Re: self-rule and liberty
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
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
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
self-rule
If self-rule signifies that the people collectively have freely decided some question of government, then some explanation will be required of the circumstances in which the people collectively can be said to have decided freely. I suspect that the word free will have to do a lot of work here. I can understand what it is for an individual to have decided freely, but the situation is more complicated in groups. Presumably some of the people will always have to be overruled for any decision to be taken in any very large group. Did those people decide freely? In its simplest sense, self-rule might mean the absence of external domination of the group, leaving open the possibility of internal domination by one party of others within the group. If so the parallel between individual freedom and collective freedom becomes quite complicated. The U.S. Constitution is built around a conception of freedom as the absence of internal domination, which is very imperfectly captured by the concept of self-rule. = Original Message From Discussion list for con law professors [EMAIL PROTECTED] = I don't think anything I said or implied suggests separating democracy from majority rule. My point was that there are simple and complex conceptions of 'democracy.' While both include majority rule, only the latter appeals to moral and political concepts--equality, self-determination, deliberation -- which explain the desirability of majority rule. These underlying explanatory conditions of majority rule then in turn place constraints on the precise kind of majority rule the polity might seek. With regard to self-rule, for me it connects both individual freedom and collective freedom. When I decide freely I am engaging in self-rule and when the people decide freely, we are engaging in self-rule. The notion of self-rule functions as a general or foundational term for referring to a subject, whether an individual person or a collectivity of people, engaged in governing itself. From my perspective, the fact that self-rule links the individual and the many in this manner renders it an attractive term which contributes to systematizing different, but interrelated, aspects of freedom. Bobby Lipkin Widener University School of Law Delaware
Re: self-rule
To say that "self-rule" potentially serves as a concept unifying individual self-rule and collective self-rule does not in any way imply that there are no differences in how these concepts work. As a unifying concept "self-rule" suggests important similarities not identities. Different linguistic intuitions are surely at work here. "[T]he absence of internal domination" tells me very little. While not pellucid to be sure, "self-rule" indicates a subject (an individual person or group of people) who decide things for themselves. I agree that far from ending the investigation about democracy or republicanism, the use of self-rule only begins it. But it begins it, I submit, by using a paradigm of individual self-rule which is relatively clear and then proceeds to develop a similar conception of collective self-rule. This is a rather straightforward method of theory construction. That problems arise in developing this second related concept should be welcomed. Attempting to answer these problems elucidates the paradigm even further. I'm afraid I would not welcome the task of unpacking "the absence of internal domination." This locution raises a host of questions that are probably more usefully addressed later in the development of a political philosophy. But, as I said, linguistic intuitions differ. Bobby Lipkin Widener University School of Law Delaware
Re: self-rule
Bobby has raised exactly the sort of question that this list exists to discuss: What purposes does (or ought) the U.S. Constitution exist to serve? and what vocabulary best captures those purposes? Collective self-rule may well be useful description of what the U.S. (and other) constitutions ought to achieve. I prefer the framers' vocabulary only because I understand it better. If one accepts that all collective decisions in large political groups involve overriding minority views, then basing a constitutional theory on the importance of self-rule will require explaining the sense in which overridden minorities still enjoy self-rule. I am not suggesting that this is not a worthwhile project, but rather inviting someone to take a stab at describing the nature and purpose of collective self-rule as a constitutional value. (I think that I remember a previous thread on this list in which it was proposed that self-rule might be analogous to self-determination under international law, but proponents of the concept of self-rule insisted on a difference.) Liberty strikes me as a more useful and important concept than self-rule both historically, and as a matter of constitutional morality. One can lose a vote under a just constitution, without losing one's liberty. Tim Sellers = Original Message From Discussion list for con law professors [EMAIL PROTECTED] = To say that self-rule potentially serves as a concept unifying individual self-rule and collective self-rule does not in any way imply that there are no differences in how these concepts work. As a unifying concept self-rule suggests important similarities not identities. Different linguistic intuitions are surely at work here. [T]he absence of internal domination tells me very little. While not pellucid to be sure, self-rule indicates a subject (an individual person or group of people) who decide things for themselves. I agree that far from ending the investigation about democracy or republicanism, the use of self-rule only begins it. But it begins it, I submit, by using a paradigm of individual self-rule which is relatively clear and then proceeds to develop a similar conception of collective self-rule. This is a rather straightforward method of theory construction. That problems arise in developing this second related concept should be welcomed. Attempting to answer these problems elucidates the paradigm even further. I'm afraid I would not welcome the task of unpacking the absence of internal domination. This locution raises a host of questions that are probably more usefully addressed later in the development of a political philosophy. But, as I said, linguistic intuitions differ. Bobby Lipkin Widener University School of Law Delaware
Re: self-rule
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
