The Cognitively Illiberal State.

Abstract

Ought implies can. This Article investigates whether the central moral directives of liberalism are ones citizens can—as a matter of human cognition—be expected to honor. Liberalism obliges the state to disclaim a moral orthodoxy and instead premise legal obligation on secular grounds accessible to persons of diverse cultural persuasions. Studies of the phenomenon of cultural cognition, however, suggest that individuals naturally impute socially harmful consequences to behavior that defies their moral norms. As a result, they are impelled to repress morally deviant behavior even when they honestly perceive themselves to be motivated only by the secular good of harm prevention. This Article identifies how this dynamic transforms seemingly instrumental debates over environmental regulation, public health, economic policy, and crime control into polarizing forms of illiberal status competition. It also proposes a counterintuitive remedy: rather than attempt to cleanse the law of culturally partisan meanings—the discourse strategy associated with the liberal norm of public reason—lawmakers should endeavor to infuse it with a surfeit of meanings capable of simultaneously affirming a wide range of competing worldviews.