Against Obligation: The Multiple Sources of Authority in a Liberal Democracy PDF
Preview Against Obligation: The Multiple Sources of Authority in a Liberal Democracy
AGAINST OBLIGATION A G A I N S T O B L I G A T I O N The Multiple Sources of Authority in a Liberal Democracy A B N E R S . G R E E N E HARVARD UNIVERSITY PRESS Cambridge, Massachusetts, and London, En gland 2012 Copyright © 2012 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America Library of Congress Cataloging- in- Publication Data Greene, Abner, 1960– Against obligation : the multiple sources of authority in a liberal democracy / Abner S. Greene. p. cm. Includes bibliographical references and index. ISBN 978- 0- 674- 06441- 6 (alk. paper) 1. Obedience (Law) 2. Effectiveness and validity of law. 3. Law— Moral and ethical aspects. 4. Constitutional law— United States. I. Title. K240.G74 2012 340'.112—dc23 2011041053 For John Copeland Nagle and Benjamin C. Zipursky CONTENTS Introduction 1 The Case against Fidelity to Law, for Citizens and for Offi cials 1 A Roadmap and Some Baselines for Discussion 4 The Multiple Sources of Citizens’ Obligations 20 The Relationship between Obligation and Legitimacy 24 1. Against Po liti cal Obligation 35 Consent, Fair Play, and Po liti cal Participation 35 Natural Duty and Associative Obligation 56 Systemic Stability 94 2. Accommodating Our Plural Obligations 114 Exiting from the Law 117 Permeable Sovereignty and the Religion Clauses 139 The Problem of Illiberal Groups 157 3. Against Interpretive Obligation to the Past 161 The Authority of Constitutional Creators, and Readers 165 Debunking Prior Authority 172 The Proper Role of Fit in Constitutional Interpretation 201 Why My Jeffersonian Position Is neither Anti- Law nor Anti- Constitutionalism 206 4. Against Interpretive Obligation to the Supreme Court 210 The Role of the Supreme Court in Settling Constitutional Issues 212 vii
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