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Chicago-Kent Law Review

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Alienated citizens, Mark Tushnet, Linda McClain, Jim Fleming, Steve Gilles, civil society


The primary goal of civil society revivalists is not the revival of civil society. It is the empowerment of otherwise alienated citizens. Reviving civil society is seen as the principal means to that end, but it is not the only means. To be sure, the revivalists focus their attention on participation in nongovernmental associations. But the ways of overcoming alienation are plural, and they include participation in government, participation in nongovernmental associations, and assertions of individual rights against various forms of collective will. In this brief essay, I first explain why only a pluralist understanding of human flourishing fits with our constitutional structure. I challenge Mark Tushnet's assertion that a paradox underlies the calls for revival of civil society. Next, I contend that the classic public/private line serves important pluralist ends, helping to ensure a variety of forms of collective action. Third, I take up the claim raised by Linda McClain and Jim Fleming that civil society is valuable only (or primarily) insofar as it fosters civic virtue. At least for adults, this is wrong. Ensuring pluralism for children, however, raises a particularly difficult problem, and in the last section I respond to a challenge raised elsewhere by Steve Gilles, who argues for a strong version of parental liberty to educate children as they see fit. Although Gilles' framework makes sense in thinking about the liberty of adults, it fails properly to account for the overarching principle of multiple repositories of power when dealing with the education of children.