The New Rugged Communitarianism

taken from The Washington Post, Outlook Section, p. 1, col 1, (January 20, 1991).

For several years, on many fronts, champions of greater responsibility to the community have become something of a new force in American life. They think of themselves as “communitarians,” though so far there is no registry of communitarians and no formal association. Nevertheless, their influence is real enough, and so are their objectives: to evolve public policies, moral norms, and regulatory guidelines that will correct what they perceive as excessive, “radical” individualism.

The communitarian view can easily be understood by looking at what happened last year in Inkster, Mich., where there was an attempt to set up a traffic checkpoint to stanch the drug trade. As Roger Conner, the executive director of the centrist American Alliance for Rights and Responsibilities, recounts it, the predominantly black residents of Inkster were virtually under siege as their neighborhood was turned into one of the most active open-air drug markets in the Detroit metropolitan area.

Residents were afraid to walk the streets at night or to let their children out during the day. Many slept on their floors, alarmed by the possibility that they might be struck by a stray bullet. The local sheriff, having failed to break up the drug market using standard police measures, set up a traffic checkpoint at the entrance to the main neighborhood thoroughfare. He did not illegally search cars (most of which turned out to be from outside the neighborhood), but he did ask to see drivers licenses, registrations, and proof of insurance.

Drug dealers, reluctant to identify themselves, quickly withdrew from the area, which was reclaimed by its residents. But the neighborhood victory was shortlived. The American Civil Liberties Union (ACLU) challenged the constitutionality of the checkpoint on Fourth Amendment grounds. The sheriff agreed to suspend the checkpoint until a court could rule as to whether it constituted an illegal search. Today, drug dealers again terrorize residents on the streets of Inkster.

Communitarians are having more success on another front - that of student rights and responsibilities in primary and secondary schools. The situation is different from state to state, and many different issues are involved. These range from the right of schools to search lockers for drugs without showing probable cause, to screening students for guns, to suspending disruptive students without fulldress hearings subject to all the rules and delays of due process.

Here, a communitarian trend is discernible: For example, disruptive students can now be removed in many states without a hearing before the suspension, though they may appeal after the fact.

Still, communitarians recognize that students have real rights. Simplified procedures, for example, might be used in reviewing their cases by school authorities: Students may be notified in writing of any wrongdoing and accorded a chance to respond before major disciplinary steps are taken. But it is also becoming increasingly recognized that schools are not adversaries of students and that students are not mature litigants (with the right to cross-examine witnesses and have counsel present) but rather persons to be educated.

The debate continues on various fronts. Many civil libertarians oppose sobriety checkpoints; communitarians tend to favor them (so far, 30 states have introduced them). The ACLU has opposed job-related drug-testing, even of the engineers who drive trains. Communitarians tend to favor a test for occupations with a direct role in public safety from pilots to police, especially if there is prior consent - e.g., if such tests are part of job requirements. (Court rulings on this issue have varied a great deal.)

The communitarian perspective can be framed in two main ways. One is that Americans have acquired too many rights in an era of abundance and indulgence, before the nation fully faced the new realities of AIDS, crack, and urban warfare. These rights now need to be adjusted to make it easier to fight disease and crime. In particular, there should be more emphasis on individual responsibility to the community. This could be achieved, the argument goes, without going overboard and suspending constitutional rights wholesale, as some panic-ridden arch-conservatives would have it (e.g. by quarantining AIDS sufferers). James Fishkin, professor of government at the University of Texas at Austin and a co-editor of the new communitarian quarterly, The Responsive Community, has been critical of what he’s referred to as “ the rights industry,” wherein society recognizes ever more moral claims by various grous and individuals without concerns for the larger picture - the well-being of the community.

The other view holds that rights are subject to interpretation and thus there is no reason to accept the extreme civil libertarian view as the governing one. No one today seriously questions the federal policy that requires airplane baggage to be X-rayed and forces all passengers to pass through metal detectors. But there remains considerable opposition to drunk-driving checkpoints and Inkster-like roadblocks. Some civil libertarians suggest that these innovations not only violate the Fourth Amendment but serve the sinister purpose of “conditioning” Americans to a police state. The communitarian interpretation views the searches as quite reasonable, given the minimal intrusion they impose on travelers; moreover, they are viewed as essential to maintaining the right to free travel - free from the fear of terrorism, drunken drivers and drug dealers.

Among communitarians, this line of argument has been advanced by William Galston, a professor of political theory at the University of Maryland and co-editor of The Responsive Community.

Nowhere are the efforts to redraw the balance between individual rights and individual responsibilities to the community more evident than in responses to the deadly AIDS epidemic. As Ronald Bayer documented in his important study, “Private Acts, Public Consequences,” American moral and legal tradition had become increasingly receptive to the notion that what consenting adults do in privacy is nobody else’s business. However, since the outbreak of the epidemic, laws have been introduced in many states requiring those who are HIV carriers to notify past sexual partners of their condition. To some, these new laws seem an obvious, elementary response to a killing disease that imposes enormous economic and human costs on the community. To others, however, such laws must be vigorously opposed.

The ACLU, for one, argues that since there is no known cure for AIDS, such disclosures do not help those already infected and are therefore unreasonable. Communitarians respond that disclosure does save the lives of those not yet infected, and thus helps the community. Civil libertarians argue that HIV carriers who are identified are liable to lose their jobs, housing and insurance and hence oppose all but the most voluntary disclosure. Here, communitarians concur; but their response is to favor accompanying disclosure with measures to thwart discrimination against HIV carriers.

A communitarian such as James Childress, professor of religious studies at the University of Virginia argues for encouraging HIV carriers to come forward voluntarily. He favors community efforts to express the value of disclosure through moral exhortation and social pressure before imposing values through the legal system.

Not all the issues flagged by communitarians are matters of either trimming or reinterpreting rights. Mary Ann Glendon, a Harvard Law School professor, outlines the merit of a new obligation that entails no such reinterpretation: that of good samaritan. According to present U.S. law, if an Olympic-class swimmer, say, sees a child drowning and can save the child without risk, he is not obligated to do so. Glendon would favor following the European example that mandates being a good samaritan under such conditions.

Particularly popular is the idea of national service, a kind if return to John F. Kennedy’s exhortation, “Ask not what your country can do for you; ask what you can do for your country.” Benjamin Barber, of Rutgers University, is playing an active role not only in advocating the idea but in introducing it as part of the curriculum. Teaching young Americans that giving to the community is a good in itself and helps expand their social horizons.

Communitarians, careful to avoid implications of authoritarianism, tend to favor making any national service voluntary, although most would go along with William F. Buckley’s recommendation to provide incentives. These might range from tuition credits to GI-type loans to finance higher education. Robert Bellah, in his book “Habits of the Heart,” sees communitarianism mainly as a change of moral orientation, toward greater recognition of the importance of the community rather than a matter of legal rights and responsibilities.

Perhaps nothing more clearly defines the communitarian view - and the concerns of communitarians - than the future of the American family. Liberals have systematically shied away from the topic because (among other reasons) their constituents include many who maintain that single-parent families are as effective as two-parent families, that divorce is not necessarily detrimental for children and that gay couples can bring up children successfully.

While the conservative view of the traditional family often includes a call for women to return to the home to bring up children, communitarians tend to emphasize the idea that two-parent families may be irreplaceable sociological units, vital for the character formation of the young and hence necessary for the moral and civic order of the community. (Jean Elshtain, of Vanderbilt University, writes about the moral imperative of the family). Communitarians are inclined to endorse equality between men and women with regard to who works full or part-time - and who stays home during the children’s formative years.

Who, you may ask, are these communitarians? Though there is no formal organization, those who might be called communitarians, even if they dislike the label, include several leading thinkers widely considered liberal, e.g. Philip Selznick, a sociologist at the University of California at Berkeley, Terry Pinkard of Georgetown University, Martha Minow at the Harvard Law School, and several scholars known for their neo-conservative leanings such as Nathan Glazer, a co-editor of the Public Interest and professor at Harvard University and Ilene Nagel of Indiana University.

It is too early to tell how much influence these communitarians will have in the coming years, but if one judges by the amount of concerned opposition they are encountering from organizations such as the ACLU, they are well on their way to making their mark.