Bobby Lipkin has raised the question of precedence among underlying
constitutional values and proposed "self-rule" as the most fundamental
constitutional idea in our system, both as it is and as it ought to be.
I responded by proposing "liberty" as a more fundamental (and substantively
more important) value in American constitutional law.
These questions of precedence are important, and worthy of discussion on
this list, because they illuminate how the constitution ought to be
interpreted. If current doctrine has strayed from the pursuit of liberty, as
understood by the framers (including the authors of the Fourteenth Amendment),
then it is in need of correction, and ought to be criticized by professors of
law.
Malla Pollack has objected that contemporary constitutional jurisprudence
tolerates corruption in the form of special exceptions to general rules of
law. The fact that the framers (quite rightly)understood "liberty" to require
equal citizenship under law gives those who disapprove of such corruption a
basis for objecting to discriminatory legislation (and for criticizing judges
who tolerate it.)
Tim Sellers
>===== Original Message From Discussion list for con law
professors <[EMAIL PROTECTED]> =====
>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
>>
