Other philosophical liberals have brought their own brands of liberal argumentation to the table. Their insistence on liberal neutrality is incompatible with a view of ideologies as a particular assemblage of decontested concepts, values, and preferences. It perpetuates the possibility of a clear divide between the private and the public, with the state abstaining from declaring a position on private matters. Liberal critics have found that divide increasingly controversial, not least because what one perspective finds private—hate speech or family relationships—another may find of public concern. Moreover, state silence effectively condones whatever the prevailing practice is, whether desirable or not. Unquestionably, liberals believe that many areas of human activity should be exempt from state control or regulation, but to make that a rigid rule would permit serious abuses to be disregarded.
For a while in the late 20th century a doctrine of liberal neutrality was a firm favourite among liberal philosophers, exemplified by Ronald Dworkin (1931–2013) with the American constitutional model in mind. The argument for state neutrality could only hold if certain choices, rules, and rights were regarded as supra-political, beyond human contention. That would seemingly limit liberalism’s role not only to protecting all privately held values, however distasteful, but to the active facilitation of their expression, reminiscent of the old adage ‘sticks and stones may break my bones, but words will never hurt me’. That approach is redolent of an older liberal view of harm as physical and legal rather than psychological and emotional.
Characteristically, Dworkin maintained that the great merit of the American Bill of Rights—the first ten amendments addition to the original American Constitution—was its decisive removal of certain fundamental principles from the control of democratic majorities. That was elaborated in Rawls’s insistence on the urgent political requirement ‘to fix, once and for all, the content of certain basic political rights and liberties’, thus taking them off the political agenda. While understandable as an attempt to safeguard some liberal principles, that insistence is as elitist and political as many other expressions of liberal ideology. On that view, majorities tend to impose preferences on others and potentially violate individual rights, and those crucial rights need to be isolated from the vicissitudes that rule the political sphere by enshrining them in a constitution that is very hard to modify. The American Constitution and its Bill of Rights unquestionably include important liberal political practices, in particular establishing the principles of representation and the equal treatment of all citizens. But the immunity bestowed on the Bill of Rights has fostered the illusion that the Supreme Court possesses a neutral perspective impervious to political vicissitudes.
There are two reasons why that supra-political and non-partisan interpretation cannot hold. First, when viewed through the lens of ideological analysis, there is no view from nowhere. Every view embodies cultural, social, and personal predilections. Second, the Supreme Court itself does not assign equal value to all views—it harbours pretty clear ideas for what count as just practices. Ideologies are always expressions of specific preferences for the good life, and consequently they rank what they believe is valuable in social practices and what isn’t. That ranking is always a political act. The argument against neutrality asserts that the Bill of Rights was itself the outcome of a particular constellation of ideas, ideologies, and cultural inclinations, and hence far from being a neutral guarantor of socially valuable goods. On that view, liberalism is a culturally parochial ideology—however attractive—masquerading as a universal one. As a predominantly European and North American cluster of ideas, liberalism has been exported to Latin America and to other countries, but always through local cultural filters. However, that view of liberalism was dismissed by Dworkin and his supporters as a sociological argument, not a philosophical one. In fact, it is neither, but an insight emanating from the comparative analysis of liberal ideologies, a project whose methodological openness is itself liberal.
Philosophical liberals find it hard to conceive of rights to liberty, to equality of respect, or to due process as themselves impositions on the conduct of others, or as a choice of specific values out of a larger pool, because they hold such rights to be the universal, logical, and ethical outcome of social life. That said, neutrality is itself a positive concept that has been promoted in some liberal quarters. Liberals who profess neutrality are far from neutral in recommending it—indeed they can be passionate about neutrality—and in that context advocating neutrality is a contradiction in terms. Better to hope for Supreme Court impartiality—addressing questions of justice and rights without favour or bias. Impartiality may be distinguished from neutrality, as it may be pursued within a framework that is itself non-neutral about the virtue of law and the wickedness of crime. That possibility is nevertheless difficult to sustain when one considers the frequently blatant partisan nature of Supreme Court nominations, even taking into account that the Justices are constrained by the rules and ethos of legal procedure. More broadly, as Herbert Croly noted in the evolutionary language prevalent a century ago, ‘whether in any particular case the state takes sides or remains impartial, it most assuredly has a positive function to perform on the premises. If it remains impartial, it simply agrees to abide by the results of natural selection.’ These problems once again illustrate the considerable tensions between purist, ideal-type, and abstract liberal philosophizing on the one hand and contextual views of liberalism that locate it in a spatial and temporal domain on the other. That domain reflects human design with all its strengths and fallibilities through the mirrors of disparate cultures and varying historical eras. That counter-approach is a rival approach to the philosophical study of political ideas. There is no need to rule on which approach is the more valid or persuasive, merely to recognize the diverse premises that vindicate the one or the other.