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Should Rawlsians be constitutional deliberative democrats 3?

July 11, 2019

3. The positive argument for Rawlsian deliberative constitutionalism

Before entering into the details, there are four prima facie plausible grounds for thinking that the institutions and procedural mechanisms common to different versions of deliberative constitutionalism may fulfill the fair value proviso and, hence, enable a distinctively Rawlsian deliberative constitutionalism. First, like Rawlsians, deliberative constitutionalists are sensitive to the importance of eliminating morally irrelevant traits from deliberation through the use of techniques which attempt to filter out contingent elements, e.g. random stratified selection. Second, on the question of influence, deliberative constitutionalists support increasing potential citizen input when it comes to setting the political agenda or defining the terms of a referendum. Third, potential influence must translate into some effective authority for Rawlsians, which deliberative constitutionalists may envision in the form of embedded or empowered sortition bodies and institutional oversight committees. Lastly, Rawlsians underscore the importance of identification and publicity, a task which deliberative constitutionalists may facilitate through the more visible role for lay citizens, rather than professionalized elites, at the levers of power.

Although justifying these four reasons would require considerably more evidence and space than I have here devoted to them, they make an intuitive case for Rawlsian deliberative constitutionalism. To that intuitive case I add a more rigorously argued, philosophical case which compares the relative feasibility of deliberative constitutionalism and Rawls’s preferred political economy solution, property-owning democracy vis-à-vis the fair value proviso from the previous section. I take up each of these in turn in the following sub-sections:

3.1. Feasibility of deliberative constitutionalism

Although this institutional approach differs from Rawls’s property-owning democracy, the author is sensitive to matters of feasibility. If constitutional deliberative democracy meets the standards set by the two principles of justice (notably the priority of the political liberties) and is more feasible, then the two principles may require constitutional deliberative democracy. In this, I extend Rawls’s reasoning with regards to liberal or democratic socialism: “The principles of justice do not exclude certain forms of socialism and would in fact require them if the stability of a well-ordered society could be achieved in no other way” (Rawls 1975: 546; cf. Rawls 2001: 178). From this reasoning, I extract what I call an “exclusive feasibility requirement”: if it can be shown that value x (as put forward by approach y) can only be realized under institution z, then approach y is committed to the realization of institution z.

Showing that the fair value proviso (as put forward by Rawls’s political liberalism) can only be realized under deliberative constitutionalism is a tall order, though far from impossible.

3.2. Feasibility of property-owning democracy

Though possible, showing that the fair value proviso (as put forward by Rawls’s political liberalism) cannot be realized under property-owning democracy is no easy matter. One way of arriving at this conclusion lies in following Edmundson’s (2017) critique of Rawls’s political economy with reference to the question of capital. Edmundson (2017) makes the case that, since property-owning democracy leaves open whether the “commanding heights” of the economy may be publicly or privately owned, private capital will inevitably influence the exercise of the political liberties and violate the fair value proviso. Another way consists in sketching the enormity of the task before property-owning democracy. Not only would taxes on the wealthy have to exceed their income over the short-term to achieve the requisite redistribution for the dispersion of wealth over the initial period (Schweickart 2012), major financial institutions would have to be thoroughly restructured in terms of overarching goals and day-to-day operations (Williamson 2012).

A third way might appeal to the institutionalist literature from political science exploring the mechanisms underlying institutional change (Hall and Taylor 1996). At least two prominent institutionalisms – rational choice and historical – do not give much reason to think that conditions are ripe for policymakers to move away from welfare state capitalism and towards property-owning democracy. For change to prove feasible on the former institutionalism, it would need to be shown that it is in policymakers’ rational self-interest – however narrowly or broadly construed – to effect such changes to their state’s political economy. Yet institutional inertia and status quo bias suggest that there is little appetite for such thoroughgoing change. For change to prove feasible on the latter institutionalism, it would need to be shown that the proposed changes are continuous with or liable to emerge from the current institutions’ historical development. For a political economy with few influential backers and no extended policy network, there is, however, little to suggest such a likelihood. All in all, there is at the very least a prima facie case against the exclusive feasibility of property-owning democracy and for that of deliberative constitutionalism. Nevertheless, I ask in the next section whether that prima facie case holds water.

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