Defining constitutional terms can be very helpful in working out which values
are more fundamental, and therefore "underly" others in constitutional
discourse. "Self-rule" is an important idea, that deserves careful
examination.
The preamble to the U.S. Constitution lists securing the blessings of liberty
as one fundamental purpose of the United States. This strikes me as a better
way of expressing the values hinted at by "self-rule".
Liberty signified (for the framers) the absence of arbitrary rule. Free
citizens are ruled by law, not by other persons. But neither are they ruled
entirely by themselves. "Self-rule" implies an absence of constraint -- much
like the "license" of the framers -- the ability to do what one wants, without
external limitations. Liberty, by contrast, requires setting the right limits
on all citizens, to prevent the exploitation of some by others.
Popular sovereignty is necessary, because it prevents domination.
"Self-rule", inotherwords, in the form of representative democracy, is
justified by its utility in preventing exploitation, by setting the right
limits on what some citizens may do to others, or on the power of public
officials. It is of great importance in the service of liberty, but as a
secondary value.
Outvoted minorities can still be free, despite the limits set on their
self-rule, provided they are overruled for the common good, to prevent
injustices to others.
Tim Sellers
>===== Original Message From Discussion list for con law professors
<[EMAIL PROTECTED]> =====
> The question of explaining "the sense in which overridden minorities
>still enjoy" freedom is endemic to any theory of
>democracy/republicanism/liberty or even the "absence of internal domination."
Whenever less than a
>unanimous vote is concerned, how can the losers be described as engaging in
self-rule,
>as being free, or as living in the absence of internal domination? And, of
>course, consent theory generally addresses this question. John Locke raised
>this issue without ever mentioning "self-rule," I think. The problem of
>explaining the role of political minorities in either democracies or
republics is
>fundamental, but it is hardly a problem only for those of us who embrace
self-rule
>as the concept underlying democracy and republicanism.
>
> Incidentally, Habermas, Michelman, and Tushnet (Tushnet most recently
>in a symposium on democracy and judicial review in Law and Philosophy) among
>others have raised the question of minority status in democracies. Tim is
>right in emphasizing its critical importance to any theory of self-rule
(whoops,
>there I go again).
>
>Bobby Lipkin
>Widener University School of Law
>Delaware
