Deep In The Heart Of The Matter
I was going to leave a comment after Tom's latest comment, but my response quickly became post-length. Here's Tom:
Let "A" be a bad idea.
Now for the argument:
"Thoughts, Tom? You want to let legislatures do A? You do? But, we both agree, A is bad!"
Suggestions for possible A's:
A = A protectionist trade agenda.
A = A minimum wage.
A = People not permitted to do fun drugs.
A = Speed limit 55 instead of 75.
A = Post office not open late enough.
A = Roads outside my house not repaved often enough.
Now, certainly we can argue over whether these A’s are really bad (and I suppose the question of who has the last word is really the issue here), but if Dan and I both agree that (say) the post office should be open later, why not put it into the Constitution?
Dan thinks that I would have us constitutionally protect nothing—I think it’s time for him to explain why we shouldn’t constitutionally protect everything.
Me: Well, let's start this way. There are at least two kinds of constitutional amendments; I'm not going to propose an analysis of either kind---suffice it to say that freedom of speech, protection against unlawful search and seizure, and equal protection/due process are examples of one kind, and alcohol prohibition (and repeal of prohibition), presidential term limits, and if you like, 75 mph speed limits are another kind.
Which kind of amendment would RTP be? I think, obviously, the first kind. (This would be the cue to explain why RTP is in fact more like alcohol prohibition than freedom of speech.)
The examples of bad ideas I've been giving in the most recent posts weren't just bad ideas; they were bad ideas that infringed on the sorts of rights protected by the first kind of constitutional provision. Without trying to be presumptuous, I think your basic counter-claim to my suggestion that you leave no room for judicial protection of constitutional rights is that I leave no room for legislatures to enact bad policy; on the contrary, I think any of the bad ideas you cite (except maybe drug prohibition, I'm not sure about that) would be bad laws if enacted, but not unconstitutional laws.
Now, I think perhaps I see what the heart of the issue is, and that's this: we fundamentally disagree on what it is that makes a constitutional provision one kind or the other; you say it's the necessity of a provision for establishing procedural justice; I say it's solely a function of the intrinsic qualitative profile of the provision.
But notice: on your view, if we're going to draft a constitution for a new state, the guiding principle for determining the appropriateness (for lack of a better term) of a proposed provision to the constitution is a kind of meta-utilitarianism; on my view, the guiding principle is deontological, or at least de re, the thing being a foundational concept of liberalism. Now, whatever you think of the merits of one versus the other view, I think you have to concede at this point that the fundamental tension is not process- versus outcome-oriented constitutional theory, but utilitarian versus deontological meta-theory, and it's your view that most resembles an outcome-oriented view in the sense that what counts as an appropriate provision is one that is necessary to ensure a particular outcome, namely procedural justice.
I am, of course, aware of the difficulty in proposing a deontological justificatory system, namely, any principle adduced as the foundational one (at least) seems to beg for further explanation, but on fuller consideration, I think that's a problem any theory runs into. In this particular case, using necessity for the establishment of procedural justice as the criterion for determining the appropriateness of a constitutional provision begs the question of what's so special about procedural justice that it should be the fundament of a constitution, rather than (for example) a robust notion of individual autonomy.
I'm going to leave these points open to further discussion with the following thought: deciding on procedural justice as the fundament of a constitutional system gets it wrong because it assumes that the state is in some sense (metaphysically?) prior to the individual, whereas citing maximal individual autonomy as the guiding principle of a constitutional system recognizes that the state exists only in virtue of the existence of individuals, on whom it supervenes.
I never thought I'd find a way to connect my political views with my metaphysics, but there you go.