[64] JOURNAL OF POLITICAL THOUGHT INTERVIEW [with Bruce Ackerman]

Bruce Ackerman is a prominent legal scholar and public intellec- tual. A Sterling Professor of Law and Political Science at Yale, Ack- erman’s work ranges from political theory and constitutional his- tory to public policy. Ackerman develops a liberal theory of justice based on dialogue between citizens. His turns to the American civic-republican tradition and has shaped debates over the republican revival within the legal academy. Ackerman’s books include Social Justice and the Liberal State (1980), We the People (1991, 1998, 2014), The Stakeholder Society (1999), Delibera- tion Day (2004) and The Decline and Fall of the American Repub- lic (2010). We sat down with him in January for a wide-ranging conversation that touched upon the enduring tensions that seem to characterize liberalism and republicanism, political philoso- phy and constitutionalism, and citizenship and cosmopolitanism.

JPT: Tell us about your tell me, “Bruce, this is no good!” background and how you first Though I was oblivious to this became interested in political at the time, Shklar herself did theory. not get tenure until the 80’s, and this was certainly because BA: I went to Harvard College as she was a woman. All year, I did an undergraduate, where I had a very little but read and write for great deal of freedom to explore Shklar, and have her condemn different subjects. I really liked my work. Judith Shklar’s course, which was called Introduction to The next year, she passed me Political Thought. Because I over to John Rawls, who had was an advanced placement just arrived from Cornell. He sophomore, and maybe because was a completely different I was verbally aggressive, she personality. He was extremely became my tutor in my junior thoughtful and remarkably year. She was a tremendous supportive. Here’s an example: influence on me. Every week I was taking one of his courses I read nearly 1,000 pages of and, as was my tendency, I ran some person in the history of up after class to ask a dozen political thought and had to questions. But others got there write a 20 page paper on each first, and I had to run to another work. Shklar would invariably commitment. That night, he VOL. 2, ISSUE 1 [65]

called me up on the phone to ask me at the University of Pennsylvania if I had some questions for him. This Law School. I had no idea how to do would have been exceptional under this and they said to just make it up. any circumstances, but the fact I taught property, although I didn’t was that he suffered from a terrible teach any of the standard stuff on stutter, and it was very difficult for property. I also taught Justice. him to complete his sentences over the phone. Nevertheless, we had a At that point, both my wife Susan and lengthy conversation. I had written a few papers. Susan was then writing about racism in housing During my time as an undergraduate, markets and urban economics. Yale the consensus view was that ideology, Law School hired me as a professor and normative political theory, were at the age of 28. Susan was hired in dead. But Rawls was thinking for the Economics department as an himself, and he was almost single- assistant professor. handedly defining the terms of a tremendous philosophical revival. I I have always done something ended up majoring in Government philosophical and something of and Philosophy and I wrote a the practical sort. Early on, my dissertation on the place of reason wife and I wrote on environmental in the political thought of Hobbes law. We were among the first to and Rousseau. In some ways, this is propose marketable permits. Once the question I’ve been returning to I had tenure at , I throughout my life. was able to dedicate more time to writing Social Justice in the Liberal State. What I was doing was not so remarkable in the Yale Law School, Today, a thousand derivative but it was remarkable in law-land in Rawlsians are asking general. derivative questions, like good Law has gotten much more “ graduate students who will get interdisciplinary, much less promoted and write nothing.” specialized over this period. Back then, Yale and Chicago were the only law schools where people without After Harvard, I went to Yale law degrees could become professors. Law School. That was a place full Today, the leading 40 law schools in of people who didn’t know that the country are much more Yale-like “political philosophy was dead.” than Harvard or Columbia was at that There was Robert Bork, Ronald time. Most law schools back then just Dworkin, Charles Reich, and Guido taught you what the law was, rather Calabrese. I then clerked for Henry than putting legal questions in a Friendly and John Harlan, both critical multidisciplinary perspective. leading conservatives. I was not a conservative then—or now, for that JPT: Has there been a recent shift in matter. From there I went to teach the opposite direction? You recently [66] JOURNAL OF POLITICAL THOUGHT

wrote a piece in the Washington of Walzer’s Spheres of Justice is an Post defending the 3-year duration effort to say people like Rawls and of law school and emphasizing how Ackerman are simply wrong. It today’s lawyers need to integrate doesn’t say that one is doing one thing a comprehensive understanding and one is doing another. Similarly, of statistics and economics into the distinction between analytic and their legal work. In that article you continental philosophy is simply an described the importance of lawyers excuse for thoughtlessness. One of mediating between technocracy and the more amusing reviews of Social the principles of the American legal Justice in the Liberal State opens tradition. with a line about Bruce Ackerman as an English speaking Habermas, BA: There is a backlash going by which the author meant nothing on. But this is because things are complementary. economically grim right now, so we will see what happens in the middle The critical question is whether you run. Here at Yale, Tony Kronman, will think for yourself or will be a Owen Fiss, and I were part of a footnote to someone else. Rawls, conversation group that met once Walzer and Shklar are not footnotes a month for 20 years with political to someone else, although of course philosophers like Judith Thomson, they are aware of what others said Robert Nozick, David Gauthier, beforehand. A thousand derivative and Michael Walzer. We were all in Rawlsians are asking derivative a conversation together. So I never questions, like good graduate thought of myself as exclusively a law students who will get promoted and person. This was a dynamic period of write nothing. questioning, asking whether there is a place between John Locke and Karl Rawls’s principle of organizing the Marx. My work, like that of many of basic structure of society so as to my discussion partners, was trying to maximize the position of the least answer what society should look like advantaged is a point of political if one rejects anarchy and economic significance, not merely an argument. determinism of the Marxist variety. And Walzer’s critique of simple equality in favor of complex equality JPT: People often distinguishis an argument, not merely a point. between analytic political philosophy a la Rawls and political theory a la In my own work, I don’t try to “review Shklar and Walzer. Do you think one the literature.” I try to present ideas, is more focused on philosophical rather than spend three hundred argument and the other more focused pages of historical and philosophical on political significance? Do you see reflection on other people’s work a distinction there? before I say a word of my own. That being said, my work is just as much BA: I don’t think there is a real shaped by Martin Heidegger, for distinction there. The first footnote instance, as it is by Willard Quine. VOL. 2, ISSUE 1 [67]

JPT: What is it about law or legal certain paradigms. You can’t shape academia specifically that enables it paradigms in twenty pages. to serve as a mediating ground for different perspectives?

BA: Well, look at how I got my job There are costs and benefits at the UPenn. I did well in law to legal academia. The benefit school, clerked for some judges is that you’re freer than and then was hired on the basis of “professors in other fields, their recommendation. That means and the cost is that you didn’t that you didn’t become an assistant professor by having mastered the know what you’re talking literature on a very narrow topic. a b out .” There are costs and benefits to legal academia. The benefit is that you’re freer than professors in other fields, Now, this is slowly being displaced by and the cost is that you didn’t know a more academic path to positions. what you’re talking about. That’s why I am in favor of our new PhD program here. What we have Basically, the structure of scholarship now is philosophy PhDs teaching in in law at that time was people being law school as a platform for applied selected on the basis of their general philosophy. They aren’t taking law intelligence and having impressed a seriously and using whatever tools couple of judges. They then went on they find appropriate. So it’s not to a place where they could mouth quite a question about the intrinsic off. So we have an infinite number study of law as much as it’s about the of rediscoveries of the wheel and fact that legal education is, relatively occasionally, someone will say speaking, a new institution. Contrast something original and interesting. this with Europe, where the first law schools were established in Bologna At that time, the standard mode of in the 12th Century. In Europe, a publication was the person like me doesn’t exist. You or the Harvard Law Review. Neither can’t be a professor without having are refereed journals. So you write your first or second doctorate, and something and then students, who these doctorates must be in generally are not experts, decide which of respected fields. these thousands of articles is going to get published. The standard law JPT: What effect do the different review article is much longer than systems of legal education have on the standard academic journal how people interpret the law in article. Law review articles can run Europe versus how they interpret it up to 30,000 words! Whereas when here? you try to publish an article for a philosophy journal, you have to get BA: There are several differences. To it down to twenty pages. In a twenty become a judge in France, Germany, page paper, you have to presuppose or Italy, you take an exam at around [68] JOURNAL OF POLITICAL THOUGHT

the age of 24 and then you get to proceed, the language of model promoted over time. By contrast, building is essential for moving in the U.S., as a friend of mine likes beyond 19th century classical to say, “a federal judge is a lawyer liberalism. Classical liberalism takes who knows a Senator.” The judge is the stage of social life as given and an experienced person of practical then talks about freedom on that wisdom, rather than a legal specialist. stage. Today, the liberal activist This is a big difference in the structure state, through strategic intervention, and nature of judicial thought. can change that underlying social The role of the academic in each life. One cannot understand the respective system is very different. problems facing our environmental The academic in Europe, through integrity without creating and writing commentaries, provides the implementing mathematical models foundation for law. The relationship for air currents, water pollution, and between the professoriate in America global warming. Similarly, examining (or in Britain) and the practitioners the strengths and weaknesses of of law is somewhat more problematic. mathematical models is essential in There is a great book along these order to understand when markets line by Mirjan Damaška called The generate externalities, or what the Faces of Justice and State Authority implications of the “theory of second that touches on these foundational best” are, or in order to actually differences. answer the question of how should the state intervene strategically in the name of social justice and liberal ideas? I do not think that To bar ourselves from these constitutional law merges into questions is to limit ourselves in political philosophy.” the pursuit of practical schemes for “ social justice and environmental integrity. On the other hand, JPT: Today, lawyers are increasingly leaving it all to model-builders and working on public policy using technocrats who do not understand statistical models and methods. It themselves to be (and sometimes reminds me of a line in Philip Pettit’s proudly) equipped to engage in book when he says, “At some point, “normative discussion” is equally the philosophers have to make way blind. for the lawyers,” and perhaps we might add that the lawyers have to One has to develop notions of make way for the technocrats. Could legitimacy that are responsive to 21st you talk a bit about that? century problems, to achieve social justice without the banalities of BA: Technocracy is certainly a big libertarianism on the one hand and problem. Though it may be a great Marxist determinism on the other. shame to think that cost and benefits measured by dollars is the best way JPT: On that note, what are your VOL. 2, ISSUE 1 [69] thoughts on liberal neutrality in the isn’t in principle bankrupt. This is state? Is it possible to have the kinds the part that people like Walzer don’t of “strategic interventions” that you like, but he’s wrong. It is important to mentioned without advancing a know whether it is nonsense all the vision of the good? way down or not.

BA: Well, the foundational notion Of course, if it were nonsense all the that I talk about in my book on way down, he’d have a better reason the liberal state is intersubjective for dismissing the conversation. recognition through justification But, I humbly believe that the first and dialogue. The critical question half of Social Justice and the Liberal citizens engage is “why is that jacket State establishes that it is possible yours and not mine?” to imagine a world in which the fundamental power relations are My notion of neutrality is not that all compatible with this principle there ought to be a neutral outcome. of mutual, dialogic, constrained Neutrality is a principle used to recognition as common citizens of a define a bad answer. It is, as it were, liberal state. what we’d call a “conversational constraint.” So, liberalism for me is What are these fundamental power a form of constrained conversation. relations? Here I borrow from Habermas, in contrast, supposes that Rawls in thinking that the basic justification should be understood problem of 21st century liberalism from the ideal state of affairs, where is the allocation of power so far as everybody can say anything. opportunities are concerned, rather than outcomes. There are four A liberal political culture is fundamental relations of power that emphatically and self-consciously are necessary conditions for acting in partial. You and I have the right to the world: birth, education, certain go to hell in our own way. In the entitlement of property rights, and ideal speech situation, I don’t argue then making one’s way through a with you whether Islam is preferable transactional structure. atheism. However, we do need to resolve why that jacket isn’t actually This basic framework, and the mine. Neutrality dictates that I can’t implications of neutral dialogue answer that question by saying, within it, serve as a foundation for the “Because I’m just better than you policies I advocate. For example, one are .” important dimension of my work is on the topic of genetic endowments. So, is liberalism, as so conceived, Until recently, we thought that bankrupt? The first aim of the we were in the state of nature, so foundational side of my work is far as genetic endowments were to establish that there is a possible concerned. In the 21st century, this world in which we can order all is no longer the case; we increasingly fundamental power relationships have the capacity to shape the genetic within this liberal culture so that it composition of the next generation. [70] JOURNAL OF POLITICAL THOUGHT

This is already happening.another as liberal citizens, rather than Therapeutic abortion, for example, trying to pursue our aims of personal is one form of genetic manipulation. fulfillment, we are engaging in the With regard to women’s equality, foundational conversational project more and more children will be born of legitimation at the foundation of outside the womb. the liberal state.

How should all this be regulated? That’s different from a contractarian With a perfect technology of justice, view based on will and it’s different we can imagine a world in which from Kantian reason. It’s something the genetic domain is regulated like a Deweyite insistence on a according to liberal principles. form of intersubjective recognition Many theorists can’t deal with these through dialogue as the foundation questions because, by taking our of the political. That’s why the idea genetic composition as given, they of Deliberation Day--a day when start the discussion too late. citizens come together to participate in a communal discussion about elections--is attractive to me. But I am more of a liberal Deliberation Day is not the same thing as liberal conversation, because it individualist than so called isn’t as exclusionary. On Deliberation libertarians who are confusing Day, citizens of the United States can “ the liberty of the parents with say things like “this is a great country, the liberty of the children.” don’t let other people come in.” In a truly liberal state, made up of well- socialized liberal citizens, people would not make such arguments. JPT: When you speak about Here in the United States we are deliberation, are you making an republican first and liberal second. epistemic argument about good The Germans, by contrast, are more decision-making or do you conceive liberal on their foundations and of an intrinsic good to deliberation secondarily republican. itself? I would say that there is a constitutive BA: Liberalism for me is about feature of deliberation – we are achieving an understanding of recognizing each other as citizens ourselves as individuals. I don’t mean by engaging in this conversation. this in the sense of some Kantian And the contexts in which we transcendental deduction or a kind recognize each other as citizens are of state of nature individualism. After disappearing. The draft is gone, and you are taught a language at the age of that was once a way we recognized two, you are initiated into a culture of each other as citizens. The public individualization or subordination. school is being eroded. The most Liberal political culture is the important way we recognize each foundation of your status as an “I” other as citizens today is when we go vis-à-vis “you.” When we talk to one to Kennedy Airport and present our VOL. 2, ISSUE 1 [71] passports. particular moment. At the same time, I was grimly determined not We need to construct new rituals of to go down the path of John Rawls citizenship and that is what I was and defend myself for the next fifty trying to do with Deliberation Day. years. I wanted to do something new, Consider the fate of holidays – July and so I made this turn to American 4th means practically nothing today Constitutionalism and comparative and Martin Luther King Day will constitutionalism. This kind of work mean just as little in a few decades. takes our historical situation more The only holiday of a secularish kind seriously. that has any meaning in America is Thanksgiving. Why? Because people Unlike , I do go home for the weekend; they have not think that constitutional law a ritual. I want Deliberation Day to merges into political philosophy. constitute a new ritual of citizenship. I think that constitutional law is These practical proposals come a cultural discourse that emerges more out of my conception of the in a particular historical context. liberal state than my constitutional Now, this discourse can be pushed reflections. in various directions and political philosophy gives us the tools for JPT: So far your discussion has thinking about what those directions operated at the level of the state. might be. But in my mind, there is a How does your account of liberalism difference between constitutionalism negotiate the boundaries between and political philosophy. national constitutionalism and global justice? JPT: But isn’t there a tension between the particular historical contexts that BA: At the international level, I’m a make us “citizens,” and the moral world federalist and I still try to take arbitrariness of the situations in liberal commitments seriously. So which we are born into? even if the proposal set forth in The Stakeholder Society were adopted BA: Well, I think we should have a and every American citizen is given North American Federation with a certain amount of money as a grant Canada and Mexico. Insofar as ours on their 21st birthday, we must still was an Enlightenment revolution, ask, what about people from other these borders are a matter of accident. countries? Why should the mere fact In principle, there aren’t large that you’re born in this particular differences between Mexico, the U.S., place determine whether or not you and Canada. By the way, the capital receive this money? The reality is that of the North American Federation there is no good reason. should be San Francisco because it was once part of Mexico and it’s the The aim of my philosophical work only part of America that the French was to take activist liberalism Canadians would be willing to go to. seriously and not accept the historical contingencies of our Of course, we also have cultural [72] JOURNAL OF POLITICAL THOUGHT

nationalisms. In the 18th and 19th conversation. Power is legitimated centuries, America was a cultural not simply by votes but through colony of Europe. Our great poets substantive liberal principles. If you and thinkers were following London, get a grant of $80,000 like I propose in Paris, and Berlin. But what does The Stakeholder Society you’ll have to “American culture” really mean ask “why did I get it?” These are efforts today? We mean something very at constructing the foundations of superficial: Hollywood, McDonald’s, cosmopolitan liberalism in ways that Harvard, and Yale. So we have these are meaningful to its participants. two identities: a cultural nationalism and an Enlightenment heritage. JPT: But how does constructing a thicker vision of liberal citizenship The principles of Enlightenment as you propose strengthen these cosmopolitanism are under threat cosmopolitan foundations? Aren’t in a very obvious way by cultural we still operating at the level of the nationalisms from people like nation-state where civic status is Donald Trump and Marine Le bound up with the state? Pen. This war between cultural nationalism and the Enlightenment BA: This brings us to the distinction is one of the struggles of our time, between cultural nationalism and especially now that we are after the civic nationalism. When the armies of Fukuyama triumphalist moment. the monarchies of Europe were about On top of that, we have this new to invade France after Louis XVI was technocratic cosmopolitanism that prevented from escaping, the French some people call “neo-liberalism.” National Assembly debated not how What they really mean is technocratic to defend the country, but rather a manipulation of markets and the list of people who should be named depoliticization of the legitimation honorary citizens of France. George process. The problem with that form Washington, Jeremy Bentham, and of legitimation via outcomes is that James Madison were on the list. it’s hard to manage outcomes without But after the defeat of the French foundational principles that are Revolution, the Germans decided it generally intelligible and meaningful had been a French revolution, not to ordinary people. an Enlightenment liberation from feudalism that would sweep the One of the central aims of my work world over the next two centuries in is to make liberal citizenship real. its liberal and communist varieties. My “realistic utopian” proposals are an attempt to take my philosophical Into the present day, whether we work on liberalism into the practical will be cultural nationalists or civic realm. Over the last several years, republicans is very much a living I have been trying to develop a question. It is easy to think of a thicker account of constitutionalism dystopia in which Europe succumbs as a mechanism through which to xenophobic cultural nationalism we legitimate power through and the U.S. succumbs to nationalist VOL. 2, ISSUE 1 [73] militarism. The Danes are asking are different lifeworlds. When you go the Swedes to prove that they are into a hospital you behave one way, Swedes before they can come into and when you go into Deliberation Denmark. And in the U.S. there is all Day you behave another way. James this agitation over the right to bear Fishkin and I organized Deliberation arms and the right of the president to Polls in twenty places in the United bomb anybody he likes. States, one of which took place here at the Yale Law School. Everyone I say that rather than getting sunk took it very seriously, all showing into the Middle East, the real up in suits. There is a conversation challenge for the United States is to which does unify people from show that the Enlightenment works California to Appalachia to Georgia. in its homeland. If we don’t do that Just think about the presidential over the next twenty five years, we elections and conversations about will be in a bad way. candidates. This certainly does not constitute the whole of people’s lives JPT: How do you maintain civic but nevertheless it is something nationalism with so much internal significant. cultural diversity? The cultural sense of someone in Appalachia might JPT: Can role differentiation be be very different from that of New taken too far? France’s laïcité is a Englanders. form of role differentiation. The idea that once you leave your home, you BA: Here I’m with Michael Walzer: must leave all religious attachments through the concept of spheres, roles, behind--in schools you become a and the differentiation of society. In “child of the republic”--is used to the economic sphere, we have these justify Muslim headscarf bans in Appalachians and these sons of schools. Are the tensions in France in Harlem and the Bronx all going and part due to this extreme case of role working for Google. This happens at differentiation? the same time that people might have very different tastes when it comes to BA: This is a question about liberal their music. This is an example of education. How can we understand role differentiation. the legitimate use of power as children evolve from birth through The problem today is that the sphere maturity? Most liberal theorists of citizenship is disintegrating. do not deal with education. They The old parties are growing less speak about pursuing one’s own idea meaningful—that’s what people like of the good life but never explain Bernie Sanders, Donald Trump, and how it is that people arrive at such Marine Le Pen are all telling us. The conceptions. Rawls, for example, 20th century parties are becoming treats us as if we are created through more removed. The Birth of Venus, born already grown up. John Locke famously To borrow a concept from argues against Robert Filmer, saying continental phenomenology, there that the model of the king should [74] JOURNAL OF POLITICAL THOUGHT

not be the model of the family. confront religion in the public school My question is more radical: why and the evangelical Christian should should the model of the family be be forced to consider the possibility the model of the family? What is the of atheism. I suppose that I am more justification for a very small number radical on this than in the other of adults to essentially brainwash dimensions of my thinking. children during primary education? I define primary education as the My wife and I sent our kids St. first mode of socialization, when Thomas, an establishment Protestant the child has not yet mastered the kind of place, so that our children skills necessary for posing questions would have an idea that there are concerning legitimacy. During primary education, I will concede that parents must teach the child President Obama has basically some form of life. Some particular confirmed and solidified form of primary socialization and education is necessary for any Bush’s war policy. It is striking subsequent pursuit of intersubjective“ to me how much this is not a recognition and the good life. campus issue.” During secondary education, when the child begins to develop the capacity for liberal dialogue, other people who think there is such a concerned citizens may object to thing as God. In a liberal culture, certain parental activities. If parents everyone enters society from one order their child to go to bed, another place due to varying experiences of equal citizen may legitimately object primary education, and then should to what the parents are doing. be exposed to non-threatening yet Liberal education means that the broadening possibilities. At the end more successful the parent is in of this process, the child can decide primary education, the less right the exactly what kind of life he or she parent has to control the subsequent wants to live. secondary education. Of course, this is not to deny that parents generally For these reasons, I am certainly know their children best, care the opposed to vouchers which allow most, and that we therefore should parents to select the schools that will typically defer to their judgement. maximize brainwashing until the child is finished with education. I am To the France case, I agree with your more of a liberal individualist than intuition about laïcité. My position so called neo-libertarians who are is that there should be strong public confusing the liberty of the parents education in the way I described, with the liberty of the children. but it should not be uniform public education. The curriculum you JPT: In light of this discussion of receive will depend on where you students’ liberty and education, I’m are coming from. The atheist should curious to hear your thoughts on the VOL. 2, ISSUE 1 [75]

recent student protests at Yale and at Bush’s war policy. It is striking to me other campuses. how much this is not a campus issue. Similarly, if you would ask me what BA: My basic attitude is that student is the most pressing question on the mobilization on campus is a good cultural identity front at the moment, thing. Given the alternative of simply I would answer that it is Islam. This focusing on grades, I am glad to might lead us into a hundred years see that students are engaging. My war, but it has not been the focus on second basic thought is that the campuses. real challenge for Yale students is to organize for a national set of The concerns here have been much objectives rather than a curricular set more parochial: “What should Yale’s of objectives. These are not mutually curriculum look like?” and “Why exclusive but it is a question of focus. isn’t faculty more diverse?” I am on The major question is, to what extent the appointments committee at Yale should we be moving to focus on Law School and we would love to class, rather than race and ethnicity. have a more diverse faculty. I expect This is the Bernie Sanders question. that it will be much better in fifteen years than it is now because more The second major question is about diverse people are getting first-rate militarism. Militarism and justice educations. are the two fundamental questions facing America. For me, these are The surprising thing to me is not that there are problems at Yale, but that the concerns are so Yale-centric. The surprising thing to me is Only if we thought we reached not that there are problems the end of history, to cite Francis at Yale, but that the concerns Fukuyama’s phrase, should we begin “are so Yale-centric. Only if to think exclusively about micro we thought we reached the problems. end of history, to cite Francis But all this is secondary to the Fukuyama’s phrase, should pressing national issues reshaping we begin to think exclusively America. Of course, there are about micro problems.” connections between what happens on campuses and what happens on the national level. But it is too the two key issues that students much about Calhoun College and should be focusing on. I remember not enough about how we should going to a teach-in in the aftermath mobilize and organize for reforming of the invasion of Iraq. I don’t see police practices in America, for much of this going on right now. example. I do not want to suggest it Meanwhile, President Obama has is an either/or, because it isn’t, but I basically confirmed and solidified would like to see more focus on the wider national issues.