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Should Rawlsians be constitutional deliberative democrats? 2

July 10, 2019

2. The case against Rawlsian deliberative constitutionalism

At first blush, (Q1) and (Q2) may appear decidedly pointless. After all, Rawls repeatedly insists that the basic, most extensive schedule of liberty and rights and procedural mechanisms of governance are, once established, to be removed from the table of governmental decision-making and policy calculus. To cite but two examples, Rawls (1999) reminds us, in his early work, that “in a just society the liberties of equal citizenship are taken as settled; the right secured by justice are not subject to political bargaining or to the calculus of social interests” (3-4). Likewise, he takes pains in his later work to make a similar point: “Liberal principles meet the urgent political requirement to fix, once and for all, the content of certain political basic rights and liberties, and to assign them special priority” which “puts them beyond the calculus of social interest, thereby establishing clearly and firmly the rules of political contest” (Rawls 2005: 161, cf. 233-240). There seems little to no room for maneuver regarding the fixity of the schedule of liberties and rights and the procedural mechanisms of governance.

Moreover, pragmatic and moral grounds appear to confirm us in reading Rawls’s statements in this way. Pragmatically, both the schedule and mechanisms must be fixed to avoid i.) the majoritarian dangers of democratic governance and the acrimonious bargaining and gridlock resulting from the unfettered pursuit of self-interest and ii.) to realize the stabilizing effect of a permanent public set of institutional arrangements and values. Morally, the person must affirm only those principles for institutions which she would choose in perpetuity, to hold both for herself and all those who came before or will come after her (Rawls 1999: 113-4). If enabling citizens, whether idealized or actual, to formulate and put forward modifications to the constitution comes at the price of social stability – a necessary element of any just political order – there seems little reason to advocate deliberative constitutionalism. Consequently, the answer to (Q1) and (Q2) must be a decisive “no”.

Attractive though this answer may be for its powerful simplicity and decisiveness, it meets with several problems upon greater reflection. On one hand, stability is only a great political good when stable institutions are also just. This is part of the reason why we seek the stability characteristic of the idealized, well-ordered society: this society is also the ideally just projection of our actual world developing under reasonably favorable conditions. On the other hand, stable institutions are only just when, amongst other things, they guarantee the “fair value of the political liberties”, which only obtains when “citizens similarly gifted and motivated have roughly an equal chance of influencing the government’s policy and of attaining positions of authority irrespective of their economic and social class” (Rawls 2005: 358). Clearly, the fact of stability alone is insufficient to secure the equal chance of influence at issue in the fair value proviso.

Rawls is, however, rather circumspect about the kinds of measures necessary to secure this fair value. This may surprise us given his lament that “one of the main defects of constitutional government has been the failure to insure the fair value of political liberty” and that “[t]he necessary corrective steps have not been taken” or even “seriously entertained” (Rawls 1999: 198). Nevertheless, his institutional vision retains more attuned to representative or aggregative institutions and procedural mechanisms than their deliberative counterparts. Indeed, Rawls’s threefold view of deliberative democracy is importantly limited in scope, including: 1.) an idea of public reason; 2.) an institutional framework including a deliberative legislature; 3.) public uptake of the idea of public reason, e.g. Rawls’s ideal of public reason (Rawls 2005: 448). If the fair value proviso has the central role which I attribute it and the stability afforded by constitutional entrenchment is insufficient to meet the fair value proviso, there is reason to come back to (Q1) and (Q2) and to ask whether the versions of deliberative constitutionalism therein represent a viable institutional means of fulfilling the fair value proviso. Answering this latest question takes us from the negative case to the positive argument.

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