Corey Brettschneider: The Art of Theory Interview

Corey Brettschneider is Professor of Political Science at Brown University. We spoke with him in late 2012 in his Providence office.

Art of Theory: What initially sparked your interest in political theory?

Brettschneider: Well, my first semester at Pomona College I took classes in philosophy of law and political philosophy with Paul Hurley, a really ingenious teacher. I was hooked. We did close readings of Law’s Empire and A Theory of Justice, and for me it was an awe-inspiring experience to be introduced to these texts in such a careful way.

It taught me early on to see the questions that animate political theory as things that can be answered by people who are still living, so that made the field seem very vibrant and relevant. With Rawls I remember using campaign finance as an example to pull out the difficulties in a theory that prioritized liberty but also cared about economic distribution. With Dworkin we were constantly referring to court cases on the docket that term to probe the abstract puzzle of whether law has any moral content. For me it was really important that these theories spoke to the salient questions playing out in the op-ed pages.

Art of Theory: At what point did you realize that you might want to pursue this field professionally?

Brettschneider: Honestly, I think the second week of that first class on law. When I was 17 years old Aquinas didn’t grab me, but then we did John Austin on legal positivism, and as we unpacked his arguments I started to see how stimulating it would be to do political and legal theory for the rest of my life. From the beginning I understood just how competitive the field is, so I’ve always felt privileged to be doing what I’m doing.

Art of Theory: After Pomona you decided to go off to Cambridge to do an M.Phil. in political thought and intellectual history. What was that experience like?

Brettschneider: I didn’t know anything about the “Cambridge School” at the time but I won Pomona’s “Downing Fellowship” to do a degree in Cambridge and that MPhil seemed very exciting. I had actually done a semester of study abroad at Oxford and expected to do more Oxford-style political theory—Bernard Williams and G.A. Cohen—so I learned very quickly that they did a different kind of thing at Cambridge. I guess it only confirmed my interest by reinforcing just how vast the field is; so many different ways of reading different texts.

Art of Theory: What was the impact of Cambridge on your research?

Brettschneider: I still have a deep appreciation for the history of political thought and at some point would like to go back to it. I’ve just written an essay on Rousseau and punishment where I argue, somewhat counter-intuitively, that Rousseau should be considered a theorist of individual rights. I actually wrote my first published essay at Cambridge with Gareth Stedman-Jones, who is a historian and expert on Marx and Engels. It was a very Cambridge school essay in that it looks at the early texts of Marx when he was a theorist of rights as contrasted to the later view, where he seems to reject the concept of rights as inherently leading to a kind of egoism and forced divide between the public and private. I argue that Marx’s earlier concept of rights is superior to the view he takes in the Jewish Question, and I’ve never really given up on that view.

Art of Theory: After Cambridge you went to Princeton for your doctoral work and Stanford for law school. What motivated you to do a dual-degree program?

Brettschneider: Well, first of all, I actually taught a year of public school in New York, and then high school philosophy at the United Nations International School for two years before doing the Ph.D. It was a great experience and I knew I wanted to teach and write in the fields of political theory and constitutional law. Even in my high school classroom I saw how powerful these two fields were when they were combined.

At the time I also made contact with Austin Sarat at Amherst and Elizabeth Snyder at Brooklyn Law School.  Both were role-model scholars and they encouraged me to do both degrees. At Princeton my mentors, Amy Gutmann, George Kateb and Stephen Macedo were all doing work that touched on the constitutional law, so I was confirmed in my belief that this was a powerful combination of fields.

Anyway, I’ve always identified as a political theorist who is interested in constitutional law. I think they are in many ways one and the same field. At the very least, constitutional law can provide a really useful starting point for theorizing about issues such as free speech, the role of courts in democracy, and religious freedom; all topics I have written about.

Art of Theory: In your first book, Democratic Rights, you elaborate the value of liberal democracy by positioning yourself between both procedural and substantive accounts. Why should we concern ourselves fundamentally with values?

Brettschneider: Arguments about democratic procedures have to assume some prior set of values that aren’t themselves procedural, most notably a substantive commitment to treating people as politically autonomous and equal under law. Both the rule of law and free speech—to be able to hear and make arguments—are fundamentally paradigmatic of what it means to live in a democracy, even if these ideas aren’t formally equivalent to democracy.

The argument of the book is that if these values are really what’s grounding and justifying particular features of democracy, they require substantive constraints on the outcomes that can count as democratic, and they require substantive rights in areas that are not always thought of as democratic (such as privacy rights, entitlement to some minimal material goods, i.e. welfare rights, and even rights of fair punishment retained by the guilty).

So, for example, when faced with the problem of majoritarianism and judicial review, I argue that if the Supreme Court is protecting these rights it’s acting democratically, because the rights themselves are democratic. In effect, the Court is correcting democratic procedures that have gone against their own foundations.

Art of Theory: Why not conclude that in such cases the Court is acting liberally? What makes such decisions not merely liberal, but also democratic?

Brettschneider: I don’t entirely object to the characterization. It’s commonplace to say that liberalism and democracy are two different things, and that what liberalism does is to constrain democracy.

But if we think that we’re a self-governing people, where does the authority come from for this other thing that we call liberalism, these supposed deeper rights beyond democracy? Some answers are very different than mine, most notably natural law. I want to ask whether or not that supposedly distinct liberal foundation actually has the same foundation as democratic procedures. If so, this resolves the problem of constraint, of why liberal rights should constrain democracy and where their authority comes from.

Rather than eschewing liberalism I see myself giving a coherent theory of liberal democracy, where the two features are not at odds with one another, but are theorized as one idea. It’s a liberal theory of democracy, you might say.

Art of Theory: Suppose we took our recent national elections as a gauge of the strength of these liberal-democratic values in the U.S. What would be our grade?

Brettschneider: That’s a good question, but a hard one. I think we have to think critically about both the procedures and substance of American democracy and the ways we fall short on both dimensions.

On the procedural side, the outsized role of corporate money continues to cause concern. I do think that after Citizens United we need to situate free speech within a wider theory of democracy. Public financing may be a way without curbing speech to increase the number of people whose voices can be heard. But the more fundamental point is that the relation of the election to the ideal of democracy is going to be answered partly by the extent to which substantive policy decisions realize the aspiration of what I regard as rights fundamental to democratic legitimacy. It’s not just about campaign finance but also whether those convicted of crimes are treated fairly in prisons, whether poverty can be minimized in a society that respects property rights, whether privacy is secured. And on these three substantive policy areas I think we have fallen short. Some people think political theory should stop at identifying ideals and not “audit” any particular society.  But it’s hard once one clarifies those ideals to not speak up about the ways in which American democracy falls short of the democratic ideal.

Art of Theory: Judicial decisions seem important to your work as a theorist. I understand too that you have published a casebook as well.

Brettschneider: Yes, Supreme Court cases really are the starting point for me. I actually just published a three volume case book that I’ve been working on for a number of years that looks at particular Supreme Court cases from the perspective of political theory. It’s meant to be used in law schools and for undergraduates studying the subject. There is a comprehensive volume of the book called Constitutional Law and American Democracy, as well as volumes on civil liberties and government powers.

Most constitutional law textbooks are exclusively about showing what legal doctrines are at work in particular cases. I do this as well, but my idea is that we need to frame constitutional law with reference to constitutional and democratic theory. The book does this by combining elements of a reader with a casebook.  It starts with four major constitutional theories and cases that illustrate their importance and then go on to the standard doctrinal subjects in constitutional law.

For instance, I begin with originalism, and Heller, which revived the second amendment as an individual right to own a gun.  There is really no way to understand that decision without knowing something about the theory of original meaning. Likewise, the book shows how the differing approaches of people like Richard Posner and Ronald Dworkin relate to case law. My view is that if you want to understand the phenomenon of five-four splits that occur in a lot of court opinions, you have to trace it back to underlying disagreements about constitutional interpretation.  Pedagogically, the book gives students a frame for understanding the doctrine, without sacrificing any of the important details that make for a good course in constitutional law, such as democratic theory.

Art of Theory: How well has Supreme Court been upholding democratic values recently?

Brettschneider: There do seem to be areas in which the Court is making decisions that accord with the idea of equal status under law—most notably gay rights. I regard this development not just as a matter of justice but as a matter of respecting gay people as full democratic citizens, entitled to equal status under law. But the Court has done other things especially concerning campaign finance that fail to promote democratic ideals.

I’m also skeptical of the Court’s attempt to extend its notion of neutrality into areas where it does not belong. I argue for the appropriateness of viewpoint neutrality when we are talking about the state acting in its coercive capacities but I do not think that doctrine should limits government’s spending power. For instance, I differ from a lot of defenders of neutrality in thinking that

the state should have the tools and capacities to criticize hate speech and views that are opposed to the ideals of liberal democracy. It’s actually obligated to criticize those views, and can do so at the same time it protects them.

For instance, I think that groups that discriminate, like the Boy Scouts, should have the tax subsidies that come with their non-profit status revoked. That’s how liberals can pick their own side in an argument—by having a doctrine of neutrality that protects all viewpoints from coercion and then using the state’s expressive capacities to criticize some of those protected views. Protect and condemn, that’s in many ways the slogan of value democracy applied to the problem of free speech.

Art of Theory: That view seems attractive; one can imagine that a lot of liberals accepting it, whether or not they identify with the full value theory you’re offering. But how does “value democracy” justify this position in a way that goes beyond the more traditional liberal views? What’s the value added by “value democracy?”

Brettschneider: My approach might seem similar to the sort of liberal perfectionism advocated by people like Joseph Raz, who say that liberals should promote some conception of the good, but what’s distinctive about my theory is that it begins with the most robust conception of free speech rights imaginable and it uses that account of rights to theorize about the values of democracy. I don’t say anything about a liberal conception of the good.

The doctrine of viewpoint neutrality says that the government cannot prohibit even things like fascist speech or the Ku Klux Klan’s opposition to equal protection of the laws. But once we pay attention to the structure of viewpoint neutrality within a wider democratic theory, we can see that it must be justified by reference to substantive values of a certain idea of liberal democracy. On my view these values are often hidden by the fact that free speech demands protection for groups that adamantly reject these values.

It might seem therefore that democracy has no substantive basis because some of the views protected are at odds with the reasons for their protection. But I think a government grounded in the principles of liberal democracy should simultaneously protect all viewpoints from punishment and still criticize and even condemn those most adamantly opposed to the values of liberal democracy. When it does so, it also articulates and defends its own values.

Art of Theory: These are the dilemmas explored in your second book, When the State Speaks, What Should it Say?.

Brettschneider: Absolutely. In that book, I address the problem of how a democracy can protect all viewpoints, including those viewpoints, which are deeply challenging to the values of liberal-democracy itself. I argue that there is an obligation to articulate the reasons for those values that undergird viewpoint neutrality, and the way to do that is to promote the values, to explain them, and to defend them in instances of conflict.

We have to use persuasion in criticizing these views, not coercion. Otherwise, we undermine the rights in the first place. Also, there are substantive constraints on the sort of criticisms that the state can offer and the sort of values that are pronounced. I don’t think the state has an obligation to tell us to make our lives a work of art, for example. We have to be very attentive to the constraints on what the state should say, in addition to constraints on what it should do.

Art of Theory: What are this theory’s advantages over one that would simply outlaw hateful acts and hateful speech?

Brettschneider: Well, I think that question brings us back to the more fundamental question of why we value viewpoint neutrality in the first place. There’s a great book called Free Speech and Its Relation to Self-Government, in which the author, Alexander Meiklejohn, asks us to imagine ourselves in a town meeting debating policy.

This is not his example, but imagine we are discussing whether to build a bridge on the north or south side of town.

The people on the north side might have a much better argument, but if the moderator starts to intervene to tell the people from the south side that they’re not allowed to speak, that’s a problem.

Meiklejohn’s point is that in a democracy we have to be open to hearing all viewpoints if we are truly to be thought of as self-governing.  A people denied the right to hear even the worst arguments, think not of bad arguments about allocation of resources but the views of groups like neo-Nazis, would be denied the right to decide not only on what polices to enact but on whether they affirmed democratic principles.

I agree with Meiklejohn but I also think the view carries risks with it. In particular, the classic prohibitionist response, to which you allude, is that there is a risk to cultural development as a result of views that completely devalue some people based on race or ethnicity, so we should simply prohibit those views. My answer is this: What if we can avoid that kind of hateful society without violating free speech? Criminalization is a very blunt instrument, and prohibitions tend to drive things underground.

I want to say that there’s a third way involving very robust opposition to the viewpoints that prohibitionists wants to ban, while also valuing free speech and supporting the ideals of democracy.

Art of Theory: Isn’t there an objection that what makes hate speech especially pernicious is that it causes real harm to a population, which mere condemnation by the state can’t redress? The victim has already been belittled, dehumanized, set apart from society in some way.

Brettschneider: One thing I want to clarify is that there are many different forms of hate speech, and I’m not suggesting that we protect and criticize all of them. Some of it must be banned.

In Virginia v. Black (2003), the Court uses the case of a cross-burning on the lawn of a black family to illustrate that sometimes hate speech or visual hate speech, like the burning of a cross, can be a direct threat to specific people. If the speech is complicit in a threat of violence, it should be banned in the same way that we ban all threats of violence. I can’t come up and threaten to kill you. That’s not free speech.

But that is very different from the generalized articulation of a bad, false, and hateful view. Mein Kampf is a philosophy—although a terrible one—and it’s better to allow it to circulate formally in the public sphere, as well as more informally in civil society, to demonstrate not only why it’s wrong, but why it is opposed by the vast majority of people. Speaking personally, I’m Jewish, and  I understand at an emotional level the desire to criminalize Holocaust denial, but I think there is a more robust alternative. Namely, citizens and the state can point to the truth that the Holocaust happened and directly criticize the views of deniers.

Art of Theory: Is there any concern that in giving the state this important expressive role, its power might not be used to promote the liberal values that we take to be important right now? One can imagine, for instance, a conservative administration allowing homosexuality while using the expressive power to condemn and criticize it.

Brettschneider: In fact, a case called Rust v. Sullivan (1991) addressed just that kind of issue. The first Bush Administration said that there’s a right to abortion, but threatened to withdraw funding for organizations that provided information about the right.

Well, I must concede that all theories can be abused and misapplied, and mine is no different. It’s implicit in a theory of what the state should say that there will be some things that it shouldn’t say. That’s why I bring up Rust v. Sullivan in the book, as an example of the state saying the wrong thing.

Art of Theory: What about cases in which the state needs to express approval and endorsement in the course of protecting free speech?

Brettschneider: Yes, that sort of behavior is implicit in our practices. For example, public holidays clearly aren’t viewpoint neutral. We don’t have Bull Connor Day alongside Martin Luther King Jr. Day, even though Bull Connor had a viewpoint about segregation. We take a side in that debate when we honor Martin Luther King Jr.

Some people criticize Martin Luther King Jr. Day because it emphasizes a particular individual, but to me it affirms a viewpoint that segregation was a violation of the ideal of equality under law, and that the person who was a leader in opposition to segregation was actively trying to move America further towards the ideal of democracy.

Art of Theory: What features of contemporary political life do you find most puzzling, especially within the perspective articulated in your books?

Brettschneider: One thing that comes to mind, and we’ve already touched on it a bit, is the Supreme Court’s insistence that free speech is incompatible with a wide variety of campaign finance reforms.

It seems to me that the Court has a responsibility to think about the foundation of these rights as part of a larger theory of democracy, and understand that campaign finance reform can really enhance the number of people who participate. There was a case out of Arizona in which the law said that if a poorer candidate is running against a wealthy candidate, that person will receive a subsidy linked to the amount the wealthy candidate spends. It seems like a perfect example of enhancing rather than limiting free speech, yet the Court strikes it down.

They seem to have worked out, through some sort of rational choice analysis, that the Arizona practice produces less speech by encouraging disincentives to wealthy spenders in campaigns. But no rational choice theorist I’ve spoken to has guaranteed this result.

Another deep frustration is the failure to have poverty on the agenda in American democracy, to reaffirm some minimal set of welfare rights.

Art of Theory: Even as you work on contemporary democratic theory, is there any canonical theorist whom you find yourself consistently returning to?

Brettschneider: Definitely Rousseau: the Social Contract, Discourse on Political Economy, Discourse on Inequality. I’m really obsessed with those works, and I read them and teach them all the time. Maybe too much, according to my students! There’s a richness that I always find inspiring.

I planned a dissertation about Marx and Rousseau. I was encouraged not to do just that, but to ask my own questions and work out my own views. So the dissertation, which I never published (although it heavily influenced my first book), is largely about Rousseau.

Art of Theory: What makes for excellent political theory, in your mind?

Brettschneider: I think there are two things that have to go together. One is clarity, and the other—which doesn’t often go with clarity—is big thinking, big ideas. I say that they don’t go together because sometimes clarity or rigor means limiting one’s self to making narrow points. But it doesn’t need to.

I also really look for a distinct voice, and the willingness, the audacity, to have your own thoughts, which is a hard thing to do when we’re surrounded by so much good work. There’s a temptation to regurgitate or to make a small move within an existing debate, but some people are just able to reach within themselves and find that originality of voice.

I’m encouraged about the field because I’m finding that especially the newest generation of people finishing their Ph.D. and coming onto the market, and young people in tenure-track jobs, really do seem to have that combination of clarity and originality. I think this is especially evident in some of the work at the intersection of political theory and international relations. We’re lucky enough at Brown to have terrific graduate students and post-docs every year, and so I continue to be inspired by the work that’s coming out of a variety of different graduate programs.

Art of Theory: Describe your workplace and working habits. Do you have any particular routine?

Brettschneider: That’s a great question—one that I’m always asking people. When I’m at my most productive, I’m working every day for about three hours first thing in the morning. I find that an intense work period first thing in the morning opens up the rest of the day to talk to people, to show drafts, and to discuss.

Art of Theory: Are you working on campus or at home?

Brettschneider: It depends on the day. Sometimes in the office and sometimes at home. My first book was written almost entirely at home, and the second book I wrote in a number of places, including at Brown and in two other inspiring locations on sabbatical: Princeton and Harvard. Which was great, because I would be motivated to do my work and then run to talk to all the wonderful people at those places who were willing to tell me what was wrong with it.

Art of Theory: That sort of feedback is always useful.

Brettschneider: I really do think that being in a dialogue with colleagues about my ideas as I’m writing them, and sometimes before putting anything down, is the key to both enjoying the field and to doing well in it.

At Brown I’m grateful to have colleagues working in democratic theory like Sharon Krause, John Tomasi, Charles Larmore, Bonnie Honnig, Alex Gourevich, Jim Morone, and David Estlund who are constantly testing my views over lunches and discussion. When Dave in particular was writing his book Democratic Authority, I was also working on Democratic Rights, and so having him as a constant debate partner really helped to refine my views. And that was true of the second book, with all of my colleagues, as well.

Come to think of it all of us have written books on liberal democracy.  You asked earlier about the Cambridge School.  Someone should start writing about the Brown School of democratic theory!

Art of Theory: What’s next for you? What’s on the horizon?

Brettschneider: I have the ambition of writing three books. One, on punishment, would draw together a variety of different articles to offer a theory not of the rights of the accused, but of the rights of the guilty. So that’s the working title, The Rights of the Guilty.

I want to think about the strange notion of treating even the worst criminals as democratic citizens entitled to political as well as civil rights. So I’m inspired by the Court’s decision in Trop v. Dulles (1958), which is about why citizenship cannot be revoked as punishment. I want to go beyond the formal claim, which is about the right to a passport, to make an argument for why even those guilty of the worst crimes have an entitlement to various social and political rights, including speech and freedom of religion, and more controversially, the right to vote. In this context I’m not going to ignore my concerns about prison conditions and my opposition to the death penalty.

I also have the ambition to write more about democracy, the human right to democracy. And I have a variety of projects in constitutional law, including a deep ambition to write articles in a book about the way we should understand the jurisprudence on government powers and civil liberties. Ideally there should be one coherent theory of how these things fit together.