Monday, November 22, 2010

Ethics, Morals, and Professionalism

I have been writing about the so-called tenets of the legal profession listed as the clue to the meaning of professionalism in Rule 3 of the Vermont MCLE Rules. My theme has been that the rule provides us precious little guidance on what professionalism is, especially if we cling to the crisp distinction drawn by the Court between professionalism and ethics.

Much more could be said about the tenets laid down in the rule -- and the somewhat different list offered in the Reporter's Note. And I have pointedly not discussed several tenets that may actually have some ascertainable content -- in particular, civility and respect for others (other lawyers, witnesses, parties, clients, and so forth). But I want to step back from this detailed look at specific tenets to reconsider the assumption behind the tenet-listing exercise.

I want to suggest that the problem may lie with the effort to distinguish good action (professionalism)  from ethical action -- as if one can be ethical without being good. If professionalism means more than intelligent business practice, if it involves something deeper than the sort of suits one wears or the language one uses in public, if it entails something beyond good manners, it inevitably infringes upon the moral domain. The distinction the Court tries to fashion is founded on an incredibly narrow understanding of "ethics," though it may be one that is congenial to people who find themselves sometimes "compelled" to engage in behavior that most people find downright wrong (e.g., lying or at least proceeding blithely unconcerned about the truth or falsity of the position being taken, keeping secrets when lives are at stake, causing pain to another human being because doing so has benefits for your client, and so on). Except in the context of "professional ethics" (notice how those terms -- "professional" and "ethics" -- keep coming together), ethics is usually taken to involve something more than adhering to rules narrowly parsed to permit the greatest possible latitude of action. Even the note to the professionalism rule arrives at that insight, for it tells us that "truly ethical people measure their conduct not by rules but by basic moral principles such as honesty, integrity, and fairness." Said another way, truly ethical people display a body of virtues and do not simply abide by rules of conduct.

The Reporter's Note goes on to point out that "people can be dishonest, unprincipled, untrustworthy, unfair, and uncaring without breaking the law or the code." True, but to proceed to call such people "ethical" is bizarre -- and that is exactly what the distinction drawn between ethics and professionalism seems to suggest. The problem may lie not so much with the definition of professionalism (although the very word is problematic in my view), as with the perverse limitation of the meaning of ethics. The attempt of the professions -- including law -- to carve out a body of rules distinct to their activity and to consider anyone who adheres to those rules "ethical," however common and accepted, is at fault for many things, not least of which is the incredible incivility and inhumanity we see displayed in the behavior of lawyers who would defend their heartless and obnoxious behavior by calling it zealous representation. That attempt also generates the sort of definitional difficulties our Court wrestled with in trying to craft a notion of professionalism different from rule-bound ethics. 

The problem is that ethics is bigger than any body of rules, let alone a practice-driven set of rules like those that govern professional conduct. Rules are really nothing more than attempts to draw out the implications of basic principles or fundamental virtues of character in particular situations. Until we re-examine the fundamental presuppositions that shape the topic of ethics, professionalism, and morals, we will be condemned to witness professionals who justify their blameworthy antics by reference to so-called "ethical" rules, rules that virtually encourage those antics by defining them out of the realm of ethics. 

Are lawyers who steal from their client trust accounts, or reveal client confidences, or do any of the other things prohibited by the Rules of Professional Conduct unethical? Probably, because most of those acts involve either fundamentally immoral actions (lying, stealing, cheating) or breaches of trust (which, I would contend, are also fundamentally immoral). But notice that I do not draw a distinction between ethics and morals -- a distinction that has crept into discussions of professional conduct and should be rejected. I think that "ethics" and "morals" refer to the same thing -- the basic principles that should guide our conduct, the basic virtues of character that good people possess. Interestingly, when pushed to develop a public statement, those who draft codes of conduct and professionalism rules agree with the identity of ethics and morals -- for they call their codes "rules of professional conduct" not "ethics rules," and they say things like "truly ethical people measure their conduct by basic moral principles."

If ethics is about anything, it is about the virtues of character that define how we should act in the world. Lawyers, like everyone else, should strive to develop those virtues. To the extent that they fail, they can be faulted for being unethical or immoral. It is those virtues that give us principles that can help guide our actions. To the extent that we want to develop a profession known for its morality -- and it seems obvious to me that we should want this -- we should demand that the members of our profession seek to develop the virtues of character of the good person. We should insist that they act on the principles of action that flow from those virtues. Serious failures to abide by those principles, or to display those virtues, should be punished. All failures should be treated as opportunities to examine the virtues and the principles, and it is there that the conversations the Court wants to encourage about professionalism can be most fruitful. But we must give up the tendency -- perhaps particularly common in a profession given to treating all of life's issues analytically -- to draw arbitrary, unjustified, strange, and awkward distinctions between morals, ethics, and professionalism. 

Truly professional lawyers are good people, and evince the virtues and seek always to act according to the principles characteristic of good people. Codes of conduct for professionals must be consistent with morals. They do not chart out a separate territory; they merely look at the same territory through the eyes of people whose work creates specific sorts of situations and raises specific sorts of questions. Codes of conduct apply the virtues of character to specific issues that pop up in professional practice. Professionalism is not something apart from, or even distinguishable from, ethics or morals -- it is the same thing. Nor is it apart from, or distinguishable from, good professional conduct -- it is the same thing. The conversation we should have is about what it means to be a good person. And if we are serious about wanting professionals who are "truly ethical people," we must be willing to punish those who refuse to do so by refusing to let them join or continue as members of a truly ethical profession.

What is Meant by Professionalism? Honesty and Competence

In a series of posts, I have been examining the so-called "tenets of the legal profession" listed in the Vermont Supreme Court's rule requiring every licensed lawyer to attend two hours of continuing legal education on "professionalism" every two years (Rule 3). These "tenets" make their appearance in the rule as a way to distinguish professionalism from ethics. I think that effort ultimately fails and I have been trying to demonstrate why. Today I take up two of those tenets: honesty and competence.

The Court's effort to define professionalism, to set it within its own boundaries separate from ethics, flounders most when it tells us that among the tenets of the legal profession (remember, these are supposed to be not ethics) are honesty and competence. "Wait," you say, "aren't honesty and competence required by the Rules of Professional Conduct? Aren't they specifically ethical requirements?" 

I confess that I do not have an answer, other than that you are right. The suggestion, given the rule's insistence on the difference between ethics and professionalism, is that there is a kind of honesty and competence that is not covered by the ethics rules but is required by professionalism. Just what that might be in hard to guess, however. 

Jim Knapp and I are asking that question about competence in the current iteration of the professionalism road show. Perhaps professional competence means an understanding of the larger social environment within which one serves one's clients. For example, perhaps professional competence means a facility, or at least a familiarity, with contemporary management tools, with cloud computing, with social media. Perhaps. Surely this depends to some extent on the nature of one's practice, but it is increasingly the case that contemporary legal practice requires a level of familiarity and comfort with the range of electronic/technological tools and uses that characterizes the social world in which lawyers live and work. Is this what is meant by professional competence? When asked, our audiences remain silent. What that suggests is that lawyers cannot fathom what competence might mean beyond the kind of legal competence required by Rule 1.1. That does not mean, of course, that there is not a kind of competence that is important but not captured by the ethics rules, but it does mean that asking lawyers to talk about it may take us nowhere.

Much the same could be said about honesty. The honesty rules have recently become the subject of some heated debate, as government lawyers and defense attorneys have both claimed that sometimes criminal investigation requires deception and much of that deception is in some sense "supervised" (if not directly engaged in) by attorneys. Rule 8.4(c) says that "[i]t is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation." That rule is puzzling, however, for few believe it really means exactly what it says. Surely not all dishonesty is proscribed? Must lawyers refrain from telling their kids that Santa Clause delivers presents on Christmas Eve? Must lawyers refuse to tell their spouse that they look good, or that dinner was good, when saying so distorts what the lawyer really thinks and feels? Do surprise parties suddenly become misconduct if the lawyer is asked whether she is actually planning one and denies it (lying through her teeth)? Such a reading might be perfectly consistent with Kantian duty-based ethics, but they cannot be what Rule 8.4 really means -- as the Court itself held in upholding a professional conduct board decision recently, concluding that "the rule was meant to reach only conduct that calls into question an attorney's fitness to practice law."

That analysis means that there is a kind of dishonesty that does not rise to the level of an ethical violation under either Rule 4.1 or Rule 8.4. But is that the area of "honesty" being addressed by professionalism? If so, what would be an example of an act of dishonesty that is not proscribed under the ethics rules but nevertheless should not be engaged in by a legal professional? I do not imagine that the Santa Clause tale or the others mentioned above reveal their tellers as unprofessional -- in fact, it seems that these tales (or little white lies) are specifically outside the realm of professional conduct altogether. So what exactly does honesty mean as a tenet of the legal profession? 

And that is the ultimate problem, I think. The professionalism rule implies that there is a kind of competence and a kind of honesty that is not required by the ethics rules but is implicated by the tenets of the legal profession -- a kind of penumbra of the core honesty demanded by Rules 4.1 and 8.4. But the professionalism rule offers no guidance whatsoever on what that penumbra looks like, what sorts of behavior it encourages, what sorts of deception are unprofessional (other than, of course, the unethical sorts).

This is shadowy indeed.

Friday, November 19, 2010

More on Professionalism: What Is Meant by Character?

I have been considering the professionalism rule promulgated a few years ago by the Vermont Supreme Court. In this post I want to examine the notion of character, one of the so-called tenets of the legal profession consistency with which constitutes professionalism according to the rule.

The inclusion of "character" in the list of tenets suggests just how much the Court was scrambling to come up with content for professionalism that is different from the content of ethics. Several things should be noted here. First, we should ask whether there exists a sort of character that is distinctive to lawyers, some kind of character that differentiates us from other folks. I doubt that this is what the Court meant to imply, but it might open up some interesting, if highly controversial, discussion.

But I want to focus on a different angle. A venerable tradition of ethical theory -- what is known today as "virtue ethics" -- puts character at the center of its vision of ethical life. As a result, the word has powerful cachet. Another (perhaps more cynical) way of putting that is to say that the word sounds good, and you can always call upon Aristotle or George Washington to back you up when you cite character as a good thing or a tenet of anything you value. 

But a close look at Aristotle will show the problem: everyone has a character -- some people have a good character, some a strong character, some a weak character, some an evil character, and so on. The word "character" simply refers to the bundle of virtues and vices a person displays. What Aristotle valued was virtuous character, and he had a full list of virtues to go with it and a profound sense of what virtue consists in. The good person displays virtues such as courage, temperance, generosity, magnificence, magnanimity, mildness, friendliness, truthfulness, wit, justice, and a variety of what Aristotle called "virtues of thought." Virtue consists in a mean between two extremes; for example, courage is a mean lying somewhere between rashness and cowardice. Each virtue can only be acquired through long habit; no one is born virtuous and virtues cannot be acquired by deciding one day to be virtuous or by sitting in a seminar learning about them.

Washington, like many of the other founders of our nation, had a distinctly Enlightenment sense of the value of character. And, as we saw with Aristotle, this sense of character had a precise content. It involved presenting oneself in a particular way, a well-developed body of manners one adheres to religiously, a patrician sense that one is superior and should act accordingly, a deep concern about one's reputation, a level of self-discipline that involves squelching one's passions and subjecting them to the control of reason, a powerful sense of honor, and a willingness always to place the common good ahead of one's personal good. Washington drove himself to live strictly according to these virtues of character. He carried himself in a way that conveyed superiority and command. He was a master of the grand gesture and sought consciously to foster his reputation as an American Cincinnatus. 

Gordon Wood makes the important point that the Enlightenment notion of character quickly became out-of-fashion as the new nation became more and more democratic. Even as Washington left office, the world that made sense of him was disappearing. By the 1820s Washington's personality had become more and more difficult to figure out. He came simply to seem aloof, inscrutable, somewhat stiff and pompous. In other words, democracy undermined the Enlightenment notion of character and the model of life Washington worked so hard to cultivate became increasingly unavailable.

"Character," therefore, is a residual category, left over from earlier modes of moral thinking, and increasingly empty in our own moral discourse. That does not keep it from being thrown around in conversation about ethics. But it does keep it from communicating much of anything that can help guide action. Just imagine the effect a "magnificent" man would have in today's flattened moral universe -- one can already hear the cries of noblesse oblige and elitism. What would be said of a woman who consistently presented herself in the elitist, aloof, stiff manner Washington cultivated? Modern notions of equality run counter to classic notions of character -- a point recognized and driven home with his usual ruthlessness by Nietzsche, who derided the "slave morality" associated with modern equality and bemoaned the loss of the "master morality" associated with ideas of nobility and character espoused by everyone from the ancient Greeks to (what Nietzsche would have seen as) throwbacks such as George Washington. (By the way, it is a monumental mistake to link these ideas of Nietzsche with totalitarian tyranny -- but that is a long discussion not relevant here.)

If we want to respond as Aristotle did that "character" really means "virtuous character," then it is incumbent upon us to define what those virtues are. Otherwise we are simply giving empty praise when we say someone has character. The endeavor to define those traits we consider virtues would repay the efforts it would require, but we have yet to truly start down that path. I think we should emphasize character, and we should have long conversations about what virtues it includes, but merely throwing the word in a list as if it has an inherent meaning obvious to everyone takes us nowhere.

Sunday, November 14, 2010

More on Professionalism: What Is Meant by Integrity?

The professionalism rule promulgated by the Vermont Supreme Court defines professionalism as "conduct consistent with the tenets of the legal profession." In an earlier post I began a discussion of the tenets listed in the rule. This post continues that discussion.

Two of the tenets listed -- integrity and character -- raise interesting and fundamental issues of morality (avoiding for now the terms "ethics"). Here I want to talk about integrity,leaving character for future consideration.

"Integrity" is a word like "democracy" -- it denotes something good, something to be praised. It sounds good, but its meaning is often unclear. Everybody -- especially government officials, businessmen, advertisers, and lawyers -- claims to have integrity, just as nearly every nation wants to claim to be a democracy. (The fact that no nation is really a democracy in the strict sense should give us pause here; once the "strict sense" is eschewed, what bounds can be set for the meaning of a word?) Integrity, like democracy, is something to claim, something to prize; it is a label of praise -- but, it seems, it is not always something to be clear about. Many who claim it use it as a sales pitch as much as a real description of who and what they are. But let's give them the benefit of the doubt and assume they have something in mind that they value beyond profit: what could it be?

At its root, integrity relates to the ability of a person to integrate all aspects of his or her being into a single whole; it means completeness or unity of character (setting aside for the moment the fact that "character" is also one of the listed tenets). Integrity, of course, can also mean something like soundness, as when we speak of the integrity of a bridge; perhaps that meaning can be extended to entail moral soundness, though determining the standards of moral soundness would surely require a good deal of thought and debate. My dictionary tells me that integrity can also mean strict adherence to a moral code or set of rules. Consideration of that meaning would lead us into debates about what the moral code or set of rules should include and what it must exclude in order to count for purposes of integrity -- after all, Adolf Hitler displayed remarkable consistency in his adherence to a strict code of rules, though most of us would find his code to be highly objectionable. 

What does it mean for a lawyer to demonstrate integrity? The answer is not obvious and may relate to other tenets like character and attention to mental and physical health. Certainly those other tenets must be implicated if we take integrity to mean the weaving of all aspects of one's being into a consistent whole, into a specific character. I think this must be the core meaning of integrity in the context of lawyer professionalism, for if we shift to thinking of integrity in terms of moral soundness or strict adherence to a moral code, we must be able to provide some specificity about what counts as a sound or proper morality for a lawyer. That has long been the subject of debate and has plagued the effort to develop a professional code of ethics. It would make for a fascinating discussion in the graduate school seminar room (and I would love to engage in that discussion with interested people), but it is not generally the sort of topic that busy lawyers want to grapple with in a CLE program or one that is likely to produce a room full of interested, enthusiastic participants. In any event, if living with integrity means we must be moral or ethical (I resist the tendency to see these as two different things, but more on that later), then professionalism reduces to ethics -- not what the Court had in mind when it set out on this road. 

But wait. Let's say integrity involves the creation of a wholeness out of one's life, a successful attempt to pull together the various aspects of one's being -- one's physical and mental state, one's ways of interacting with others, one's beliefs, one's morals -- into one consistent thing we might call one's character. Even then, is it not the case that not every wholeness, not every character we might create, can be the sort of thing deserving of praise? Is it not the case that only some kinds of character should be encouraged? In other words, is it not the case that the idea of moral soundness creeps into our discussion no matter what we take integrity to mean? We do not praise the integrity of people who consistently do everything in their power to undermine the health of their body, mind, and relationships with others. It is not every kind of wholeness and unity that we admire and want to set before our profession as an ideal.

And so, in the end, we are left with nothing but dust in our hand when we try to grasp what "integrity" might mean for a lawyer. Is integrity a good thing? Well, not always. When is it good? It is precisely this that we want to know -- and precisely this on which the professionalism rule offers no guidance whatsoever.

Friday, November 12, 2010

Rethinking the Professionalism Rule

Several years ago the Vermont Supreme Court promulgated a change to the MCLE rules so as to require lawyers to take two hours of professionalism among their required twenty hours of continuing legal education every two years. [To be fully candid I should note that I was part of the committee that helped draft the professionalism rule -- and what I have to say is a product of continued deliberation on my part about the moral dimension of lawyering, and of my experience over two years of presenting seminars on "professionalism."] In its order, and especially in the Reporter's Note accompanying it, the Court went to great pains to distinguish "professionalism" from "ethics." The latter, we are told, is a sort of moral baseline that lays down the minimal standards to maintain a license to practice law. The former -- professionalism -- is more aspirational, relating to how we should act as lawyers (even though we are not required to do so). In the terms used by the Court, ethics constitutes the floor, describing what we must do minimally, while professionalism is the ceiling, offering the standards toward which we should strive as lawyers. 

The distinction between ethics and professionalism, however, is a hard one to spot, for the two realms touch and overlap, collide and interpenetrate, in innumerable ways. The Court wrestled with the distinction mightily, but found it too difficult to pin down. Professionalism, they tell us, relates to "conduct consistent with the tenets of the legal profession," and in case you are unsure what those might be, they give us a list: "civility, honesty, integrity, character, fairness, competence, attention to mental and physical health, public service, and respect for the rule of law, the courts, clients, other lawyers, and parties." 

It is hard to figure out where to start with this list, for far from answering our questions it only generates new ones. What makes these "tenets" specific to the legal profession? Surely all people (I want to say "ethical" people) should be civil, honest, fair, and respectful -- there is nothing specific to the legal profession here. One could even make a case that all decent people in a constitutional democracy should have respect for the rule of law -- again, nothing particular to lawyers in that. 

Though public service is broad, and begs the question as to what actually constitutes service to the public (coaching Little League? providing pro bono legal services? being an upstanding member of the legal community? running for office? working for a government agency?), it does make some sense to suggest that lawyers should serve the public. Of course, most theorists of democratic citizenship would say that all citizens have a duty to serve their communities, so once again, there may be nothing peculiar to lawyers here. 

And, as for attention to mental and physical health, surely this is no more applicable to lawyers than it is to anyone else. Worse, perhaps, is that the phrase itself is remarkably ambiguous. How is mental and physical health to be defined? What does it mean to "attend" to it? If I am overweight, plagued by high cholesterol and blood pressure, and stressed out, does that mean I am unprofessional? Or am I only required to notice that I have these unhealthy conditions and, perhaps, to be worried about it? A couple of years ago when Jim Knapp and I were presenting a seminar on professionalism to public defenders, someone raised the nearly explicit moralism of the rule, which implies that if you suffer from health issues, whether mental or physical, you are somehow less professional than someone who does not. Such moralism may be consistent with dominant trends in a certain social class in society, but that hardly makes it a tenet of the legal profession anymore than it is a tenet of any other group in society.And like other forms of moralism, it has troublesome implications in an open society that emphasizes individual liberty and eschews the authoritative imposition of moral beliefs on citizens.

Other so-called "tenets of the legal profession" raise even weightier issues, I think, and deserve additional thinking and re-evaluation. Stay tuned.

Wednesday, November 3, 2010

On Voting

Nothing surprising seems to have occurred on election night. As predicted, the Republicans picked up a number of House seats and a few Senate seats -- enough to take control of the House and to narrow the Democratic majority in the Senate. These results are the product of a number of factors, not least of which are our current economic woes coupled with dissatisfaction (even anger) at the boondoggle that is Washington. Add to these the fact that the party in control of the White House frequently loses seats in Congress in the mid-term election -- a fact explained to a great extent by the impossible expectations that the American electorate pins on presidents, something that is particularly apparent in the inflated, almost preposterous expectations that burden the current incumbent in that office.

Election time always brings forth many calls for citizens to vote, to exercise their rights as citizens of a "democracy." But this sort of platitude does little to provoke real thought about what citizenship means, and actually gets some important things wrong. We need, as a people, to think more about the real content of citizenship and we need to get much clearer about the nature of the polity established by our Constitution. Those are topics that I cannot address in any depth now (though I have done so in a number of publications). But I do want to say something about the relationship between voting and citizenship in our constitutional democracy.

A citizen is a member of the constitutional people established by the Constitution itself when it began with the well-known (and often misused) phrase, "We the People of the United States." That phrase creates a new nation -- the United States -- and establishes a new national citizenship, neither of which truly existed in the decades prior to the Constitution.What does it mean to be a member of "We the People"? And what is the content of this new national citizenship, a citizenship that has been revised, reformulated, re-envisioned over the past 220 years? Big topics.

In his forthcoming book, The Ethics of Voting, Jason Brennan contends that "while citizens have no duty to vote, if they do vote, they must vote well." By that, he means that they use "sound moral and empirical beliefs in order to promote the common good." (HT: The Daily Dish)

Brennan is partially right, and partially wrong. I agree that citizens do no have an obligation to vote. Rather, they have an obligation to act as free, autonomous individuals, and that can mean choosing not to vote in some circumstances. I could spend pages unpacking the notion of "free, autonomous individual," but suffice it here to say that autonomy means I set the rules for myself (and my rule could be not to vote if not voting makes a thoughtful statement about the political situation or about the candidates or about a particular issue). And by "individual" I do not mean to imply that we are totally self-created, isolated atoms, free from all ties or links to others. That's just plain wrong, as I have argued in print many times: who we are is the product of our past, our heritage, our given and chosen associations, and so on. Our obligation as humans is to engage our given identity in a conscious and critical way, and so who we are presently may or may not be a product of our intentional choices.

For present purposes, however, let us descend from these heights. The point is that we do not have a duty to vote unless we give ourselves one, and that decision can be revisited as circumstances (candidates, political environment, particular issues) change. Good citizens make this decision after deliberation, with themselves and perhaps with others. Good citizens do not fail to vote because they just do not get around to it or because it is inconvenient -- such citizens, as Rousseau would have put it, deserve to lose their freedom since they refuse to exercise it. (Remember, the freedom at issue here is to choose whether or not to vote.) That, like so much else with Rousseau, may be hyperbole, but it makes an important point. (I shall return to the dark side of Rousseau below.)

Notice that this line of argument also suggests that those who simply drift into voting -- because that's what they have always done, because they have been indoctrinated with the belief that voting is an obligation, because it just worked out that it was convenient to stop by the polls, because they did not want to admit to someone else that they did not vote -- are not good citizens either. The good citizen thinks, deliberates, decides, and acts. People who are simply carried along by the tides of prejudice, convenience, and comfort are not being good citizens primarily because they are refusing to engage in the ongoing conversation with other citizens, the ongoing speaking, deliberating, and acting that distinguish citizens in a polity from residents in a territory. Casting a vote is not speaking. If your vote is your only voice, we the people no longer govern -- they just choose their masters.

So far, then, Brennan seems right: citizens do not have a duty to vote, at least not one grounded in the mere legal status that comes from being born or naturalized in the United States. I think Brennan is also right in suggesting that when we vote, we should do so on the basis of sound moral and political views, and on the basis of sound empirical information. To a great extent, that is why decent civic education is essential in a constitutional democracy like ours. Citizens cannot be expected to hammer out sound (by which I only mean coherent, non-contradictory, and thoughtful) moral and political beliefs if they are not taught how to think, how to examine their lives and beliefs, how to critically engage with their prejudices. And unless they do that thinking, examining, and engaging they are simply reacting rather than acting, responding to passion rather than reason, reflex rather than choice.

Where Brennan runs aground, I think, is in his repetition of the republican shibboleth of the common good. One of the great achievements of James Madison and, to a somewhat lesser extent, some of the other framers, was the recognition that "men are not angels," that they are not always (or even frequently) driven by a desire to achieve the common good, but are rather caught up with their own situations, their own goals, their own interests. Even those who examine their lives and critically engage their prejudices and all those relationships that help form who they are as individuals, are never free from the influence of those lives, prejudices, and relationships. Most people most of the time come to the public square deeply rooted in their own places in the world; they do not find it easy (and we should not necessarily find it desirable for them) to strip themselves of all those ties that bind them and think solely in terms of some (most likely mythical) general will. As I have said in print, selfless instruments of the common good are rare and can be dangerous. And we should not expect that more people will give up their individuality and autonomy in order to become servants of the good of all. (There is plenty in Madison to support my argument here.) Nor should we educate people to turn themselves into devotees of the common good, unless we want a citizen body composed of willing tools or of the sort of "citizen" Rousseau admired in the person of the Spartan mother who wanted to know the result of the battle rather than mourn the loss of her son. That way lies despotism.

So, while we want thoughtful, deliberative citizens who, when they choose to vote base their decisions on reasoned analysis of moral and political ideas and on sound empirical information, we should not insist on their making their electoral choices solely on the basis of some vision of the common good. Recall that Rousseau insisted that a voter needs to ask himself what the general will is and vote on the basis of his answer to that question -- and recall that Rousseau shows us the logical, and frightening, conclusion of civic republican thinking, where those who dare to criticize or to seek their own interests in the debate in the public square can be censored, banished, or forced to be free.

In short, citizens sometimes vote, and they do so more often the better society has done in providing decent civic education that has developed citizens who think and act in a reasoned way. Sometimes citizens think in terms of the common good, where it is obvious and unitary (a rare occasion indeed), but most often they bring their own interests and concerns into the public square where they are willing to speak, deliberate, and act together with their fellow citizens in making hard public choices. In the final analysis, voting is a flaccid, passive form of citizenship. If that is all we have to offer our citizens today, so much the worse for the future of constitutional democracy in our nation.