I certainly agree with Tim's general sentiments, but current accepted
doctrine simply does not follow this concept. The Federalist Papers (among
many other sources) said that the main institutional constraint that
prevented rulers from self-dealing was the rule of law because any statute
passed would also curtail the legislators. However, Congress routinely
passes statutes limiting e.g. job discrimination that do not cover Congress'
own hiring practices. The Court usually (not always, remember the burning
cross case) allows Congress to legislate for part of a problem.
Furthermore, last time I looked (about a year ago) no Supreme Court case
had ever relied on the Preamble (has been mentioned a few times) as a
separate limit on federal government power.
So theory is nice, but how should/would/could this 18th century concept
of self-rule be enforced?
Malla Pollack
Visiting, Univ. of Oregon, Law
541-346-1599
[EMAIL PROTECTED]
----- Original Message -----
From: "msellers" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Sunday, July 27, 2003 8:41 PM
Subject: Re: self-rule and liberty
> 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
>
