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Can Rawlsians be constitutional deliberative democrats? 4

July 12, 2019

4. Three objections

There may yet be several grounds for answering “no” to the question whether deliberative constitutionalism is the exclusive feasible institutional vehicle for realizing the fair value proviso. In this last section, I review three looming objections to my argument for deliberative constitutionalism’s exclusive feasibility vis-à-vis the fair value proviso: the objection from circumstantial pluralism; the power objection; the quick-fix objection.

4.1. The objection from circumstantial pluralism

The first objection is that from circumstantial pluralism. Macleod (2014: 168) formulates this pluralism in the following way:

“[T]here is wide variation in the demographic, sociological, geographical and historical circumstances in which different people may try to implement principles of justice. Circumstantial pluralism means that we should not expect there to be a single set of institutional arrangements that are most appropriate from the point of view of justice.”

In short, there is a presumption against a uniform institutional solution to a given problem of justice, be that the fair value proviso or another. As a result, this would seem to rule out the “micro” approach from (Q1) insofar as this approach deploys a restrained institutional toolbox and requires a considerable degree of extant or ongoing “deliberative democratization” (O’Flynn and Curato 2015). That said, this remains a presumption, and it remains possible that a given approach – no matter how precise its prescriptions – might prove, all things considered, adequate to the objection. Moreover, this objection leaves untouched the “systemic” approach from (Q2) which aims at some maximal or threshold value of total deliberation within the entire system of institutions and processes and, thus, works with a larger institutional toolbox without presuppositions as to institutions’ extant or ongoing deliberative democratization.

4.2. The power objection

The power objection advances the claim that deliberation may be incapable of neutralizing the influence of power over political judgment and arrangements. More precisely, the thought is that, if deliberation overcomes power by reinforcing disposition towards reasonableness (broadly construed) through increased commitment to deliberative norms but power (qua motivated reasoning) is not sensitive to dispositions, then deliberation cannot overcome barring, barring highly specific circumstances (e.g. empirical science’s institutions and practices) (Bagg 2018). It follows that power (qua motivated reasoning) is instead sensitive to nondeliberative factors.

Although this objection presents a significant obstacle to the “micro” approach and its indefeasible commitment to reducing or eliminating nondeliberative aspects from decisionmaking, it presents a lesser obstacle to the “systemic” approach which foresees and leaves room for nondeliberative aspects in decisionmaking. More strongly, I contend that specifically “constitutional” deliberative reasoning does more to constrain power by targeting the social basic structure than more run-of-the-mill instances of deliberative reasoning targeting less fundamental structures. Although power may still make itself felt in specifically “constitutional” deliberative reasoning, the reasoning’s increased institutional scope, combined with power’s lesser influence, may serve as a considerable check on motivated reasoning elsewhere in the institutional system.

4.3. The quick-fix objection

Finally, Rawlsians may suspect that deliberative constitutionalism stands as an institutional shortcut rather than a long-term fix. After all, if the problem confronting social organization and political morality is power and deliberation does not track power, our attention should then be on those power-generating structures. While changing constitutional arrangements and procedures may go some way to influencing those power-generating structures, socioeconomic changes may be more apt for such influence (i.e. justice or “the breath of democracy” as one conference speaker put it). Accordingly, we may not be able to do without the kind of political economy reforms which Rawlsians generally prescribe.

To the extent that none of the above objections is fatal to my argument, I arrive at the following differential conclusion. Recall that (Q1) read:

(Q1) Should a Rawlsian in either the narrow or broad sense advocate an approach to those measures regulating deliberation over rights and procedures relating to the constitution which holds up mini-publics and similar citizen-led forums as essential elements of a deliberative democracy?

The answer to (Q1) is likely to be “no”. Though sometimes helpful, “micro” innovations are too restrictive and do too little to combat systemic injustice on which deliberative instances may afford little discursive grip.

Regarding (Q2), it was formulated as follows:

(Q2) Should a Rawlsian in either the narrow or broad sense advocate an approach to those measures regulating deliberation over rights and procedures relating to the constitution which models the role played by different sites and actors in a democratic system in order to make collective decisions more legitimate and responsive to good reasons?

For (Q2), the outlook is somewhat more optimistic. I may answer “yes” insofar as “systemic” innovations include nondeliberative elements which may better track power, thereby preserving the “systemic” approach. Yet this leaves open a polemical perspective: if “systemic” innovations look a good deal like Rawlsian innovations, then what is the value-added of the “systemic” approach for Rawlsians? Perhaps the adequate conceptual framework is in fact Rawlsian rather than that of deliberative constitutionalism.

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