Mehra - Blog Post 8

 In Chapter 1 of When the State Speaks, What Should it Say? Corey Brettschneider puts forth the proposition of “value democracy,” arguing that the State should defend robust rights and freedoms while non-coercively convincing citizens to adopt values of freedom and equality. In making an argument for value democracy, Brettschneider outlines the ideal of free and equal citizenship and details what would violate his ideal. Specifically, he argues that “The most obvious violations of the ideal of free and equal citizenship occur when race, ethnicity, or gender are used to make discriminatory legal distinctions between classes of persons” (31). The examples that he uses to outline violations of free and equal citizenship include Jim Crow laws, women’s disenfranchisement, and bans against gay sodomy. 

I question in what ways the standard of no “discriminatory legal distinctions” for free and equal citizenship might limit the extent to which the state can freely “speak” through law. Brettschneider articulates ways in which the state can be expressive-- these include a presidential condemnation, the establishment of a national holiday, and strategic use of public funds (45-46). But what about legislation that may seem to “discriminate” against groups of people? In Whiteness as Property, Harris posited that affirmative action could provide due justice to Black students and help undo the property interest in whiteness. Combining Brettschneider’s and Harris’ views, affirmative action programs might allow the state to express that Black individuals have been unjustly discriminated against, communicating the necessity of racial equality. To what extent would Brettschneider’s requirement against “discriminatory legal distinctions” bar programs such as affirmative action? And in barring a program like affirmative action that addresses past injustice and aims for equity, is the “voice” of the state not limited? How meaningful is the voice of the state when it cannot use legislation to express movement towards equality? I do not mean to suggest that affirmative action is necessarily in-line with the ideal of freedom and equality, but the potential limitations to its implementation under Brettschneider’s model warrant concern for the model’s robustness and efficacy. 

It is worth noting that affirmative action is a controversial program. Some (like the plaintiffs in Grutter v. Bollinger) may view the program as inherently discriminatory, where others would argue that affirmative action does not have the same spirit of discrimination as practices during the Jim Crowe era. Nonetheless, the contentious nature of this debate only highlights more potential problems with Brettschneider’s account. For example, assume that the President, Legislature, and other political actors “express” an approval for affirmative action and racial equity under a democratic administration. Those who identify as Republican are unlikely to be compelled and adopt the proposed values due to not identifying with the people in power. The divided, polarized nature of the US government stemming from the two-party system-- which Brettschneider does not acknowledge at length-- makes approximately half the population less likely to listen to the government when it speaks. Additionally, party control switches within a democratic government, making the consistency of the government’s message unreliable. 

Thus, I question two main characteristics of Brettschneider’s value democracy. First, how does his requirement of non-discriminatory law limit the range of what the state can say through legislation or the support thereof? And second, the divided nature of debates such as affirmative action begs the question of whether a majority of individuals will truly listen when the state speaks. For these reasons, I question the efficacy of Brettschneider’s approach.