Andrew Altman

For several decades, Ronald Dworkinhas been one of the most prominent voicesdefending the legality and justifiability ofrace-conscious programs aimed at undoing thecontinuing effects of prejudice. Writingwithin the framework of a liberal legalphilosophy, he has formulated powerfularguments against the view that color-blindpolicies are the only defensible ones. Nonetheless, I argue that a more completeliberal defense of race-conscious policieswould need to develop and modify Dworkin's lineof argument. Such a defense would go beyondhis policy-based arguments and incorporatearguments of principle. Race-conscious policiesdo not only promote the general good; they arealso required in order to help realize theconstitutional right of equal citizenship.

This chapter critically examines the jurisprudence of free expression under human rights law and American constitutional doctrine, focusing on the issue of Holocaust denial. It is argued that legal prohibitions aimed at Holocaust denial are unjustifiable in any existing liberal state. The argument hinges on a revised form of a doctrine at the heart of a key American free speech case, _Brandenburg v. Ohio_. The revised _Brandenburg_ doctrine holds that speech ought not to be prohibited, regardless of the viewpoint it advocates, unless the speech is a) intended and likely to bring about immediate lawless conduct, or b) reasonably expected to contribute substantially to widespread violence. This doctrine is defended, and it is shown to tell against prohibitions on Holocaust denial in existing liberal states.

The modern liberal state arose as part of a rebellion against the entrenched hierarchies of rank, power, and privilege that had characterized the feudal order of European society. Under that order, a person's prospects in life were determined almost entirely by his status at birth. The individual lacked the liberty to change his social and economic ranking and was rendered dependent on the will of those in higher-ranking positions. It was against this inclusive, closed, and ascriptive system of inequality and dependence that the proponents of the liberal state fought.

Modern liberalism developed out of the strife of post-Reformation religious warfare. Among liberalism's central ideas were those of the individual's right of religious liberty and the separate jurisdictions of secular and religious authority. In societies that accepted these ideas and put them into institutional practice, levels of systemic religious violence were dramatically diminished. Moreover, the liberal principles that helped to build and sustain civil peace could make a strong claim to providing a just framework for addressing religious differences. Yet important normative questions have remained about the policies a liberal state should adopt toward religion.