Malla Pollack understands the below history of the list serv discussion and
apologizes if her post was not clear. My question is what doctrine (if
any) you propose to make this value a reality. Of course, you could
disclaim any active interest in changing reality., but I feel at least some
duty towards reality and fear creating lines of thought which can be misused
to make the perfect the enemy of the good. You could decide that in reality
the value of self rule should be "under enforced" as per Cass Sunstein
because courts are incompetent to enforce it.
Or you could try and figure out how (if at all) institutions can be used
to try and enforce the aspiration toward e.g. self-rule. For example, I am
considering writing an article proposing new cannons for statutory or
constitutional interpretation. Would"prioritize self rule" be such a
cannon? But if so, how should/would/could courts use that cannon? Do you
prefer using educational rhetoric to influence the public (including the law
students you train) to recognize the importance of self-rule and hope they
will internalize the value?
Malla Pollack
Visiting, Univ. of Oregon, Law
541-346-1599
[EMAIL PROTECTED]
----- Original Message -----
From: "msellers" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Monday, July 28, 2003 8:06 PM
Subject: self-rule and liberty as fundamental constitutional values
> 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
> >>
>
>
