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Abstract

This Article, based on the 2023 Childress Memorial Lecture given at the Saint Louis University School of Law, argues that libertarian political morality and constitutionalism constitute double-edged swords for progressives. On the one hand, libertarian principles have helped advance some progressive objectives inside and outside of the courts, including several related to LGBTQ rights. On the other hand, libertarian understandings of the Constitution have undermined a wide array of other progressive distributive and egalitarian objectives. In promoting a generalized skepticism of state action, a progressive constitutionalism that embraces (or fails to question) the libertarian ethos of limited government and exclusively negative rights to liberty might help protect against some of the worst forms of state coercion, but does little to help build a progressive society constructed around distributive justice and the attainment of egalitarian objectives.

This Article argues that if progressives want to successfully harness the power of the state to redistribute resources in ways that make our society more fair and egalitarian as a means of permitting everyone—regardless of class, race, ethnicity, gender, sexual orientation, or disability—to flourish, then we need to purposefully and systematically explore how to make sure that, in pursuing particular political or legal objectives, including those related to LGBTQ rights, we do not unintentionally strengthen the libertarian ethos that so powerfully stands in the way of the attainment of distributive and egalitarian objectives in the U.S. This Article urges LGBTQ rights proponents to articulate and defend moral and constitutional frameworks that are not grounded in a libertarian ethos characterized by atomistic understandings of the self and exclusively negative conceptions of liberty that fail to impose affirmative obligations on the government to create the necessary social and economic conditions that are essential for everyone, and not just the wealthy and powerful, to exercise meaningful liberty and attain meaningful equality.

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