are
under capitalism—and both prohibit unrestrained intergenerational transfers of wealth.
Such transfers allow for the accumulation of resources in the hands of the few, from one
generation to the next, in perpetuity.

Other ameliorative policies may include offsetting income tax schemes devised to
greatly reduce the disparities that Distribution F permits, wealth accumulation policies
that target the least advantaged (level the playing field), and other affirmative actions
deemed necessary to realize a more significant benefit for this group. Despite these
interventions, however, the question remains: How much inequality ought to be
“acceptable” within a system that purports to promote social justice? This is not a simple
question, nor is it simply a political question; it is, fundamentally, a moral and political
question. Perhaps this is why the difference principle remains open to debate on multiple
fronts: some concerned about what it appears to prohibit (Nozick1974), and others
concerned about what it appears to permit (Cohen, 1999). I am concerned about social
injustice in the nonideal, so I am concerned about both.

Returning to the first part of the second principle, notice that the “fair equality of
opportunity” condition is a stronger standard than “equality of opportunity’ ’—which
remains elusive under ascriptive citizenship. The latter standard is typically associated
with neo-liberal theory. Its weakness lies in its failure to take into account the fact that
social conditions contribute to inequalities of opportunity (Broadbent, 2001). Fair
equality of opportunity acknowledges—and attempts to offset—social conditions in
society (as well as personal contingencies) that impede equal opportunity. It does this by

requiring not only that positions be “open to talents” but that all have an equal chance to

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secure the positions, including an equal opportunity to develop talents, and nonascriptive
consideration for desirable positions. The first requirement (“open to talents”) precludes
the social stratification and ascriptive citizenship practices discussed in Chapter 1 that
have, fi'om the beginning, undermined democratic initiatives in America; the second
requirement (“equal chance to secure”) precludes disparities in educational resources in
government schools, for example, unless these can be shown to benefit the least-
advantaged.

Obviously, a “fair equality of opportunity” standard invalidates much of
America’s education policy. Policy in this area reflects the persistent presence of
ascriptive social agendas. In fact, education policy fails miserably in meeting even the
lesser standard of equal opportunity for all (Brown v. Board; Kozol, 1991), to say nothing
of fair equality of opportunity. This suggests that the “equity versus excellence”
dichotomy that is often the focus of mainstream education discourse is simply false and
misleading. On the other hand, Rawls’ standard promotes democratic ideals that would
seem to appeal to common sense. That is, people ought to be permitted to compete for
any and all “open” positions for which they are qualified (including entrepreneurial)—
assurrring that ethical guidelines structure the competition; more importantly, people
ought to be free from government’s social stratification (requires redistributive justice)
and ascriptive citizenship obstructions—including their identifiable lingering eflects—as
they attempt to make themselves qualified (through education, for example). Simply
stated: Government ought to be an instrument for social justice (including economic

justice) in the quest for equal dignity and equal citizenship—not a persistent undermining

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force in opposition to them. These basic prerequisites are necessary to make the
opportunity ‘equal’ and the competition, ‘fair.’

The “ Well-Ordered ” Society and Antecedent Justice

Rawls’ theory of justice is an ideal theory. This means that his formulation of political
liberalism is intended to express an “aspired to,” possible world. It represents his view of
a desirable and feasible sociopolitical order within which the state legitimately exercises
its public power. It does this through its basic social institutions by making justice their
first virtue. Consistent with social contract theory, individual and collective security
provides the sole rationale for government.

In Rawls’ framework, people are free and equal rational citizens who possess a
capacity for a sense of justice. Their decisions on constitutional essentials and matters of
basic justice are guided by strict compliance with political principles selected under fair
conditions (the original position). These conditions regulate society and are publicly
perceived to do so. The real terms of government are made transparent through public
justification. The state does not condone conditions that interfere with its being genuinely
well-ordered. Thus, citizens expect to be equally protected within the basic institutions of
society as they pursue their reasonable, individual and collective interests

Rawls’ citizens are reasonable and rational members of a well-ordered society.
They are able to assess their interests, distinguish them from the interests of others, and
act from principles of justice. This means that they are willing to petition their
representatives and engage each other in “civil” public dialogue in the interest of justice
as fairness. It also suggests that they are capable and willing to organize and express

public disapproval when government is perceived to be delinquent or unresponsive in its

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actions, or when it is hostile to citizens’ needs—although government neglect is a rare
event in Rawls’ ideal society.

In the well-ordered society, the govemment-run school system would not only
function, administratively, as a public system, but it would also be prohibited from
functioning pursuant to ascriptive “government” purposes. Public systems are democratic
and earnest in promoting the just public interests of citizens, particularly their rights and
liberties. Within such systems, government is prohibited from operating schools that
promote (or condone) ascriptive citizenship, anti-intellectualism, political illiteracy, or
insensitivity to pluralism because such value commitments fall outside of the realm of
publicly justifiable educational interests in a just pluralistic democracy.

Similarly, a Platonic, “philosopher kings,” education philosophy is unacceptable
because in the well-ordered society it encourages social stratification and undermines
political autonomy. This implies that the state is prohibited from substituting its notions
concerning appropriate rational plans of life for those that students (citizens) might
conceivably develop—or that might simply emerge—under proper guidance. The power
to reason well, sense experience, relational ties, value commitments, and deliberate
reflection on outcomes assist citizens in determining their own ends. In a well-ordered
society, government functions beyond publicly acceptable limits when it unreasonably
abridges rights and freedoms by using its authority to impose a singular vision of the
good or comprehensive doctrine.

The well-ordered society is structured pursuant to a public standard of justice that
attempts to balance the rights and liberties of all citizens. Citizens agree to abide by the

standard as a matter of moral correctness and fairness irrespective of what they might

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otherwise prefer to do. In the ideal of justice as fairness, all citizens are moral agents
bound to uphold the moral principles that are implicit in the public political culture (of
the democratic project). In the pursuit of justice, ideal social arrangements (ideal theory)
can provide a model for examining possible impediments to better approximating the
well-ordered society. In contemplating these impediments, our attention is repeatedly
drawn to our actual world—the nonideal—and to its many divergences from justice.
Naturally, we inquire about them and critically assess the interests that they privilege.
The way in which the problems are defined and the questions raised pursuant to the
problems of lived experience, can unmask false universalisms to reveal patterns of
ascriptive social pathology. Left unchallenged, pathologies “fester like sores” and
multiply within the duplicitous moral standards that sustain the nonideal.

Justice “Mid-stream Rawls ' Moral Judgments and the Nonideal

The nonideal presents us with unjust antecedent social conditions. These must be taken
into account in forming moral judgments and applying prescriptive theories. One of the
persistent criticisms of Rawls’ theory is that it lacks the historical specificity to provide a
critical landscape on which to map the social and political inequalities that plague
democratic projects in the nonideal. Some maintain that Rawls’ “possible world” is, in
fact, impossible, because it is too abstract and disconnected from lived experience. They
contend that it does not reflect an adequate appreciation for the inevitable influence of
power and conflict in social relations and is, therefore, ineffective in transforming the
oppressive structures of the status quo.

One example of this line of criticism is expressed in the following query

contained in, political scientist, Sheldon Wolin’s book review of Rawls’ Political

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Liberalism: “What are the implications [of] constituting political society by a contract
abstracted from any revolutionary referent and unpersuaded of the urgent need for a
deep-running critique? The answer is, [a]n idealization of the status quo.”22 Another
persistent critique challenges Rawls’ deliberative procedure (public reason) by
questioning whether it can facilitate the type of political dialogue that is presumed
necessary for ventilating dissent and empowering political minorities in the nonideal. For
example, philosopher, Onora O’Neill argues that shared political values and a common
political identity—premises that are at the heart of Rawls’ public reason standard—may
represent problematic trade-offs that reveal more about what is left out of the “reasonable
polity” than what is embraced within it: “Yet there is a price to be paid for using these
premises: public reasoning as Rawls construes it is citizens’, hence insiders’, reasoning,
so may not convince foreigners or outsiders—or citizens who stand back from the way
things are, and ask whether they should be that way.”23
Similarly, Chantal Mouffe contends that Rawls’ conception of public reason
denigrates oppositional comprehensive doctrines. The resulting consensus, she argues, is
conservative and marginalizing: ”This is a consensus that it would be illegitimate to put
into question once it has been reached, and the only possibility of destabilization would
be an attack from the outside by the ‘unreasonable’ forces.”24 Critiques such as these are
among many that reflect reasonable concerns about Rawls’ theory and present interesting
challenges to it. Of course, there are no shortages of critiques for a conception of justice
as expansive and complex as Rawls’ theory. The limits of my project make discussion of

all but a few of them prohibitive, but the three that I entertain have multiple features and

are, in my estimation, very instructive. I provide detailed responses to these critiques

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while remaining historically grounded in the fundamental issues, from Chapter 1, that
animate my thesis. I will begin by commenting on concerns about the abstractness of
Rawls’ theory, followed by a consideration of two additional concerns pertaining to the
scope of public reason.

First Critique: Abstracted Ideals

Some scholars charge that Rawls’ theory is too abstract and idealized to be useful in the
nonideal. They argue that since it does not take into account power relations, group
domination, and conflict, it cannot adequately address political rrrinorities’ concerns
about exploitation and subordination within nonideal society. To a certain extent I agree
with this characterization because, clearly, Rawls’ theory presupposes equitable and
liberal social conditions that have never existed, and his theory tends to develop along
these lines of limited focus. Necessarily, the problems he attempts to address are
simplified by his assumptions, so his critics can conclude that the theory is not useful in
ameliorating injustice in the real world—that it is reduced, instead, to identtfiring the
conditions needed for an ideally just society.

What many critics of Rawls’ abstraction overlook, however, is his
acknowledgment of certain limitations within ideal theory. For Rawls, ideal theory is not
structured to combat the extreme social pathologies of the real world; it is “ideal” because
it is, to a large extent, free from these. Critics often overlook the dissimilarities that he
concedes exist between a just ideal and the nonideal, or note how these
acknowledgements indicate that he is not oblivious to real world conditions.25 Indeed, it
is his recognition of real distinctions between “the desirable” and “the actual” that

fundamentally structures his perceptions about the nature of his ideal arrangements. He is

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influenced by what he understands about the real world, and he acknowledges this—and
it is evident—in Political Liberalism.

Perhaps more importantly, critics infrequently give serious consideration to the
complementary relationship that Rawls suggests exists, between ideal and nonideal
theory. It is clearly his contention that the two types of prescriptions (ideal and nonideal)
not be mutually exclusive because both are needed for a complete political philosophy.26
Perhaps Rawls’ ideal framework—sometimes referred to as “utopian”—makes many
critics of his abstractness apprehensive about acknowledging or “fleshing out” the
interdependent relationship that is couched in his theory. They appear to be less inclined
to interpret these overtures to the nonideal as points of entry for entertaining how Rawls
might actually be helpful in the nonideal, or how the conditions that critics contend Rawls
abandons might actually be useful in modifying the type of ideal that is desirable from
the stand point of lived experience.

I will begin with a discussion that intersperses Rawls’ awareness of the
complexities posed by nonideal conditions, with general references to the contrast he
notes between a just ideal and the nonideal. I will also highlight points of harmony
between what Rawls’ offers and what some critics contend the nonideal requires for
social justice—with a view to extending his ideal moral judgments in ways that
contribute to eradicating injustice in the nonideal and that (theoretically) bring us closer
to approximating a just constitutional democracy.

First, recall that Rawls’ ideal conceptual framework correctly presumes strict
compliance. This means that citizens are moral persons who act justly as a result of

internalizing the public principles of justice. Such citizens routinely cooperate with one

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another on fair terms. Nonideal theory, on the other hand, presumes that citizens’ actions
reflect degrees of departure from strict compliance—degrees sufficient to make societal
descriptors such as “just” or “nearly just” (as in Rawls’ ideal) unfounded.

Thus, the nonideal framework presumes levels of injustice in society that extend
far beyond the occasional “embarrassed marginal asterisk” in an, otherwise, ideal social
order27 and concentrates theoretical and practical reasoning on how to eradicate them.
Rawls notes the distinct orientation of nonideal theory:

When we ask whether and under what circumstances unjust arrangements are to

be tolerated, we are faced with a different sort of question. We must ascertain how

the ideal conception of justice applies, if indeed it applies at all, to cases where

rather than having to make adjustments to natural limitations, we are confronted

with injustice. The discussion of these pgoblems belongs to the partial compliance

part of nomdeal theory [my emphasrs].
Assuming that we begin with a nonideal premise of antecedent, pervasive injustice, we
are precluded from asserting the existence of an original position of freedom and
equality. No such circumstance obtains for all persons, so we cannot claim to have a
well-ordered society founded on justice. Rather, we have to create such a society. The
nonideal begins under antithetical social conditions that must be overcome: namely,
social stratification and ascriptive citizenship. We are, as Rawls recognizes, reflecting on
a society in which “injustice already exists, either in the social arrangements or in the
conduct of individuals.”29 Examples of unjust social arrangements and unjust individual
conduct are plentiful and were the focus of Chapter 1.

Rawls suggests that unjust social arrangements can be traced to degrees of

corruption of an existing ideal or to the fi'uition of an ideal that was already corrupt at its

foundations:

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Current arrangements may depart in varying degrees from publicly accepted

standards that are more or less just; or these arrangements may conform to a

society’s conception of justice, or to the view of the dominant class, but this

conception itself may be unreasonable, and in many cases clearly unjust.30
Rawls not only recognizes that there are degrees of discontinuity between ideal and
nonideal conditions, but he also acknowledges that such discontinuities may signal
pervasive injustice, thereby problematizing the duty to comply. This is true even in the
case of unjust laws in a “nearly just” or reasonably just society, such as Rawls’ well-
ordered society, when it departs fi'om moral standards.3 ' Rawls writes: “When a society is
regulatedby principles favoring narrow class interests, one may have no recourse but to
oppose the prevailing conception [of justice] and the institutions it justifies in such ways
as promise some success.”32

As the above statements reveal, Rawls appreciates the fact that nonideal
conditions can be duplicitously endorsed under purportedly justice conditions when it is
actually power relations that dictate the social order; he also understands that people who
are adversely affected by unjust social arrangement are not simply resigned to accept
their fate. As moral agents—not passive obj ects—they can choose to reject their assigned
roles within this mode of existence. They can also attempt to alter the unjust conditions
by reconstructing its political order and repudiating those aspects of it that enable
injustice. Rawls does not appear to overlook or condone oppressive governments or
advocate passivity with respect to them.

There are libratory possibilities in Rawls’ well-ordered (ideal) society that have
implications for nonideal theory. This is particularly evident in light of his references to

civil disobedience and conscientious refusal in A Theory of Justice. These are forms of

resistance that have proven to be helpful in the real world in responding to injustice

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within the basic structure. His presentation seems most forceful when his sphere of moral
judgments highlights real world suffering and despair. Consider the following moral
judgments about the status of “particular” nrinorities seeking fair terms of cooperation, as
understood in the (ideal) original position:
Roughly speaking, in the long run the burden of injustice should be more or less
evenly distributed over different groups in society, and the hardship of unjust
policies should not weigh too heavily in any particular case. Therefore the duty to
comply is problematic for permanent minorities that have suffered from injustice
for many years. And certainly we are not required to acquiesce in the denial of our
own and others’ basic liberties, since this requirement could not have been within
the meaning of the duty of justice in the original position, nor consistent with the
understanding of the right of the majority in the constitutional convention [my
emphasis].33
The rejection of Jim Crow laws by civil rights activists in the South provides one
example of noncompliance that captures Rawls’ focus on the oppositional political
stances of permanent minorities—racial minorities, in this instance—in refusing to
acquiesce to unjust denials of their rights and liberties. Clearly, the civil rights activists
had the right to resist the status quo given the injustice they faced in trying to exercise
their constitutional rights within the majority’s partitioned racial order. So we have two
examples of Rawls’ ideal moral judgments having direct implications for the nonideal:
the acknowledgment and the rejection of the presence of injustice. We also have two
examples of nonideal conditions informing his understanding of what a just ideal theory
ought to reject: long-term injustice of a permanent minority and the duty to comply under
oppressive conditions.
The rationale that Rawls gives for his departure from traditional liberalism’s

preoccupation with a singular conception of the good provides another historically-

situated example of the nonideal informing the ideal. Rawls identifies widespread

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religious intolerance (nonideal condition) as a classical problem in political theory. The
impossibility of solving religious conflicts in favor of a single conception of the good
motivated the religious wars in Europe in the sixteenth and seventeenth centuries. Rawls’
political liberalism provides a political theory that attempts to address the problem of
irreconcilable differences (Rawls, 1999). This is the distinguishing factor in the evolution
of his political philosophy from the positions taken in his original text—A Theory of
Justice—to those taken in his subsequent texts, Political Liberalism, and Justice as
Fairness: A Restatement.

In A Theory of Justice, Rawls suggests that a well-ordered society is comprised of a
morally homogeneous group of individuals who widely endorse a singular conception of
the good life. These individuals more or less structure their lives (public and private) in
accordance with this conception. The comprehensive liberalisms advanced by Immanuel
Kant or John Stuart Mill,34 philosophers from the eighteenth and nineteenth centuries,
respectively, provide two examples. In light of many critics’ objections to the
deficiencies of this homogeneous premise—and after reflecting on the injustice of
religious persecution—Rawls revises his notions about the composition of a well-ordered
society and about how best to reflect justice within it.

In Political Liberalism, Rawls explicitly acknowledges the existence of a plurality
0f conceptions of the good. He maintains that although these conceptions may conflict, it
does not imply that they are unreasonable, referring to this condition as the fact of
reasonable pluralism. Rawls constructs a revised political theory that promotes tolerance

for diverse worldviews, by making ideological room for irreconcilable, but reasonable,

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moral, religious, and philosophical doctrines (comprehensive doctrines). This constitutes
a major alteration in the composition of the well-ordered society.

In relinquishing the notion that a singular conception of the good life can form the
basis for social cooperation and stability in a pluralistic constitutional democracy, Rawls
reconstructs his well-ordered society using political principles that embody the
“fundamental political ideas viewed as implicit in the public culture of a democratic

”35 as basis for just social organization. Political principles are identified with the

society,
public sphere and, therefore, circumvent the classical and intractable problems of
religious intolerance in the private sphere. Further, Rawls places limits on the coercive
power of religious beliefs—and other disputed private doctrines—on the public decision-
making process by emphasizing doctrinal pluralism in the ideal functioning of the basic
structure. He writes:
Yet despite the significance of other controversies and of principles addressed to
settling them, the fact of religious division remains. For this reason, political
liberalism assumes the fact of reasonable pluralism as a pluralism of
comprehensive doctrines, including both religious and nonreligious doctrines.
This pluralism is not seen as disaster but rather as the natural outcome of the
activities of human reason under enduring free institutions. To see reasonable
pluralism as a disaster is to see the exercise of reason under the conditions of
freedom itself as a disaster.36
To conclude: In the preceding discussion I have presented Rawls’ theory by
referring to three of his texts: A Theory of Justice ( 1971/ 1999b), Political Liberalism
(1996), and Justice as Fairness: A Restatement (2001). I have demonstrated that Rawls
recognizes the injustices that animate nonideal theory, and recognizes that a complete
political philosophy combines the ideal and nonideal. I have also shown that while

Rawls’ ideal theory is quite limited in scope and complexity, it can be interpreted as a

complement to the objectives in the nonideal. That is, ideal and nonideal theory can be

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understood to fruitfully coexist in Rawls’ moral judgments; they can support, enrich, and
challenge each other and facilitate the maturation of increasingly complex and just
political theories. They can do this within a dynamic relationship that permits cross-
fertilization—that is, if we seriously entertain the possibility. It follows that moral
judgments are tentative and subject to continued revision based on how problems are
identified and defined in historical contexts, and the extent to which these problems
become the focus of sustained moral inquiry (Mills, 2001).

In the nonideal, the suppression of collective memories of injustice leaves us
historically deficient in our analyses of real world conditions. An interpretation of social
reality that excludes pervasive violations of rights and liberties limits justice (W olin,
1985), but it is also the case that nonideal theories need a desirable alternative to social
injustice (a reconstructed ideal) if they are to champion fi'eedom. It remains an open
question (one that I will not address), whether or not a particular ideal—Rawls’, for
example—is the most suitable alternative given the complexities of the nonideal. In
making this determination, we need to examine “real world” injustices that evidence a
significant departure from the assumptions underlying a given ideal theory and

contemplate extensions of its moral principles and judgments in order to address them——
or pose a new ideal, altogether—based on historicized assessments of desirable ends. The
remainder of the discussion is devoted to this task.

For my purposes, the ways in which I have demonstrated the relevance of Rawls’
ideal theory to the nonideal provide a basis for my use of its moral judgments not only as
a model of ideal justice but also as a flexible method of inquiry concerning the lack of

justice in the nonideal. I have elected to examine real world injustices by analyzing the

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extent to which these conditions depart from the assumptions underlying Rawls’ ideal
theory. Thus, I will analyze the nature of these dissimilarities and entertain extensions of
Rawls’ moral principles and judgments to the nonideal in the pursuit of desirable,
reconstructive ends. This process adds another dimension to my response to the first line
of critique concerning Rawls’ usefulness in the nonideal

I begin with three contrasts between the nonideal social conditions of ascriptive
citizenship presented in Chapter 1 and the social conditions in Rawls’ ideal theory. This
is followed by an extension of Rawls’ moral judgments to address the specifics noted.
With the inclusion of these nonideal conditions to the sphere of Rawls’ moral judgments,
the resulting framework is characterized as “Rawlsian.” That is, the term ‘Rawlsian’
implies the “rearticulation” of Rawls’ moral principles and judgments for application to
the injustices in the nonideal (the real world of ascriptive citizenship and social
stratification).

The “Rawlsian” framework has three distinct features. First, it contains
descriptions of the dichotomy existing between the ascriptive nonideal and Rawls’ just
society. Second, it includes critical analyses of the contradictions between the two, in
light of Rawls’ principles of justice, and, third, it provides the basis for the reconstructive
project in the nonideal. This project has an antisubordination foundation that highlights
certain invidious distinctions—race, gender, and class—but identifies ascriptive
constructs and social stratification, generally, as intolerable violations of equal dignity
and equal citizenship. The reconstructive project aims to eliminate social stratification

and ascriptive citizenship. I refer to these objectives as prescriptions for reconstructing

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the nonideal. A democratic project in education is one aspect of the prescriptive project,
and it is the focus of my discussion in Chapter 5.

Revisiting Chapter I

In the first chapter, I critiqued the liberal concept of citizenship and highlighted some of
its often-overlooked moral deficiencies. The historical contexts of social stratification and
ascriptive citizenship in America ground my discussions about moral principles and lay
the foundation for considering reconstructive possibilities. The antecedent sociopolitical
conditions discussed in Chapter 1 are antithetical to Rawls’ carefully constructed “well-
ordered society” of free and equal choosers. Instituting just moral principles means that
our intuitive deference to “tradition” must be problematized, and if this deference is
irrational—as I contend it is—our intellectual and moral task is decidedly different.
Charles Mills writes:

Whereas the ideal contract explains how a just society would be formed, ruled by

a moral government, and regulated by a defensible moral code, this

nonideal/naturalized contract explains how an unjust, exploitative society, ruled

by an oppressive government and regulated by an immoral code, comes into
existence. If the ideal contract is to be endorsed and emulated, this
nonideal/naturalized contract is to be demystified and condemned.”

The United States has never been a “well-ordered” society by Rawls’ standards,
nor has it ever been a “nearly” well-ordered society. It is difficult to see how one would
plausibly make the case that, say, justice—in a substantive way, at least—has proven to
be the first virtue of social institutions that structure our society. There are many reasons
for taking this position, as have been presented in the two preceding chapters. At this

juncture, I will discuss a several contrasts, including the one just given, that reveal

significant departures from Rawls’ ‘well-ordered’ context of ideal theory.

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First, our modern institutions are tied to a historically specific ideological
framework that is built on an exploitative moral code. The “tradition” of American
democracy and liberty should be demystified in order to confront this suppressed feature
of our collective memory. In textbooks and curricula across the country, the institution of
slavery, for example, and its immediate aftermath—more than three hundred years of
indispensable history—receive little serious consideration. This results from what appears
to be a “politically correct” orientation to textbook adoption by influential educationists
and publishers who want to avoid “controversial” subjects in the classroom. Michael
Apple provides an example:

For instance, under conservative pressure a number of publishers of high school

literature anthologies have chosen to include Martin Luther King’s ‘I Have a

Dream’ speech, but only after all references to the intense racism of the United

States have been removed.38

There are more than a few recent studies indicating that students learn more about
how their government functions when controversial issues and diverse perspectives are
embraced in the curriculum and when students are encouraged to think critically about
them during their discussions (Hahn, 1999; Torney-Purta et al, 2001; Stromquist, 2001).
Despite these apparent benefits, the nonideal seldom receives critical attention. Some
argue that this same tendency to avoid “controversial” subjects can be observed in higher
education classrooms as well, and that a similar critique of what counts as “relevant”
content is warranted (hooks, 1994, Smith, 2003). This includes the content typically
found in many mainstream scholarly publications in the social sciences and the
humanities (Mills, 1998).

Second, in light of the exploitative moral code in the nonideal, justice is clearly

not the first virtue of the social institutions that control the lives of citizens within our

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democratic project. Over the centuries that chart America’s evolution, its institutions
clearly evidence a pattern of pervasive social injustice such as the pattern of ascriptive
citizenship discussed in detail in Chapter 1. We noted, for example, the presence of
political and social inequality, inequality of opportunity, race and gender inequality, class
privilege, et cetera. As a collectivity, we have yet to make it a priority to openly and
critically assess the moral content of our socially stratified history and its ascriptive
political implications. We have yet to effectuate justice in our current choices so that
continuing violations of basic rights and liberties can be eliminated. While there are no
guarantees that liberalism is the political theory that will provide the theoretical
framework to overcome injustice in America—particularly given that slavery and more
than a century of dejure segregation were condoned and enabled within our liberal
constitutional system (Shklar, 1990}—this does not detract from the urgent need to depart
from the irrational brand of liberalism that dominates our social institutions.

Third, it is not possible to realize Rawls’ “fair” system of cooperation when some
citizens are given a disproportionate share of benefits while others receive a
disproportionate share of burdens—amounting to unfair privilege and unfair deprivation.
The prospects for changing this arrangement are diminished to the extent that those
benefiting from it do not reject its gross distributive asymmetries in the interest of justice
(Rawls, 1999). Moody-Adams writes:

. The possibility of social cooperation thus imposes an obligation on those not in

the disfavored group to relinquish the discriminatory attitudes that persist. . . .

This requires far more self-scrutiny—and, ultimately, a more serious revision of

self-conceptions—than is acknowledged in most discussions of social reform.39

As previously discussed, if citizens do not have equal rights and liberties, they will

systematically receive unequal treatment within the basic institutions of society. This is

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why social justice in society’s basic institutional arrangements is so fundamental to
Rawls’ theory. If gross inequalities of power—not fairness, or constitutional
guarantees—dictate the social and political relations in society, then the conformity that
exists in the social order can hardly be characterized as “cooperation” consistent with the
terms of Rawls’ well-ordered society.

Fourth, citizens in our society are not collective moral agents for justice as they are
in Rawls’ theory. The majority of citizens in our society exhibit the capacity to permit
gross violations of some citizens’ publicly recognized rights and liberties while taking
great pride in having these same protections and freedoms for themselves. The “sense of
justice” that seeks and gives reciprocity appears dormant, deflected, degraded, deficient,
or depleted—possibility, some combination of these—with respect to the political
majority. Whichever the case may be at present, the political implications for minority-
group rights and for the creation of democracy in America have been disastrous
(Kymlicka & Norman, 2001; Walzer, 1995).

John Stuart Mill discusses the problem posed by democracy in the opening
chapter of his famous text, On Liberty. In this chapter he coins the phrase tyranny of the
majority. What he means is that the majority in a democracy may tyrannize minority
groups because these groups are perceived to be “different,” or because they express
dissenting views, or simply because majorities have the power to be tyrannical. Mill’s
thesis is that majority power in a democracy must be constrained in civil society and in
the state so that it does not oppress minority groups and violate their liberties. Minorities’

interest in liberty must be protected from these abuses because democratic majority rule

does not guarantee freedom. As we noted in Chapter 1, even when majority rule is

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combined with a constitutional democracy, it is not a guarantee against gross violations
of basic human rights. The people must consciously reject exploitation and demand social
justice.

Finally, it is intuitively obvious—or at least fairly clear from the forgoing
discussion—that citizens are not free and equal if they live under pervasive circumstances
of systemic discrimination on the basis of race, class, gender and other invidious
distinctions. Ascriptive citizenship and social stratification are based on such distinctions,
but, as some scholars note, the presence of evil in society is not always acknowledged in
democratic theories (West, 1993). For example, in Rawls’ framework it is possible for
isolated ascriptive practices to exist (not social stratification or “pervasive” ascriptive
practices) and for these to merely suggest that a negligible number of citizens are not
adept in the use of public reason on matters of basic justice, not that the social order is
fundamentally, morally flawed. To see this, we must revisit the notion of reciprocity.
Reciprocity requires that our claims to rights and to government’s protection of rights
must be couched in a particular political grammar. This grammar is used in the public
forum to provide public reasons that other citizens—who may not agree with us—can be
reasonably expected to reasonably accept. Surely, this level of public justification for
government’s actions and for citizens’ requests is wholly lacking in a system that
enslaves or that does not permit millions of its citizens to effectively participate: to vote,
to seek public office on equal terms, and to obtain the level and quality of education

necessary to effectively pursue their ends.

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Extending Prescriptions: A “Rawlsian ” Framework

A different conception of “the right” and “the good” may emerge when previously un-
theorized or under-theorized nonideal facts provide additional considerations with which
our existing values and moral judgments must contend (Mills, 2001) and these are added
to the descriptive mix of problems on which we deliberate. We can then analyze these
facts in connection with the liberal values of freedom and equality that Rawls espouses
(and that are contained in the Constitution and in the Declaration of Independence), to
arrive at a more thoughtful and complex characterization of oppression and inequality to
which we extend Rawls’ moral judgments for corrective purposes. For example, given
the nonideal historical context of social stratification in America, the logical extension of
the moral ideal contained in the notion that “each person possesses an inviolability

”40 would

founded on justice that even the welfare of society as a whole cannot override
necessitate a change in the unit of analysis to encompass additional harms. It would result
in moral judgments directed at alleviating—or, at least, substantively ameliorating—the
systemic violations of basic rights and liberties pertaining to individuals as members of
particular groups, and, therefore, to groups generally. In nonideal theory, it would entail
extending Rawls’ moral judgments about justice—and extending liberal protective
measures—to the problem of group oppression.

In order to create a moral fi'amework that protects the rights of specific political
and numerical minorities from majority abuses, Americans have to first claim their
memory of collective injustice and critically analyze its moral content and foundation.

This implies the need to transcend descriptions of individual discrimination and abstract

universal rights because these often mask the specificity of the discrimination and the

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formality of the constitutional protections. That is, the discrimination that individuals
suffer as a result of their membership in a particular group (group harm)—as part of the
tortuous and torturous development of citizenship—does not typically receive adequate
consideration in mainstream theories, and, consequently, our moral judgments pertaining
to them are obstructed or ineffectual.

We need more complexity in our moral theories, and this can be realized if
serious consideration is given to the social context of discrimination. As philosopher
Kathryn Morgan notes, “The most excruciating forms of moral, psychological, and
emotional torture may have large, culturally constructed, and culturally mediated
dimensions to them.“ If the particularity that is clearly evident in social stratification
schemes and ascriptive citizenship practices is not duly incorporated into our descriptive
analyses of injustice, the epistemic force of universal moral theories is seriously
undermined; this is especially true in the nonideal where the moral deficiencies are
evidenced in the stark contrasts between formal and substantive rights.

A responsive moral framework for the nonideal alters and extends our
conventional descriptions, explanations, and prescriptions. The result is that these
processes register the memories of collective injustice and the legacy of historic
inequality. Universal ideals that apply only to a partitioned segment of society are
degraded and unfit for moral theories that purport to speak to the human condition. Such
false universalisms are not only polarizing but also hollow and pretentious; they lack
moral substance but profess obeisance to lofty principles; their ascriptive applications
only deepen the social cleavages in society—incapable as they are of embracing the

complex social whole that defines pluralistic societies (Mills, 1997, 1998). These lived

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experiences (including group sufferings and strivings) cannot be fully grasped in the
context of an existentially homo genous ideal—a simplistic and uninteresting blur of
sameness.

Another responsive move that is predicated on recognizing the social context of
oppression is a national public debate about what American citizenship means for groups.
We need to make a public determination of whether—and to what extent—a raced,
gendered, and classed liberalism is consistent with a desirable democratic project, with
the ideals that we often unreflectively reproduce in succeeding generations (Apple,
2003). A form of collective introspection is needed in the public reahn to explore the
patterns of ascriptive citizenship as part of the “complex internal perspective”42 that
Moody-Adams suggests. We ought to problematize myths of exceptionalism that appear
to rationalize ascriptive notions of personhood (Smith, 1997). For purposes of my
discussion, we need to specifically ask if such a polarizing liberalism is consistent with
what Rawls espouses in his normative theory. If it is not, then the moral judgments that
extend his prescriptions into the nonideal must reject the exclusionary liberalism that is
traditionally championed or condoned in American society and in its basic institutions.
Obviously, ascriptive liberalism is inconsistent with Rawls’ normative theory; indeed, his
principles are intended to provide a morally defensible alternative to it. I offer an
interpretation of this alternative in the discussion that follows.

Recall from my earlier comments that primary goods are institutional supports
that Rawls contends all citizens need to effectively pursue and realize their rational plans
of life in a manner consistent with a political conception of justice. Primary goods are

related to what Rawls refers to as contingencies. Contingencies are conditions that

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significantly impact peoples’ life chances in society. Some contingencies are social as in
social class; some are natural, as in certain physical disabilities, and still others are
fortuitous or happenstance (Rawls, 2001). The extent to which these contingencies can be
sufficiently offset by primary goods within the basic structure of our society explains
why Rawls chooses to focus on the basic structure as the subject of his theory of justice.
He is convinced of its “profound and pervasive influence on the persons who live under
its institutions?”3
For purposes of review, I will list Rawls’ categories of primary goods. I will then
briefly discuss why I interpret group status to be among them in the nonideal. Following
this, I will advance a similar argument with respect to racial minority status and female
status. The following are the categories of primary goods that, according to Rawls, all
citizens need in order to effectively pursue and realize their rational plans of life in a
manner consistent with a political conception of justice within a well-ordered society.

There are five categories of primary goods:44

(i) The basic rights and liberties: freedom of thought and liberty of conscience among
others.

(ii) Freedom of movement and free choice of occupation against a background of diverse
opportunities, which opportunities allow the pursuit of a variety of ends and give
effect to decisions to revise and alter them.

(iii) Powers and prerogatives of offices and positions of authority and responsibility.

(iv) Income and wealth, understood as all-purpose means (having an exchange value)
generally needed to achieve a wide range of ends whatever they may be.

(v) The social bases of self-respect, understood as those aspects of basic institutions

normally essential if citizens are to have a lively sense of their worth as persons and
to be able to advance their ends with self-confidence.

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Before making a case for the inclusion of (equal) group status among the primary
goods needed in the nonideal, I will briefly discuss the obvious consideration that he has
already given to material prosperity. First, by identifying income and wealth on the list of
institutional supports that all citizens need, Rawls demonstrates his awareness of the
harmful effects of gross, material inequalities. Such inequalities are registered as
obstructions to the effective pursuit of rational plans consistent with a political
conception of justice. The quest to realize rational plans is integral to the structure of the
original position. Recall that despite the constraints on the information available to the
representatives, they are permitted to know about the nature and content of primary
goods. This information is taken into account when they select the public principles that
will guide their deliberations on all matters pertaining to the establishment of just social
institutions.

Second, Rawls’ difference principle provides a form of distributive justice that
attempts to protect individuals from the gross inequalities of wealth that tend to exist
under certain economic arrangements. In fact, Rawls actually subordinates the liberty
associated with property rights—the Enlightenment economics of classical liberalism—to
the democratic principle of equality and social welfare for the least-advantaged. Unlike
Locke’s concept of “expropriation” as the guiding consideration in ascertaining rightful
possession, Rawls asserts that we are not fully entitled to the fruits of our labor, in part
because of the social nature of our political enterprise within the well-ordered society.
The difference principle further evidences the significance of material inequality in

Rawls’ understanding of the prerequisites for social justice.

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Third, Rawls unambiguously rejects the economic arrangement that is purported
to offer citizens in a constitutional democracy the best option: welfare-state capitalism.
He maintains that this system violates his two principles of justice so fundamentally, that
it must be excluded from his theory; he then identifies two alternative economic
arrangements that are consistent with justice as fairness: liberal socialism and property-
owning democracy.” Both alternatives are considered to be more empowering for
ordinary citizens; both disallow gross disparities in wealth and place the means of
production in the hands of the public—not under the control of private individuals; both
favor limits on the accumulation and transfer of private wealth because—left
unrestrained—these are believed to unjustly deprive future generations of resources and
reproduce gross inequalities.

Rawls’ selections for alternative economic arrangements reflect his loss of faith in
the efficacy and morality of welfare-state capitalism in the context of the type of
democracy that he seeks to advance. In effect, welfare-state capitalism makes his
“possible world” impossible, so in rejecting it he makes clear his contention that political
rights are morally prior to economic rights—a move that seems compulsory given his
normative theoretical framework. As economists Barry Clark and Herbert Gintis contend,
“Quintessentially, capitalism vests rights in property, however it is distributed among
persons; while democracy vests rights in persons, however they are situated with respect
to property.”46
Group Status and Primary Goods
First, suppose gender equality is explicitly included on the list of primary goods in the

nonideal. It could be assumed to exist under the first (basic rights and liberties), and/or

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fifth categories (social bases of self respect) on Rawls’ list. Suppose further that these
supports for gender equality pertain to “individuals.” For the sake of discussion, let us
assume that we are referring to individual females. This implies that the institutional
supports that all citizens need in order to effectively pursue their rational plans of life do
not take into account the supports that individual females may need as a result of their
collective membership in a subordinate group, i.e. women. If such supports are needed,
they are beyond the scope of the specific protections provided by primary goods.

Consider the following scenario: If females are systematically paid less for their
labor despite performing tasks that are comparable to the tasks performed by their male
counterparts—or are relegated to performing frmctions for which a lesser compensation is
awarded—the resulting harm is not limited to females as “individuals.”(Note that, for
individuals, the practice of restricting employment options would likely fall under the
second primary good on Rawls’ list, the category of “choice of occupation”). If the
discriminatory practice is not discrete, then it is sufficiently linked to others such that a
more inclusive discriminatory pattern exists that may reflect economic harm to
dependents, to the family (and the basic structure), and to “group” civic identity.

A group-identified discriminatory practice is unlikely to be mitigated or
eradicated by theories aimed at protecting individual rights. Such theories often fail to
sufficiently acknowledge the pervasiveness and the social context of rights violations, so
the remedies are fi'equently superficial. This means that certain abridgments of rights and
liberties may be permitted (or overlooked) if they pertain to group differentiated status—
for example, being a member of the “female” group in a society that privileges the

intrinsic value of males and, consequently, does not equally value the work that females

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do. This violation of rights is such that an identifiable group—again, in this case,
females—can be singled out for disfavored treatment within the basic structure of a male
dominated society. (This was the Court’s logic concerning race in its ruling in Brown 1.
Individual rights violations occurred in the social context of racial stratification, so equal
“educational opportunity” was denied to a group (blacks) on the basis of their racial
group membership). .

If an identifiable group can be singled out for disfavored treatment, the basic
structure fails to establish and maintain background justice. Background justice is integral
to setting the proper course (the moral and political framework) for society as a collective
enterprise. In the nonideal, we are confronted with a society that cannot secure justice for
its female citizens, making them second-class citizens. This is an unacceptable
institutional posture given Rawls’ contention that the basic structure has “deep and long-
term social effects and in fimdamental ways shape citizens’ character and aims, the kinds
of persons they are and aspire to be.”47 Therefore, if gender equality is included on the
list of primary goods but only as it pertains to the protection of rights and liberties of
“individual” females, then the nonideal society cannot secure “group” justice for its
female citizens; it cannot effectively address the group victimization and domination of
women in a male-dominated society.

Where women’s liberties are violated by unjust employment practices that are
allowed to persist, one “deep and long-term social effect” on female members of society
may be that they begin to see themselves—and begin to be seen by others—as lesser
citizens within an under-compensating patriarchal division of labor. Unjust employment

practices unreasonably limit citizens’ economic liberties and choices of occupation.

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Specifically, they undermine female citizens’ effective use of their other primary goods.
Consider Shklar’s connection between earning and citizenship:
This vision of economic independence, of self-directed ‘earning,’ as the ethical
basis of democratic citizenship took the place of the outmoded notion of public
virtue and it has retained its powerful appeal. We are citizens only if we ‘earn.’48
She closes her discussion on earning by associating it with the social bases of self-
respect—the fifth category in Rawls’ list of primary goods:
The right to earn should not be based on personal responses, such as loss of self-
respect among the unemployed, but the loss of public respect, the reduction of
standing and demotion to second-class citizenship, to which the public ethos,
overtly and traditionally condemns them. It is not a right of self-respect, but a
right not to be deprived of one’s standing as a citizen that is at stake here."9
According to Shklar, improving one’s social position through labor is part of the
American ideal work ethic that defines full citizenship rights. If people are denied the
opportunity to work, then they are also denied the opportunity to improve their social
standing and denied the opportunity to be recognized as full citizens.50 The right to cam
is abridged not only by the diminished opportunity to pursue an occupation but also by
the inadequate or unfair compensation that follows a day’s work—whatever the
occupation. As Shklar reminds us, “an earner [is] a free remunerated worker, one who is
rewarded for the actual work [she] has done, neither more nor less. [She] cannot be a
slave or an aristocrat.”5 1
In Rawls’ framework there is no public reason supporting asymmetrical earning
capacities for comparable (or identical) work. There are no public justifications for the
obstructions to women’s opportunities to pursue desired employment and to be fairly

compensated. The extent to which such inequalities are rationalized (for example, the

frequently referred to “biological reasons” offered to explain why women were excluded

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from politics and denied equal citizenship, noted in Chapter 1) Rawls’ reciprocity
criterion and deliberative processes are violated; to the extent that this is the case, the
second principle in Rawls’ well-ordered society (the difference principle) is also violated
because occupations are not open to all on a fair and equal basis, where “fair and equal”
includes just compensation.

Further, the “chilling effect” of permitting unequal wages for equal work reduces
the types of occupations that women can pursue in attempting to improve their standing
(the glass ceiling). In the nonideal, the absence of a specific and forcefirl institutional
response to the obstructions of basic rights of “group-identified” individuals to pursue
their ends, suggests the limits of the ameliorative reach of Rawls’ moral judgments in the
nonideal. Thus, if women are systematically paid less for their labor despite performing
tasks that are comparable (or identical) to the tasks performed by their male
counterparts—or are relegated (as a group) to performing functions for which a lesser
compensation is awarded—Rawls’ moral judgments lack substantive effect in responding
to the basic structure of the nonideal, and the protections of rights that such judgments
champion are merely formal. In the absence of protections for exploited groups under
conditions of group domination, primary goods fail to provide what all citizens need in
the nonideal in order to effectively pursue and realize their rational plans of life in a
manner consistent with a political conception of justice. What citizens in the nonideal
need is unambiguous institutional support for a fair system of social organization that
includes protections for the pursuit and realization of the good of groups in a stratified

society, not only the good of individuals.52

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Attempting to solve a pervasive problem on a case-by-case basis is impractical
and ineffectual. The debacle in Brown 11 provides a noted example. The Court’s decision
to deny class actions during the remediation phase of Brown, in favor of pursuing a case-
by—case review of claims against school boards for violations of Brown’s desegregation
mandate, proved disastrous for children discriminated within the existing segregated
educational system. The judicial strategy of singularly reviewing plaintiffs’ claims
against individual school districts meant that many children similarly situated were
denied basic justice and were subjected to continuing violations of their Fourteenth
Amendment rights.

A similar fate of denial of basic justice would befall women if their only recourse
to employment discrimination amount to a protracted, case-by-case, judicial or legislative
“remedy.” Disparities in employment compensation and restrictions on occupational
choice are just two examples of a pervasive discrimination that can disproportionately
affect women—as a group—in a society stratified by gender. In such a social order we
cannot fully appreciate the nature and extent of the discrimination that women suffer—as
a group—if our framing of the problem is narrowly focused on inequalities manifesting
as individual discrimination. The resulting remedies tend to overlook the impact of
subordinate group status and patriarchal power relations as an underlying factor in the
occurrence of pervasive violations of rights and liberties.

The words ‘racism,’ ‘slavery,’ and ‘sexism,’ for example, were not specifically
mentioned by the framers of America’s original Constitution, but these omissions did not
preclude the deliberate establishment of a system of social stratification and group

domination. Universal principles turned out to be very particular in their applications.

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Failure to acknowledge and challenge this tragic fact of history is one reason why
mainstream liberalism seems shortsighted, inhumane, and inconsequential to many. Word
omissions do not imply the absence of social consequence or specific intent in connection
with the omitted words. In addition, the meaning of included words such as ‘persons,’
‘liberty,’ and ‘citizens,’ for example, is often ascertained from their use in social
contexts—not from their literal translations. Of course, the true meaning of “neutral”
language can be deciphered from what neutrality accomplishes in social practices despite
its purported impartiality—or, perhaps, as a result of it. As Mills writes:
Gender-neutrality is really (and necessarily) maleness; colorlessness is really (and
necessarily) whiteness; universality is really (and necessarily) particularity. The
view fi'om nowhere is really always a view from a particular where. Why not just
admit this and label it as such?53
Racial Minority Status/Female Status and Primary Goods
Let us next assume that Rawls’ list of primary goods includes individual rights and
liberties but only as these pertain to decontextualized individuals. This implies that the
institutional supports that all citizens need in order to effectively pursue their rational
plans of life do not take into account the supports that individual racial minorities and
females need in light of their subordinate membership in a universal class of persons
known as “citizens.” If such supports are needed, they are beyond the scope of the
specific protections provided by primary goods. Under these circumstances, we are not
directed to consider the pervasive historical pattern of (particularized) white and male
privilege under a system of social stratification and ascriptive citizenship as described in
Chapter 1.

The forms of dominance and power asymmetry that ascriptive practices reflect

will remain intact when they are not subjected to critical review under contextualized

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methodologies. Absent such analyses, the antecedent political, economic, and social
advantages that are built into the foundation of the nonideal, and that are afforded to
certain “types” of citizens, are not subject to our moral judgments for purposes of
substantive, corrective justice (Mills, 1997). As a result, the benefits and burdens of
society are more likely to remain unequally and unfairly distributed, particularly for those
that Rawls’ characterizes as “permanent” minorities.54 This means that unjust inequalities
among (universal) citizens based on race and gender distinctions (ascriptive citizenship)
are virtually unrestrained in spite of Rawls’ attempts, under ideal conditions, to bring a
measure of balance to the social arrangements. Indeed, the basic liberties would no longer
form a special category that receives special institutional support for their role in the
effective pursuit of reasonable ends. Primary goods cannot provide systemic protections
in the nonideal, where the substantive realization of basic liberties is routinely frustrated
by social stratification and ascriptive citizenship practices.

Violations of Rawls’ ideals may be ignored or dismissed in the nonideal if the
moral principles and judgments that are applicable under ideal conditions to sustain
justice are not extended and “rearticulated” under nonideal conditions to create justice
(Mills, 1997). Again, extensions and applications of moral judgments must confront the
specific problems lived experience—social stratification and ascriptive citizenship;
otherwise, the complex ways in which race, class, and gender exploitation are
inextricably linked within stratifications systems will be ignored or dismissed;
demystification cannot occur despiteithe fact that intersecting categories of subordination
are even more detrimental to citizens’ rights and liberties, because of the impact of

multiple abridgrnents on the effective pursuit of rational plans of life consistent with

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public principles of justice. This implies that Rawls’ prescriptions for securing basic
rights and liberties within existing categories of primary goods (under presumptively
ideal conditions) are materially deficient in identifying and protecting citizens’ interests
under stratified and ascriptive social conditions. Therefore, if Rawls’ list of primary
goods includes individual rights and liberties, but only as these pertain to
decontextualized individuals, then his list of primary goods (under presumptively ideal
conditions) are materially deficient in identifying and protecting citizens rights and
liberties under stratified and ascriptive social conditions.

The inadequacies of ideal prescriptions for achieving justice in the nonideal are
lessened to the extent that much-needed institutional protections are provided to racial
minorities and women (contextualized citizens) to protect their substantive enjoyment of
rights and liberties. These protections ought to reflect specific state interests in race and
gender equality in the exercise of citizens’ primary goods. Most importantly, race and
gender stratification and ascriptive practices become a specific concern of ameliorative
social policy initiatives and enforcement eflorts within the basic institutions of society. A
hint of this focus is suggested in the social policies undertaken during the Reconstruction
and Civil Rights eras with respect to the protection of positive rights. Eliminating race
and gender privilege is a legitimate exercise of government power that is implied in
Rawls’ theory but is institutionally mandated in the Rawlsian prescriptive project. Rawls
concedes the following about ideal theories in response to group injustices:

Justice as fairness, and other liberal conceptions like it, would certainly be

seriously defective should they lack the resources to articulate the political values

essential to justify the legal and social institutions needed to secure the equality of
women and minorities.55

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The unit of analysis shifts from nondescript individuals (well-ordered society) to the
“socially constructed” raced and gendered individuals (nonideal theory) for purposes of
eradicating social stratification and ascriptive citizenship and creating a just society.

Restitution for the historical and contemporary hardships that have resulted from
institutionalized discrimination on the basis of racial minority status and female status in
America, present us with complex issues of basic, corrective justice. Given my
interpretation of Rawls’ moral judgments applied to the nonideal, one could arguably
make a case for reparations. Providing such reparations would involve comprehensive
economic and policy questions that are well beyond the scope of my discussion, which
goes to the moral foundations that may pertain to such considerations. There are a
number of scholars, however, who have devoted considerable time reflecting on these
issues and whohave offered their informed judgments about them, so I refer the reader to
a sampling of this growing body of literature.56

For my purposes, the inclusion of racial minority status and female status on the
list of primary goods receiving explicit institutional protections in the nonideal provides
additional support for the exercise of positive rights and liberties (and for the pursuit of
rational plans) for these two groups, in addition to promoting the social basis of self
respect. Reconstructing the basic institutions in the nonideal pursuant to social and racial
justice requires the good faith implementation of specific policy measures targeting these
systems. Again, the most significant point to be grasped for purposes of practical
reasoning pursuant to just moral principles in the nonideal is that the institutional policies
and practices (faithfully pursued) are designed to eliminate the historical privilege

aflorded to racial “majority ” status and to “male ” status under social stratification and

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ascriptive citizenship. The goal is to ensure that these forms of social hierarchy no longer
have the effect of reducing substantive rights and liberties to a “zero sum game” that
permits unfair privileges and unfair deprivations such as were noted in Chapter 1. The
purpose of the reconstruction project in the nonideal is to effectively prevent the
undermining of the fair value of rights and liberties, particularly as this pertains to
political minorities.

Rationalizing the perpetuation of the status quo within the reconstruction project
means providing public justification for social practices that sustain, or enable, race and
gender stratification (and ascriptive citizenship) while retaining Rawls’ reciprocity
criterion. This justification must necessarily meet the requirement of the difference
principle in “Rawlsian” contexts—be proven to benefit racial minorities and females, (the
least-advantaged in the system of race and gender stratification)——and proven to the
satisfaction of these groups.57 These burdens seem impossible to sustain in the nonideal
given “Rawlsian” moral principles and the reconstruction’s stated objective of removing
social injustice. That is, as part of the reconstruction project, the basic institutions of
society must be reconceptualized as antiracist and antisexist. In the nonideal this means
that groups, racial minorities, and women are to be regarded as “ends in themselves
within the basic design of society” and, therefore, society “agrees[s] to forego those gains
which do not contribute to everyone’s expectation [specifically the disfavored].”58

By implication, the state and its citizenry would have to be actively committed to
eradicating social stratification and other systemic power asymmetries, as well as their

disastrous social repercussions. They would undertake this project with the same sense of

obligation and purpose required for the protection of other rights and liberties (and

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primary goods) in Rawls’ ideal framework. Indeed, there is no reason to suspect that the
moral judgments and protections that Rawls provides under ideal conditions in response
to the fact that “our prospects [of] life are deeply affected by . . . contingencies, and by
the way that the basic structure, by setting up inequalities, uses those contingencies to

”59 are not equally necessary in response to reduced life

meet certain social purposes,
prospects in the nonideal—in support of anti-stratification policies:

If we ignore the inequalities in people’s prospects in life arising from these

contingencies and let those inequalities work themselves out while failing to

institute the regulations necessary to preserve background justice, we would not

be taking seriously the idea of society as a fair system of cooperation between the

citizens as free and equal. This reminds us that what we are asking is precisely:

what principles of background justice are presupposed in taking seriously that

idea of society?60

In the foregoing discussion I have explained why group status, racial minority
status, and female status have a powerfully adverse impact on citizens’ life prospects
under nonideal conditions of social stratification and ascriptive citizenship. I have
demonstrated how membership in a political minority group can present significant
obstructions to citizens’ efforts to effectively pursue and realize their rational plans of life
in a manner consistent with a political conception of justice. (Education is one vital and
obvious area in which such obstructions persist.) If some citizens receive less protection
from government for their basic rights and liberties by virtue of their membership in a
particular group, or because of their race or gender, we lack a morally defensible
constitutional system.

The void left by the absence of substantive justice leaves us with something

considerably at odds with a legitimate, responsive government. Rectifying this situation

requires that like-minded citizens articulate and construct a group-inclusive, anti-

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subordinating liberalism. Such a formulation is committed to safeguarding all citizens
from the historically abusive tendencies of majorities, power elites, and degenerate
governments. The notion of a ‘separateness of groups’ is championed that is analogous to
Rawls’ notion of a ‘separateness of persons,’—meaning, in this instance, that groups
along with contextualized individuals (raced and gendered), should be treated as ends and
not as means only."1

My extensions of Rawls’ moral judgments to the nonideal involved a change in
the unit of analysis, from ‘individual’ to ‘group’; and a change in the type of analysis,
from abstract to contextual. It also involved a change in the nature and kind of social
conditions that primary goods are responsive to within the basic structure of society: from
natural and fortuitous contingencies, to deliberate stratification, and from stability-
seeking cooperation to fundamental reconstruction. These changes are necessitated by the
conclusions drawn from a critical assessment of social conditions in the nonideal (such as
detailed in Chapter 1), not from hypothetical abstractions. Transformative prescriptions
are necessary in the nonideal, and a theory that appears too abstract and idealized can be
rearticulated—with additional facts and generous extensions of its liberal moral
judgments—to challenge the obvious contradictions at the base of ascriptive
commitments that incense so many critics of liberalism.

I have demonstrated that Rawls’ ideal theory—already shown to be contemplative
of nonideal conditions—has libratory possibilities in response to real world injustices.
Although it clearly remains a limited theory for the nonideal, Rawls’ moral judgments
and prescriptions'can contribute constructively to the way that we conceptualize the range

of possibilities for a just democracy within the reconstruction project. In this way, his

162

moral judgments can be understood as part of a comprehensive effort to rid society of
divisive and destabilizing uses of government power that have long-enabled social
stratification and ascriptive citizenship under liberalism. This concludes my response to
the first line of critique of Rawls’ theory—issues pertaining to its usefulness in the
nonideal given its abstractrress. The second and third critiques that I will consider are
directed at Rawls’ conception of public reason.
Public Reason
Public reason is an indispensable element in Rawls’ political conception of justice, but he
acknowledges that its scope is limited and cannot be relied upon to solve all public
political disputes. Nevertheless, absent the concept of public reason we are left with little
recourse to the chaos that might ensue when people with divergent perspectives are faced
with obstacles to public policy, particularly given the fact of reasonable pluralism that is
assumed in Rawls’ framework. As he notes, people are fallible despite their best
intentions and efforts. No individual or group can claim to possess the requisite insight
needed to capture the whole “truth” of a situation because there are various ways in
which our j udgrnents are burdened or cOmpromised.62

Without public reason’s accommodation for the burdens of judgment and the fact
of reasonable pluralism, the political conception of justice would fail to embody
principles capable of securing the respect and cooperation of persons holding
irreconcilable, but reasonable, comprehensive doctrines. That is, the political conception
of justice would be less likely to foster an overlapping consensus of reasonableness
strong enough to promote the stability of Rawls’ principles of justice and minimize the

. strains of commitment. Public reason establishes deliberative practices that allow people

163

with diverse and conflicting perspectives to discuss important public matters—civilly—
using the same political grammar.
Consider Rawls’ description of the ideal of public reason:
This ideal is that citizens are to conduct their public political discussions of
constitutional essentials and matters of basic justice within the framework of what
each sincerely regards as a reasonable political conception of justice, a conception
that expresses political values that others as free and equal also might reasonably
be expected reasonably to endorse.63
Lest we believe that Rawls’ use of the phrase “sincerely regards” in the above quote
provides the speaker with undefined deliberative flexibility, notice that the last phrase in
Rawls’ statement adds a moral imperative that explicitly restricts the permissible
interpretation of public reason to reasonable political conceptions of justice, and to
reasonable political values, that satisfy the criterion of reciprocity. If a citizen’s reasons
are such that his/her free and equal counterparts cannot reasonably endorse them, then the
reasons fail to provide an adequate public justification in support of the speaker’s claims.
Public reason is also part of the publicity condition in Rawls’ theory of ideal
democratic citizenship. That is, citizens know, or should be able to determine, the public
conception of justice that provides the broad framework within which the basic
. institutions of society funCtion. Citizens demonstrate both their grasp of this knowledge
and their acceptance of its imperatives when they use public reason in their public
deliberations on matters of basic justice and constitutional essentials. In so doing, they
uphold the duty of civility that public reason reflects, as well as demonstrate their respect
for one another as free and equal members of society.

The deliberative and moral imperatives that public reason establishes are

particularly relevant in a society in which there are irreconcilable doctrinal differences

164

stemming from burdens of judgment and reasonable pluralism. Rather than countless
policy impasses, ambiguities, and deliberative breakdowns, public reason provides
guidelines for reasonable inquiry and argument that apply whenever citizens attempt to
use the state’s coercive powers to enforce their claims. In the event that citizens cannot
reach agreement regarding how public reason applies to a constitutional essential or a
matter of basic justice, Rawls designates the Supreme Court to be the final arbiter of
public reason. Presumably, it possesses the greatest capacity for accurately determining
when claims are reasonable within a political conception of justice.64 Thus, the burden of
public reason is greater for the judicial branch than it is for any other branch of
government, and, consequently, judges are held to a higher standard of public reason than
any other elected or appointed official.65 With this introduction, I will now turn to the
second and third lines of critique of Rawls’ theory and critically consider two specific
objections. V
Second Critique: Public Reason Hegemonic/Too Restrictive
Among the critics of Rawls’ theory are those who charge that the ideal of public reason is
hegemonic. They assert that public reason has a chilling effect on nonpublic reason and
on the freedom of individuals to discuss a variety of political ideas and opinions in the
public forum. They argue, for example, that the public/private dichotomy that public
reason recognizes is artificial and relegates “unwanted speech” to the domain of the
private sphere. They suggest that the class of unwanted speech includes unwelcome
dissenting opinions or comprehensive doctrines that are perceived to be too controversial.
Further, critics charge that Rawls is so focused on social and doctrinal

cooperation in the public sphere, that he sacrifices the unpredictability and raucousness

165

that is characteristic of participatory democracy and critical discourse—particularly in
association with social movements (Benhabib, l992)——in order to achieve greater
unifonnity. Sheldon Wolin provides a particularly scathing critique of Rawls’
interpretation of public reason:
Public reason, we may say, is the general will in the age of academic liberalism.
And like the general will, it is haunted by the specter of difference. Unlike
Rousseau, Rawls will not banish certain groups (although he will come perilously
close to doing so) but will seek their incorporation, a solution rendered easier
because of the politically trivial character of the differences with which Rawls is
concerned."6
The objection to the public/private dichotomy in Rawls’ public reason seems
natural given his steadfast rej ection—particularly in Political Liberalism—of
comprehensive liberalism as the basis for a viable political theory in a pluralistic
democracy. Recall that a comprehensive liberalism is a religious, philosophical, or moral
doctrine that structures private and public life. Rawls reasons that comprehensive
liberalism is a futile quest for a singular conception of the good. It is futile because of the
inescapable presence of irreconcilable, yet reasonable, comprehensive doctrines that
Rawls maintains result from the fact of reasonable pluralism—differing judgments and
human interests. Rawls responds to irreconcilable differences by distinguishing between
the grammar of political society (political liberalism) and the grammar that is identified
with the free flowing discourses found in voluntary associations in civil society
(comprehensive liberalism). Further, he restricts the subject of public reason to
constitutional essentials and matters of basic justice; in the event of an impasse, these

issues are ultimately resolved by the branch of government that even Rawls suggests has

a long and established history of conservatism: the Supreme Court.

166

In light of these features of public reason, one can be sympathetic to critics’
contention that something very elitist and authoritarian is taking shape. For Wolin and
others, public reason is a kind of civil religion that is imposed on the polity as a means of
controlling ideas fiom the top down—coercing conformity to the dictates of a
homogeneous, status quo consensus. To the extent that social movements are born of
dissent, conflict, and clearly defined, but unmet, competing interests of oppressed
groups—and not atomic individuals with rights, seeking to cooperate—it seems that the
language of public reason is inadequate and, perhaps, even obstructive to pluralistic
libratory discourses that champion popular sovereignty.

I share critics’ concerns because libratory discourses are indispensable in the
reconstruction of the nonideal, the focus of applications of ideal theories. This is why my
interpretation of Rawls’ public reason acknowledges not only doctrinal pluralism but also
the pluralism that seeks to structurally alter the relations of power in a democratic project
in the interest of political autonomy. I find Parenti’s definition instructive:

Specifically, pluralism means that 1) Power is shared among representative

sectors of the population. 2) The shaping of public policy involves inputs from a

wide range of competing social groups. 3) No one group enjoys permanent

dominance or suffers permanent defeat and 4) The distribution of benefits is
roughly equitable or certainly not consistently exploitative.67
I interpret Rawls’ standard for public reason very differently from Wolin and many other
critics. In my estimation, it is increasingly responsive to the libratory interests that are the
focus of the reconstruction project that I discussed earlier. What many seem to overlook
is that Rawls’ thinking on public reason is not fixed; it has evolved just as his theory has

evolved. In order to consider this process we must direct our attention to Rawls’ three

distinct constructions of public reason: the exclusive view, the inclusive view, and the

167

wide view. In the latter two cases it seems to me that Rawls opens the door to the
radicalization of public reason, or, at least, to its considerable expansion for such
purposes. First we consider the exclusive view.

The exclusive view of public reason is the most restrictive. It is, therefore, most
vulnerable to charges of exclusivity, hegemony, and neglect for the concerns of the
private sphere under the guise of deliberative democracy and neutral guidelines of
inquiry. Perhaps Rawls’ construction invites such criticisms because of the exclusive
view’s limitations on permissible claims within in a well-ordered society: “On
fundamental political matters, reasons given explicitly in terms of comprehensive
doctrines are never to be introduced into public reason. The public reasons that such a
doctrine supports may, of course, be given but not the supporting doctrine itself [my
emphasis].”68 Rawls’ comments can reasonably be understood to explicitly ban all
comprehensive doctrines. He clearly advocates the complete severance of private values
from the public sphere despite the fact that these values assist people in defining their
public interests and serve as powerful motivations for their public participation.

Rawls’ exclusive view can arguably be characterized as oppressive. It is analogous
to Rousseau’s advocacy of banishment from society for certain nonconforming groups
that rejected the civil religion, as Wolin suggests. Initially, Rawls evidences a lack of
appreciation for how people form political opinions and sentiments, but as he continues
his discussion of public reason in Political Liberalism, he appears to abandon the
exclusive view or at least to withdraw from it. He then introduces the inclusive view of
public reason. This second construction allows “citizens, in certain situations

[specifically, in the nonideal], to present what they regard as the basis of political values

168

rooted in their comprehensive doctrine, provided they do this in ways that strengthen the
ideal of public reason itself.”69 This statement provides us with the first hint of Rawls’
deliberative flexibility and openness.

In choosing which version of public reason is more desirable—the exclusive or
the inclusive view—Rawls considers their respective restrictions on reasonableness and
stability to be decisive: “The answer turns on which view best encourages citizens to
honor the ideal of public reason and secures its social conditions in the long run in a well-
ordered society. Accepting this, the inclusive view seems the correct one.”70 It appears,
then, that Rawls rejects the exclusive view in favor of the inclusive view. He credits
political theorists Amy Gutrnann and Lawrence Solum for providing the inspiration that
altered his perspective. Their feedback drew his attention to the negative implications of
the exclusive view on the expression of comprehensive doctrines such as those espoused
by abolitionists or civil rights activists (such as Martin Luther King, Jr.). Upon reflection,
Rawls correctly concludes that such comprehensive doctrines contribute to the best
expression of public reason in a society committed to justice and should therefore be
encouraged, not constrained.

The inclusive view opens the door to a more tolerant and, perhaps, radical reading
of public reason, a reading that is more responsive to some critics’ concerns. Those
wishing to provide a comprehensive critique of group oppression, social hierarchies, or
unjust wars find more space in which to do so than under the exclusive view. Clearly,
Martin Luther King, Jr., effectively expresses Christian social thought in ways that allow
him to link his message of deliverance to his quest for earthly freedom. He elevates and

invigorates public discourse on justice while remaining anchored in religious doctrine,

169

often making skillful use of biblical verses. The power of his message continues to
inspire even those who may not share his religious faith but who embrace his civil rights
cause and his form of activism. Similarly, other passionate advocates and groups of
advocates expressing other comprehensive doctrines are free to participate in the public
debate under the inclusive view of public reason. They, too, can attempt to persuade the
public to support their social cause, as long as they respect the basic liberties of others
and incorporate the criterion of reciprocity.

In my estimation, the inclusive guidelines of public reason can provide structure for
liberating discourses without stifling them because the rules are not too restrictive for free
discussion. They are not inevitably hostile to dissidents and advocates of progressive
social reforms. They are not wholly divisive with respect to public and private
commitments, nor are they oppressively conservative. The inclusive view is less

9971 or is,

susceptible to charges that public reason is “haunted by the specter of difference
otherwise, whitewashed of contexts and particularities as some of Rawls’ critics allege.
Indeed, the thesis of Political Liberalism asserts, in part, that attempts to “homogenize”
wills usually fail to produce stability because of reasonable pluralism—unless consensus
is enforced by the oppressive use of state power. Rawls rejects such uses of state power
and the singular conceptions of the good that motivates them.

The third and final construction in Rawls’ evolution of public reason is the wide
view. It goes beyond the inclusive view by expanding the presence and potential
influence of (reasonable) comprehensive doctrines in the public sphere. It does this in at

least two ways that provide citizens with greater temporal and contextual flexibility for

public justifications. Rawls writes:

170

Reasonable comprehensive doctrines, religious or nonreligious, may be

introduced in the public political discussion at any time, provided that in due

course proper political reasons—and not reasons given solely by comprehensive

doctrines—are presented that are sufficient to support whatever the

comprehensive doctrines introduced are said to support. This injunction to present

proper political reasons I refer to as the proviso [my emphasis]. 2 .
There are a couple of noteworthy advantages to the wide view. First, it extends the

173—40 apply to any

inclusive view’s application beyond the sphere of the nonidea
circumstances, including those present in the well-ordered society. Second, considerable
latitude is afforded the speaker because the proviso does not specify the time frame
within which the connection must be made between comprehensive doctrine-based
claims and reasonable political principles and values.74 (Examples of political principles
are found in the Bill of Rights and the Preamble of the Constitution”) Ultimately, Rawls
endorses the wide view of public reason as the best expression among the three
constructions, even going so far as to refer to the inclusive view as “the narrower view”
in Justice as Fairness: A Restatement.76 This transition makes Rawls’ stance on public
reason considerably more flexible and receptive to comprehensive doctrines in the public
sphere than his initial positions evidenced. The wide view appears to reflect the final
evolutionary step in Rawls’ thinking on public reason—at least, as far as his public
writings are concerned.

There are many who remain unpersuaded by the end result of this “evolution of
revisions” to public reason. Many are likely to maintain that the deliberative practices
continue to limit unpopular discourses or obstruct libratory interests. Admittedly, Rawls
remains steadfast in rejecting the claims of those ‘who seek to establish an identity

between public and nonpublic reason. He continues to distinguish between permissible

discourse in the public domain and that which is found in the background culture of

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voluntary associations. This position may be unacceptable to many, but, nevertheless, the
wide view of public reason reflects an obvious expansion of the public deliberative
process in Rawls’ theory of justice, and this should be duly noted.

Every political theory has boundaries that include certain social worlds and
exclude (or lirrrit) others based on the particular aims and judgments of the theorist. A
useful question for debate in connection with public reason may be whether or not Rawls’
boundaries are reasonable—not definitive—in light of the complexities of a modern
democratic society and its broad framework of protected rights and liberties. For the
various reasons that I have described, I interpret the wide view as providing reasonable
boundaries under the conditions of reciprocity that attempt to balance the rights and
liberties of all. In this context, there are clear indications that Rawls’ boundaries expand
permissible speech and reflect a greater tolerance for difference. Thus, the wide view of
public reason is “reasonable,” but this assessment does not negate the fact that the
boundaries it sets can be legitimately contested; they are neither perfect nor fixed.

A remaining concern related to critics’ claims that public reason is hegemonic is my
observation that Rawls appears to lack an effective response to those who object to the
extensive role that he assigns to the Supreme Court. As exemplar of public reason, it is
the ultimate interpreter of constitutional rights and liberties; it is charged with protecting
these guarantees from the potential abuses of government, providing a last line of defense
from tyrannical majorities and from the undemocratic exploits of the some wealthy and
powerful segments of society. Even under ideal conditions, however, critics contend that

“the people” should have more influence over how public disputes are resolved,

suggesting that their sovereign power should be controlling or, at least, emphasized.

172

Contrary to facilitating greater public input in the resolution of disputes, critics
maintain that conflicts over constitutional essentials and matters of basic justice are
simply delegated to an institution of government that is shielded from citizens’ principled
deliberations. They argue that if the Court is free to interpret the constitution as it sees fit,
the political process is turned on its head, and the citizenry become the “project” of the
Constitution (i.e. the courts), a product of its power to radically alter the nature and
degree of their sovereignty. Such objections are difficult to counter in the nonideal,
particularly given Rawls’ own (justifiable) reservations about the Court’s suitableness for
the role of “arbiter of public reason”—even under ideally just conditions. It is his reading
of history that gives him ample cause to be tentative rather than confident: “If the court
assumes this role and effectively carries it out, it is incorrect to say that it is

”7

straightforwardly antidemocratic. 7 More reservations can be detected in a related

footnote: “It must be said that historically the court has often failed badly in this role.”78
If an illiberal and undemocratic judiciary is, indeed, the branch of government
that is chosen to function as the exemplar of public reason, its prominence and finality
raise serious and legitimate concerns about how the deliberative process is likely to
impact public discourse and the extent to which oppositional doctrines will be given
serious consideration in the courts. Rawls’ theory appears to be silent on the question of
how the Court will be kept honest given its historical failings and how citizens can be
assured that its rulings will accurately reflect the ideal of public reason. If such problems
cannot be ruled out even under ideal conditions, what are citizens to do to protect their

interests in the nonideal? Perhaps a different orientation to the Constitution and to the

Court must be built into the theory to account for the pattern of ascriptive conservatism

173

and status quo politics that too frequently privilege interpretations of the document and
that are too often antithetical to the type of society that justice as fairness seeks to
establish.

What appears to be an obvious—although not exclusive—safeguard against the
actions of an ascriptive Court (or government) is an informed, vigilant, and engaged
citizenry. Of course, this citizenry must not, itself, endorse ascriptive citizenship as did
the informed, vigilant, and engaged Jeffersonian citizenry of the nineteenth-century
(Smith, 1997). Further, it must maintain a critical distance from government sufficient to
support a more objective and fair assessment of public policies. Specifically, such
citizens must be able to determine the Court’s impact on social justice. They need to
possess the political will and inclinations. to act in ways that shape government pursuant
to the values of liberty and equality rather than clinging to an unreflective, obedient
nationalism as a form of patriotism.

It is intriguing that Rawls’ theory does not explicitly advocate an active citizenry
as a check on government, despite the fact that modern democracies are predicated on
citizens’ vigilance, and this orientation continues to be pragmatic even under ideal
conditions. In the nonideal, organized social movements have been indispensable in
securing government’s attention and in making it more responsive to peoples’ needs.
They have also played a critical role in sustaining public engagement and agency on
matters of basic justice. Surprisingly, social movements are not featured—not even
encouraged—in Rawls’ theory; although he does point out that justice as fairness (and

political liberalism, generally) does not oppose classical republicanism’s portrayal of

174

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citizens as active and engaged. Nevertheless, his comments on this matter are very
sketchy and seem more like afterthoughts than moral imperatives (Rawls, 1996).
Third Critique: Public Reason T 00 Permissive
The third, and final, critique of Rawls’ theory that I consider also pertains to public
reason. It is the claim that public reason is too permissive, too inclusive. These critics
maintain that Rawls’ public reason allows comprehensive doctrines too much influence
on public discourse and even permits the inclusion of illiberal comprehensive doctrines
within its “reasonableness” standard. One aspect of the late Susan Moller Okin’s critique
of Rawls’ political liberalism focuses on his distinction between public and private spaces
and the impact on public reason. Okin argues that this division in the structure of political
liberalism results in the inclusion of certain comprehensive doctrines within its
overlapping consensus—and, necessarily, their accompanying versions of public
reason—that espouse explicitly illiberal views within the background culture, a sphere
that she argues unreasonably falls outside of the reach of political liberalism.

Okin is particularly concerned about certain religious or aristocratic doctrines.
The inclusion of these forms of public reason prompts her to ask: “How can a belief in
natural hierarchy among persons be consistent with the requirements of the political
conception of justice which views them as free and equal citizens?”79 She contends that
hierarchical comprehensive doctrines should be excluded from the family of political
conceptions of justice. According to Okin, not only are such doctrines illiberal with
respect to women, but their beliefs—if legitimated in the public forum—are likely to

adversely influence public discourse on matters of basic justice and constitutional

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essentials. The consequences of this influence may undermine women’s rights and
liberties as free and equal citizens in a well-ordered society.80
What is missing from Okin’s sketch of Rawls’ position on comprehensive doctrines

appears to be a sufficient acknowledgment of his requirement that all doctrines
comprising the overlapping consensus must embrace reasonable political conceptions of
justice. Such conceptions of justice must include a standard of public reason that respects
the criterion of reciprocity. These requirements provide protections for citizens’ basic
liberties even within the background culture of voluntary associations. Rawls
acknowledges the potential for abuses of the rights of women and children in private
associations, and he explicitly states that his formulation of political liberalism does not
endorse a complete severance of the public and private domains, contradicting what
many critics suggest:

Thus, when political liberalism distinguishes between political justice that applies

to the basic structure and other conceptions of justice that apply to the various

associations within that structure, it does not regard the political and the

nonpolitical domains as two separate, disconnected spaces, as it were, each

governed solely by its own distinct principles. Even if the basic structure alone is

the primary subject of justice, principles of j ustice still put essential restriction on

the family and all other associations. . . . No institution or association in which

they [citizens] are involved can violate their rights as citizens.81

These statements demonstrate Rawls’ recognition that the state has a positive duty
to protect citizens from discrimination in the private realm as well, if the discriminatory
practices violate public rights. An example of this use of state power occurred when the
Court intervened to protect the rights of blacks to purchase homes in white
neighborhoods by overturning the state court’s enforcement of Michigan’s (and

Missouri’s) racially discriminatory (private) restrictive covenants in Shelly v. Kraemer

(1948). However, Rawls notes that the reach of political principles of justice is not

176

unlimited. Absent violations of principles of justice, it is clear that he wants to preserve a
space in society for discourse that is protected flom government intrusion so that citizens
can feel flee to express themselves openly. Rawls’ liberalism characterizes the
background culture as a sphere of voluntary associations. These are the spaces that we
choose to share with others who share our views—quite different flom the basic structure
of society that automatically incorporates us as members, whether or not we wish to be
included.

The free and equal status that Okin believes is jeopardized in illiberal private
spheres translates—for Rawls—into a right to choose to divorce oneself flom
unreasonable persons or associations and to seek legal protection when constitutional
rights are violated. Admittedly, there are often obstacles to citizens’ willingness to sever
oppressive relations, particularly in the case of women with children in the home. Despite
this added complexity, however, a measure of choice remains, and we cannot avoid
making choices (even if the choice is to do nothing to try to alter our circumstances). The
responsibility that goes along with the fleedom to make choices is essential to Rawls’
understanding of moral powers in political liberalism. He fully expects that people will be
aware of the public principles that regulate society, will have a capacity for a sense of the
good as flee and equal citizens, and will seek to protect themselves—and their children—
flom harm.

Effective institutional support through flee public education pro grams—including
public schooling—could raise awareness about citizens’ rights and protections and could
assist people in strengthening their capacity to construct and revise rational plans. There

could be an emphasis placed on the problems of domestic violence and gender

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discrimination, for example, and additional public resources provided to social service
agencies that could offer the long-term confidential and personal support that is needed in
response to hidden forms of oppression. Rawls’ explication of political liberalism does
not delve into institutional safeguards that the state could conceivably provide in
responding the concerns that Okin raises—beyond, I suppose, involving the courts or
other enforcement authorities, but I think that this problem clearly requires more.

Although Rawls does not offer a critical analysis of the family that many critics
such as Okin seek flom his theory, I am convinced flom my reading of Rawls that the
particular measures that I suggest—and other corrective measures—are quite consistent
with his emphasis on the importance of the family as part of the basic structure of society.
They are also consistent with his expressed concerns about the rights of women and
children, as citizens, irrespective of their associations (Rawls, 2001), but there remains
considerable room for healthy critique and debate on this issue. .

Suppose we set aside the “ability to choose” issue that I suggest, and impose
additional public restraints on nonpublic reason, as Okin suggests. If we remove
comprehensive doctrines flom the family of reasonable political conceptions because
they do not completely conform to a combined standard for public and nonpublic reason,
this suggests the presence of a meta-comprehensive doctrine, an all-encompassing norm
that leads us to the very aspects of Rawls’ earlier position in Theory that he has long
since abandoned. It seems to require the repudiation of the fundamental premise of
Political Liberalism that asserts that there is no singular comprehensive view that can win
the allegiance of all members of a pluralistic society absent the oppressive use of state

power. According to Rawls, pluralism is more likely to flourish when human reason is

178

permitted flee reign (within limits, of course) and is not subjected to arbitrary constraints
at the hands of the state or tyrannical majorities.

Political liberalism is a departure flom comprehensive liberalism precisely
because, as Rawls notes, it “applies the principle of toleration to philosophy itself.”82
Returning to the comprehensive liberalism that he championed in A Theory of Justice
(that conflates public and nonpublic spaces) and that he abandoned in Political
Liberalism requires justification. Why, for example, should we regard Rawls’ rejection of
comprehensive liberalism unreasonable as the basis for a just constitutional democracy?
Why are “reasonable pluralism” and “irreconcilable differences”—ideas leading to the
abandonment of Rawls’ reliance on the comprehensive liberalism advocated in Theory—
invalid premises on which to base an argument for social organization in a pluralistic
modern democracy? Absent an effective response on these points, it is unclear to me why
these ideas should not continue to serve as important limitations for the ideal of a well-
ordered society. Reasonable boundaries become even more important in the nonideal
where it is evident that we need to be more mindful of the principle of toleration and its
implications for diflerence.

My final consideration of public reason’s alleged permissiveness comes flom,
philosopher, Charles Larmore’s critique of the wide view of public reason that he
presents in the Cambridge Companion to Rawls. Larmore prefers the exclusive view and
advocates removing comprehensive doctrines flom public deliberations on constitutional

essentials and matters of basic justice. According to Larmore, “the mutual reassurance

which comes flom citizens disclosing to one another the comprehensive roots of their

179

commitment to justice really has no place in the deliberations by which they decide what
shall have the force of law.”83
His position appears to be based on the belief that the overlapping consensus on
political principles of justice already evidences mutual acknowledgment of public
principles. This mutual acknowledgement, according to Larmore, should be sufficient to
resolve public disagreements. In the event of a deliberative standoff, citizens are to
prioritize their interests and use their best judgment regarding what public reason
requires. He opens the door to the possibility of employing the inclusive view (although
he is not enthusiastic about it), but he insists that Rawls’ further expansion of public
reason to include the wide view is excessively permissive and inappropriate. I find
Larrnore’s argument unpersuasive and his position too restrictive for public discourse.

I have three objections to Larrnore’s narrower reading of public reason. First,
although certain baseline political principles of justice are acknowledged by all of the
comprehensive doctrines that comprise the family of political conceptions within the
ideal of a well-ordered society, each reasonable comprehensive doctrine has its own
interpretation of how public reason applies. Each interpretation is, in some respects,
uniquely influenced by its corresponding doctrine. Within this uniqueness there is
considerable room for intersubj ective disagreement and uncertainty between political
conceptions, so simply being among the reasonable comprehensive doctrines is not
enough to guarantee agreement on matters of basic justice.

The disagreements between political conceptions are not limited to the extreme

circumstances that Larmore suggests—when even the basic tenets of public reason are

widely disputed, circumstances under which the inclusive view becomes more tolerable

180

to him. Rawls, on the other hand, recognizes the broader significance of comprehensive
doctrines for strengthening the public sphere so that the ideal of public reason is more
than an idea. He seems to respond directly to Larmore’s objections to his expansion of
public reason:
Citizen’s mutual knowledge 'of one another’s religious and nonreligious doctrines
expressed in the wide view of public political culture recognizes that the roots of
democratic citizens’ allegiance to their political conceptions lie in their respective

comprehensive doctrines, both religious and nonreligious. In this way citizens’

allegiance to the democratic ideal of public reason is strengthened for the right

reason.“

Second, I object to Lannore’s virtual exclusion of comprehensive doctrines flom
public debate. This exclusion suggests that the conception of public reason is fixed and
perfected. Larmore seems to overlook the fact that what is considered “public” reason can
be enriched and elevated in the interest of the type of justice that Rawls advocates.
Perhaps he overlooks the evolutionary step that Rawls takes in recognizing that even
well-ordered states can benefit flom comprehensive doctrine-inspired public reason. If
we acknowledge the presence of comprehensive doctrines only when public reason is
widely disputed, as Larmore does, we fail to appreciate their usefulness in those
circumstances in which we may be cormnitted to the basic ideals of public reason but
lack the insight to take bolder steps toward achieving greater justice. Finding ways to
sustain the public discussion may be helpful for all concerned.

For example, we may find that there is widespread agreement that gender
discrimination is morally wrong—in theory—based on the basic criterion of reciprocity
that all comprehensive doctrines must endorse in Rawls’ political conception of justice.
However, when citizens attempt to apply their consensus to deliberations on the merits of

comparable pay legislation for men and women, for example, or to deliberations on the

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necessity of the Equal Rights Amendment, an intractable impasse on policy consistent
with the two principles of justice may result. In such instances, critical feminist
interpretations of public reason (drawn flom feminist comprehensive doctrines) that
demystify institutional gender bias and stratification, and that suggest how these
structures relegate women to second class citizenship, may provide sufficient clarity and
historical context to enrich the meaning (in use) of public reason for all participants in the
public debate, assuming that feminist perspectives are given serious consideration. A
critical and particularistic view of social reality may bring a level of depth and urgency to
policy deliberations of this type that may be otherwise lacking. This possibility for
expanded discourse would be precluded or greatly diminished if we followed Larrnore’s
suggestion to restrict public reason to the exclusive view and limit its expansion solely to
instances in which the basic intent of public reason is widely disputed.

My third objection to Larrnore’s argument for restricting public reason to the
exclusive view relates directly to his reference to the “wideness” of the dispute for
determining when the inclusive view can be introduced in the public sphere to decide
matters of basic justice. It is unclear exactly how wide the dispute must be, but I interpret
“widely disputed” to include a substantial number of citizens in the dispute—if not the
majority, or near majority. What if a small minority of people disputes the basic meaning
of public reason? What if only on person does? Are we to assume that the value of
dissident speech in the public forum is somehow measured by the number of persons
advancing such speech? I find it instructive to refer to John Mill’s text, On Liberty, his
second chapter entitled, “Of the Liberty of Thought and Discussions,” to countenance this

notion. Mill suggests that there are at least three reasons why dissident opinions

182

(including what appear to be unreasonable ones) may benefit society and should be heard ’
irrespective of how pervasive or how marginal the dissenting opinion may be—including
the possibility of a lone dissenter. I will modify my use of Mill’s argument by replacing
his references to the “truth” or correctness of a contention, with the standard of
“reasonableness” in public reason in order to be consistent with Rawls’ concept of
reasonable pluralism.

First, as Mill points out, the lone dissenter’s position may be more reasonable or
more closely aligned with the ideal of public reason than the majority position. The
inclusion of dissenting speech under these circumstances gives society access to an
alternative view that is more reasonable, as well as an opportunity for individuals to
change their opinions on the basis of wide “reflective equilibrium.” Second, suppose the
dissenting opinion is inconsistent with the ideal of public reason, and the majority view is
more reasonable. Some would argue that if the majority position is more reasonable then
there is no point in entertaining dissent. However, the dissenting opinion provides the
impetus for reconsidering reasons that may otherwise crystallize into “common sense”
and reduce our actions to unreflective habits for which we have lost our rationale
(Dewey, 1922).

The majority’s unchallenged convictions may fuel notions of infallibility that may
lead to oppressive intolerance for difference. Under these circumstances, alternative or
oppositional speech may be labeled “subversive,” and the speaker may be labeled
“dangerous” or “unpatriotic,” as was the case during the McCarthy era, or as is currently
alleged with respect to anti-war speech. Mill expressed little confidence in the correctness

(or reasonableness) of an unchallenged majority view, noting that “if it is not fully,

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flequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth [or
“living standard” of reasonableness].”85
Finally, it may be the case that—on reflection—neither the dissenter’s nor the
majority’s opinion is particularly reasonable. In this case Mill argues that the dissenter’s
' opinion should be permitted in the public forum because of the potentially constructive
effect of combining it with the highest level of reasonableness embodied in the majority
view. This may result in achieving the greatest approximation of reasonableness
consistent with the ideal of public reason. Thus, we have three reasons why Larmore’s
contention should be rejected when he asserts that speakers in the public forum should be
restricted to using the exclusive view of public reason unless the meaning of public
reason is “widely disputed.” His deliberative standard creates too demanding a threshold
for employing the inclusive view in a pluralistic society. Even in the face of
overwhelming agreement about social policy, divergent perspectives remain usefirl given
that what is popular today may be rejected tomorrow for reasons that are—today—
unpopular.

In the nonideal, dissidence is extremely important because the forms of resistance
that are reflected in such views often shed light on society’s transgressions of human and
civil rights. The “unreasonable,” the “irrational,” the “subversive,” the “unpopular,” and
the “unpatriotic” may—in fact—reflect an underappreciated level of moral courage and
agency on social justice issues that is generally lacking in the population. 80 even if it
were a straightforward proposition for the majority to characterize certain minority

opinions as unreasonable or as less consequential in ideal contexts, the rationale for doing

so becomes more problematic and disconcerting in the nonideal.

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In nonideal theory it is even more important to be as inclusive as possible of
multiple interpretations of the social world. For the most part, I interpret the critiques that
I have presented of Rawls’ theory of justice—including my own reservations—to reflect
the desire to make his prescriptions more responsive and relevant to a wider and more
complex set of interests; many critics are genuinely concerned about eradicating
particular forms of injustice and moral underachievement within our society, not simply
bent on disagreement. For his part, Rawls’ scholarly efforts seem to reflect a constructive
evolution of political thought that increasingly acknowledges—even if it does not pursue,
or specifically defend—worthy expansions to his firndamental commitment to justice as
fairness; he seems to have gained valuable insights flom his critics and other readers
during the many years that he has spent developing and revising his theory. I contend that
the evolution in his thinking opens the door to new considerations and extensions of his
moral judgments. This can be done in ways that make the theory more responsive to the
pressing social and political inequalities that define the nonideal and that animate this '
thesis.

To conclude: There are three principal purposes that I advanced in this chapter.
First, I provided an introductory and critical explication of Rawls’ theory of justice
interspersed with references to preceding chapters, particularly Chapter 1. I explained the
fimdarnental intent of his theory of “domestic justice,” of its inward-looking conceptual
flarnework. In so doing, I highlighted its explicit normative focus, particularly its aim to
establish a just and stable democracy pursuant to public principles in support of a fair

system of social organization. I used the following major works of Rawls’ to explore his

185

ideas on justice: A Theory of Justice (1971/1999b), Political Liberalism (1993), Law of
Peoples (1999a), and Justice as Fairness: A Restatement (2001).

Second, I entertained and responded to two major lines of critique of Rawls’
theory: challenges to its usefulness in the real world (the nonideal) given its abstractness,
and claims regarding the ostensibly negative impact of his deliberative process (public
reason) on citizens’ rights and on the viability of divergent religions, philosophical, and
moral worldviews. In response to the first critique, I discussed the distinctive and
complementary aspects of Rawls’ ideal theory vis-a-vis the nonideal (the actual world).
In response to the second critique I clarified and defended Rawls’ deliberative process by
pointing to its libratory possibilities and to the evolving flexibility of its discursive
constraints.

Third, I suggested two ways in which Rawls’ ideal theory assists us in linking
moral judgments to social change under nonideal conditions: complementing the
protections of “individual” basic rights and liberties with “group” protections, and taking
into account racial minority status and female status together with material wealth when
considering institutional factors that undermine liberty and justice for all. I supported
these inclusions to Rawls’ (flexible) list of primary goods by arguing that they are the
logical extensions—into the real world (nonideal theory)—of the basic values and moral
judgments of fairness underlying Rawls’ political liberalism.

I also reasoned that Rawls understood his ideal conception of justice as a
contribution to nonideal theory and wanted it to be responsive to forms of human
suffering and misery that he may not have directly addressed or opposed in his texts. I

characterized my nonideal reconstructive flarnework—specifically targeting the

186

eradication of social injustice——as “Rawlsian” to link it to the social conditions in
Chapter 1 and to distinguish it flom Rawls’ ideal theory. The “Rawlsian” flamework
captured important descriptive contradictions between Rawls’ just society and the
nonideal, and these contradictions were critically analyzed using Rawls’ underlying
principles of justice. I acknowledged that my categories for ascriptive harms are not
exhaustive, that they maintain the focus on the distinct issues that structured Chapter 1,
but I reiterated my opposition to all permutations of social stratification and ascriptive
citizenship as irrational and immoral forms of social organization, and I emphasized that
the Rawlsian flarnework is an antisubordination theory in the broadest sense.

I raised concerns about the role Rawls gives to the Supreme Court as exemplar of
public reason. I expressed my disappointment concerning the fact that Rawls says very
little about how to conflont the historical problem of the Court’s conservatism and its
tendency to pander to the interests of power. I advocated greater citizenship participation
and activism in response to these circumstances, including organized political efforts to
encourage the development of a “thick” democratic standard in America. I suggested that
this approach requires changes in our educational system, changes in the way that we
view government, and changes in the way that we view ourselves as persons and as
citizens.

The state has an important purpose for existence in the reconstruction. It is an
instrument for justice within the basic structure of society, with potentially diffuse and
lasting consequences for the creation of a “social union of social unions” that links the
mosaic of groups (and associations) in civil society. If the state fails to reflect a

consistency of moral purpose and principle pursuant to democratic imperatives the likely

187

result is the formation of an irrational, socially stratified, ascriptive state. Such a state’s
distribution of benefits and burdens leads to an increasingly divisive and immoral social
order that cannot support Rawls’ ideal of political community, or a democratic project
generally. This means that the state fails to use the collective power in ways that—
according to Walzer—only it can, to secure the vitality and prosperity of civil society. He
writes:

Across the entire range of associations, individual men and women need to be

protected against the power of officials, employers, experts, party bosses, factory

supervisors, directors, priests, parents, patrons; and small and weak groups need

to be protected against large and powerful ones. For civil society, left to itself,

generates radically unequal power relationships, which only state power can

challenge.86

Rawls’ ideal moral judgments possess libratory possibilities for social policy—a
topic that I will discuss in more detail in Chapter 5 on educating citizens. Among other
things, Rawls’ model challenges excessive wealth accumulation policies, unjustifiable
distributions of resources, aristocratic political cultures, violations of basic rights and
liberties, and immoral institutions that abuse power and are unresponsive to the public
welfare. I see no reason why his ideas will not remain among the living possibilities that
we consider in the quest to form a moral and just society. This is particularly so if, as Mill
might suggests, the ideas at issue continue to be “fully, flequently, and fearlessly
discussed.” I would like to think that my treatment of Rawls in this thesis is a fair and
modest contribution to this standard.

Finally, I want to reiterate that there are many other dimensions and critiques of

Rawls’ theory that I have not explored—for example, his arguments for the difference

principle or the maxirnin rule in choice theory (explaining the rationality of the

representative’s selection process in the original position). I have found—as have many

188

 

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others—that Rawls’ theory and its secondary critiques can become very unwieldy very
quickly and that one has to be selective in order to increase the chances of engaging the
theory more deeply. It is likely that I will entertain additional aspects of his theory in my
future work, but in this discussion I have chosen to remain close to the developmental
boundaries that Rawls has set for his theory and to demystify their domestic implications
for social justice in the nonideal.

I suspect that a scan of most any edited volume that discusses Rawls’ work in detail
makes it obvious that attempting to engage his theory on a substantive level requires that
the editor and the contributors weigh many factors and make many difficult decisions.
Among these decisions are the following: what to emphasize, what to mention, what to
simply reference, and what to avoid altogether. Oddly, I was aided in making these
decisions—to some extent—by the limits of my current engagement with Rawls’ theory
(I would describe it as introductory, but penetrating); aided further by the scope of my
project, as indicated; and, perhaps, most importantly, aided by my desire to reach a wide
and diverse audience of readers with whom I would like to share my interest in the vital
subject of injustice. Despite these boundaries, however, I trust that—to the extent that I
have entertained and rearticulated Rawls’ ideas—I have brought forward a hint of the

scholarship, the relevance, and the controversy that defines his enduring acclaim.

189

CHAPTER4

PROJECTIONS ONTO A CRITICAL GEOGRAPHY AND THE “RAWLSIAN”
TOPOLOGY

I want to draw a map, so to speak, of a critical geography and use that map to open as
much space for discovery, intellectual adventure, and close exploration as did the original
charting of the New World—without the mandate for conquest.

----Toni Mon'ison
In Chapter 2 I raised concerns about the use of state power to advance illiberal and
undemocratic agendas in government schooling. In this context, I entertained four
specific conflicts between government interests and the general welfare. These conflicts
are indicative of the adverse implications for democracy resulting flom government’s
actions and inactions, such as ascriptive citizenship and weak institutional commitments
to (fair) equality of opportunity in society. I maintained that the significance of these
issues necessitated that critical consideration be given to how the state is theorized—the
nature of responsive government consistent with democratic ideals in social life—
particularly within a compulsory education process that purports to prepare young
citizens for adult citizenship within a democratic project. We must think seriously about
both the nature of compulsory schooling and the undesirable implications that are
possible in government’s regulatory role with respect to it.

I emphasized that a socially stratified, ascriptive state is irrational under any
reasonable standards of consent. In the context of a democratic project, we must have a
socially and racially just state—or, at least, one that substantively demonstrates its
comrrritrnent to eradicating social and racial injustice. This moral imperative is not only a

necessary prerequisite for establishing and buttressing the legitimacy of government, it is

also necessary if we are to conceptualize, execute, and sustain a serious initiative for

190

fundamentally democratic education within the compulsory education process, a process
that must be democratically controlled.

As evidenced by the examples provided in the historical outline given in Chapter
1, the practice of ascriptive citizenship rooted in social stratification has repeatedly
undermined the development of a socially and racially just state in America. In this
chapter, I will map the concerns regarding government abuses of power that were raised
in Chapter 2, onto a different political landscape. For this purpose, I will reintroduce and
expand the descriptive and analytic Rawlsian flamework just discussed in Chapter 3, in
the service of the prescriptive education proj ect—but first, I will say a bit more about the
critical geography of the Rawlsian flamework.

The Rawlsian framework provides descriptive, historical information to
contextualize our moral judgments on matters of basic justice in the nonideal. Recall that
it contains the expanded [list of primary goods (and responses to critiques) that I presented
in Chapter 3, and that the inclusions reflect fact-based moral judgments about the social
order that are salient in the historical contexts of slavery and ascriptive citizenship
discussed in Chapter 1. The “Rawlsian” flamework captures important descriptive
contradictions between Rawls’ just society and the nonideal. These contradictions were
critically analyzed in the preceding chapter using Rawls’ underlying principles of justice.
For purposes of my discussion, the Rawlsian flamework targets race, class, and gender
stratification, but it is fundamentally an antisubordination theory and, therefore, rejects all
ascriptive categories that deny equal dignity and equal citizenship. The growing list of

ascriptive exclusions makes referencing each of them prohibitive.

191

The primary subject of the Rawlsian flamework remains the public sphere
because this is the principal sphere of Rawls’ political liberalism. It also retains Rawls’
focus on state power (coercive) and the role of government’s domestic policies in
flaming and securing democratic processes within the basic structure of society. From the
descriptive analysis provided by the Rawlsian flamework, new societal goals can be set
for reconstructing society. I refer to these “new societal goals” as, prescriptions for
reconstructing the nonideal. In Chapter 5 I will entertain a specific aspect of the
prescriptive agenda: the prescriptive project in education—in particular, a philosophy of
education for the nonideal.

The prescriptive agenda has several specific features that are derived flom the
moral content of the Rawlsian flarnework. First, the ideal society—however
understood—is embedded in the nonideal historical context of social stratification and
ascriptive citizenship. Second, the prescriptions are contingent and, therefore, remain
open to new descriptive accounts of exploitation as these are identified under changing
social conditions and research methodologies. Third, the prescriptive project is a
continuous organizing principle targeting the reconstruction of the basic structure of
society rather than a temporary or superficial effort. Fourth, the goal of the prescriptive
project is to secure equal dignity for all members of society and equal citizenship for all
citizens through the active involvement of society’s members in the elimination of
ascriptive citizenship and social stratification. The prescriptive project in education is the
component of the Rawlsian flarnework that structures and orients educational aims in the

service of these just ends. This project will be discussed in detail in the next chapter.

192

Having mapped out a critical geography (Rawlsian description) and
conceptualized the purpose underlying the new “societal goals” for the basic structure
(Rawlsian reconstruction) based on an analysis of this critical geography (Rawlsian
topology), my aim in this chapter is to map the four concerns about conflicts stemming
flom government abuses of power that were introduced in Chapter 2 onto this Rawlsian
flamework. For purposes of review, I will restate the four concerns and discuss each of
them within the context of the Rawlsian flamework.

0 State interests “antagonize ” the substantive liberties of political minorities

0 Powerful individuals/groups unduly influence public policy decisions

0 State compulsory education undermines the development of rationality

0 Corporate culture erodes public sensibilities by emphasizing markets and atomism

1. State interests "antagonize " the substantive rights and liberties of political minorities
In mainstream liberal theory this particular concern is historically identified with John
Stuart Mill’s critique of majority rule. In On Liberty, he expresses his concerns about the
infringements on liberties that occur under “democratic” governments. It is
fundamentally a concern about the ‘tyrarmy of the majority’—a phrase that Mill made
famous—that occurs when government operates with the consent of the majority to
obstruct the civil liberties of political minorities, or when public opinion in civil society is
such that minority liberties (flee speech, for example) are suppressed, as if by law. We
saw examples of both of these circumstances in Chapter 1 where state actions (public)
combined with private actions to terrorize black citizens and deny them their civil and
human rights. Majority public opinion often served as a barometer by which government

officials gauged public sentiment regarding particular social policies such as Jim Crow

193

laws and Black Codes. Government’s correct assessment of public opinion allowed it to
accurately anticipate the level of public support—or tolerance—for ascriptive practices.
Dissenter’s joined forces to oppose these practices by establishing movements to end
slavery, lynchings, and civil rights violations.

My discussion focuses on the state’s role in the denials of rights and liberties, but
I also call into question the lack of egalitarianism in civil society. This added critique is
necessary because majority rule creates an important and dynamic relationship between
the state and civil society. If the state embodies the collective power of the people, it is
the actions (or inactions) of the political majority that typically have the greatest
influence on the evolving character of government. As Walzer suggests, “Only a
democratic state can create a democratic civil society; only a democratic civil society can

9’]

sustain a democratic state. Under social stratification “both” are lacking because the
state and civil society flequently join forces in violating some citizens’ basic rights.

The “dynamic tyranny” in this relationship greatly undermines social justice, and
the absence ofjust objectives “translates into domination and radical deprivation.”2 This
likelihood gives Mill considerable cause for alarm since he is convinced that majority
rule provides inadequate protections against “despotism flom within.” He, therefore,
doubts that majority rule necessarily maximizes the public good———in direct opposition to
Locke’s contention that it does. (Locke was an eighteenth-century political theorist noted
for his ideological contributions to the American and French Revolutions). Mill’s
response to the problem of democratic rule is to strongly urge greater protections for

minority group liberties against the tyranny of the majority in the state and in civil

society.

194

Rawls is also concerned that individual liberties may be inadequately protected
flom majority abuses. Unlike Mill’s utilitarian motivation for securing minority liberties,
Rawls relies on a Kantian-inspired version of social contract theory to stress the moral
priority of the person (and his/her individual liberties), extended to all persons. This
priority becomes instrumental in flaming his theory of justice; it is an essential ingredient
in obtaining and securing agreement on the fair terms of cooperation within Rawls’ well-
ordered society. From the opening paragraphs of the first chapter in A Theory of Justice,
Rawls makes his position on liberty transparent. After noting that the moral excellence of
social institutions is founded on justice, Rawls goes to great pains to clarify what justice
must protect and, in the process, implies that a particular form of justice (utilitarian) is,
indeed, a source of injustice that his theory specifically rejects:

Laws and institutions no matter how efficient and well-arranged must be reformed

or abolished if they are 'unj ust. Each person possesses an inviolability founded on

justice that even the welfare of society as a whole cannot override. For this reason
justice denies that the loss of fleedom for some is made right by the greater good
shared by others. It does not allow that the sacrifices imposed on the few are
outweighed by the larger sum of advantages enjoyed by many. Therefore in a just
society the liberties of equal citizenship are taken as settled; the rights secured by
justice are not subject to political bargaining or to the calculus of social interests

[emphasis added].3

The “Rawlsian” flamework also acknowledges the moral priority of the person
but extends its scope to include persons as members of groups. This change in the unit of
analysis means that group liberties are to be equally protected flom the forms of political
bargaining, in the nonideal, as occurred in the Hayes-Tilden Compromise of 1877. Recall
that this political bargain resulted in the withdrawal of federal troops flom the South

during the Reconstruction (a foreseeable disaster for the equal citizenship rights of black

citizens), in exchange for Southerners’ support for Hayes’ Republican presidency—on

195

the heels of a disputed election. In the Rawlsian framework, the Kantian imperative that
Rawls invokes for giving moral priority to the individual over the state necessitates that
groups—no less than individuals—be viewed as “ends in themselves and never as a
means only.” The interests pursued in the Hayes-Tilden Compromise of 1877 are,
therefore, prohibited because “the rights secured by justice [the justice of the Civil War
Amendments, for example] are not subject to political bargaining or to the calculus of
social interests.”4

In social contract theory, political societies are human constructions that result
flom flee agreements between equal, rational persons. The agreements are designed to
meet certain ends (public welfare and political liberties) that governments exist to protect
and advance. In well-ordered societies the coercive powers of government belong not to
the state but, rather, to the public; government appropriately exercises this power when it
operates on behalf of the legitimate interests of its members pursuant to a just
Constitution (Rawls, 2001). Consequently, government interests that are antagonistic to
the general welfare reflect abuses of government power and constitute a violation of the
public principles under which citizens consent to be governed—the principles of justice
in Rawls’ political liberalism.

In well-ordered societies, government abuses of power are unlikely to withstand
the scrutiny of public justification. Citizens are aware of the principles guiding their
association and want these principles to be operative within their basic institutions.

J ustifying illiberal and undemocratic practices is further complicated because of the
higher standard of public reason that the well-ordered society imposes on elected

officials. Citizens in the Rawlsian prescriptive project also expect this standard to be met,

196

so they, too, reject the use of their collective powers for purposes antithetical to the
public welfare. Where value conflicts arise on matters of basic justice, the standard for
deliberation is public reason. Government’s failure to live up to its legitimate purpose
would likely result in a Lockean—or Rawlsian—response: civil disobedience,
conscientious refusal, and possibly more militant actions that manifest a pervasive
sentiment among the people that laws and institutions ought to be “reformed or abolished
if they are unjust.”

More specifically, suppose a government’s social agenda makes it expedient to
impose Jim Crow segregation on the population. This policy is a clear indication of the
demise of democracy and the repudiation of Rawls’ “moral excellence” standard for
social institutions (a standard that is also part of the Rawlsian flamework.) Again,
Rawlsian citizens would likely express their disdain for such laws and would seek to rid
their society of them. If government proved unresponsive to the will of the Rawlsian
polity or refused to make its policies conform to the masses’ interests in equal citizenship
rights for all, citizens would attempt to the transform or abolish the system. It would be
evident to them that such laws and policies jeopardize the public welfare—whatever their
reasonable comprehensive doctrines—due to the resulting climate of reckless government
and unrestrained violations of political liberty.

The prescriptive project promotes politically autonomous and critically engaged
citizens. Such citizens are less likely to accede to the will of elected officials and other
authority figures who promote pervasive injustice, or who enable gross abuses of the
powers that are held in their trust. They are less likely to allow government to establish a

precedent that could come back to haunt other members of society not targeted by the

197

initial abuses. Once the trust is breached and the breach is condoned, it gives a “green
light” to corruption; power can then be used to force other “singled out segments of the
population” to suffer dehumanizing treatment. Public disengagement creates a context for
government’s breech of the (theoretical) social contract and for its repudiation of the civil
rights that are inherent in “equal” citizenship. It is the citizenry’s’ responsibility to hold
government’s feet to the fire.

In order to protect the public interest, Rawls’ ideal theory imposes certain moral
and political imperatives on the basic structure, and the Rawlsian flamework extends and
“rearticulates” these in the nonideal. Ideal society is structured as a fair system of
cooperation that promotes social justice, and the citizens are understood to be flee and
equal rational persons. These imperatives define the relationship between citizens and
government, and between citizens; they are designed to decrease the likelihood of
government enacting immoral social policies such as Jim Crow laws. Rawls’ imperatives
also underlie the Rawlsian reconstruction of the nonideal, but the Rawlsian flamework
goes further. Its prescriptive project seeks to raise the collective social and moral
consciousness of its members in order to reduce the tendency for citizens to actively
support, or passively condone (or tolerate), immoral policies should government overstep
its authority and try to implement them.

Ascriptive citizenship is less likely to gain substantial support and undermine the
reciprocity criterion in a well-ordered society. The sense of justice those who derive
benefit flom abuses of collective power facilitates their recognition and acknowledgment

that such gains are ill gotten, acquired through a discriminatory process that violates the

198

 

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rights of other citizens. Consequently, they reject the “zero- sum game” of liberties, and
the additional privileges are viewed as unacceptable.

Within the Rawlsian prescriptive project, citizens are encouraged to develop and
apply the standards of public reason to thwart distributive injustice rather than enabling it
through complicity and ignorance. The systemic social hierarchies and moral codes that
permit the intrinsic value of some citizens to be placed above that of others are rejected as
an immoral and degrading form of social organization, reminiscent of classical Athenian
societies. In the prescriptive project, the mechanisms of state control are complemented
by public mandates for the eradication of injustice. When politics and political integrity
are conflated in this way, the ends (a Republican presidency during Reconstruction) no
longer justijy the means (returning the South to a state of domestic terrorism) but, rather,
the ends and means are reconciled and revised pursuant to public principles and morally
informed policies that protect fleedoms—particularly minority group fleedoms——-flom
tyrannical majorities in the state and in civil society.

When equal liberties are protected, social policies are more likely to represent the
broader constituency and, therefore, the general welfare. It is in the interest of the general
welfare for social institutions to operate under conditions of fair equality of opportunity.
It is in the interest of the general welfare for citizens to have access to government (hold
public office) and to make legitimate claims upon it. It is in the interest of the general
welfare that citizens learn to effectively participate in the democratic process and that
they are supported in doing so. “Effective participation” in a system that seeks to afford
all of its members equal dignity and equal citizenship seems to require—at the very

least—that all citizens be equally aided in developing their intellectual capacities and

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skills in order to take advantage of the opportunities that their equal citizenship
theoretically makes possible. Obviously, public education—as opposed to government
schooling—has a significant role to play in the Rawlsian prescriptive project.

2. Powerful private individuals/groups unduly influence public policy decisions

If wealth and power are not subordinate to an overall system of democratic justice that
protects the basic liberties that a constitutional democracy presupposes, then the interests
of elites may become unduly influential in government decision-making. For example,
the interests that business elites impose on education policy have flequently been
privileged (Wraga, 1995) and, sometimes, controlling. Advancing these interests often
serves to reproduce their class dominance within increasing spheres of influence (Spring,
1988). As noted in a New York Times article, “When it comes to reforming the nations
schools, these days the leading radicals are likely to be wearing pin-striped suits and
come flom oak-paneled boardrooms rather than the ivy-covered walls of academia.”5
This potentiality raises serious concerns because the business community’s reform
interests are driven, primarily, by profits. Their goals change with changing economic
climates, and it is to be expected that their interests in schools are going to be filtered
through their assessment of economic irnperatives—not educational ones.

The shift in the early twentieth century flom a broader liberal education (on an
exclusive basis) to a narrower vocational focus targeting the poor and working classes
(also on an exclusive basis) was, in large part, a response to business leaders’ demands
for workers to fill their growing industries (Kincheloe, 2000). Congress’ passage of the
Smith-Hughes Vocational Education Act of 1917 added to an already stratified and

differentiated (racially segregated) system of government schooling. Following the model

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of the German education system, the Act severed academic from vocational studies
(Hursh & Ross, 2000; Kincheloe, 2000)—reincarnating the mind/body dualism that
educators such as John Dewey and W. E. B. Du bois openly renounced. The Act passed
with the support of such figures as David Snedden and Charles Prosser, both strong
government advocates of a social efficiency education philosophy and strong allies of the
business community (Hursh & Ross, 2000).

When the business community’s interest in vocational education waned in the
1950’s and 1980’s, for example, the change was registered in the education policy
decisions of the day. It is not suggested, however, that such processes were sirnplistically
linear such that they flowed smoothly flom top to bottom without major contestation.
Nevertheless, the business community was very persuasive, and one could argue that the

extent of its influence over “public” school policy suggests that its sentiments about
reform were not totally at odds with changing public perceptions about education. During
each of the periods in question (19505 and 1980s) it is clear that business and government
joined forces and dramatically altered the education agenda, largely in response to
perceived international threats (Burliner & Biddle, 1995).

The power to resist these policy changes was far weaker than the power to
advance them. The business community’s demand for higher standards in education
influenced policymakers’ decisions to pressure schools to alter their practices in order to
produce more engineers and scientists to fill positions in the business community’s
changing workforce. Absent higher standards, proponents argued, the United States
would not be able to compete with the Soviets’ space program (following the launch of

Sputnik in the late 1950s) or win trade wars against West Germany and Japan in the

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19805.6 However, what was really “lost” in the competitive fervor were the ambitions of
many high school students who—in the 197 05—were channeled into vocational
education programs and encouraged to pursue a trade that would make them
“marketable,” based on market predictions that failed to materialize. The affected
students became “less marketable” in the business climate of the 19805 and 19905. The
students’ interest in successfully pursuing a rational plan was subordinated to the dictates
of policy elites who altered education policy without adequately reflecting on the long-
term social consequences.

Many scholars argue that the expanding business interests in schools signals the
demise of the Jeffersonian education philosophy, which places schools at the heart of a
democratic project designed to foster reflective, active citizens capable of governing
themselves. The focus now, critics argue, has shifted to a social efficiency education
philosophy such that schools are “suppliers for adjusted labor to the corporate machine.”7
The “preparation” for citizenship, they contend, is little more than a precarious job
training exercise (Spring, 1988) that too often goes beyond “how to” learning, to include
ideological conditioning as well. Critics cite corporate ventures such as the Edison
project and Channel One, and accuse them of promoting consumerist values and a
business friendly “worker mentality” in young citizens. In the case of Channel One, for
example, corporations are accused of conditioning students to identify with the particular
consumer goods that it features in its commercials, and otherwise focusing their attention
on “news” favorable to business interests (Kincheloe, 1995).

To the extent that schools are pawns in a chess match among competitive

businesses eager to capture the hearts and minds of young students (highly

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impressionable consumers), critics suggest that it is a competition in which businesses are
united in at least one important respect: promoting an allegiance to market principles and
economic theories that have little in common with democratic ideals. Schools appear to
facilitate the expanding influence of the business class by allowing public educational
institutions (and students) to play a role in risky market ventures—providing them
continuous access to a protracted (compulsory) schooling process and its steady stream of
captive, impressionable audiences. Joe Kincheloe, a critical education theorist, expands
on the idea that lucrative long-term benefits extend flom schools to businesses:
If workers and other citizens can be manipulated to accept a neoclassical flee
market view of economics, management will be far fleer to pursue larger profit
margins, anti-union activities, lower minimum wages, reduced environmental
regulations, and lower corporate taxes. Such managerial efforts to co-opt the
schools are not new [;] the social efficiency educators of the early twentieth
century provide an excellent example for our examination.8
Social efficiency education often links schools to businesses in ways that place
schools (and students) “at risk” because of their weaker bargaining power. For example,
in order to acquire the desirable commercial benefits (and needed resources) that are
associated with school/business relations—such as, in the case of Charmel One, satellite
dishes for each participating school, and enough TVs and VCRs to furnish each
classroom with its own equipment—Kincheloe points out that, in exchange, business
such as Channel One demand “almost complete veto power on programs and information
that might be remotely antagonistic?” In addition he contends that, “the schools
guarantee that ninety percent of their students will watch [television] ninety percent of
the time Channel One is on.” As if that were not enough, he leaves his readers to ponder
the future implications of one final disturbing prospect: “Channel One symbolizes the

role of businesses in American education in the last decade of the twentieth century.”10

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The undue influence of business elites and corporations in education policy and
practice is undesirable in a well-ordered society. First, recall that Rawls’ ideal of equal
citizenship is predicated on the presence of a veil of ignorance. The purpose of the veil is
to balance out unequal bargaining positions among representatives in the original
position; this concern for procedural fairness carries over to the relations among citizens
within the state. The idea is to promote fairness in social relations so that citizens can
fleely pursue their ends (Rawls, 2001). Fairness is important because citizens, as
reasonable and rational persons, expect their equal rights and fleedoms to be protected
by the proper use of state power.

It is undesirable for the state to permit its power to be usurped by powerful groups
and individuals, or for the state to increasingly delegate its power to others. Public
schools are not intended to be at the disposal of business or any other interest group——
including labor. In fact, the very idea that vocational education and other narrowly
focused work-related programs are somehow legitimate functions of public schooling—
and not the responsibility of the business community—is highly problematic (Spring,
1994). In Rawls’ well-ordered society it is clear that schools are constituents in the larger
web of morally excellent social institutions founded on justice. In the Rawlsian
flamework, schools are constituents in the larger struggle for justice; they seek to
establish moral excellence by eradicating social stratification and furthering the equal
rights and liberties of all citizens (where the legal fiction that corporations are citizens or
persons, for purposes of Fourteenth Amendment protections, does not undermine these

objectives.)

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Second, if business elites are permitted undue influence and access to the school
curriculum, this population garners more political and social power flom government
than is afforded to other groups in society. This implies that government becomes more
responsive to a small group of interests than to the needs of the larger public (Burliner
and Biddle; Wraga, 1999). This is but one example of democracy for the few—
democratic elitism—in which case the social contract (hypothetical or otherwise) fails to
be representative of the social whole. Instead, it degenerates into another exclusive
contract in which government only selectively protects citizens’ interests (Mills, 1997;
Pateman, 1989). The pattern of privilege is, thereby, reproduced to continue the tortuous
development of the concept of citizenship (introduced in Chapter 1).

Ascriptive citizenship allows the political and social power of particular groups to
be solidified and advanced under the guise of government schools’ expanding autonomy
to contract with business, but the public’s concerns extend beyond the purported
autonomy of schools. As Michael Parenti points out: “In a society in which private
wealth is gathered into the hands of the few, the diffusion of power among the various
segments of government does not necessarily mean the democratization of power but
more likely the opposite.”11 When government nurtures relationships based on an elitist
social contract, the social order it constructs must, by necessity, underrrrine the realization
of a fair system of cooperation—amounting, instead, to a contract of domination that
could not garner the consent of an inclusive polity, particularly in the Rawlsian
flamework where the voices of the oppressed are very influential.

Third, in a well-ordered society the least advantaged—the groups of poor citizens

in inner-city and rural areas, for example—would have greater assurances that the

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educational options afforded to their children would not be limited or predetermined by

. disaffected government experts who appear to willingly capitulate to power. The interest
of the least-advantaged in equality of opportunity for all would not be subordinated to the
interests of elites in consolidating power. The sphere of misery widens when yet another
democratic process succumbs to the expedience of legislative contacts and lobbyists.
What happens to moral reasoning if the logic and the values suggested by this form of
governance are successfully, and uncritically, transmitted to students as part of their
(political) socialization within government-run schools, and is further sanctioned through
replication within the school’s elaborate sorting mechanisms (Spring, 1976)? Perhaps the
most “successful” and favored students are selected as the future’s most successful and
favored citizens as well—securing the next generation of elites and continuing
government schooling’s uncritical indulgence in a system of social stratification and
control. This implies that schools are complicit in an ascriptive, compulsory system that
undermines cognitive and moral reasoning.

Sociologically, functionalist schooling agendas send an obvious message to the
student: Find no fault in the status quo, only fault in those who fail to thrive within it or to
adjust themselves to it. This leaves virtually no room for social critique or dissent. It is a
disastrous linkage of schooling, government, private power, and theistatus quo—made
explicit in the speculations of education scholar, Joel Spring:

If all members of society were taught to believe that the school selected fairly and
only those selected by the education system could lead society, then [if completely
successful] all members of society would accept the social hierarchy perpetuated by
the education system. Acceptance of this situation might obscure other inequalities
in society. For instance, if the education system favored those with wealth, then all

members of society might come to accept differenCes in wealth as differences in
talent as determined by education institutions.12

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If the status quo within the basic structure of society supports social stratification, and
government schools are organized as conservative institutions within this status quo, then
schools will tend to support social stratification. If social stratification is a sign of social
injustice, then government schools will tend to be socially unjust. The resulting gap
between an ascriptive school culture and democratic functioning is clearly a significant
matter for public deliberation. In the Rawlsian flamework, the notion that government
may be widening or legitimizing this gap creates a sense of urgency and outrage, for
reasons that will be explored, further, in the discussion that follows.

(3) State compulsory education undermines the development of rationality

Despite all of its shortcomings, schooling remains a powerful force for directing and
influencing the development of the young. Its power lies, in part, in its systematic nature.
State law requires attendance, so schooling is a compulsory process. It is also a process
capable of structuring thought and behavior. In this system, the state exerts strong
regulatory and curricular influences through its many officials, agencies, experts, and
budgetary considerations (Kozol, 1991; Spring, 1994). The Current federal mandate for
standardized testing has been largely embraced by states in order to secure federal
subsidies, despite the fact that states are not, generally, required by law to comply with
federal education policies. The standards movement is not a value neutral agenda because
it diverts scarce time and resources flom other academic objectives. Opponents maintain
that it also unreasonably imposes on teachers’ schedules and erodes their professional
autonomy to pursue coherent, imaginative teaching and learning strategies. Many
teachers conform (or pretend to conform) to these requirements because they believe that

if they do not conform they may jeopardize their jobs and careers.

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The pressures to perform under the testing mandate often encourage authoritarian
and unethical practices that include the following: epistemological approaches that
promote the unquestioned acceptance of received knowledge (on the part of students, and
teachers), the use of drilling as a means of “encoding” information, and—in some
instances—school personnel altering testing procedures and exams to raise test scores. In
this climate, political autonomy erodes even further because students’ minds become
blank slates for purposes of absorbing the particular knowledge contained on
standardized tests, and teachers are further reduced to technicians and reluctant caretakers
of official knowledge (Apple, 2003; Freire, 2000). The term ‘education’ is redefined as a
process for imparting an uncontested interpretation of what is worth knowing—often a
particular view of the social world that provides a favorable assessment of the status quo.

The Common School Movement of the mid-nineteenth century provides a
foundational historical reference for the school’s role in presenting a particular
interpretation of the nature of “belonging” and the nature of alienation. Unfortunately
(but not surprisingly) schools reflected the prevailing view in society and created a list of
exclusions of difference that mirrored the preferences of other government institutions.
Schools dictated acceptable ideals for citizenship (and school attendance) based on the
same ascriptive criteria that served as the standard for human rights, employment, and
public services of various kinds. True to the established historical pattern, the exclusion
of some persons combined with an ideology of homogeneity and conformity that was
paramount to the inclusion others.

In many instances, entire histories had to be virtually forgotten in order to

belong—collective memories about folkways and meanings, abandoned. According to

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Bertrand Russell, “Children of immigrants in the United States become patriotic
Americans, and usually despise their parents’ country of origin; this is mainly the effect
of the schools” (1967, 128). It is widely conceded that education is a program of selective
socialization—for better or worse. The belief that the latter possibility too often prevails
under government control is evident in John Stuart Mill’s unflattering remarks about the
value of government schooling:
A general State education is a mere contrivance for molding people to be exactly
like one another; and as the mold in which it casts them is that which pleases the
predominant power in the government—whether this be a monarch, a priesthood,
an aristocracy, or the majority of the existing generation—in proportion as it is
efficient and successful it establishes a despotism over the mind, leading by
natural tendency to one over the body.13
Dewey appears to share this sentiment when he criticizes public schools for being
“largely utilized as a convenient tool of the existing nationalistic and economic regimes”
(1922, 127), but he distinguishes this characterization of public schooling flom the
version that he staunchly advocates in Democracy and Education.
Suppose the dominant orientation to schooling in the nonideal serves as “a

convenient tool of the existing nationalistic and economic regimes”14

as Dewey suggests.
The task of developing rationality and diverse perspectives in school would be
subordinated to a more nostalgic, intellectually disarming, state-centered agenda. If
successful, this agenda would seriously undermine the democratic orientations to
education that are implied in Rawls’ well-ordered society. In comments that are largely
directed at government but that are equally—and logically—applicable to much of

compulsory government schooling, and consistent with Dewey’s assessment, Parenti’s

impressions, more than twenty years ago, continue to capture the flustrations of many:

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Under the present system we are taught passivity, consumerism, spectatorism,
isolation and incompetence. Our energies often are directed into overly specialized
and mindless tasks for the production of a glut of gadgets and gimmicks that no one
really asked for. We are taught that the controlling decision over our lives must
remain in the hands of those “above” us, those who claim to know better—or else
‘there will be chaos.’15
The long tradition of schools promoting social efficiency, conformity, homogeneity, and
passive consumptions of authoritative flagrnents of information—often the prevailing
points of view (Tyack, l974)—is rejected in a well-ordered society in at least three
respects.

First, rationality is a foundational intellectual capacity in Rawls’ well-ordered
society and arises flom the context within which the parties in the original position select
desirable principles of justice.'6 The ability to reason is necessary for exercising the
moral powers that are essential in a well-order society—for example, the capacity for a
conception of the good. Citizens in a well-ordered society must be intellectually capable
of determining their own ends and devising a plan to reach them. This plan must take into
account their available (and accessible) resources, their time flame, and their skills.

The basic intellectual capacities that are needed under ideal conditions are even
more urgently needed in the Rawlsian reconstruction project. Citizens who seek to
transform their lives need to be able to deliberate on all factors pertaining to their rational
advantage (including the public good), throughout their lives. They also need to be able
to flexibly adjust their public and private plans “when faced with unexpected
contingencies (favorable or unfavorable) and be able to deliberate about obstacles such as

systemic discrimination. The ability to reason well and learn flom experience in the

nonideal facilitates democratic citizens’ in their efforts to govern themselves and to

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choose responsible courses of action on matters of basic justice, as well as on matters
pertaining to their personal pursuits.

Second, the capacity to identify and pursue one’s interests within a political
system that unfairly distributes benefits and burdens requires an added degree of political
autonomy. Citizens gain little flom passivity and obedience to external authority where
unequal and unjust distributions of resources are the norm. Opportunities to develop the
requisite rationality to pursue a politically autonomous conception of the good may be
obstructed by government policies or institutional arrangements that support the status
quo. Citizens need political autonomy to be able to resist forms of imposition that
undermine their development of independent assessments of the social order and that
obstruct their clarity in determining their quality of life prospects within it. This
reasoning follows flom Rawls’ ideal flamework that includes the expectation that each
citizen will determine the good for herself.

The compulsory education enterprise is one of the social institutions within the
web of the basic structure targeted by Rawls’ pluralistic vision of political liberalism. It is
characterized as such because compulsory schooling creates a relationship between
citizens and government that is binding. This relationship creates an obligation on the
part of government to assist in preparing and guiding young citizens so that they learn to
fimction effectively, as adult citizens, within the ideal of the well-ordered society.‘7 In the
Rawlsian flamework citizens take special interest in government’s initiatives and aims in
education because schooling is seen as a vital part of the reconstructive project. This
means that there is an even greater expectation for schools to perform a public service by

promoting equal dignity and equal citizenship. Therefore, as Rawls maintains, to the

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extent that government has a formal interest in education—and uses its collective powers
to pursue it—the compulsory process must play a role in facilitating the emergence of
reasonable, self-regarding rational plans and the capacities to pursue them (Rawls, 2001).
Third, many young citizens discover that the schooling process creates obstacles
to developing self-regarding rational plans. This experience appears more likely to occur
when education policies encourage (or condone) the channeling of a particular segment
of the school-age population into vocational education or “school to wor ” programs—
whether or not such programs garner students’ genuine interests or talents (Ballantine,
1983; Hollingshead, 1949). These curricular policies virtually dictate the range of rational
plans that are—and are not—available to students, with little input flom them. The
controversial practice of stratifying the curriculum is a central feature of compulsory
schooling and is backed by the coercive regulatory power of government. Although these
important decisions are often routine and unquestioned, not all educators agree with the
practice of educational stratification, as Michael Apple’s comments make clear:
Curriculum differentiation should be put off as long as possible. It is not the place
of the school to sort and channel students through different systems of content and
instruction . . . All students should be unifome given the opportunity for an
education for life.18
In a well-ordered society such differentiation practices would be prohibited
because they raise equal protection issues. Violations of liberty are likely to occur
because the limited range for intellectual development that such practices afford tends to
undermine pluralism. When schools categorize students in ways that reduce the quality
and quantity of intellectually stimulating educational opportunities available to them this,

too, is an artificial obstruction to the development of rationality; firrther, it constitutes a

paternalistic intervention that may violate students’ interest in the development of

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political autonomy—a specifically protected liberty in Rawls’ well-ordered society.
Clearly, citizens living under nonideal conditions have a more pressing interest in
securing political autonomy than do citizens in Rawls’ just society. Recall that political
autonomy is defined as “the legal independence and assured political integrity of citizens
and their sharing with other citizens equally in the exercise of political power.”19 If young
citizens are not afforded the same opportunity to fully develop their rationality due to
questionable education policies that institute differential learning objectives on an
ascriptive basis, then they are obstructed in their development of political autonomy.
Curricular stratification often lowers academic expectations for those children
who are already on the margins of societal opportunity. Students flom disempowered
communities desperately need an education that promotes self-direction. Arguably, they
are less able (and less likely to be able) to share equally in political power if their higher
order thinking skills are not fully developed—or are underdeveloped—during their
formative years. As Apple suggests, “By limiting the school curriculum to only the
practical problems of daily life, such schools left access to the skills of critical reasoning
only to those who were already in dominance.”20
It is possible, however, to focus on the practical problems of daily life and not
impede the development of critical reasoning skills. A preoccupation with such problems
is the fundamental difference between “Rawlsian” and “Rawls.” In the nonideal, the
problems of everyday life are the very problems that undermine dignity and citizenship.

If the tragic fact of social and racial injustice in the real world is not to be the focus of

attention in a reconstruction project, what is?

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The notion that society can improve and that people ought to work to improve it is
elementary in the Rawlsian framework. However, an important factor in being able to
improve social conditions is the extent to which one develops a combination of skills,
capacities, and inclinations that are often sacrificed under curricular differentiation
schemes. Given this context, I can agree with Apple’s position on the limiting effect of a
“practical problems focus” in education, but the Rawlsian reconstructive project
combines this focus with a rejection of schemes that undermine critical rationality.
Indeed, its central organizing principle is fleedom flom “unfair privilege and unfair
deprivation”21—dismantling dominance in favor of political autonomy and democratic
equality. Education becomes a key resource for truly expanding the choices available to
young citizens—not through “choice plans” and lotteries, but through social justice and
equal citizenship.

I would be remiss if I did not include in this part of the discussion the enormous
controversy surrounding special education policy that stems flom allegations of abuse
and mismanagement in its disability classifications.22 Many contend that these
classifications disproportionately and unnecessarily identify poor students and inner-city
students of color—particularly males—as cognitively disabled, which is a poorly
disguised euphemism for mentally retarded.23 There are a growing number of disabilities
for which children receive special treatments, including the use of powerful drugs. It is
not difficult, then, to see why so many parents, community activists, scholars, and
educators are incensed by the structure of special education.

Surely the history of unconscionable disparities in educational opportunity

resulting flom race and class stratification, for example, has implications for disability

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classifications in government schools. Could it be that many students labeled “cognitively
disabled” are, in fact, “cognitively disinterested” instead? Could it be that “learning
problems” that are historically attributed to the biology or culture of children are more
accurately—and fairly—attributed to the politics and morals of adults? Might a socially
reconstructive orientation to education uncover “other” deficiencies? In Rawls’ well-
ordered society justice is the first virtue of social institutions, and the basic structure of
society is shaped by the moral excellence of its institutions. However, in the “Rawlsian”
flamework the moral excellence of social institutions is a quest—not a presumption—so
the issue of social injustice is the first to be explored in response to each of the above
queries. In a land where equality of educational opportunity has never been made
available to oppressed groups, this approach to inquiry appears to be the only rational and
reasonable way to proceed in the interest of fairness.

What enables and legitimates these classification schemes for many who advocate
them is the related and highly controversial practice of using “intelligence tests” (IQ
tests) in schools. These tests are used to determine intellectual capacity—or, more
accurately, to determine the capacity to perform certain tasks that an influential
community of psychologists have determined to be linked to intelligence levels. One
critic contends that IQ tests do little more than facilitate claims about achievement levels
“based on exposure to certain beliefs and information to which the children of educated
[white] middle-class families are more likely to have had access (Harry et al, 2002, 83).
School officials often use the data taken flom IQ tests to make judgments about
intellectual capacity despite the many reservations concerning their use (Harry et al,

2002; Mitchell and Salsbury, 2002).

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The controversy escalates when the results of these controversial and problematic
assessments are subsequently used to actually gauge the appropriate level of educational
achievement to expect—Plato’s bronze, silver, and gold categories—the type of
instruction the school system ought to provide, and the nature of the interaction that the
student will experience in his/her relations with the teacher (Oakes, 1985, 1992; Ogbu,
1994; Powell et al, 1985). Joel Spring, education scholar, accurately captures the
frustrations of many when he asserts that “since the 19205, the separation of students by
academic ability has been criticized because the result is often separation by
socioeconomic class and race.”24 Indeed, recent research conducted by the Civil Rights
Project at Harvard University highlights racial discrimination as the reason for the
“overidentification” of students of color that is evident in special education (Losen and
Orfield, 2002).

Dewey was one of the early and outspoken critics of IQ tests in schools. He
objected to their use by educational psychologists for purposes of gauging students’
general intellectual capacity and drawing conclusions flom them in support of racial
differentiation in educational opportunities. He made his views on the subject known in
the early twentieth century when such tests began to be used in schools. As one group of
education historians point out:

John Dewey argued that the tests were crude measures at best, that whatever they
measured was very uncertain, and that the doctrine of racial traits was no less
problematic for scientific reasons than for political ones. . . . But [such] voices seem
to have been lost in a rush of anxiety about changes in America’s people and in her
schools.25

As with disability classifications, the intrusive and fixed nature of the judgments

stemming flom IQ tests often severely restricts young citizens’ opportunity to develop a

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sense of their abilities and life possibilities. The use of intelligence tests and other
measuring devices to track students within rigid educational categories can occur as early
as elementary school and can extend through high school, and beyond—creating a kind
of (compulsory) intellectual straitjacket (Fine, 2002).

Fourth, the pursuit of a rational plan requires that citizens have the ability to “make
claims on their institutions so as to advance their conceptions of the good, provided these
conceptions fall within the range permitted by the public conception of justice.”26
Students are disabled in developing their capacity to make such claims when they are
deprived of an education that furthers their ability to assess their needs and interests and
advance their concerns in public forums. They are particularly disabled in this
undertaking if they are encouraged to have a passive affect and shy away flom pressing
forward with claims on institutions that are supposed to protect their interests—
exhibiting, by some accounts, an unhealthy sense of loyalty and compliance with respect
to their government and its institutions. Citizens are less likely to see themselves as “self-
authenticating” adults if, during their formative years, they are unduly focused on
conforming to externally imposed adult—and institutional—standards, particularly those
affective standards that are associated with the hidden curriculum (Apple, 1971; Jackson,
1990)

Rejecting the traditionally favored affective dispositions is necessary in the
nonideal. The reconstructive project encourages students to be self-directing and
critically reflective. It rejects school cultures that equate confidence with arrogance,

inquisitiveness with rudeness, or social critique with disloyalty and bitterness. Absent this

perspective, students in the nonideal lack a healthy and stimulating environment in which

217

to develop rationality, particularly the type of rationality that is informed by a passion for
understanding one’s surroundings. Fostering passivity, unquestioning loyalty, and
submission to preexisting circumstances is unhelpful and undermines efforts to prepare
students to “make effective use of their liberties and opportunities.”27 In pluralistic
democracies, irreconcilable differences (conflicting views) are acknowledged and
reasonable pluralism (diversity/multiculturali5m) is presumed to be a fact of life that
reflects the exercise of reason under conditions of fleedom of thought (Rawls, 1996). The
well-ordered society is assumed to provide such democratic conditions, and the Rawlsian
reconstructive project endeavors to create them.

Finally, the implications of institutional differentiation schemes such as academic
sorting and segregation would seem to undermine the social bases of self-respect which
is, arguably, the most important category among the five mentioned in Rawls’ list of
primary goods.28 The purpose of this category is to provide institutional support for
citizens’ self-esteem. According to Rawls, the ‘social bases’ refer to “the institutional fact
that citizens have equal basic rights, and the public recognition of that fact . . . [my
emphasis].”29 Even under ideal conditions, Rawls presumes that people generally want
more—rather than fewer—primary goods. Should we presume otherwise under nonideal
conditions?

The reason why the social bases of self-respect is, arguably, the most important of
the five categories of primary goods is because it is so fundamental to our effective use of
the four others. As we have already noted, social institutions such as schools—and the
treatment that citizens receive in them—impact the development of rationality and

political autonomy. Social justice within the basic institutions of society is an important

218

criterion in developing a positive impression about our worth and about the worth of our
rational plans of life vis-a-vis the social structure. To the extent that social institutions
provide basic support (promote social justice) for citizens’ rational plans, they also
strengthen citizens’ confidence and self-respect. Within Rawls’ flamework, these social
benefits are necessary features of the well-ordered society (and of the reconstruction
project) that take us back to Rawls’ basic notions about democratic citizenship because,
as he notes, “Self-respect presupposes the development and exercise of both moral
powers . . .”30 This suggests that public education ought to constructively contribute to
developing the capacity for reasonable conceptions of the good, developing positive
impressions about our prospects for achieving worthwhile ends, and developing the
confidence to actively pursue such ends.

Socially stratified institutions send the wrong message to young citizens about
their worth and the worth of their rational plans. Rather than institutional support to
reinforce self-respect, stratified educational institutions have a history of obstructing
equal dignity and equal citizenship through systemic denials of full personhood.
Consequently, the social bases of self-respect are conferred on citizens pursuant to the
same terms as other social benefits in the nonideal: on the basis of ascriptive citizenship.
This is why equal dignity and equal citizenship provide the foundation for reconstruction
in the Rawlsian flamework. The prescriptive project contributes significantly to students’
social bases of self-respect simply by promoting social justice and rejecting unfair
privilege. Indeed, a democratic project committed to antisubordination provides the

ultimate social bases of self-respect.

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If self-respect presupposes rational plans, as Rawls indicates, and rational plans
presuppose rationality, then undermining rationality undermines self-respect. The
absence of the social bases of self-respect further denies citizens a significant source of
support for developing individual self-respect, and this works against their efforts to
construct rational plans. Recall that the “social bases” of self-respect is"social’ because it
is to be recognized and reinforced within the basic social institutions (public) as part of
the publicity condition that informs and educates citizens about their equal status under
public principles of justice. According to Rawls, the parties in the original position are so
concerned about the debilitating effects of inadequate self-respect on the rational plans of
citizens, they “avoid at almost any cost the social conditions that undermine self-
respect.”3 1

Indeed, the representatives select the two principles of justice over other moral
flarneworks because of the added protections the principles are believed to provide for
self-respect.32 In the nonideal, however, the social structure is, itself, fundamentally
irrational, and this further problematizes the prospects of its serving as a source of
support for young citizens’ developing rationality—and, therefore, support for their
developing self-respect. Thus, one of the aims of the reconstruction is a prescriptive
project in education that brings schools into a web of morally rational social institutions
committed to equal dignity and equal citizenship based on the eradication of social
stratification. The social bases of self-respect cannot support the interests of the “social
whole” on a partitioned, ascriptive basis.

In a well-ordered society, policymakers must provide public justification for their

differentiation and stratification policies. The standard for justification is public reason,

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reasons that flee and equal citizens can reasonably be expected to accept. In the case of
young citizens, those who have not reached the “age of reason” (or adults suffering flom
mental disabilities), Rawls places special obligations on adult guardians. When guardians
exercise their authority to make decisions on children’s behalf (or on behalf of other
dependents), they are making decisions that affect children’s (or other dependents’)
future prospects for rational plans. Therefore, guardians must meet Rawls’ moral
standard for paternalism.
We must be able to argue that with the development or the recovery of [their]
rational powers the individual[s] in question will accept our decision on [their]
behalf and agree with us that we did the best thing for [them] [my emphasis].3
Other demands on paternalism include providing adequate justification for the
intervention, ab initio, and adhering to the principles of justice—Rawls continues:
These restrictions on the initiation and direction of paternalistic measures follow
flom the assumptions of the original position. The parties want to guarantee the
integrity of their person and their final ends and beliefs whatever these are.
Patemalistic principles are a protection against our own irrationality, and must not
be interpreted to license assaults on one’s convictions and character. . . More
generally, methods of education must likewise honor these constraints [my
emphasis].34
Clearly, this level of justification and constraint on education policy decisions is
not—and has never been—forthcoming under ascriptive citizenship. How are members
of poor and oppressed communities interpreting the justification for the type of
paternalism that is reflected in the “methods of education” afforded to their children in
the neighborhood schools that are available to them? From a Rawlsian flamework, such
obvious inequalities and paternalistic failures of education policy are unconscionable. Is

there any rational basis for educators and policymakers to believe that when today’s

inner-city public school children grow up they will “accept our decision on [their] behalf

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”?35 It is safe to say that the

and agree with us that we did the best thing for [them]
majority of them will not.

Achieving fair equality of opportunity in education is a constitutional essential
and a matter of basic justice in the Rawlsian flamework (not so, in Rawls’ ideal society).
The Brown decision suggested as much when it declared equal educational opportunity a
right whenever the state takes it upon itself to provide this service, but the Court was
remiss in following this line of reasoning through to its logical conclusion: distributive
justice. Its failure to do so contributes to the current unfortunate state of education and to
pol‘icymakers’ inattentiveness to social justice concerns within the policy debate (Balkin,
2001). The present circumstances warrant the Court’s direct (re)intervention and
reexamination of Brown along the lines discussed in Chapter 1, but this means that
Americans must unearth buried collective memories of injustice and acknowledge
repeated public failures. It means reentering the “closed areas” of race and stratification.

Underlying the inadequacy of the Court’s desegregation remedy fifty years ago is
the entrenched, ascriptive history, culture, and laws that are but three of the tragic facts
with which contemporary reconstructive efforts must contend. The Court is not a reliable
ally in the cause of social and racial justice, so citizens must be agents who can transcend
the preoccupation with self-interests to pursue collective action. By taking a determined,
public stand, they leave the Court no alternative but to become the “overseer” of
government schooling for the protection of constitutional rights, at least until such time as
elected officials become morally responsible policymakers who are inclined to act flom a

sense of justice. Recall that it was a climate of social outrage followed by political

mobilization that provided the context for the Court, and the nation, to take the tentative

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steps that were taken in Brown, and it is unlikely that firrther progressive movement will
occur on this flont unless the public, again, demands it. As before, a critical mass of
“unfairly disadvantaged and unfairly privileged” citizens can provide the catalyst for
change. The prescriptive project in education unites these citizens in the interest of
furthering social justice.

In the meantime, we must note that the level of social injustice that plagues the
government’s school system is staggering. There are routine practices taking place within
this system that fall far short of Rawls’ standard for paternalism, but moral issues
continue to exist on the margins of what is considered scholarly education discourse.
Indeed, there is a growing and underappreciated debate among some educators, school
psychologists, and others (discussed in Chapter 2), regarding the appropriateness of
special education processes despite the fact that they remain widely in use (Hochschild
and Scovronick, 2003; Losen and Orfield, 2002).

Consider this: Some states have declared a moratorium on capital punishment
(execution) out of concern that it is being applied disproportionately—and, perhaps,
pursuant to insufficient evidence—on the basis of race and class (and gender?). Under
conditions of social stratification and ascriptive citizenship, is it reasonable to conclude
that it would be a good idea to have a similar moratorium on the use of IQ tests, special
education classifications, tracking, and other sorting procedures in compulsory
schooling—for the same reasons? 15 there a strong enough link between the least-
advantaged school-age population and the overrepresented prison population, to sustain

this discussion? At the very least, the continuing controversy and growing confirsion

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surrounding special education suggests that transparency and a vigorous public debate
about its purpose and procedures are long overdue.

(4) Corporate culture erodes public sensibilities by emphasizing markets and atomism
Consider a government whose basic institutions and social policies are guided by a public
philosophy that privileges market processes and corporate interests in determining the
public good. Such a political economy can easily arise when “government and business
elites are linked by organizational, financial and social ties, and move easily between
public and private leadership posts.”36 A market emphasis guiding public policy
adversely affects the general welfare by encouraging rationality in the wrong way, in a
way that undermines democratic values and processes (Wolin, 1989). The prospect raises
several concerns relative to social justice.

First, it may be viewed as expedient to structure competition into the acquisition
of social goods that are often thought to be the right of every citizen and the
responsibility of government to protect—education and health, for example. In the
nonideal, the pattern of unequal access to society’s resources makes any form of
“competition” skewed in favor of preexisting privilege. Further, such policies may foster
an exceedingly self-interested, consumption-driven citizenry—increasing the likelihood
that political society will be flagrnented and stratified. Such societies lack sufficient
bonds to form a political community; instead, they have what Rawls calls a “political
understanding” that amounts to a mutual recognition of constitutional principles (in
principle) as part of doing business in political society. The principles that are recognized
under these conditions (a modus vivendi) are likely to be abandoned if changing

circumstances—power relations, for example—make it possible for individuals or groups

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to dismiss them with impunity. This prompts Rawls to conclude that in such a society
“social unity is only apparent, as its stability is contingent on circumstances remaining

”37 There are several

such as not to upset the fortunate convergence of interests.
additional potentialities that are adverse to the interests of social justice and that may be
more prevalent in this economically-driven social climate.

Second, a “political economy focus” reduces the importance of collective
deliberation—too time-consuming—and threatens to reduce society to atomic individuals
who tire of public dialogue and public spaces. A significant part of public life in the
nonideal is made obsolete when the very issues and places that bring citizens together are
trivialized or ignored. According to Robert McChesney:

To be effective, democracy requires that people feel a connection to their fellow

citizens, and that this connection manifests itself through a variety of nonmarket

organizations and institutions. . . . Neoliberal democracy, with its notion of the
market uber alles, takes dead aim at this sector. Instead of communities, it
produces shopping malls. The net result is an atomized society of disengaged
individuals who feel demoralized and socially powerless.38
In the political economy, government’s role in social policy is not “diminished” as much
as it is “altered” to facilitate corporate interests. This occurs when public resources are
diverted to support corporate ventures and when areas of public policy become a “private
affair” outside of the reach of democratic control (Parenti, 2002). The recent surge of
corporate investments in school ventures and prison construction are but two disturbing
examples of this. Important deliberations that ought to be debated in public by elected
officials and engaged citizens, and guided by public principles of justice in the nonideal,

are increasingly undertaken in boardrooms by private citizens (corporate agents) who are

more often guided by principles of markets that maximize profits.

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In order to rationalize this shift to greater private sector input in social policy
decisions, the government is often portrayed as hopelessly wastefirl, inefficient and
paternalistic—except in the case of corporate welfare (Apple, 2001; Parenti, 2002). The
outcome of conflating the general welfare and corporate welfare is the near identity
between political and economic power, and the decline in social life as government
nurtures wealth (Wolin, 1989). While the liberty and fleedom of the corporate class is
made more secure there is little to empower the majority of citizens or to protect them
flom exploitation. This is the reason why the Rawlsian reconstruction project advocates
the development of active, informed, organized citizens who want to transform the
entrenched system of privilege that is increasingly stratifying and marginalizing the
population.

Third, if government is structured pursuant to a political economy, the tendency
for corporations to focus on profits at the expense of social needs could have grave
implication for compulsory education in the nonideal. For example, dwindling public
resources may be diverted from a system that ought to provide quality public education
for the masses (although it never has) to a system of corporate welfare for the few. Every
year tax breaks save corporations hundreds of millions (if not billions) of dollars in
profits that rarely get reinvested in improving schools (Parenti, 2002). Meanwhile, the
shortage of teachers, the overcrowded (and empty) classrooms, and the general need for a
massive infusion of properly managed resources to meet basic standards are public
concerns that are likely to be ignored. The tax revenue needed to support public schools

gets shifted to an unwilling public (Apple 1993, 96; Kozol 1991, 221).

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When the official response to the inevitable calls for education reform amounts to
substituting (or augmenting) a government managed school system, that privileges wealth
and abandons and increasing majority of children flom low-income families, for a '
market-managed enterprise that thrives on capital and—by definition—puts profits ahead
of balancing social and economic inequalities (Parenti, 2002), many see a tragic
duplication of answers to the question of how to “improve” compulsory schooling. For
the poor and dispossessed, the traditional responses have little to do with the real
questions facing the citizenry: How do we end the grossly unjust distribution of benefits
and burdens in society, and what are the implications of doing so for justice in education?
In the Rawlsian flamework, a critical mass of vigilant citizens is far less tolerant of
government neglect and pandering to corporate wealth than are the voting majority of
their counterparts under ascriptive citizenship. Rawlsian citizens are interested in a
protracted, organized effort to insure that government requires corporations to pay their
share of the tax burden in whichever state(s) they do business, and to prohibit
corporations from coercing states to submit to their demands by threatening to take jobs
to another state, or country. Tax consequences follow the corporations—reducing the
opportunities for political bargains that deflaud the public of revenue and basic services.

Fourth, businesses are strong advocates of the current push for standardization
and competition in education. This policy initiative often comes at the expense of
equality of opportunity in education—to say nothing of “fair” equality of opportunity
(Wraga, 1999). The “standards minus opportunity” mindset increases the likelihood of
academic failure among the very class of individuals who are already disadvantaged and

disempowered within a system of social stratification. Perhaps democratic practices and

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fair competition in education threaten to destabilize long-held privileged positions within
the social order of the nonideal, and potentially empower a new class of politically
sophisticated citizens (Reich, 1991).

Perhaps there is apprehension that educated young citizens may develop a
sufficient understanding of their interests to want to govern themselves by actually
controlling their government. Such citizens may want to shape public education policy to
reflect substantive democratic aims that protect citizens, not facilitate the interests of
wealth and power that reduce the value of political liberties and the efficacy of
democratic processes. In the Rawlsian flamework, (fair) equality of opportunity in
education requires a shift in the educational system’s focus—flom the social efficiency,
market-centered preparation of workers (for fleeting jobs), to the pluralistic,
student/community—centered, democratic preparation of citizens for a just society. Such a
transition, Dewey maintains, is most strongly opposed by “those who are entrenched in
the command of the industrial machinery [the business community], and who realize that
such an educational system if made general would threaten their ability to use others for
their own ends.”39 It he is correct, current education policy suggests that little has
changed.

Rather than devoting increasing amounts of intelligent direction to understanding
and meeting the complex educational needs of school-age children, we are devoting
increasing amounts of time and energy trying to keep pace with standardized, “high
stakes” testing cycles: discussing preparation, preparing, testing for weeks, anticipating
the findings, evaluating the findings, publicizing the findings, registering “winners and

losers” based on the findings, and starting over. Given that some schools struggle just to

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remain in operation on a daily basis, the resources that are annually consumed in this
controversial and exhaustive process are, perhaps, the clearest indication that “our nation
is at risk.” It suggests systematic and systemic failures that seem impossible to defend
using Rawls’ standard of public justification. How does this expensive exercise in drills
and memorization benefit the least advantaged—from the perspective of the least-
advantaged? While these tests purport to measure and improve student achievement and,
somehow, impact workplace productivity, such findings are widely disputed (Berliner
and Biddle, 1995; Wraga, 1999). What seems clear is that the preoccupation with testing
makes learning for socially consciousness self-direction a very difficult proposition, and,
for this reason, such measures would not be a priority in Rawls’ well-ordered society. In
the reconstruction project, the government’s testing obsession would come to a
screeching halt as the focus of policy dramatically shifts to distributive justice.

What happens after the tests are scored and the data are analyzed? There are, of
course, renewed calls for standards, and schools must to compete to reach the new
targets. In addition to creating a climate of that fosters unprofessional and unethical
behaviors—such as altering students’ answers on standardized tests—the “high-stakes”
climate dictates that some “scores” be discounted. The following scores are not
monitored, not publicly justified, and not (usually) the basis for “funding spikes”: the
scores of neglected schools, the scores of uninspired and ineffectual teachers who
begrudgingly take jobs in inner-city and rural communities as a last resort—building their
nests and refusing to move on—and the scores of “parochialists” armed with worn-out
cultural deficiency theories that are embedded in racially ascriptive “scientific” studies

dating back more than a century (Smith, 1997).

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Parochialists often discover that they are inadequately prepared and quickly
overwhelmed when conflonted with cultural diversity and the alarming levels of unfair
deprivation that are routinely found in the communities that they are to serve. Often they
are working in schools comprised of students who exist on the margins of public life
and—with the help of their authoritarian, inexperienced teachers—on the margins of their
own development. The whole notion of competitive, high-stakes testing for “high
standards”—against the continuing blight of inequitably funded, dilapidated, (virtually)
pre-Brown v. Board-segregated urban schools—is absurd and easily dismissed in serious
policy discussions but for the disastrous consequences of ignoring government’s coercive
power. The ascriptive policy orientations that perpetuate these inequalities are public—
not corporate—matters that continue to present tremendous obstacles to realizing social
justice in education (Christopher, 2000).

Finally, in a corporate culture students may perceive public schooling as little
more than a ticket into consumer society or as added leverage in ascending the hierarchy
of a stratified social order. They may be less inclined to have an interest in complex
social issues (and receive little encouragement to reconsider) when schools are perceived
as yet another venue where competitive self-interests flourish in a contest of wills to
secure the resources of power. Indeed, parents may view themselves as part of an
aggregate of purchasers or choosers in an education shopping mall (Powell et al, 1985),
rather than viewing themselves as members—on some level, anyway—of a larger public
within which education makes a positive contribution to individual development and to

the general welfare.

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Given all of the overlooked social ills and the societal signals that the powerless
are virtually inconsequential, students may become less motivated to ponder the desirable
social ends of government or to embark on a quest to achieve them (Braungart and
Braungart, 1998). They may become less interested in decision-making on public issues
when there is widespread disagreement, lacking confidence in the fairness of government .
processes (Braungart and Braungart, 1998). If government fails to appreciate the value of
political communities that share certain mutual interests in the public welfare, then
govemmentschools are likely to neglect collective values and find little time in the
school curriculum for discussing the social problems of our society—focusing, instead,
on those subject areas that are part of “what works” in the political economy (Burliner
and Biddle, 1995).

A “what works” policy orientation mystifies serious compromises to citizens’
political autonomy (and to the general welfare) that may be engendered by policy
decisions on matters of basic justice. In a political economy, the state is an instrument for
protecting and advancing economic interests—is defined by them—and these interests are
determined by the powerful few, with minimal reflection on the moral implications of
these determinations for the larger public (Parenti, 2002). Many contend that the
government’s lax enforcement of (lax) securities and exchange regulations made the
recent Enron debacle a scandal waiting to happen—one capable of completely draining
the pensions of many thousands of working citizens. This is just one example of
governmental failure enabling corporate greed at the expense of distributive justice for
the masses (Parenti, 2002). Many corporate violators are never even prosecuted (not to

mention convicted), but what message does this send about the nature of citizens’ rights?

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In a political economy the status of “citizen” becomes more precarious for an even larger
number of people as the value of their relationship to the state becomes predicated on the
extent of their usefulness in a familiar, but, unstable, socio-economic arrangement: the
buyer’s assessment of the worker’s contribution to the political economy."0

Socialization for assimilation into an ascriptive economic system that minimizes
the rights of some citizens while protecting the rights of others, would seem to require a
severance—or at least, a trivialization—of the connection that Rawls makes between
injustice, liberty, and citizenship. In the real world, the ideal of equal citizenship for all in
a just society that protects liberties is virtually obsolete. Consequently, the “good citizen”
is adaptable to, and useful in, the political economy (Wolin, 1985). Government’s active
complicity in the maintenance of such as society further diminishes the likelihood that its
school agenda will stress public interests, public reason, and moral powers. Therefore, the
prescriptive project for education faces great challenges.

There is little room in the political economy for a public philosophy that
contemplates the moral dilemmas and conflicts of interest that are linked to our public
choices. We seldom ask, for example: What are the social and moral costs (or benefits)
associated with the means that we employ in education to advance personal and societal
ends? Twenty years ago—and prior to the more recent advances in corporate global
dominance—scholar Henry Giroux registered enormous costs:

It is my contention that the new public philosophy abdicates its responsibility to

insure that public schools can function to enable students to experience a

meaningful sense of personal and political liberty and to live a moral life, that is, a

life lived in accordance with moral rules and principles. Moreover, this abdication

reinforces the developing crisis in moral and civic courage that our nation
currently faces."l

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The “crisis” that is the focus of Giroux’s continuing frustration is the crisis of
destabilization, alienation, and moral ambiguity. This crisis is engendered by the narrow
pursuits that are associated with the ends-means orientation of the political economy that
appears to shun morally informed education policy.

If education policy fails to provide (fair) equality of educational opportunity for all
then, under ascriptive citizenship, many students are actually disabled by a process that
compels their participation, a legally enforceable program of misdirection—which begs
the question: What is the quid pro quo for compulsory education flom the standpoint of
low-income urban and rural citizens in inferior schools, who have even a remote interest
in “sharing with other citizens equally in the exercise of political power”?42 The public
justification for unequal opportunity must be shown to benefit the least advantaged—
low-income groups—flom their point of view. Short of this, educational resources would
have to be equalized. The outcome of the difference principle for education policy in
America is clear.

Rawls’ conception of a well-ordered society provides a holistic alternative for
social organization (under ideal conditions) that is the antithesis of a political economy,
market-based public philosophy. Rawls attempts to set socially responsive boundaries on
private and economic pursuits so that individuals—and corporations—determine their
self-interests in accordance with the collective interest in justice and the public welfare.
Rawls elaborates:

The principles of justice and their realization in social forms define the bounds

within which our deliberations take place. The essential unity of the self is already

provided by the conception of right. Moreover, in a well-ordered society this unity
is the same for all; everyone’s conception of the good as given by [his/her]

rational plan is a subplan of a larger comprehensive plan that regulates the
community as a social union of social unions."3

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Rawls problematizes the “hands off” economic theory of democracy (the system

regulates itself theory) by noting that political decision-making requires something more:
The view that extends the basic ideas and methods of price theory to the political
process must for all its merits be regarded with caution [because] a theory of
constitutional regime cannot take rules as given or simply assume that they will
be followed. Clearly the political process is importantly one of enacting and
revising rules and trying to control the legislative and executive branches of
government . . . and since no system of constitutional checks and balances

succeeds in setting up an invisible hand that can be relied upon to guide the
process to a just outcome, a public sense of justice is to some degree necessary.

44

Different moral capacities and standards are needed to evaluate political processes
than are needed to evaluate market processes. Citizens in a democracy are not expected to
passively accept “as just” the outcomes of political processes (as economic agents are
often expected to passively accept the outcomes of markets processes). Citizens operating
within political processes can object to the process itself—can revise it; they need to be
able to assess its outcomes in order to determine whether or not revisions are needed.

If the outcomes are determined to be unjust, citizens have to decide what actions
to take in response to them. This implies that they need to be politically vigilant,
inquisitive, and willing to take control of the democratic instruments that organize their
lives. They also need to be inclined to act in pursuit of justice. In the Rawlsian
flamework, citizens are the central agents for insuring that government is committed to
eliminating injustice within the basic structure of society—making sure also that the
public’s resources are not diverted into corporate coffers. The rationale for the

reconstruction project is that the vital functions of government must be continually

reassessed, reinterpreted, and revised to insure that the benefits of collective endeavors

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extend to all, particularly those at the greatest disadvantage within the stratified social
system.

Political decisions in a well-ordered society require dialogue and moral judgments
based on just moral principles. The outcomes of public dialogue are not presumed to be
inevitable; human fallibility implies that decision-making and outcomes can be improved.
It helps that Rawls’ citizens define their autonomy intersubj ectively—not atomistically.
They, therefore, demonstrate sensibilities that sustain deliberative processes. Such
processes are open to public participation, sometimes requiring protracted periods of
debate before a decision is made or an outcome is known.

Corporate actors (economic agents), on the other hand, may find protracted,
public deliberations exhaustive and inefficient for their purposes, but absent the requisite
capacities and processes for political decision-making it is very difficult to set humane
priorities. Thus, political systems that subordinate the public interest to markets are not
suitable to guide democratic ends. Perhaps this is why Rawls renounces the capitalist
welfare state—some version of which exists in American society. Regarding this
arrangement, he writes:

Welfare-state capitalism also rejects the fair value of the political liberties, and

while it has some concern for equality of opportunity, the policies necessary to

achieve that are not followed. It permits very large inequalities in the ownership
of real property (productive assets and natural resources) so that the control of the
economy and much of political life rests in few hands.“

The well-ordered society rejects welfare-state capitalism because Rawls’
principles of justice reject the exploitation that it encourages—particularly, private

ownership in the means of production.46 In place of this system Rawls substitutes either

of two possibilities that he finds more agreeable given the aims of his normative political

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theory: property-owning democracy and liberal socialism. He discusses the former in
more detail and contrasts it with welfare-state capitalism:

One major difference is this: the background institutions of property owning

democracy work to disperse the ownership of wealth and capital and thus to

prevent a small part of society flom controlling the economy, and indirectly,

political life as well. By contrast, welfare-state capitalism permits a small class to

have a near monopoly of the means of production.47

In order to seriously pursue democratic ends, government within Rawls’ conception

of justice must play an active role in the “right way.” It does this by using its collective
powers to promote the public good, guided by public principles of justice. This form of
social organization is what is meant by ‘well-ordered,’ In such a society, government
schools become “public schools,” and public schools cannot be neutral sites that lack
political purpose—set apart flom the broader political aims of society; rather, they are
part of a web of social institutions that promote a certain interpretation of j ustice, protect
citizens’ civil liberties, and advance the public welfare pursuant to certain ends.

Furthermore, school-age children are not mere objects of social efficiency
agendas or passive consumers of goods. They do not exist wholly within an atomistic
conception of ‘persons,’ or within the finitude of their own lives. They are perceived to
be (junior) members of the political community, inheriting the political and social
institutions that are now primarily the domain of adults. Increasingly, however, they are
expected to contribute their talents to the changing character of these institutions—for
better or worse—as have their adult counterparts. In the Rawlsian flamework, they are
expected to contribute to a reconstruction project that is aimed at removing injustice by

dismantling social stratification and ascriptive citizenship. Public schools serve as one of

the venues in which students learn about the strengths and weaknesses of their society

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with respect to the promotion of social justice—the possibilities and obstacles that it may
present—and about themselves as “history makers” in a political project.

In this chapter I utilized the Rawlsian flamework introduced in Chapter 3 to
provide a critical geography on which to map four undesirable implications that are
possible given government’s role in regulating schooling in the nonideal (I initially
introduced in Chapter 2). I carried forward the understanding that this flamework
combines factual and normative discourses that aid in the identification of the degree and
type of divergence that exist between Rawls’ ideal model and the fact of injustice in the
nonideal. The existing conditions were evaluated flom the standpoint of Rawls’ flexible
model of justice. I, again, explained that the term ‘Rawlsian’ reflects the demystifying
descriptive and explanatory processes (using social contract theory) that are needed in
probing the issues raised in Chapter 1 and that this context informs prescriptive
judgments for realizing reconstruction in the nonideal, with specific focus on compulsory
education.

The ideal constructions of citizens as flee and equal, rational persons and of
society as a fair system guided by principles of justice were characterized as integral to
the Rawlsian flamework. In this chapter and the previous one, I highlighted the essential
role (in the nonideal) of critically informed, engaged, and active citizens (and groups of
citizens) in making the prescriptive project possible—the most fundamental part of which
involves their possession and use of the following two moral powers to a requisite
degree: a capacity for a sense of justice and a capacity for a conception of the good.
Sufficiently developing these two moral powers allows citizens to pursue their ends

within a pluralistic context that includes the reciprocity criterion. This is not to suggest

237

that social conflicts are eliminated or that dissent is suppressed. Clearly, this is not the
case. Interests continue to clash (particularly in the nonideal), and when people speak
openly on public issues, opinions are bound to diverge; yet the two moral powers enable
citizens to effectively and reasonably participate in the exercise of political decision-
making, if they choose to do 50.

Finally, being informed in Rawls’ context involves possessing an understanding
of the public principles of justice, the political grammar of society, and using this
knowledge to participate in a fair system of social organization. In the Rawlsian
flamework, public principles and political grammar continue to be important, but the
focus is on the use of this knowledge to fundamentally transform one’s surroundings.
Cooperation remains indispensable to a democratic Rawlsian project, and the process of
identifying public aims and organizing within pluralistic communities continues (where
opportunities for leadership are often much greater.) Indeed, fundamental change requires
even broader cooperation through coalitions that transcend comprehensive boundaries but
that are linked on the basis of a shared interest in dismantling social stratification and
ascriptive citizenship. So we see that public principles and political grammar can be
understood as forms of collective political expression on matters of basic justice that can
empower ordinary people in the nonideal who seek to govern themselves in the interest of
equal dignity and equal citizenship.

Within a political framework that rejects injustice—and around which there is
extensive social agreement—substantive rights and liberties are more secure.
Membership in such a society can form the basis for a collective identity that is genuinely

healthy and constructive: ‘healthy’ because it is based on reciprocity and

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antisubordination, ‘constructive’ because it helps citizens to develop their political
autonomy and to gain greater control over the decisions that affect their lives.
Humanizing citizenship can sustain a society’s unity far better than ascriptive citizenship,
and it needs neither myth nor suppressed memory to ensure it. Ideally, such a nation
eventually becomes culturally sophisticated enough to no longer find its diversity a
threat, politically mature enough to encourage pluralism and reap the increased benefits 1
that seem sure to come under conditions of fleedom. This level of civilization provides
further motivation for the reconstruction.

These are the moral j udgrnents that will guide the prescriptions contained in my
philosophy of education. I discuss them in detail in the next chapter. A philosophy of
education is a general theory that has implications for all aspects of the educational
enterprise. I have already noted a number of these implications in my discussions in the
preceding chapters, and additional inferences were drawn in this chapter. Suffice it to say
that in the prescriptive project education—in all of its facets, particularly political
education—is embedded in a transparent, historicized, political philosophy that has a
Rawlsian reconstructive purpose (Smith, 2002a). It connects the mechanisms of
schooling to the vital project of eradicating systemic injustice in the real world,
promoting equal dignity for all and equal citizenship for all citizens. Such a philosophy
must therefore be bold, critically intellectual, creative, and pluralistic, while finding its
substance in ordinary experience—hopefully not too much to ask of a political

philosophy. We turn to this task in the next chapter.

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CHAPTER 5

“THE UNEXAMINED LIFE IS NOT WORTH LIVING:” PHILOSOPHY OF
EDUCATION, CITIZENS, AND THE “RAWLSIAN” SOCIETY

The most important political goals of public schooling are educating citizens, selecting
future political leaders, creating a political consensus, maintaining political power, and
socializing individuals for political systems. These political goals can be both a source of
political fleedom and a means of exerting political oppression.

----Joel Spring

Out of a fear that their class and professional privileges might be challenged, some
people resist all equalizing changes and commit themselves to living unexamined lives.

----Michael Parenti
The preceding chapters explored specific conflicts underlying the contradictions between
the ideals and the lived experiences that characterize American citizenship within the
basic institutions of society. It is apparent that two divisive social practices are embedded
in America’s Enlightenment project: social stratification and ascriptive citizenship. These
social practices have the simultaneous effect of incorporating and excluding citizens,
reflecting forms of social partitioning and selective privilege (Mills, 1997) in a society
that purports to be one nation . . . indivisible. The patterns of denial—and degrees of
denial—that the social practices establish are obscured within Rawls’ normative
paradigm because it presupposes the moral excellence of social institutions, the flee and
equal status of citizens, and the fairness of the resulting social system. Thus, we need a
different theoretical flamework in the nonideal in order to capture the historical
specificity of the phenomena of social stratification and ascriptive citizenship——the “night
side” of America’s Enlightenment project. In the latter part of Chapter 3 I introduced the

Rawlsian flamework for this purpose.

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The Rawlsian flamework largely retains Rawls’ fundamental principles of j ustice
but disarticulates them flom their exclusive association with ideal political systems and
rearticulates them within a contextualized, historicized political project where the
impetus is on eradicating social stratification and ascriptive citizenship. The Rawlsian
flamework employs Rawls’ ideal model as a flexible method of inquiry for illuminating
the departures from justice in the nonideal, that directly and fundamentally hinder the
construction of a morally just society. By appropriating Rawls in this way, the Ransian
flamework dismisses the moral boundaries that often separate ideal flom nonideal theory.
The expanded moral compass that results generates descriptive analyses and critiques that
inform the social reconstruction of society (also referred to as the “prescriptive project”).
From within this larger quest, we are also able to prescribe educational aims for the
nonideal that are historically specific.

The Rawlsian flamework contributes to the critical discourses that expose the
patterns that continue to circumscribe the democratic project in America. It demystifies
traditions that exclude and stratify society’s members and impede the realization of
liberty and justice for all. The role that citizenship plays in furthering injustice can then
be understood in a more fundamental and revealing way. We can ascertain, for example,
how ascriptive citizenship constrains the reach of the reciprocity criterion resulting in a
morally inconsistent application of its precepts in deciding matters of basic justice—a
differential moral effect based on race, class, and gender particularities. We can readily
deduce that promoting social stratification and ascriptive citizenship is the antithesis of

demonstrating a capacity for a sense of justice in the nonideal. Recall that a capacity for a

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sense of justice is one of two moral powers required of citizens in Rawls’ well—ordered
society, the other being a capacity for a conception of the good.

The historical pattern of America’s inability to seize the many opportunities to
alter its course in the interests of a just and highly functioning democratic mode of living
(noted in Chapter 1) is, in part, indicative of the absence or inadequate development of
the two moral powers among the official leadership. In addition, this inability suggests
the pervasive disinclination to consistently apply moral principles to social policies and
practices that affect the basic structure of society. The disinclination to moral consistency
degrades the democratic project and reflects badly on the quality of social relations
among the voting members of the population—the majority of whom appear to be
attracted to (and tolerant of) leaders whose political ambitions predominately lie
elsewhere. Perhaps this pattern is to be expected in a society where the social relations
make liberty a zero-sum game. Dewey writes:

The Good is that which attracts; the Right is that which asserts that we ought to be

drawn by some object whether we are naturally attracted to it or not. . . . Right,

law, duty, arise flom the relations which human beings intimately sustain to one
another, and . . . their authoritative force springs flom the very nature of the
relation that binds people together.l
This begs the question: If not liberty and justice for all, what, then, is the nature of the
relations that bind American citizens together?

Views on a Contextualized Philosophy of Education

I. The Aim: Reconstructive Education for the Masses
The prescriptions that guide ambitions in the social reconstruction of society arise flom
the Rawlsian descriptive analyses and critiques of the nonideal that were presented in

Chapters 3 and 4. This same set of contextualized moral judgments and principles are

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employed in this chapter to anchor one aspect of the prescriptive project: its phi1050phy
of education. That is, the critiques of social stratification and ascriptive citizenship that
animate my thesis provide the inspiration, in this chapter, for a normative education
philosophy grounded in equal dignity and equal citizenship.

The fundamental question to be answered in this chapter is this: What does it
mean to educate socially stratified, ascriptive citizens seeking political autonomy in a
pluralistic society, within a nonideal liberal democratic project whose definition is not
fixed and is therefore open to reinterpretation and reconstruction under different
historical contexts? Given the power asymmetries in the nonideal, citizens’ rights are
understood to be positive rights. They require that government not only refrain flom
engaging in unnecessary coercive and intrusive activities (such as arbitrary
incarcerations) but also require that it actively institute measures to ensure that rights are
realized (providing due process and “competent” council for indigents, for example.)

The prescriptive project urges government to be, among other things, an
instrument for the realization of positive rights. To the extent that government provides
for and compels the education of its citizens, they have the right to equal educational
opportunity beyond mere access to a school building (Brown I). What occurs inside the
school and, particularly, the conditions under which events occur are more pressing
matters in the nonideal. The aims of the schooling proj ect—the moral content of
education—and the political implications of those aims are integral to the realization of
positive rights within the Rawlsian flamework. It provides the moral vision that guides

reconstructive thinking about schooling within a circumscribed democratic project.

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In my estimation, the tentative limits and possibilities of a contextualized,
historicized education philosophy are understood within an interdisciplinary flamework
that is rooted in critical interpretations of citizenship and political philosophy. The nature
of the relations that extend flom membership in a particular polity has implications for
how citizens experience education. In the distribution of resources—educational
resources, for example—the state sends important signals about the nature of this
relationship, and the signals can differ dramatically. Differentiation within the category
“citizen” under nonideal conditions translates into differential educational opportunities,
to disastrous effect. As is the case with conceptions of the state in political philosophies,
the conceptions of students in education philosophies necessarily evidence moral and
political commitments. Although these commitments tend to be outside of the realm of
inquiry in mainstream education discourse, the Rawlsian philosophy of education makes
them transparent because it does not purport to be neutral to outcomes.

From the outset, the Rawlsian flamework imposes a certain order on the processes
that give definition to compulsory government schooling. In all of its facets, the
prescriptive project in education is understood as a practice of fleedom (hooks, 1994) that
links politics, power, knowledge constructs, ideals, and moral judgments pertaining to
our actual world, to a Rawlsian conception of society and person. This conception, in
turn, becomes the theoretical content of schooling that informs practical reasoning. By
definition, an education philosophy has implications for the varied components of the
educational enterprise—establishing a coherent and vital association among them, that is

admittedly structured to cultivate certain attitudes, dispositions, and tendencies.

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Educational aims tend to be expressed in politically neutral terms while their
execution may have the effect of preserving ascriptive constraints on political autonomy.
The potential for such policy repercussions is apparent in a variety of social and
institutional practices: unreflective habits, capitulations to gross inequalities (through
silence or indifference), suppression of pluralism, uncritical patriotism (native
sentirnentalism), teacher authoritarianism, and student obj ectification.2 The flamework
for prescriptive aims is not neutral—nor does it profess to be neutral. In fact, its
orientation opposes much that is “customary” in American education.3

The organic nature of social stratification and ascriptive citizenship dictates the
political orientation to schooling that makes the prescriptive project logical. Its themes
are critically aligned with the nonideal circumstances of ordinary experience, so its
education agenda is (Rawlsian) fundamentally reconstructive, not integrative (Smith,
2002a). In this respect, it shares an important normative connection with the ameliorative
aims that Dewey stresses in Democracy and Education when he says, “It is the aim of
progressive education to take part in correcting unfair privilege and unfair deprivation,
not to perpetuate them.”4
And further:

The problem is not whether the schools should participate in the production of the

future society (since they do so anyway) but whether they should do it blindly and

irresponsibly or with the maximum possible of courageous intelligence and
responsibility.5

My prescriptions for an education philosophy logically extend flom the morally
informed political principles of the Rawlsian flamework. Consequently, education has a

significant role to play in establishing a fair system of cooperation by eradicating the

unfair privilege and unfair deprivation that continues to hinder the formation of a

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democratic project in education and a “just” society consistent with Rawls’ ideal. My
education philosophy captures the main features of my current assessment of desirable
and feasible ends based on a politically contextualized, historically specific conception of
society and person. It is an outline that is intended to provoke thought and to guide
actions—not a “teacher proof,” how-to manual. Absent are the details about specific
curricular elements—topics and texts, for example, such as one might find in a traditional
syllabus—but, meaningfully present is the flamework within which these and other
important decisions are made in the day-to-day operations of schools. This flamework
guides reason in support of affirming and enabling visions of collective existence of
which schooling is a deliberate and vital contributor. Devoid of such a vision within an
education philosophy, the resulting curricular aims and reforms are often unimaginative
and superficial, even when much thought is otherwise given to the objectives. As Dewey
notes:

The business of schooling tends to become a routine empirical affair unless its

aims and methods are animated by such a broad and sympathetic survey of its

place in contemporary life as it is the business of philosophy to provide.6

Suffice it to say, my contribution to this “broad and sympathetic survey” is aided
by my use of the “quasi empirical” moral principles that Rawls espouses in his ideal
model of justice. (I say ‘quasi-empirical’ because Rawls’ principles of justice are—to
some degree—implicit in the public culture and have been passed flom one generation to
the next for centuries in documents and public pronouncements. Thus, they have some

basis in experience.) These principles provide the moral guidelines for a normative,

Rawlsian philosophy of education and reflect a use of principles that even Dewey might

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approve—with one stipulation: that the principles are understood to find their truest
expression in the actions of those who subscribe to them.

The most important point to bear in mind about the aims of the moral principles in
the prescriptive project is that they are intended to guide actions directed at dismantling
systems of social stratification and ascriptive citizenship in the interest of equal dignity
and equal citizenship. An “educative experience”——in this context—is one that develops
young citizens’ skills, capacities, and sensibilities, for agency; it prepares them to be
“self-authenticating sources of valid claims” (Rawls, 1996) against the continuing
circumscription of the democratic project (Smith, 2002a). It encourages students to
exercise citizenship rights by, primarily, learning to protect and advance them; learning to
influence decisions on constitutional essentials and matters of basic justice means
learning to impact the decisions that structure their (nonideal) lives.

11. Dispositions as “Liberating Powers " in the Project of Reconstruction

[A] Preliminaries

Before discussing the dispositions that are advocated in the prescriptive project, there are
six noteworthy features of Rawls’ political liberalism that apply, generally, to my
assessment of desirable and feasible ends in education. Principally, the features reflect
varying degrees of departure (and continuity) with respect to traditional education
philosophies. I make reference to several of these features starting with Dewey’s
reconstructive aims, although my purpose is not to recount existing theories but, rather, to
articulate my own philosophy of education pursuant to the Rawlsian flamework that I

have developed.

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First, the dispositions encouraged in the prescriptive project are tentative, just as
the aims of the reconstruction are tentative. Our ideas about which desirable dispositions
should be encouraged often change as a result of increased knowledge and understanding
or as a result of changing social conditions: Indeed, the dominant interpretation of what
is desirable may change as well. For example, tolerance is a disposition that is commonly
considered a desirable human quality, but it can be interpreted differently under different
social circumstances and in different historical periods. The political majority’s
interpretation of tolerance during Jim Crow segregation clearly did not (does not) suffice
in the aftermath of the black civil rights struggles of the mid-twentieth century.

It is pragmatic to take a provisional approach to our notions of desirable
dispositions, but we will not be prepared to do so if our ideals are fixed or are presumed
to be absolute. The flexible and contingent approach employed within the prescriptive
project is to be contrasted with the philosophies of Plato, Aristotle and Kant, for example,
each of whom advocated the cultivation of fixed dispositions based on a fixed view of
social reality. Rawls’ political philosophy recognizes that societies not only change but
that they ought to change in ways that evidence a greater respect for reasonable pluralism
and that promote a broader conception of justice, thus the philosophical shift in his
thinking flom A Theory of Justice ( 1999b/ 1971) to Political Liberalism (1996). Second,
the effort to cultivate dispositions is, perhaps, the most affirmative action directed at the
development of character in schools. For reconstructive purposes, selecting dispositions
to nurture necessarily means rejecting or filtering other dispositions that are believed to
undermine the goals of reconstruction (equal dignity and equal citizenship) as these are

understood within the Rawlsian political paradigm. The values and moral judgments that

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pertain to this paradigm are contestable—and are likely to be contested—because they
reflect choices that firrther some modes of social organization more than others.

As we design a plan to cultivate “this” rather than “that” disposition, we are using
our intellects to make moral decisions. Likewise, education is a program of intellectual
and moral development. Therefore, I—like Dewey—rej ect the separation of dispositions
into intellectual and moral categories, contrary to the views expressed by Plato, Aristotle,
and Kant, among others. All dispositions have moral implications if acted upon. They
influence our understanding of the world and, therefore, they inform the perceptions that
guide our behavior.

Third, dispositions that require a commitment to metaphysical foundations, such
as a belief in God, are not part of the outline of dispositions that I associate with the
“public” purposes of the prescriptive project; those that I discuss do not presuppose a
comprehensive doctrine that structures the whole of one’s life;7 rather, they are derived
flom within Rawls’ fleestanding political liberalism as interpreted and grounded in the
Rawlsian flamework. The dispositions are understood to be implicit—although, perhaps,
dormant—in the political culture of our democratic project, but it is also understood that
they are interpreted flom within comprehensive doctrines (public/private-focus).
Consistent with Rawls’ ideal, the Rawlsian flamework distinguishes between reasonable
and unreasonable comprehensive doctrines. Simply stated: Reasonable doctrines respect
the reciprocity criterion and its implications for political autonomy—unreasonable
doctrines do not.

Fourth, the nature of the reconstruction necessitates that education within the

prescriptive project not be a firnction of the existing state. As we saw in Chapter 1, the

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existing state may be socially unjust, so reproducing it would defeat the purpose of the
reconstruction. More importantly, the focus is on democratic ideals and principles that
are critically reflected upon, not simply acknowledged as a matter of habit or culture. The
ideals capture nobler social aims that are not tied to the perpetuation of a particular (or
fixed) government structure. All governments—including democratic ones—are capable
of pursuing immoral ends that entail reckless violations of citizens’ basic human rights.
Joel Spring reminds us of the dangers—however remote—of cultivating dispositions “for
purposes of state”:
In Nazi Germany during the 19305, schools were enlisted in a general campaign
to produce citizens who would believe in the racial superiority of the German
people, support fascism, and be willing to die at the command of Hitler. Racial
biology and fascist political doctrines were taught in the classroom; patriotic
parades and singing took place in the school yard. . . . Citizenship training is not
necessarily good, nor can it exist apart flom a general political philosophy.8
The Constitution that anchors our republic is not perfected. It, too, is a project that
must be continually revisited, reinterpreted, and revised, as nobler aims require. The idea
is to ensure government’s legitimacy for the protection and development of its people,
not to secure its survival for the conservation and expansion of its authority. Authority
itself is subject to critique, in contrast to the aims of some education theories that suggest
a reverential relationship to the state, or, at least, a deferential one (Galston, 1991,
2002)—not so in my account, even when the state is just or nearly just (i.e. well-ordered).
Young citizens are not educated for patriotism such as we find in Aristotle’s,
Plato’s, and Rousseau’s public education philosophies. Similarly, the schooling process is
not a means for primarily advancing the ends of adults, particularly business elites. This

rules out the social efficiency agendas that have become increasingly dominant in

American education policy—often intertwined with national economic policy.

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Alternatively, children are educated to discover and pursue their own ends within an
enabling sociopolitical structure that supports reciprocity (a sense of justice) and political
autonomy.

Fifth, the desirable powers that education ought to enable within the prescriptive
project are those that increase citizens’ capacities to recognize the social injustices that
undermine their sharing equally in political power within the democratic project. (Social
stratification is one such injustice.) The reconstruction project enables citizens’ agency,
their capacity to elevate the moral aims of their society, by rejecting stratification and
embracing a national identity that promotes equal dignity and equal citizenship (Smith,
2002a). Citizens—in effect—choose their public ends (and their means) within a broader
context of fairness consistent with Rawls’ conception of j ustice. Protecting the equal
liberties of individuals and groups increases the scope of substantive justice for all, while
antithetical interests are inconsistent with the ideal of public reason.

Finally, in the prescriptive project the opportunities for intellectually stimulating
and meaningfirl education are available to all, without exception. The best that modern
schools can offer its citizens is not reserved for philosopher kings, for people embodying
the “spirit of the Greeks,” for middle-class and wealthy peoples’ children, for “whites
only,” or for male members of society. This orientation is a significant and
underappreciated departure flom the education philosophies of such figures as Socrates,
Plato, Aristotle, Kant, Locke, Rousseau, and Jefferson. It is also a departure flom
contemporary versions of these philosophies——and many others—to the extent that their
advocates choose not to distance themselves flom the hierarchical and ascriptive

mandates of these influential thinkers. This means that the prescriptive project is at

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variance with the priorities that continue to dominate the schooling agenda in America.
Indeed, the continued circumscription of educational opportunity in this country is at
odds with Rawls’ political philosophy, which does not obstruct access to society’s basic
resources on the basis of stratification systems or ascriptive moral codes.
[B] The Dispositions
There are two broad categories of dispositions that will guide my discussion in this
section: a capacity for a sense of justice and a capacity for a conception of the good.
Recall that these capacities reflect the two moral powers that citizens need in Rawls’
well-ordered society (and in the Rawlsian flamework) in order to effectively participate
in the democratic project (Rawls, 2001). These capacities are tools of practical reasoning
in Rawls’ conception of society and person. Other dispositions that I will mention are
components of these two—companion powers, of sorts. Desirable dispositions are both
individually empowering and socially reconstructive. They are directed at securing the
general welfare through equal dignity and equal citizenship while repudiating social
stratification and ascriptive citizenship as oppressive social conditions that unreasonably
abridge liberties and degrade democratic ideals.
1. A Sense of Justice
Rawls defines ‘a sense of justice’ as follows:
A sense of justice is the capacity to understand, to apply, and to act flom the
public conception of justice which characterizes the fair terms of social
cooperation. . . . Given the nature of the political conception as specifying a
public basis of justification, a sense of justice also expresses a willingness, if not a
desire, to act in relation to others on terms that they also can publicly endorse.9

' Note that this capacity is expressed as a “sense” of justice. The word ‘sense’ refers to the

judgments that pervade our actions, the intellectual reflections (due reflections) that are to

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precede a specific act. The focus is less on the fixation of ideas and behaviorist responses,
and more on the social intelligence and the values that guide our moral judgments about
the social world. These judgments mediate our social and institutional relations on terms
that encourage fairness as suggested in the two principles of justice. The sense of justice
underscores the intersubj ective perceptions that support broad political and social
alliances for justice. The values that sustain such alliances, according to Rawls, include
the following: “equal political and civil liberties, fair equality of opportunity, values of
economic reciprocity, and the social bases of mutual respect between citizens.”10 The
capacity for a sense of justice enables the formation of the requisite moral judgments that
create and sustain just institutions.

Citizens’ sense of justice is reflected, in part, in their acceptance of the processes
that guide public reason. That is, public reason is a necessary companion power for
democratic citizenship within Rawls’ flamework. It structures the articulation of claims
and is a means by which citizens demonstrate their civility in the public sphere in ways
that reflect reciprocity. Recall that public reason is the reasoning that citizens employ
when deciding constitutional essentials and matters of basic justice (influenced, of
course, by their comprehensive doctrines). They use its standard to support claims that
legally require the state’s coercive powers for enforcement. Public reason is a normative
deliberative standard for public inquiry and evidence assessment—the purpose of which
is to “make such inquiry flee and public, as well as informed and reasonable?“

There are several skills and dispositions that Rawls includes under the category
“sense of justice”: judgment (including burdens of judgment), inference, civility,

tolerance, the analysis and use of evidence, and fair-mindedness, for example. Citizens

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demonstrate fair-mindedness in public discussions when they are “abiding by the criteria
and procedures of commonsense knowledge and accepting the methods and conclusions
of science when not controversial.”12 Admittedly, in the real world it is unclear whether
dispute is actually settled by the additional requirement that we employ only’ ’non-
controversial” scientific findings. Many people (critical theorists; for example) find little
in the “methods and conclusions of science” that is not controversial, so while the value
of fair-mindedness is clear, there remains considerable room for debate regarding
whether or not it actually manifests in our public deliberations.

A capacity for a sense of justice and the social and political virtues associated with
public reason characterize the general competency expectation for democratic
participation in the prescriptive project. These features are desirable for reconstructive
purposes irrespective of what a citizen’s comprehensive doctrine may be, assurrring that it
respects Rawls’ reciprocity criterion. In the Rawlsian flamework, if citizens lack the
ability to work collaboratively and cooperate to a significant degree—forming strong
alliances on important public issues—they cannot effectively organize to pursue their
interests in abolishing social stratification; they are also limited in their ability to
reconstruct society in the interest of equal dignity and equal citizenship. Absent
compromise, citizens cannot hope to build mutually beneficial coalitions across
intersecting issues or strengthen their cause among diverse peoples and interests.

Further, public standards for inquiry and evidence suggest that citizens need to
develop the power to analyze public information. Specifically, they need to be able to
critically engage ideas in written and spoken form (books, articles, and presentations) as

well as decipher the messages (and images) transmitted by way of television and

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computer mediums such as advertisements, popular culture and “news.” It is also helpful
if citizens are able to write and speak sufficiently well so that their ideas are lucid and
reasonably accessible to others—including those who may not share their views.

Within the dialectic of public discussion in the nonideal, citizens will also need to
be good listeners in the Aristotelian sense. This means that listening becomes an active
process, not the passive state that is often associated with traditional (and contemporary)
teaching and learning environments (Cuban, 1993; Evans, 2004; Jackson, 1990), or with
citizenship education in particular (Giroux, 1980; Tourney-Purta et al, 2001). Active
listening involves thinking and is as important as organizing our ideas in preparation for
public speaking or writing. Thus, our sense of justice in the prescriptive project includes
the capacity for “public listening,” the ability to process what a given speaker says—and
does not say—regarding matters of basic justice.

Citizens need to practice public listening in order to increase their understanding
of the political concerns that others express. By understanding others’ public concerns
citizens are better able to link their own circumstances to broader social conditions and to
generally increase their “knowledge of the complexities and interconnections of major
political issues [of the present] to each other and to issues of the past.”13 Public listening
is neither defensive nor prejudicial. To the extent that the capacity for a sense of justice is
effectively developed, young people are more likely to be intellectually open, critically
informed, and prepared to contribute to the task of shaping and directing their
government, whether or not they choose this path. My philosophy of education
anticipates a maximal role for every citizen wishing to participate as an informed actor in

the political processes that shape their lives.

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2. A Sense of the Good

Citizens’ collective interests and their willingness to COOperate form the essence of a
capacity for a sense of justice, but this capacity reflects only part of the purpose for which
desirable dispositions are nurtured. It must be recognized that a citizen’s liberty implies
another capacity that is more individualistic and private. A capacity for a conception of
the good is the other moral capacity that is required of citizens in Rawls’ well-ordered
society. Rawls defines it as “the capacity to form, to revise, and rationally to pursue a
conception of one’s rational advantage or good?”

A capacity for a conception of the good enables citizens to “express a scheme of
final ends and attachments together with a comprehensive doctrine in light of which those
elements [final ends and attachments] are interpreted.”16 Private interests—not public—
are preeminent in citizens’ choices for rational plans, but the social contexts within which
they choose is also a factor. Likewise, while it is expected that citizens’ comprehensive
doctrines will be very influential, it is also expected that their rational plans will
acknowledge public values and respect the rights of others. When we assume an
overlapping consensus of reasonable comprehensive doctrines, this implies that each
citizen’s rational advantage is tied to others’ cooperation.l4

Recall that a person’s conception of the good is a flexible perception of desirable
ends. It is not predetermined by stratification schemes (or ascriptive codes) that either
purport to reveal the ends for which people are born or that simply identify societal
interests pursuant to which people are “directed” to find their ends, as in Plato’s‘Republic.
Consistent with Rawls’ model, the prescriptive project does not endorse a singular good

that is intended to guide peoples’ life decisions or for which the state—or business elites,

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or anyone else—attempts to steer pe0ple. There is no public hierarchy of comprehensive
ends for which schools subordinate students’ interests in (developing) political autonomy
or for which schools serve as virtual gatekeepers.

Further, a conception of the good is understood within a political flamework that
tempers egoist individualism with the expectation that citizens exhibit sensitivity for the
good of others and for the general welfare as a whole. Absent such balancing in the
nonideal, egoism may lead some citizens to violate the liberties of others in pursuit of
their own self-interests. In addition, educational aims that emphasize individual
gratification have a tendency to de-emphasize the social relations needed to sustain
reciprocity or to build political communities that are socially reconstructive. Indeed, too
much attention given to private interests contributes to social fragmentation and
alienation (Dewey, 1964). The capacity for a conception of the good cannot be fully
developed absent its companion capacity—a sense of justice.

Rawls employs Kant’s imperative principles to clarify the relationship between
the two capacities. In so doing, he establishes a clear hierarchy that responds to the
confirsion of purpose that pits reasonableness (sense of justice) against rationality
(conception of the good). Rawls writes:

Kant’s categorical imperative procedure subjects an agent’s rational and sincere

maxim (drawn up in the light of the agent’s empirical practical reason) to the

reasonable constraints contained in that procedure, and this constrains the agent’s
conduct by the requirements of pure practical reason. . . . In each case the
reasonable has priority over the rational and subordinates it completely. This
priority expresses the priority of right; and justice as fairness resembles Kant’s
view in having this feature.1

We can understand, then, how the inwardly focused dispositions that are associated with

a conception of the good—self-regard, self-mastery, self-confidence (persistence in the

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face of opposition), agency (moral courage) and economic independence, for example—
can be part of a “thick” conception of democracy that, ideally, protects the substantive
rights of all citizens and, in the nonideal, works effectively to eradicate injustice.

Being ‘rational’ within Rawls’ framework implies that citizens understand the
values implicit in the political culture. These values reflect the moral judgments that are
embodied in the two principles of justice—the public principles that regulate the well-
ordered society. In the nonideal, it is especially important to understand and appreciate
the extent to which public principles concerning rights and liberties translate into limits
on, and possibilities for, personal action. Demonstrating this appreciation necessarily
involves using the intellectual powers of judgment and inference—already noted in the
discussion of a sense of j ustice—to critically assess the level of institutional support for
rational plans and self-regard. This entails a continuing “will to know” about the
changing nature of one’s society and the desire to keep learning in order to make
informed decisions over a lifetime about matters affecting one’s good.

Appreciating rationality in schooling means subjecting curricular policy to critical
review. Specifically, it means that efforts to “vocationalized” education such that it
simply fixes ends (rational plans) by channeling young citizens into narrowly conceived
career “choices” that limit the flexible readjustment of aims or the transferability of skills
have to be rejected (Dewey, 1916). In Rawls’ theory (and in the Rawlsian flamework),
executing such policies constitutes a violation of the standards for paternal intervention
because such actions flustrate the development of political autonomy—a liberty that

citizens generally want to expand, not limit, particularly under oppressive conditions.18

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The problems that are of interest to students are important even if teachers or
others do not share these interests. Developing a curriculum that is receptive to student
input entails, in part, asking them to identify problems of interest and then encouraging
them to discover more about the underlying causes than appears at face value. Students
can develop their capacity for a conception of the good by becoming comfortable
questioning the value of objects and aims, reflecting on social mores, exploring points of
intrigue and contradiction in problems, and employing imaginative and divergent
thinking in place of unreflective habits. In order for students to execute a project of this
type, however, they need to have confidence in their intellectual abilities and confidence
in the importance of the problems that they identify. If they believe that their concerns
have value, this— alone—may be sufficient to sustain critical inquiry.

Schools can do much more to help students increase their confidence and develop
the capacity for independent thought and action simply by giving them more support (and
space) within the curriculum to think and act. Within the prescriptive project, schools
work to inspire young citizens to develop an independent outlook that is distinct from the
impositions of authority figures, that is beyond the confines of school knowledge. In this
way, schools can offer support, early on, that facilitates the “assured political integrity of
citizens and their sharing with other citizens equally in the exercise of political power
[my emphasis]”l9—i.e. political autonomy.

Both the sense of justice and the conception of the good are elements of moral
character within the political flamework of an ideal well-ordered society, but they are

realized in the nonideal to the extent that our actions evidence a reasonable balance

between self-regard and “other regard.” Practical reasoning aimed at creating systems

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that promote equal dignity and equal citizenship reflect both forms of regard. Such
actions are informed by the union of reflective intelligent thought on the problem of
social stratification and the execution of plans pursuant to abolishing illiberal and unjust
social practices. The linkage of thought and action is famously expressed in Dewey’s
advocacy of democratic education (Dewey, 1916; 1922).

Fundamentally, both moral capacities presuppose a level of intelligence
(individual and social) beyond what appears to be the “zone of proximal development”
traditionally encouraged in schools.20 Higher-order thinking can be motivated and
sustained by the pursuit of desirable ends, such as improving the social conditions of
ordinary experience. The reconstruction project is—itself—an example of such higher-
order processes. It thrives on action guided by intelligent thought (based on moral
principles) directed at solving problems—which seems to capture the principal point of
schooling for Dewey:

The prime need of every person is capacity to think; the power to see problems, to

relate facts to them, to use and enjoy ideas. If young [men and women] come

flom school with this power, all other things may be in time added to [them].2'
I have thus far outlined the aims and fundamental dispositions that are the focus of the
prescriptive project. It remains to consider further the question of methods, the
procedures that are designed to achieve the desired educational objectives. In contrast to
the more rigid, rule-like methods advocated by scholars such as Kant, my approach
provides a framework and is more open to contingency, creativity, and improvisation. It
is admittedly more risky in some respects, but so too is the entire reconstruction project

when compared to the predictability of ascriptive reasoning. I find aspects of Dewey’s

experiential methodology and Freire’s critical consciousness focus, instructive.

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IH. Methods

In the Rawlsian flamework, action best develops moral dispositions, intelligent inquiry
and action directed at solving a relevant problem. Like Dewey and F reire, I focus on the
rich subject matter derived flom ordinary experience. I combine this focus with a critical
reading of contextualized history and an interdisciplinary approach to knowing that
includes alternative epistemologies (Mills, 1998; Smith, 2002b). This combination
appears to provide greater access to the complex lived experiences of people in the
nonideal and reveals the multiple dimensions of conflict and social struggle.

Historical readings provide information about public political culture, inter-group
conflict, dominant cultural values, and institutional and moral critiques (and celebrations)
of government’s use of collective power. This approach is quite different flom the idea of
developing virtue by primarily reading sanitized accounts of “key” (white male) figures’
lives—often suppressing memory to serve myth as suggested by political theorist
William Galston’s prescriptions:

The method must be a pedagogy that is far more rhetorical than rational. For
example, rigorous historical research will ahnost certainly vindicate complex
“revisionist” accounts of key figures in American history. Civic education,
however, requires a nobler, moralizing history: a pantheon of heroes who confer
legitimacy on central institutions and are worthy of emulation.22
An essential feature of schooling in the prescriptive project is the extent to which it
makes use of ordinary experience in the lives of students. To the extent that book-
centered methods trivialize learning through experience or appear to privilege a particular
set of cultural experiences (Hirsch, 1987), their use is minimized. William Bennett,

former Secretary of Education, suggests what appears to be a predominately book-

centered approach to moral education. Regarding virtues, he writes:

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But because children are not born with this knowledge, they need to learn what
these virtues are. We can help them to gain a grasp and appreciation for these
traits by giving them material to read. . . . There are many wonderful stories about
virtue and vice with which children should be familiar.23

My reservations about both Galston’s and Bennett’s methodologies for building
moral character should not be interpreted as a rejection of biographies and narratives in
the development of desirable dispositions. Rather, my point is that the cultivation of
desirable dispositions in the reconstructive project ought to be strongly linked to action,
such as participation in citizens’ groups, volunteer programs, and community organizing
efforts. These actions ought to further reconstructive aims that are intended to improve
the lives and communities of young citizens—many of whom live under conditions of
generational injustice, even with respect to the meager educational opportunities afforded
to them. It is imperative that their lived experiences and aspirations become the central
content of schooling.

Methods that are predominately focused on second-hand stories of virtue that are
found in books often further myths, distorted history (exclusionary), and political
correctness agendas that require the filtering of “controversial” issues. They tend to detail
experiences that are—to many students—uninteresting or remote. Perhaps biographies,
narratives, and dramas that address the conflicts and struggles that pertain to the tortuous
and torturous development of citizenship could be instructive for moral development in
the nonideal. This is something that open-minded teachers could decide in conjunction
with their students—giving ample consideration to the particularities of lived experience.

The relative absence of a practice component in many of the methodologies

employed for moral development suggests that morality (in the political, context) can be

separated flom intelligent action and, therefore, flom socially responsive engagement.

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Second-hand knowledge has its place, but, without much more, it may send young
citizens the message that their own lives are not worthy of sustained inquiry. It may
condition them to believe that a passive, vicarious approach to developing moral
capacities is desirable and sufficiently instructive—a dangerously erroneous conclusion
in the nonideal. For critics such as Dewey, and others, the implications of traditional
methods for developing moral dispositions are inconsistent with intelligent self-direction:

Moral education is inevitably reduced to some kind of catechetical instruction, or

lessons about morals. Lessons ‘about morals’ signify as [a] matter of course

lessons in what other people think about virtues and duties. . . . As a matter of fact

direct instruction in morals has been effective only in social groups where it was a

part of the authoritative control of the many by the few. Not the teaching as such

but the reinforcement of it by the whole regime of which it was an incident made

it effective. To attempt to get similar results flom lessons about morals in a

democratic society is to rely upon sentimental magic.“

In my estimation, student passivity enhances the power of unreflective and sentimental
forms of persuasion that are resisted and discouraged in the reconstructive project. Both
types of persuasion tend to work against students’ use of critical thinking and their
pursuit of intelligent self-direction, but these capacities are desirable for people seeking
to govern themselves in the nonideal.

In addition to the subject matter focus on ordinary experience, the prescriptive
proj ect’s methodology combines verbal instruction with active listening and dialectical
discussions. These dialogues target “values dilemmas” on matters of basic justice and are
guided by public reason. The Freirean impulse encourages collective participation for
political empowerment and anchors Dewey’s emphasis on individual practice and

evolutionary change. Further, F reire’s appreciation for the pervasive presence of evil in

the world gives practice a morally reconstructive and explicitly political problem-solving

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character more so than I would associate with Dewey’s approach, although Dewey
certainly recognizes the need for distributive justice.

Freire also provides the kind of balance for Dewey that is suggested in the
concerns Michael Apple raises about student-centered education: “Indeed, we need to be
extremely careful that such educational strategies are not pedagogies of individual
adaptation rather than pedagogies of social transformation.”25 The methods that I have
indicated combine theoretical and practical reasoning guided by principles of justice. The
curriculum highlights the following: intellectual and moral skills (no dualisms), historical
and contemporary subject matter linked to experience (particularly, the problems of
injustice), student-centered and public-centered interests in political autonomy, and
deliberative processes guided by a public reason dialectic, all within a Rawlsian context
that reflects inclusive, interdisciplinary reflections on the continuing obstructions to
freedom. This learning environment is educative in at least three additional respects: it is
nurturing; it is intellectually disciplined; and it is pedagogically liberating.

First, the environment is nurturing because it validates the lived experiences of
students individually and as members of pluralistic communities. This validation furthers
the social bases of self—respect within the basic structure. It also facilitates reciprocity
between teacher and student, and between students. It does this by making students’
experiences and their diverse communities the “stuff of education,” by making these
realities legitimate areas for exploration and knowledge acquisition, rather than relying
solely on textbooks and other forms of received knowledge.

I should reiterate, however, that some obvious forms of received knowledge can

be quite educative for purposes of the reconstruction; for example, the Constitution, case

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law, legislative decisions and non-governmental public materials are reflective of the
social mores and tendencies within the culture. However, this information is not simply
transmitted to students as authoritative; rather, it is critically considered (and balanced) in
relation to alternative epistemologies, specifically lived experiences. As Dewey
perceptively points out, “Ordinary experience does not receive the enrichment which it
should; it is not fertilized by school learning. And the attitudes which spring from getting
used to and accepting half understood and ill-digested material weaken vigor and
efficiency of thought.”26

The focus on ordinary experience supports students’ access to contextualized
knowledge within the school curriculum. To the extent that political and social
inequalities create obstructions to experiencing firll citizenship within a given
community, students are nurtured and guided in developing the confidence needed to
conflont the contradictions. That is, the circumstances under which students learn are
more favorable for comparing and contrasting the democratic ideals that are implicit in
the public culture with their lived experiences and future aspirations.

Within the reconstructive project, students are also guided in considering
alternatives approaches to problem solving. The problem-solving approach for the
conditions of ordinary experience requires a genuine belief in the possibility that students
can impact the conditions of their lives and can do so in ways that are personally
satisfying and socially reconstructive. The reconstructive project is—itself—an exercise
in possibility, one that structures “the familiar” so that it is connected to similar causes

that span generations of (unfamiliar) lived experience. Helping students to see themselves

as actors in the drama of their own lives, and focusing on societal issues that are integral

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to this drama, are methods that both Dewey and Freire advocate, albeit for different
reasons.

Freire adds certain elements to Dewey’s assessment of the value of experience,
particularly the elements of historical specificity and flux that are the foundation for what
Freire refers to as problem-posing education: “Problem-posing education affirms men
and women as beings in the process of becoming—as unfinished, uncompleted beings in
and with a likewise unfinished reality.”27 And further,

In problem-posing education, people develop their power to perceive critically the

way they exist in the world with which and in which they find themselves; they

come to see the world not as a static reality, but as a reality in process, in
transformation.28
As students benefit flom learning more about themselves and others within a process that
nurtures respect for difference and that welcomes possibility, they develop a sense of
their own worth and a sense of the value of their interpretations of the social world
through ordinary experience. These experiences encourage students’ self-direction in the
nonideal and, therefore, assist in the development of the two moral powers.

Second, the learning environment is intellectually disciplined because it
consistently incorporates dialectically reflective practices. It employs these practices to
encourage critical thinking about value conflicts and moral judgments concerning matters
of basic justice—social conditions that often limit the life chances of citizens collectively
and individually. The deliberative process of public reason is at the center of reflective
practice and is an indispensable part of the political grammar of Rawls’ (and Rawlsian)
society. Dialogue structured in a form that is dialectical presents students with a flexible

standard for critically reflecting on (and demystifying) government’s use of coercive

power. Clearly, public reason does not impose the type of discipline that is associated

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with autocratic school cultures that require strict obedience to external directives and that
emphasize passivity for social control (Butts, 1980). This is because the moral principles
that structure school culture within the prescriptive project support political autonomy
through intelligent self-direction.

Further, the discipline that is required for sustained critical inquiry, deliberation,
and informed action is self-regarding discipline, not obedience. It is the kind of discipline
that assists students in reasoning through “real world” applications of the reciprocity
criterion in multiple contexts. Students develop and practice intellectual discipline by
reflecting at length on the social problems that exist in their society and by structuring (or
contributing to) projects that address them; they become more adept at recognizing the
dehumanizing patterns that sustain social injustice and undermine fleedom. The
‘discipline’ that I refer to draws, primarily, on students’ interests in improving their
society—and improving their prospects within it—along with their willingness to exert
their energies to realize democratic change. Success requires their openness and
commitment in the vital tradition of social reconstruction. The discipline stems flom their
desire to live as flee beings.

The third and final educative aspect of the learning environment within the
Rawlsian flamework is its liberating pedagogy (Giroux, 1988; books, 1994; Jackson,
1986). Its orientation creates a climate in which controversial issues and social
circumstances that crush human aspirations are openly explored. It consciously seeks to
empower students by strengthening their reasoning power and their skills of
demystification within the realm of their own lives. It reconstructs the curriculum to

make meaningful connections between school knowledge and “real world” issues

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(interdependency) so not to be wholly reliant on external dictates about relevant
knowledge (curriculum compressed into standardized tests).

The anguish that may arise flom the contradictions between what students want to
understand (Tomey—Purta et al, 2001) and what the school system requires them to know
can be fleshed out through a pedagogical approach that invites the teacher to be human
(Dewey, 1922; Giroux, 1988)—to appreciate, for example, how the very act of teaching
and learning is heavy with meaning about citizenship status. It means exploring with
students how citizenship is degraded in the nonideal when the interests of power prevail
and marginalize democratic processes that benefit the masses, and how some citizens are
deprived more than others of the fair value of their political liberties when their education
system denies them a level playing field.29 Few would deny that moral judgments are
always involved in instruction, but—even when conflonted with obvious social
pathologies such as American slavery—mainstream professionalism, or traditional
teaching and learning theories, encourage teachers to be distant and authoritative
conveyers of content, to be personally and morally unaffected by the tragedies of human
history (Freire, 2000). This orientation is reproductive, not reconstructive.

Neutral pedagogy is anything but ‘neutral’ because its uncritical consumption of
information is consistent with the objectification of knowledge products and the
subrrrission to their purported sanctity (Giroux, 1988). A neutral curriculum translates
into a “business as usual” philosophy within a power asymmetry that accommodates the
epistemic privilege and the exclusionary assumptions that often underlie officially-
sanctioned knowledge (Apple, 1999). It ignores, for example, how a universal claim

tends to belie its particularistic flame of reference (homogeneity at the inquiry stage), and

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how insular communities of scholars produce knowledge that tends to silence the voices
and experiences of marginalized and oppressed groups (homogeneity at the production
stage) (Mills, 1998; West, 1993). Neutrality obj ectifies human beings, ignores pervasive
assaults on their dignity, and gives a subtle nod to the processes that legitimize
domination. In the nonideal, objectivity (lack of personal involvement) is not presumed to
govern the inquiry and production stages of knowledge formation because reasoning is
understood to be a reflective process that is based on our choice of moral principles and is
effectuated by the engagement of our two moral powers, one of which embodies our self-
interest. Self-interest and complete ‘objectivity’ are mutually exclusive.

We cannot wholly separate the situated nature of our existence flom our
deliberations about matters of basic justice, particularly distributive justice. In fact, this
kind of compartrnentalization of interests is undesirable because the reconstructive
project seeks the removal of privilege and caste-like modes of organization (Ogbu, 1994).
Neutrality in instruction often sacrifices the critical lens that humanistic teachers would
otherwise bring to the problem-solving process, and unwisely downplays the notion that
everyone has a stake in public matters because none are presumed to be indifferent to
their own good (Rawls, 1996). In a dialectically engaging discussion of interests in the 1
real world using public reason, there is little that is compelling or convincing about the
transmission of second-hand knowledge that purports to be “unadulterated by
interpretation or bias.”30 What does it mean to create or consume knowledge without
interpretation? Where do the burdens of judgment come into play?

Forms of inquiry and knowledge production that presuppose a neutral stance are

simply unhelpful in the nonideal. The Rawlsian flamework employs normative and

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descriptive analyses to explicitly further moral purposes favorable to the expanding
political autonomy of persons and groups. Social critique and the discussion of
“controversial” subjects are central to making sense of our experiences in the nonideal
and to seeking alternative modes of living that support democratic principles. Liberating
instruction makes its purposes open to review and critique, as they should be. None are
required to internalize the aims of the reconstruction but all are entitled to receive an
education that enables them to adequately assess its merits.

Until such time as the conditions under which we produce school knowledge no
longer constitute an impediment to (some) citizens’ realization of a just society (Mills,
1998), the formation of a democratic project in education is subverted. This impediment
to democratic progress creates an unavoidable area for critical classroom discussion and
reflection in the nonideal; yet the politicization of knowledge does not imply that teachers
are to indoctrinate students. Such objectives would be self-defeating because reflective
intelligence and agency are highly desirable in the prescriptive project. What it means is
that teachers must develop their capacity—along with that of their students—to entertain
social agendas and moral ambiguities in the relationship between citizenship and fair
equality of opportunity. It means that they should pursue this critical line of thinking to
the many controversial spaces where neutrality cannot venture. Similarly, ‘obj ectivity’—
by definition, an indifference to one’s good (absence of self-interested reasoning)—is a
political posture that clearly undermines the critical development of contextualized
analyses (the view flom nowhere?) while mystifying “the given,” leaving it undisturbed.
Henry Giroux elaborates:

To separate values flom facts or social inquiry flom ethical considerations is
pointless. . . . The notion that theory, facts, and inquiry can be objectively

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determined [lack of self-interest] and used falls prey to a set of values that are
both conservative and mystifying in their political orientation.31

Joe Kincheloe shares Giroux’s skepticism—registering his reservations by challenging
and expanding traditional notions of epistemic legitimacy, and advocating ways of
knowing that acknowledge particularity, contextuality, discontinuity, and conflict:
Critical postmodern teachers understand that knowledge is not just created in the
researcher’s office or in the professor’s study but in the consciousness produced
in thinking, discussion, writing, argument, or conversation. It is created when
teachers and students conflont a contradiction, when students encounter a
dangerous memory, when teacher-presented information collides with student
experience, or when student-presented information collides with teacher
experience.32
Where there is neutrality there is little room for exploring conflict, difference,
moral ambiguity and problem solving about matters of basic justice, and each of these is
a necessary undertaking in the reconstructive project. Further, schooling in the context of
nurture, discipline, and F reirean humanizing instruction is a project that expands
democratic value commitments, expands the democratic project, and makes compulsory
schools a rational undertaking within the aims of reconstruction. For reasons already
discussed, the logical quid pro quo for schooling in the nonideal—developing collective
human potential and strengthening political autonomy—is forfeited in our system of
sorting, tracking and arbitrary differentiation, often under conditions that are more
autocratic than democratic.33 It is apparent that the potential for humanizing education in
its most basic form, as reflected in the affirming insight provided in, educator, P. David
Pearson’s remarks, is lacking and is too easily overlooked in the routine of government
schooling objectives:
Children are who they are. They know what they know. They bring what they

bring [to the learning environment]. Our job is not to wish that students knew
more or knew differently. Our job is to turn students’ knowledge and the diversity

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of knowledge we encounter into a curricular strength rather than an instructional

inconvenience. We can do that only if we hold high expectations for all students,

convey great respect for the knowledge and culture they bring to the classroom,
and offer lots of support in helping them achieve those expectations.34

To conclude: the nature of the reconstructive aims and dispositions necessitated
by the critical geography outlined in Chapters 3 and 4, and the critical methods outlined
in this chapter, reflect a genuine respect for students and families within the workings of
government institutions in the reconstruction. Institutional support is a collective
expression of sensitivity and commitment to students’ (future) interests in realizing
political autonomy under nonideal conditions of injustice, conditions that include the very
process of being “educated” in government schools in America. The social critique that
nms throughout this chapter and thesis reflects my respect and appreciation for the power
of education in shaping citizens’ lives . . . for better or worse. Such a far-reaching
. enterprise warrants the interdisciplinary and critical inquiry that this thesis seeks to
provide.

The difference in the orientation of my thesis is that the existential problem has
been redefined to place the focus on the moral role of government (and government
schooling) within a system of social stratification. The continuing contribution that
schools make to the reproduction of the ascriptive status quo has been demystified and
rejected. Education’s enterprise is challenged to respond to the legitimate and earnest
demands for a public clarification of ends (and means). In the Rawlsian flamework,
effectively responding to this demand is a moral obligation that professionals must not
ignore despite the fact that it necessitates a continuous and critical encounter with “the

’9

given.

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A philOSOphy of education guided by Rawls’ principles of justice within a
Rawlsian flamework can nurture, structure, and liberate the ideal of public reason. It can
inspire the development of the two morals powers and do so in the interest of justice-
seeking public initiatives within the meaningful contexts of ordinary experience. It is in
this context that virtues become vital and transforming. In the sphere of the nonideal,
moral judgments have a critical geography within which to work, and the moral
capacities that Rawls advocates—the capacity for a sense of justice and the capacity for a
conception of the good—can find urgent and critical expression. This is why our
educational endeavors ought to reflect the continuous application of cognitive and moral
reasoning to the unjust conditions that pervade ordinary experience. It is practical
reasoning guided by humanizing moral principles that emanate flom a political
philosophy that critically describes and analyzes social phenomena so as to give injustice
its due (Shklar, 1990).

Injustice is the central impediment to developing a morally defensible mode of
social life in America. Thus, eradicating injustice is “the first virtue of social institutions”
in the nonideal. In the Rawlsian prescriptive project, education takes its place alongside
other human endeavors reaffirming the commitment to “take part in correcting unfair
privilege and unfair deprivation, not to perpetuate them.”35 In so doing, it is linked to
like-minded reconstructive pursuits of the past, present, and future to form a morally
rectified and demystifying complement to the collective memories of injustice,
marginalized within the basic social institutions of our present society.

In the Rawlsian flamework education’s “broad and sympathetic survey of its

”36

place in contemporary life makes it imperative that its character be socially

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reconstructive. It cannot acquiesce in the daily images of unfairness, hiding behind the
cloak of neutrality and objectivity. It cannot turn a “blind eye” to the many generations in
which schooling has supported the irrationality of government, has served its purposes by
exclusion and by the selective development of human potential. It is not ‘education’ if it
is not part of the improvement of the human condition. When it ascribes, and denies, and
looks the other way, it is “something else.” The injustice of gross inequalities cannot be
glossed over in the babble of achievement mandates and professionalism—unreflective
loyalty to established practices and familiar ways of doing business. On this point Judith
Shklar writes:

Most injustices occur continuously within the flamework of an established polity

with an operative system of law, in normal times. Often it is the very people who

are supposed to prevent injustice who, in their official capacity, commit the

gravest acts of injustice, without much protest flom the citizenry.37

A philosophy of education within a Rawlsian flamework presents us with a
transparent, reasonable, and rational basis for schooling in America. It connects the pride
in being who we are as members of pluralistic communities with particular interests, to
what we ought to be as a just polity. Such a philosophy is education’s vital contribution to
fairness. It challenges the generational irrationality of ascriptive governance and the
immoral translation of ignoble aims to the initiation of the young. It informs practical
reasoning through principled theoretical reasoning. It contributes to an alternative project
for moral clarity and intellectual development that champions equal dignity and equal
citizenship. Where we succeed in this humanizing project, there we will find that

“government schooling” is, indeed, synonymous with “public education,” and that

learning is finally its own reward.

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CONCLUSION
A TENSION IN THE MIND

And here we are, at the center of the are, trapped in the gaudiest, most valuable, and most
improbable water wheel the world has ever seen. Everything now, we must assume, is in
our hands; we have no right to assume otherwise.

----James Baldwin
We need to pledge ourselves to engage anew and with renewed faith in the greatest of all
battles and in the cause of human liberation, to the end that all human beings may lead
the life that is alone worthy of being entitled wholly human.

----John Dewey

A socially stratified state fails to meet the standard for liberal legitimacy due to the
irrationality and social injustice of its basic structure. America is a socially stratified state
with a history of pursuing ascriptive social policies. Its compulsory schooling system
often buttresses and rationalizes its structure, but such a system is detrimental to the
development of critical rationality and autonomy, particularly with respect to those least-
advantaged under existing stratification schemes. Such a system cannot be structured to
champion equal dignity and equal citizenship, cannot sincerely commit itself to preparing
its young for self-govemment consistent with democratic ideals, and cannot substantively
promote these ideals within the culture of its own political enterprise. Its socialization
objectives vis-a-vis the larger society tend to be integrative and cohesive, but such
purposes are wholly irrational in the context of pervasive, gross inequality and unequal
access to the basic resources of society—specifically, to education itself. Such purposes
are more likely to be met with contempt and forms of opposition when citizens critically
reflect on their good and seek a fair system of social organization.

In order to promote an ascriptive agenda, the schooling process within America’s

stratified state is authoritarian. It cannot be logically consistent with the ideology

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structuring the stratified state unless its educational aims largely dismiss or disregard the
interests that many students have in realizing the liberties protected by equal
citizenship—namely, political autonomy and pluralism. It furthers the maintenance of the
ascriptive status quo by contributing to the reproduction of an increasingly passive
citizenry and by its emotive appeals to unreflective forms of patriotism and utilitarian
sacrifice. It contributes to the preparation of citizens for their predetermined, ascriptive,
adult roles. Thus, “government schooling” more often perpetuates the interests of
government, not the interest of the public. It is not ‘public education.’ Consequently, the
Rawlsian flamework identifies certain moral antecedents that the state must respect
within its basic structure if it is to have a chance of meeting Rawls’ moral standard of
liberal legitimacy in its sponsorship of compulsory schooling; absent these antecedents, it
cannot provide a morally defensible response to those who contend—as did John Stuart
Mill—that government controlled schooling is inherently oppressive and intellectually
enervating.

First, the state must substantively commit itself to eradicating social stratification.
If the state enables, condones, or tolerates social group hierarchies in its distribution of
social benefits and burdens in society—as a matter of course—then the state is socially
unjust (Rawls, 1996). A compulsory government school system that operates within a
socially unjust state is more likely to ignore the moral content of the political order. It is
more likely to leave unchallenged the unequal distribution of benefits and burdens—
group-ascriptive privilege and denial—that is built into its conception of citizenship. The
compulsory integration of the young into such unjust social arrangements is a clear

indication that the state’s use of its coercive powers violates Rawls’ idea of fundamental

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fairness. Therefore, if the state enables, condones, or tolerates social group hierarchies in
its distribution of benefits and burdens in society—as a matter of course, in educational
opportunities, for example—then the state’s coercive powers are used (or withheld) in a
manner that violates Rawls’ basic principles of justice. Such use of coercive power is
rejected in the Rawlsian reconstruction, particularly in its prescriptive project in
education.

Second, the state’s policies must evidence substantive beneficence. If the state’s
education policies fail to evidence substantive beneficence, then the state is more likely to
routinely and callously disregard the interests of many of its citizens. Unprotected
interests—in civil rights, for example—may fall prey to dominant power interests within
the state (Walzer, 1971). These dominant interests may take advantage of this lack of
government protection and structure school knowledge in ways that rationalize, transmit,
and reproduce a view of social reality that favors the perpetuation of elite privilege
(Apple, 2003; 2001). Such “packaging” of information may adversely affect how
subordinated young citizens perceive themselves vis-a-vis the larger society and how
they interpret their lesser prospects for advancement within it (Moody-Adams, 1997).
The compulsory schooling process may then degenerate into little more than “a
convenient tool of the existing nationalistic and economic regimes,”I as Dewey suggests,
and, necessarily, become a narrowly conceived ideological tool (Kickbusch, 1987). In
order to be successfirl, this process must convince significant numbers of its
impressionable young citizens to accept—without critical examination—their subordinate

(or dominant) position in a society ruled by the few (Parenti, 1980).

277

Notwithstanding government ’5 interests, its implicit requests that some of its
members accept subordination is irrational and is repugnant to young citizens’
fundamental interests—and the interests of their pluralistic communities—in equality and
liberty. “For surely,” as Rawls maintains, “a rational person is not indifferent to things
that significantly affect [her] good; and supposing that [s]he develops some attitude
toward them, [s]he acquires either a new attachment or a new aversion.”2 An ascriptive,
compulsory process violates the fundamental moral commitment to liberty and fair
equality of opportunity, and it abdicates the state’s responsibility for securing these social
benefits for all on an equal basis. Its neglect of some citizens’ interests within its
compulsory schooling process evidences an illegitimate use of coercive powers and a
failure to provide equal protection for its citizens—the finding in Brown 1. Thus, if the
state’s education policies fail to evidence substantive beneficence, then the state’s
coercive power is used (or withheld) in a manner that violates Rawls’ basic principles of
justice. Such use of coercive power is rejected in the Rawlsian reconstruction,
particularly in its prescriptive project in education.

Finally, the state must respect students’ interest in political autonomy and
pluralism. If the state emphasizes conformity and social cohesion in the context of social
stratification (and ascriptive citizenship) then its schooling process is likely to undennine
the development of political autonomy and pluralistic conceptions of the good. If the
schooling process undermines political autonomy, it discourages serious consideration of
subject matter pertaining to students’ material conditions and discourages critically

independent thought. If it undermines pluralism, it enables the suppression of dissent and

278

alternative views of sociopolitical organization. In both instances, this means that the
state schooling process imposes its own conception of the good on its students.

Under conditions of social stratification, the state’s schooling process is likely to
reflect a dominant ideology that is consistent with a functionalist sociological model.
Pursuant to this model, society is theorized as a collection of smoothly operating,
interdependent parts that are flee flom conflict and deep division. Under conditions of
stratification, however, it is more likely that prolonged conflict within the state (and
within civil society) more accurately reflects its social dynamics, and the injustice
underlying these conflicts may appeal more forcefully to the minds of students as their
developing rationality becomes embedded in their diverse lived experiences (Apple,
1971; hooks, 1994). The more aggressively the state imposes its will, the more
disrespectful it is of political autonomy and reasonable pluralism as defined in Rawls’
theory and the less committed it is to developing the critical rationality of young citizens
for democratic citizenship during their formative years.

If the schooling process obstructs the development of rationality, then the state
limits the life choices available to students and, thus, denies them equality of opportunity
to foster and pursue their conceptions of the good on their own terms. This violates
Rawls’ two principles of justice, undermines primary goods, and dismisses two additional
features of his political liberalism: its restriction of the state’s powers to public matters
and its moral standards for the state’s paternalism. Recall that Rawls’ conception of
paternalism creates an obligation on the part of government to make decisions pursuant to
the two principles of j ustice and to protect students’ firture interests in political autonomy

(including distributive justice). It does not provide government a license to pursue its

279

 

 

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conforrnist ideals or its ascriptive judgments about desirable ends. Such paternalism can
only be effectuated by coercive means in violation of the fundamental idea of reasonable
pluralism.3 Rawls writes:

Individuals find their good in different ways, and many things may be good for

one person that would not be good for another. . . . In a well-ordered society, the,

the plans of life of individuals are different in the sense that these plans give

prominence to different aims, and persons are left flee to determine their good,

the view of others being edunted as merely advisory.4

Therefore, if the state emphasizes conformity and social cohesion in the context
of social stratification and ascriptive citizenship, it again violates Rawls’s political
conception of justice at its very foundations of liberty, equality, and tolerance. It
suppresses reasonable pluralism, which is, according to Rawls, a natural outgrowth of the
use of reason over time, assuming the absence of oppressive state power.5 It also
undermines the development of political autonomy and is, therefore, incapable of
insuring the “political integrity of citizens and their sharing with other citizens equally in
the exercise of political power.”6 These breeches of Rawls’ social contract are significant,
and they further indicate that the government’s schooling system fails miserably in
upholding what is widely perceived to be its primary obligation: nurturing students’
capacities for self-goveming citizenship pursuant to constitutional principles.

Consider Justice Jackson’s majority opinion in the 1943 case of West Virginia
State Board of Education v. Barnett, which struck down a resolution requiring students
and teachers to salute the flag in all school activities, as a form of patriotism:

The Fourteenth Amendment, as now applied to the States, protects the citizen

against the State itself and all of its creatures—Boards of Education not

excepted. . . .That they are educating the young for citizenship is reason for

scrupulous protection of Constitutional fleedoms of the individual, if we are not

to strangle the flee mind at its source and teach youth to discount important
principles of our government as mere platitudes.7

280

 

 

 

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We conclude that if the state emphasizes conformity and social cohesion in the context of
social stratification and ascriptive citizenship, then its coercive power is used (or
withheld) in a marmer that violates Rawls’ basic principles of justice in multiple ways.
Such use of coercive power is rejected in the Rawlsian reconstruction, particularly in its
prescriptive project in education.

Thus we see that the Rawlsian flamework has three basic moral antecedents that
structure its prescriptive project in education. The state must respect these antecedents
within its basic structure if it is to have a chance of meeting Rawls’ moral standard for
liberal legitimacy, in the nonideal, in sponsoring compulsory schooling. It must eradicate
social stratification and ascriptive citizenship (or, at least, substantively commit itself to
doing so); it must demonstrate beneficence, and it must provide substantive support for
reasonable pluralism and political autonomy. These obligations have specific
implications for theoretical and practical reasoning in education and must be among
schooling’s central organizing principles—as they are in the prescriptive project.
Otherwise, the state cannot provide a morally defensible response to those—such as
Mill—who contend that government schooling is inherently oppressive and intellectually
enervating.

In the Interest of Fairness

The obvious harm to life chances that results flom unequal distributions of basic
educational opportunities has only increased in the decades since Brown and has been
ventilated by many scholars and activist since that landmark decision was rendered. It is
obvious to many that Brown ’5 constitutional mandate did more than repudiate state-

sponsored segregated schooling; it also implied that any hope of achieving equality of

281

educational opportunity in America is inconceivable absent a program that mingles
discriminated children with those enjoying full citizenship status. (Black schools and
substantive equality of opportunity in education are, apparently, mutually exclusive.) In
this context, affirmative action and other add-on compensatory measures are only a first
step in making historically unjust social institutions—govemment schools, specifically—
accountable for the immense and long-standing rights violations that they once openly
championed. History suggests that even these limited measures require a far-reaching
commitment to morally competent judicial monitoring, in stark contrast what was made
available to the plaintiffs in Brown 11 (the remedial phase of Brown I), and to many
plaintiffs thereafter (Bell, 2001).

Contemporary, mainstream, education policy appears to be seriously out of touch
with the ideals and democratic commitments that underlie Brown I and that animate
theories of social justice (Boyd, 2001). The education establishment and the public at
large ought to reject the deintellectualization of education policy because it facilitates the
“disconnect” between education and any serious notion of democratic ideals, be they
social or political (Boyd & Meyer, 2001). Bridging this disconnect means transcending
the limits of insular communities, where possibility is confined within the walls of
technocratic jargon. It means resisting efforts to reduce education discourse to
unquestioned, unchallenged, insider practices that shun theory and interdisciplinary
approaches as “ideological,” “political,” “utopian,” and “irrelevant.” It means
problematizing the moral content of political expediencies—forced segregation and
integration, for example—that tolerate myths and prejudices that confuse systemic

oppression with cognitive deficiency or cultural deprivation.

282

 

The flagrnentation of educational theory flom social justice and citizenship
depoliticizes the education debate. How do we develop an educated citizenry for self-
government given a policy orientation that fails to articulate precisely how its vision of
government is consistent with such aspirations as political autonomy, or that fails to
clarify what its current policies are designed to advance relative to, say, Brown? The
current administration’s Leave No Child Behind legislation appears to leave much room
for interpretation regarding where we are going and how we are going to get there.
Absent clearly defined public purposes that meet the standards of public reason, virtually
any direction has merit—including repetitive, mindless policy cycles that point the finger
at poor children and their families, suggesting that “they” present “government” with
social problems that strain the capacity of the system. How can the capacity of America’s
constitutional project be strained when reform efforts champion equal citizenship and
expand dignity? If this is probable, what are the aims of the project?

Fundamentally, policy is political because it involves the management of
conflicting interests. Education policy is highly political—not neutral or objective—
particularly to those whose interests are not being served. Indeed, as Parenti notes, “The
decisions made by government are called ‘policy decisions? One characteristic of policy
decisions is that they are seldom, if ever, neutral. They ahnost always benefit some
interests more than others, entailing social costs that are rarely equally distributed.”8
From the perspective of the disfavored citizens whose educational opportunities continue
to reflect a pre-Brown policy orientation, neutrality simply disguises business as usual in

schooling. It was unacceptable then, and it continues to be unacceptable today.

283

John Ogbu, the late anthropologist and education scholar who for more than thirty
years conducted research to study the so-called “minority achievement gap” in schooling
in America (and internationally), listed racial stratification as “the” fundamental factor
undermining the academic progress of black students and noted several significant
manifestations of it. His findings are particularly relevant for my discussion because they
link the sociopolitical conditions of schooling in American society to the historically
ascriptive citizenship patterns that I introduced in Chapter 1. These patterns continue to
manifest themselves within our basic institutions—in budgetary decisions, social
programs, and laws, for example. Ogbu identifies an empirical nexus between race and
academic achievement that is similar, in some respects, to the research findings social
scientists provided the Court in Brown.

The research presented in Brown docrunented the harmful effects of racial
segregation on black—not white—academic achievement. The Court concurred with the
findings. Ogbu’s research provides a more complex link to these findings, and to the
Brown decision, that highlights the notion of a social bases of self respect (mentioned in
connection with Moody-Adams’ discussion of black personhood and Rawls’
characterization of the most important primary good among the five contained in his list).
Ogbu’s findings place race and respect at the center of the perennial and controversial
debate about minority academic achievement, or the lack thereof, in mainstream
education discourse He writes:

There are three ways in which racial stratification enters into and adversely affects

black education. One is through societal educational policies and practices. The

societal channel includes denying blacks equal access to education through
unequal resources, segregation, and the like—common phenomena in the past

[and present, under defacto segregation]. This ensures that blacks do not receive
equal education in terms of quantity and quality. . . . The second way that racial

284

stratification enters into black education lies in the way black students are
perceived and treated in the specific schools they attend. These treatments include
tracking, testing and misclassification, representation or nonrepresentation in
textbooks and curriculum. Cultural, linguistic, and intellectual denigration is also
part of the problem. . . . [Third], racial stratification also enters into and adversely
affects black education through black people[s’] own perceptions and responses to
their schooling in the context of their overall experience of racial subordination.
The factors involved in this, third, process [are] what I call community forces.9
If the state is incapable of operating pursuant to democratic values and principles
then its direct control over the schooling process—over curriculum standards, teacher
certification, textbooks, expenditures, and other areas directly affecting the service
provided in schools—ought to be significantly circumscribed, if not eliminated. Perhaps
its regulatory role would continue to be needed for the procurement of public funds—but
even this role would be scrutinized through the Court’s (and the public’s) continuous
oversight to insure civil rights compliance. These measures would be necessary because
in Rawls’ flamework, the state’s legitimate purpose is to protect the political liberties of
citizens, their interest in equal citizenship, and the public’s interest in justice as fairness.
Some argue that even if the state “is” capable of promoting a morally defensible
education policy under a reconstructed vision of society, the argument for greater
experimentation in school governance remains viable (Spring, 1994; Strike, 1991). I
cannot reject this position. The dangers of excessive power and the many opportunities
for abuse are replete in the annals of political organization, and they repeatedly manifest
when government involves itself in the schooling of the young. The concerns of John
Stuart Mill on this issue are well known and are—for many—no less compelling a
century later. He writes:
That the whole or any part of the education of the people should be in State hands,

I go as far as anyone in deprecating. All that has been said of the importance of
individuality of character [political autonomy, in my discussion] and diversity in

285

opinions and modes of conduct [can include reasonable pluralism here] involves,
as of the same unspeakable importance, diversity of education.10

Experimentation in the structuring of education should not, however, be
interpreted to mean wasteful bureaucratic expenditures, fiscal mismanagement, and
market gimmicks for political advantage. The overriding concern of policymakers within
the Rawlsian flarnework is the promotion of fair equality of opportunity for all within the
basic institutions of society, not the establishment of “education lotteries” for the lucky
few and not the logistics of busing students “here and there” in search of decent schools.
Those advocating experimentation in education should also support those who urge that
policymakers concentrate their efforts on making high quality education a reality for all,
on an equal basis—wherever people live, whatever their race or economic position. The
social hierarchy in American society is politically irrational and obstructive to democratic
strivings. “Experimentation” that does not address this fundamental problem is, indeed,
part of the problem, not part of the solution. Building a just political community requires
meaningful bonds of goodwill, not novelty or simplistic calls for cohesion.

Removing injustice sometimes requires government coercion such as the use of
federal troops to insure that children can safely enter a, previously, segregated school, but
the psychology that actually binds citizens in Rawls’ theory cannot be forced. This moral
psychology, according to Rawls, has its basis in a shared sense of justice among citizens,
in their support for each other’s right to self-determination, and in their mutual
recognition that their society is fair and works to protect the substantive fleedoms of all
of its members. Absent these basic democratic perceptions and sensibilities, simply

sharing a physical space—or being forced to share a physical space in order to receive

286

adequate government services—is not going to reduce social tensions or increase national
unity:

The justice or injustice of society’s arrangements and [peoples’] beliefs about

these questions profoundly influence the social feelings; to a large extent they

determine how we regard another’s accepting or rejecting an institution; or his/her
attempt to reform or defend it.11

To conclude: education policy ought to have a moral basis consistent with the
Rawls’ ideal model within a Rawlsian flamework. It must not be irrational, unreasonable,
or coercive flom the point of view of those whose rational plans of life require the
realization of equal liberty and justice for all. Citizens ought to hold policymakers and
educationists to a high standard of accountability within the public forum. In the
nonideal, their policies and practices ought to meet Rawls’ basic standard for public
justification: public reason. This is because education policy is public policy and public
policy measures have a particular function within the reconstructive project: to redefine
and reconstruct the basic institutions in society in ways that make social stratification
intolerable and ascriptive privileges obsolete.

Schooling in the prescriptive project is, in part, a process by which citizens
become aware of the Rawlsian objectives and critically assess them within institutional
structures and lived experiences. The democratization of education—whether or not the
state is in control—requires that school governance be altered in several ways to promote
political autonomy and to reflect public reason: increasing local communities’ influence
on decision-making, supporting the reorganization of school boards for racial and cultural
diversity, and emphasizing pluralism and equal opportunity in the appointment of

superintendents, principals, teachers, education faculty, and other service providers.

287

As a matter of policy, the state’s role in regulating education ought to reflect
democratic ideals and, therefore, ought to champion the latter of the two alternatives that
have guided considerations about appropriate educational aims flom, at least, the time of
Plato:

Should the educated [person] adjust to society, should [s/he] accept the social

order as it is, or should [5/he] attempt to improve the society in which [s/he] lives?

Another way of stating this question is in this form[:] should the school develop

young people to fit into the present society as it is or does the school have a

revolutionary mission to develop young people who will seek to improve the

society?12
The decision to select the latter of the two choices (to improve society) can be implied
flom the social justice agenda advocated in Rawls’ political philosophy. This stance is
historicized and contextualized in the Rawlsian flamework such that it aims to eliminate
social stratification and ascriptive citizenship as prerequisites to realizing a morally
defensible political society consistent with Rawls’ ideal model.

The social intelligence that is evidenced in the capacity for a sense of justice can
combine with moral agency to seize the present opportunities for reconstructing the
ascriptive state. Schools that are structured pursuant to the reconstruction are guided by a
philosophy of education that is committed to social justice, that demystifies institutional
practices, and that supports the social bases of self-respect—approximating Rawls’
standard of social excellence for the basic structure. Clearly, the social union of social
unions that reflects overarching bonds of nonascriptive unity is nonexistent in our history.
My thesis supports the notion that a morally defensible basic structure is possible through
collective, democratic struggle—through the dismantling of social stratification and

ascriptive citizenship systems and through the reconstruction of the basic structure

pursuant to the Rawlsian flamework. While the success of this project is certainly not

288

guaranteed, stagnation and further decline are—particularly if apathy and passivity
prevail. The fundamental idea is that we take moral responsibility for the political
structure of our society.

People make choices even when they do nothing at all. Their choices create
material conditions that largely degrade or largely uplift humanity. These choices can be
reassess and revise for purposes of changing material conditions, for better or worse.
While the vast majority of Americans shun politics and its processes—appearing
generally uninspired and disengaged—another window of opportunity for justice closes
on another unremarkable generation. Michael Parenti appears sympathetic to those who
have grown weary of government but does not find their estrangement prudent. He
writes:

Political life is replete with deceit, corruption, and plunder. Small wonder that

many people seek to remove themselves flom it. But whether we like it or not,

politics and government play a crucial role in determining the conditions of our
lives. People can leave political life alone, but it will not leave them alone. They
can escape its noise and nonsense but not its effects. One ignores the doings of the
state only at one’s own risk.13

It is prudent for a critical mass of American citizens (and non-citizens) to work to
transform our society. It is prudent for them to sufficiently bridge their historic, ascriptive
divisions in order to accomplish the extraordinary. Principles that are understood through
the lens of social stratification and ascriptive citizenship create a tension in the mind
powerful enough to translate ideals into material conditions—starting small, leading by
example, and forging alliances. A genuine consolidation of wills can meet the challenges
facing the reconstruction project. One conspicuous example of the power of ordinary

people to positively alter their lives, and alter the priorities of a nation, is reflected in the

international impact of the Civil Rights Movement.

289

We know that it is possible for diverse communities to unite around principles of
justice wherever a sufficient number of individuals possess the moral courage and
political conviction to renounce immoral systems that enable unfair privilege and unfair
deprivation. History offers other examples of ordinary people advancing the cause of
fleedom and social justice: slave insurrectionists, Underground Railroad participants,
abolitionists, dissenters in Dred Scott, supporters of the short-lived Reconstruction,
proponents of civil rights legislation, Antilynching Movement supporters, dissenters in
Korematsu, and the majority in Brown. Each of these examples reflects a unity of
interests: individual and collective, political and moral, state and civil—that furthered
equal dignity and equal citizenship to some degree. The highest expression of self-regard
and regard for the general welfare is embodied in the struggle for a just state. Walzer
writes:

There can be no community and no common good without social justice. Political

societies cannot survive on evocations of citizenly virtue, responsibility, and

fellow feeling. There must also be a commitment in practice to the weaker
members. This is a commitment that only the state can make in a universalizing
way. . . . A democratic state, rooted in the associational life of civil society, will
also be continually active in fostering, subsidizing, and regulating the
associations—so as to maintain a fair distribution of welfare and opportunity.14

If we seek a thick democracy that evidences a level of civilization never before
seen in America—one in which fleedom is not at odds with government, citizenship is
not defined by ascription, and social cooperation is not code language for subordination
and submission—we will need to develop greater self-respect and a greater capacity for a
sense of justice, sooner rather than later. A healthy conception of American citizenship

supports publicly accountable institutions and leaders and is committed to bringing forth

the best that its citizens’ moral and intellectual capacities can achieve in the interest of

290

freedom (hooks, 1994). My critical analysis of social stratification and ascriptive
citizenship is a modest contribution to along and valued tradition of struggle to dismantle
and reconstruct America’s institutions pursuant to just moral principles. The level of
progress that is evident in our society, today, was made possible by the moral and
political choices—the personal and collective sacrifices—of preceding generations.
Continuing this progress means continuing to make humanizing choices. Like many
others, I embrace the vital tradition that endeavors to move an irrational, ascriptive
society that degrades liberal democratic ideals, closer to a just pluralistic political

community that elevates and advances them.

A true and worthy ideal flees and uplifts a people; a false ideal imprisons and lowers.

---- W. E. B. Du Bois

291

NOTES

 

NOTES TO PAGES 6-28

Chapter I

1. Bancroft, History of the Formation of the Constitution, 324.
2. Shklar, American Citizenship, 9 (hereafter cited, American)
3. Ibid., 1, 13-14.

4. Martin Luther King’s “I Have A Dream”

5. Lively, The Constitution and Race, 4-5.

6. Ibid., 5.

7. Zinn, A People ’s History, 85 (hereafter cited, People ’5)

8. Smith, Civic Ideals, 132 (hereafter cited, Civic)

9. Ibid., 130

10. Ibid., 131.

11. Zinn., People ’3, 109.

12. Ibid.

13. Ibid.

14. Smith, Civics, 110, 31.

15. Ibid, 146-47.

16. Shklar, American, 14-15.

17. Zinn, People ’3 , 90; Beard, An Economic Interpretation, 26-51, 61-63.
18. Bancroft, 324.

19. Hamilton, Madison, and Jay, Federalist Papers, 79.
20. Zinn, People '3, 95.

21. Beard, 13.

22. Shklar, American, 13-14.

23. Smith, Civic, 101-14.

24. Karst. Belonging to America, 48.

292

 

 

NOTES TO PAGES 29-47

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.

35.

36.

37.

38.

39.

40.

41.

42.

43.

44.

45.

46.

47.

48.

49.

50.

51.

Lively, 33.

Dred Scott v. Sanford, 60 US. 393, 397 (1857) (hereafter cited, Dred).
1d. at 404-405, 407.

Bell, “Dissenting,” 185.

Shklar, American, 16.

Karst, 47.

Lively, 33.

Moody-Adams, “Race, Class, and the Social Construction of Self-Respect,” 258.

Dred, 60 U. S. at 420.

Moody-Adams, 264-65.

Smith, Civic, 272.

Ibid., 573-74.

Ibid., 279; Cowan and Maguire, Timelines of Afi'ican-American History, 92.
Srrrith, Civic, 279.

Ibid., 279-80.

Cowan and Maguire, 91; Karst, 50.

Karst, 50.

Hamilton, Madison, and Jay, 545

Du Bois, Black Reconstruction, 413-484, 713.
Karst, 63.

Cowan and Maguire, 92.

Oliver and Shapiro, Black Wealth/White Wealth, 14.
Karst, 63, 67-8, 251n43.

Smith, Civic, 303.

Cowan and Maguire, 105; Smith, Civic, 290.

Civil Rights Cases, 109 US. 3, 17 (1883).

Cowan and Maguire, 100.

293

 

NOTES TO PAGES 47-59

52. Ibid., 120.

53. Rawls, Political Liberalism, 233n18 (hereafter cited, Political)

54. Plessy v. Ferguson, 163 U. S. 537, 544 (1896) (hereafter cited, Plessy).
55. Id. at 552.

56. Id. at 554-55.

57. Id. at 561.

58. Zinn, People '3, 383.

59. Parenti, Democracy for the Few, 3rd ed., 75. (hereafter cited, Democracy 3rd. ed.).
60. Shklar, American, 1-2.

61. Zinn, People '3, 394-95.

62. Parenti, Democracy for the Few, 7th ed, 74 (hereafter cited, Democracy 7th. ed.).
63. Zirm, People ’3, 394.

64. Rawls, Political, 233n18.

65. Shklar, American, 13.

66. Korematsu v. United States, 323 U. S. 214, 227 (1944).

67. Id. at, 227.

68. Id. at 216.

69. Id. at 214.

70. Id. at 229.

71. Id. at 230.

72. Id. at 218.

73. Id. at 223.

74. Id. at 233, 235-37.

75. Id. at 240.

76. Id. at 242.

77. Id.; Karst, 90.

78. See, Japanese American National Museum Quarterly 9 no. 3 (Oct-Dec. 1994): 11-16.

294

 

NOTES TO PAGES 59-81

79. Parenti, Democracy 3rd ed., 294n28.

80. Smith, Civics, 279.

81. Shklar, American, 13-14.

82. Spillers, “The Crisis of the Black Intellectual,” 98.

83. Brown v. Board of Education, 347 U. S. 483, 486-88 (1954) (hereafter cited as Brown I).
84. Id., at 487-88.

85. Balkin, 12.

86. Brown 1, 492-93.

87. Id., at 495.

88. Zinn, People '5, 441.

89. Balkin, 64.

90. Ibid.

91. Ibid., 65.

92. Viorst, Fire in the Streets, 26.

93. Lively, 120.

94. Balkin, 65.

95. Du Bois, The Souls of Black Folk, 75.

96. Balkin, 6.

97. Ibid.

98. Ibid., 26n20.

99. Rawls, A Theory of Justice, 63 (hereafter cited, Theory).
100. Gordon, “Aflican-American Existential Philosophy,” 35.
101. Moody-Adams, 258.

102. Shklar, American, 8.

Chapter 2

l. Gutek, A History of the Western Educational Experience, 154.

295

 

NOTES TO PAGES 82-112

2. Boyd, “How to Reform Schools Without Half-Trying,” 43.

3. Ibid, 43-44.

4. Ibid., 45.

5. Zinn, Disobedience and Democracy, 117-24.

6. Ibid., 118-19.

7. Cremin, American Education, 245.

8. National Commission, A Nation at Risk, 5.

9. Apple, “What Reform Talk Does,” 157.

10. Kahne, Reframing Education Policy, 246.

ll. Boyd, “Balancing the State, Markets and Civil Society,” 198.
12. Zinn, People '5, 95.

13. Johnston, “Gap Between Rich and Poor,” New York Times, September 15, 1999, section. 1, p. l6.
14. Ibid.

15. Broadbent, introduction to Democratic Equality, xvii.

l6. Johnston, “Gap Between Rich and Poor,” Section 1, p. l6.
l7. Rawls, Theory, 6-7.

18. Ibid., 342.

19. Moody-Adams, 264-65.

Chapter 3

l. Rawls, Theory, 118.

2. Nozick, Anarchy, State, and Utopia, 183.

3. U. S. President, “Remarks,” 1852.

4. Rawls, Political, 223.

5. Rawls, Justice as Fairness: A Restatement,” 8 (hereafter cited, Restatement).
6. Rawls, Political, 157.

7. Ibid., 223.

296

 

NOTES TO PAGES 113-136

8. Rawls, Theory, 129.

9. Ibid, 134, 153.

10. Ibid., 475.

ll. Rawls, Political, l7; Restatement, 49 n14.

12. Rawls, Restatement, 29.

13. Mills, Blackness Visible, l3.

l4. Mills, The Racial Contract.

15. Zinn, People 's, 178.

16. Rawls, Restatement, 58-59.

17. Rawls, Theory, 3.

18. Rawls, Restatement, 42—43.

19. Ibid., 59.

20. Rawls, Theory, 137.

21. Cohen, “Where the Action Is,” 16.

22. Wolin, “Review of Political Liberalism,” 100.
23. O’Neill, “Political Liberalism and Public Reason,” 422.
24. Mouffe, The Democratic Paradox, 28.
25. Rawls, Theory, 215-18.

26. Ibid., 216.

27. Mills, Blackness Visible, 7.

28. Rawls, Theory, 309.

29. Ibid., 215.

30. Ibid., 309.

31. Ibid., 319-43.

32. Ibid., 310.

33. Ibid., 312.

34. Rawls, Political, xxix.

297

 

NOTES TO PAGES 137-161

35. Rawls, Theory, 223.

36. Rawls, Political, xxvi.

37. Mills, The Racial Contract, 5.

38. Apple, Educating the Right Way, 55.

39. Moody-Adams, 265.

40. Rawls, Theory, 3.

41. Morgan, “We’ve Come to See the Wizard,” 4.

42. See, Moody-Adams.

 

43. Rawls, Restatement, 55.

44. Ibid., 58-9.

45. Ibid., 138-39.

46. Clark and Gintis, “Rawlsian Justice and Economic Systems, 395.

47. Rawls, Political, 68.

48. Shklar, American, 67.

49. Ibid., 101-02.

50. Ibid., 98.

51. Ibid., 64.

52. Rawls, Theory, 157.

53. Mills, “Carnal Knowledge,” 158.

54. Rawls, Theory, 312.

55. Rawls, Restatement, 66.

56. See, for example, America, The Wealth of Races; Bittker, The Case for Black Reparations; Lipsitz, The
Possessive Investment in Whiteness; Oliver and Shapiro, Black Wealth/White Wealth; Robinson, The Debt;
Thurow, Poverty and Discrimination.

57. Rawls, Restatement, 65.

58. Rawls, Theory, 157.

59. Rawls, Restatement, 55.

60. Ibid., 56.

298

 

NOTES TO PAGES 162-188

61. Rawls, Theory, 156-57.

62. Rawls, Political, 56-7.

63. Ibid., introduction to the Paperback Edition, 1.

64. Ibid., 231-32.

65. Rawls, The Law of Peoples, 134 (hereafter cited, Law).
66. Rawls, Political, 103.

67. Parenti, Democracy 3rd ed., 301-02.

68. Rawls, Political, 247.

69. Ibid.

70. Ibid., 248.

71. Wolin, “Review of Political Liberalisrrr,” 103.

72. Rawls, Restatement, 52.

73. Ibid., 90n12.

74. Rawls, Law, 153.

75. Ibid., 144.

76. Rawls, Restatement, 190n12.

77. Rawls, Political, 233-34.

78. Ibid., 234n18.

79. Okin, Political Liberalism, Justice, and Gender, 29 (hereafter cited, Justice and Gender).
80. Ibid., 28-32.

81. Rawls, Restatement, 166; Law, 160-6.

82. Rawls, Political, 10.

83. Freeman, The Cambridge Companion to Rawls, 387.
84. Rawls, Law, 153.

85. Mill, On Liberty, 34.

86. Walzer, “The Concept of Civil Society,” 23.

299

 

NOTES TO PAGES 189-216

Chapter 4

1. Walzer, “The Concept of Civil Society,” 24.

2. Ibid., 19.

3. Rawls, Theory, 3-4.

4. Ibid., 4.

5. Holmes, “School Reform: Business Moves In,” New York Times, February 1, 1990, Section D1, D9.
6. Spring, Conflicts of Interest, 171, 176.

7. Kincheloe, Toil and Trouble, 17.

8. Ibid., 19.

9. Ibid., 21.

10. Ibid.

1 1. Parenti, Democracy 3rd ed., 224.

12. Spring, American Education, 8.

13. Mill, On Liberty, 104-05.

14. Dewey, Human Nature and Conduct, 127.

15. Parenti, Democracy 3rd ed., 320.

16. Rawls, Political, 178.

17. Rawls, Theory, 249; Political, 218.

18. Apple, Power, Meaning, and Identity, 78.

19. Rawls, Political, xliv.

20. Apple, Cultural Politics & Education, 103.

21. Dewey, Democracy and Education, 119-20 (hereafter cited, Democracy).
22. See, Hochschild and Scovronick; Losen and Orfield; Losen and Welner.
23. See, Losen and Orfield; Office of Special Education Programs; Tatum
24. Spring, American Education, 89.

25. Powell, Kearney, and Kay, In Pursuit of a Dream Deferred, 244.

300

 

 

NOTES TO PAGES 217-245

26. Rawls, Political, 32.

27. Ibid., 6.

28. Rawls, Theory, 386; Restatement, 59.

29. Rawls, Restatement, 60.

30. Rawls, Political, 318.

31. Rawls, Theory, 386.

32. Ibid.

33. Ibid., 219.

34. Ibid., 220.

35. Ibid., 219.

36. Parenti, Democracy 3rd. ed., 207.

37. Rawls, Political, 47.

38. McChesney, introduction to Profit Over People, 11.
39. Dewey, Democracy, 319.

40. Wolin, In the Presence of the Past, 41-46.
41. Giroux, “Public Philosophy and the Crisis of Education,” 190.
42. Rawls, Political, xliv.

43. Rawls, Theory, 493.

44. Ibid., 431-32.

45. Rawls, Restatement, 137-38.

46. Ibid., 138-39.

47. Ibid., 139.

Chapter 5

1. Dewey, Theory of the Moral Life, 66f, 69f.

2. See, Banks, Educating Citizens in a Multicultural Society; Dewey, Democracy; Giroux, Teachers as
Transformative Intellectuals; hooks, Teaching to Transgress; Ichilov, Citizenship and Citizenship

Education; and Ogbu, “Racial Stratification;” Losen and Orfield, Racial Inequality,- and Spring, American
Education.

301

 

NOTES TO PAGES 245-266

3. See, for example, Apple, Ideology and Curriculum; Cuban, How Teachers Taught; Gutek, A History of
the Western Educational Experience; Tyack, The One Best System.

4. Dewey, Democracy, 119-20.

5. Dewey, Intelligence in the Modern World, 692.
6. Dewey, Democracy, 329.

7. Rawls, Restatement, 188.

8. Spring, American Education, 7.

9. Rawls, Political, 19.

10. Ibid., 139.

11. Ibid.

12. Ibid.

13. Sehr, Education for Public Democracy, 100.
14 Rawls, Restatement, 6.

15. Rawls, Political, 19.

16. Ibid., 108.

17. Rawls, Restatement, 81-2.

18. Rawls, Political, 402.

19. Ibid., xliv.

20. See, Vygotsky, Mind in Society.

21. Dewey, The Problems of Men, 91.

22. Galston, Liberal Purposes, 244. See also, Galston, Liberal Pluralism.
23. Bennett, The Book of Virtues, 12.

24. Dewey, Democracy, 354.

25. Apple, Cultural Politics, 103.

26. Dewey, Democracy, 161.

27. Freire, Pedagogy of the Oppressed, 84.

28. Ibid., 83.

302

 

NOTES TO PAGES 267-290

29. Rawls, Restatement, 148-50.

30. Barth and Shermis, “Defining the Social Studies,” 744-45.

31. Giroux, Teachers as Intellectuals, 14-5.

32. Kincheloe, Toward a Critical Politics of Teacher Thinking, 205-6.

33. See, Hochschild and Scovronick, The American Dream; Spring, American Education; Tatum, Why Are
All the Black Kids Sitting Together in the Cafeteria?

34. Pearson, “Reclaiming the Center,” 272.
35. Dewey, Democracy, 119-20.
36. Ibid., 329.

37. Shklar, Faces of Injustice, 19.

Conclusion

1. Dewey, Human Nature, 127.

2. Rawls, Theory, 433.

3. Rawls, Political, 37.

4. Rawls, Theory, 393.

5. Rawls, Political, xxxvi, 36-7.

6. Ibid., xliv.

7. West Virginia State Board, 319 U. S. at 624.
8. Parenti, Democracy 3rd. ed., 3.

9. Ogbu, “Racial Stratification,” 287-88.

10. Mill, On Liberty, 104-5.

11. Rawls, Theory, 431.

12. Tyler, Basic Principles of Cun'iculum and Instruction, 23.
13. Parenti, Democracy 7th ed., 5.

14. Walzer, “The Concept of Civil Society,” 3.

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