A developmental perspective on the ideal of reason in American constitutional law

The ideal of reason is central to contemporary accounts of citizenship in American constitutional law. The individual capacity for reasoned choice lies closely aligned with the constitutional values of personal liberty and democratic self-government as they have evolved in Supreme Court decisions over the past century. Yet as presently conceived, the ideal of reason in constitutional law overlooks the process by which individuals actually acquire the capacity to choose their own values and commitments or to engage in reasoned thinking about collective ends. This paper argues that we cannot hope to sustain and foster a constitutional polity committed to the principles of individual liberty and democratic self-government without knowing something about how individual citizens come to possess this requisite skill of mind. A developmental perspective on reason in constitutional law provides a framework for examining the source and contours of the psychological skills that make it possible to lead an autonomous, self-directed life and to participate meaningfully in the processes of democratic self-government. Developmental psychology, together with research in related fields, provides empirical support for the proposition that the psychological capacity for reasoned thinking has its roots in the early caregiving relationship. Thus, a comprehensive and integrated constitutional family law must recognize the role of early caregiving in the political socialization of children. This developmental approach offers a substantial reworking of constitutional doctrine in the areas of family privacy, parental rights, congressional power, and affirmative welfare rights.     

Rethinking Accountability in the Context of Human Rights

Within liberal democratic theory, ‘democratic accountability’ denotes an aggregative method for linking political decisions to citizens’ preferences through representative institutions. Could such a notion be transferred to the global context of human rights? Various obstacles seem to block such a transfer: there are no ‘world citizens’ as such; many people in need of human rights are not citizens of constitutional democratic states; and the aggregative methods that are supposed to sustain the link are often used in favour of nation-state strategic action rather than human rights. So what could accountability mean in relation to human rights? This article argues that discourse theory offers resources for approaching these problems and for rethinking a normative notion of accountability in relation to human rights. It is suggested that accountability should link political decisions to universal agreements through global rights institutions and that the link should be sustained by deliberative rather than aggregative procedures.     

The Tyranny of the Enfranchised Majority? The Accountability of States to their Non-Citizen Population

The debate between legal constitutionalists and critics of constitutional rights and judicial review is an old and lively one. While the protection of minorities is a pivotal aspect of this debate, the protection of disenfranchised minorities has received little attention. Policy-focused discussion—of the merits of the Human Rights Act in Britain for example—often cites protection of non-citizen migrants, but the philosophical debate does not. Non-citizen residents or ‘denizens’ therefore provide an interesting test case for the theory of rights as trumps on ordinary representative politics. Are they the ultimate success story of the human rights framework? Or was Michael Walzer correct to describe government of denizens by citizens as a modern form of ‘tyranny’? This paper argues that neither liberal rights theorists nor democratic republicans provide a coherent response to the existence of denizens. Liberal rights theorists overstate the extent to which a politically powerless status can secure individual rights, while democratic republicans idealise the political process and wrongly assume that all those affected by laws are eligible for political participation. The paper outlines an alternative model for assessing the accountability of states to their non-citizen population, informed by the republican ideal of non-domination. It identifies gaps in state accountability to denizens–such as where there is inadequate diplomatic protection—and argues that these gaps are particularly troubling if their exit costs of leaving the state are high.     

UNIVERSAL HUMAN RIGHTS AS A SHARED POLITICAL IDENTITY IMPOSSIBLE? NECESSARY? SUFFICIENT?

Abstract: Would a global commitment to international human rights norms provide enough of a sense of community to sustain a legitimate and sufficiently democratic global order? Sceptics worry that human rights cannot help maintain the mutual trust among citizens required for a legitimate political order, since such rights are now too broadly shared. Thus prominent contributors to democratic theory insist that the members of the citizenry must share some features unique to them, to the exclusion of others—be it a European identity ( Habermas and Derrida 2003 ) or a national public culture generally shared only by the members ( Miller 1995, 2000 ). This essay considers and rejects these arguments. While stable, democratic redistributive arrangements do require trust and institutionalised means of trustworthiness; they need not rely on norms or values that distinguish members from non-members: such exclusion is not required. Thus human rights may be part of a common political identity.     

Animal Welfare and Animal Rights: an Examination of some Ethical Problems

The spectacle of the relentless use and abuse of animals in various human enterprises led some human beings to formulate animal welfare policies and to offer philosophical arguments on the basis of which the humane treatment of animals could be defended rationally. According to the animal welfare concept, animals should be provided some comfort and freedom of movement in the period prior to the moment when they are killed. This concept emphasizes the physiological, psychological, and natural aspects of animal life with the focus on freedom. Ironically, however it is not concerned with the rights of animals; nor is it interested in their remaining alive. So, animals are least benefitted by such provisions, which is the major concern for those who defend animal rights. It seems dubious to demand comfort for a being in life, but not security for its actual life, since rights and freedom are essential for the maintenance of a normal life. This paper aims to (a) critically analyze the animal welfare system, which prioritizes only freedom; (b) to demonstrate how animal welfare is incomplete without animal rights and how they are closely related to each other; and (c) to bridge the gap between animal welfare and animal rights. The underlying principle of animal welfare concept is restricted by its anthropocentric framework with the result that the ethical element is missing. Mere ‘freedom’ is not sufficient for constituting an ideal animal welfare domain. In order to achieve real animal well-being, it is necessary to consider both the rights as well as the welfare of animals.     

Integration Through Participation: Non-Citizen Resident Voting Rights in an Era of Globalization

This paper examines institutional arrangements, which grant municipal voting rights to non-citizen residents of multicultural democracies and considers whether such arrangements are normatively compelling and practically useful as a way to achieve the multiculturalist aim of integration. Local voting rights have been granted to non-citizens in part as a strategy to integrate immigrants into mainstream democratic political life and thereby to avoid the radicalism that is sometimes the product of political exclusion and isolation. The author argues that the adoption of such arrangements in Canada and other multicultural democracies might not only provide newcomers with better opportunities to participate in decision-making processes that affect their interests – thus satisfying a democratic commitment to legitimacy – but that formal political participation by non-citizen residents might also encourage the development of the deliberative capacities and democratic commitments of those potential citizens. Indeed, the arrangements offer a democratic citizen apprenticeship that pursues a gradual integration of newcomers while being responsive to their claims and interests. The paper identifies and discusses certain barriers to non-citizen participation – including the comparatively lower socioeconomic status of newcomers and the lack of official language mastery – but it argues that inclusive, albeit unconventional, participatory arrangements may offer the best hope we have to overcome those circumstances and avoid newcomers’ slide into political cynicism.     

Does the Gats Undermine Democratic Control Over Health?

This paper examines the General Agreement on Trade in Services (GATS), which is one of the World Trade Organisations free trade agreements. In particular, I examine the extent to which the GATS unduly restricts the scope for national democratic choice. For purposes of illustration, I focus on the domestic health system as the subject of policy choice. I argue that signatories to the GATS effectively acquire a constitutional obligation to maintain a domestic health sector with a certain minimum degree of privatisation. Like constitutional obligations, the restrictions the GATS imposes on the freedom of future generations to structure their domestic health sector are (i) very difficult, though not strictly impossible, to alter; and (ii) not chosen in any ordinary sense by the subject generation. To gain democratic legitimacy, therefore, the relevant provisions of the GATS must pass some higher standard of democratic scrutiny, such as ratification by a super-majority. Ordinary legislative ratification does not suffice.     

The Normative Paradigm of Constitutional Democracy

This piece criticizes traditional formal and procedural conceptions of democracy, which fail to account for the development of contemporary constitutional democracy. The latter is characterized by a substantive dimension with respect to the content of the decisions taken through the democratic process. The validity of such decision is conditioned by the respect and actualization of fundamental rights, which are established by the constitution. The limits and constraints established by the constitution require juridical science to play a critical and programmatic role vis-à-vis the ‘unlawful’ exercise of public powers, when these enter in contrast with the limits imposed by the constitution.     

The Right to Strike and the Right to Work

ABSTRACT L. J. MacFarlane has contended that the right to strike is a keystone of democratic society. The right to strike is a right to free expression, association, assembly and power. And the right to strike is dependent upon the right to employment. MacFarlane denies that the right to employment is a universal right. I argue that unless the right to work is indeed universal MacFarlane's main contention is false. Forced unemployment is, amongst other things, the denial of full citizen status, for the range of liberties that constitutes the right to strike is essential to full participation in democracy. It is only when the traditional liberty-rights of free expression and striking are seen as being based upon such recipient rights as rights to media space and time and upon the right to work, that they can play their proper democratic role. This conception of those rights is missing from the work of Rawls and Nozick as well as from MacFarlane.     

Epistemological notes on recent studies of social perception

Among three possible avenues toward a good society — revolutionary Marxism, liberal‐democratic reform, and radical citizenship education — this paper examines and advocates the third. Societies are held to be ‘good’ so long as the Most Basic Rights are in fact enjoyed by all (i.e. the right (1) to stay alive, (2) to remain unmolested, and (3) to be free to develop one's potentialities). Some key propositions in ‘contract theory’ as represented by such diverse theorists as Socrates, Hobbes, Locke, Rousseau, and Tussman and Meiklejohn are discussed, and an alternative tradition, ‘freedom theory’, is sketched, with contributions from Socrates, Godwin, Thoreau, and Camus. An argument is then developed to the effect that the contract theorists have all contributed to the basis on which the contemporary ‘liberal make‐believe’ rests. This term refers to the myth that our society is democratic, i.e. that working (only) within the system of our constitutional procedures will or can lead toward a just society. Finally, it is argued that the highest priority in citizenship education is to destroy this liberal make‐believe, and that freedom theory provides a better foundation than contract theory in the struggle for human rights, and for mankind's survival.     

International Justice,Human Rights and Neutrality

A number of theorists have tried to resolve the tension between a western-oriented liberal scheme of human rights and an account that accommodates different political systems and constitutional ideals than the liberal one. One important way the tension has been addressed is through a “neutral” or tolerant, notion of human rights, as present in the work of Rawls, Scanlon and Buchanan. In this paper I argue that neutrality cannot by itself explain the difference between rights considered appropriate for liberal states and rights considered to be human rights proper. The central arguments used by neutralist theorists presuppose, rather than justify, this differential treatment. Instead, that difference can be understood only by reference to the purpose of human rights as distinct from the constitutional rights of a liberal state. This requires us to reassess the point and purpose of a theory of international justice, in contrast to justice for a domestic and politically separate society. In the case of a theorist like Rawls, human rights represent guides to the foreign policy of a liberal state, rather than to principles by which all states are expected to abide. That is because of Rawls’ acceptance that no common, authoritative, third-party, institutions capable of imposing duties on all agents uniformly exist or can exist. This also makes his theory inherently conservative about human rights, given that they are simply to act as a guide to which states can be treated as legitimate when it comes to liberal foreign policy: those that possess institutions that can be said to represent a peoples, rather than being imposed through violence. This standard is lower than the ideal set of rights extended to all in a liberal society. This revised version was published online in July 2006 with corrections to the Cover Date.     

THE CONCEPT OF HUMAN DIGNITY AND THE REALISTIC UTOPIA OF HUMAN RIGHTS

Abstract: Human rights developed in response to specific violations of human dignity, and can therefore be conceived as specifications of human dignity, their moral source. This internal relationship explains the moral content and moreover the distinguishing feature of human rights: they are designed for an effective implementation of the core moral values of an egalitarian universalism in terms of coercive law. This essay is an attempt to explain this moral‐legal Janus face of human rights through the mediating role of the concept of human dignity. This concept is due to a remarkable generalization of the particularistic meanings of those “dignities” that once were attached to specific honorific functions and memberships. In spite of its abstract meaning, “human dignity” still retains from its particularistic precursor concepts the connotation of depending on the social recognition of a status—in this case, the status of democratic citizenship. Only membership in a constitutional political community can protect, by granting equal rights, the equal human dignity of everybody.     

Property rights and genetic engineering: Developing nations at risk

Eighty percent of (commercial) genetically engineered seeds (GES) are designed only to resist herbicides. Letting farmers use more chemicals, they cut labor costs. But developing nations say GES cause food shortages, unemployment, resistant weeds, and extinction of native cultivars when “volunteers” drift nearby. While GES patents are reasonable, this paper argues many patent policies are not. The paper surveys GE technology, outlines John Locke’s classic account of property rights, and argues that current patent policies must be revised to take account of Lockean ethical constraints. After answering a key objection, it provides concrete suggestions for implementing its ethical conclusions.     

The Rights of Future People

ABSTRACT  It has been argued by some that the present non-existence of future persons entails that whatever obligations we have towards them are not based on rights which they have or might come to have. This view is refuted. It is argued that the present non-existence of future persons is no impediment to the attribution of rights to them. It is also argued that, even if the present non-existence of future persons were an impediment to the attribution of rights to them, the rights they will have when they come into existence constitute a constraint on present actions. Both arguments build on a suggestion of Joel Feinberg's. Next, three arguments are considered which, while they do not highlight the non-existence issue, are related to it. The view that the causal dependence, of (some) future people on present policies, erodes or weakens the claim that rights considerations should constrain our present actions concerning them, is considered and rejected. The view that future people can only have rights to what is available at the time at which these people come into existence is considered and rejected. So too is the view that the attribution of rights to future people involves, in virtue of resource scarcity, an unacceptable arbitrariness.     

Democracy,Deliberation and Disobedience

This paper develops a theory of civil disobedience informed by a deliberative conception of democracy. In particular, it explores the justification of illegal, public and political acts of protest in constitutional deliberative democracies. Civil disobedience becomes justifiable when processes of public deliberation fail to respect the principles of a deliberative democracy in the following three ways: when deliberation is insufficiently inclusive; when it is manipulated by powerful participants; and when it is insufficiently informed. As a contribution to ongoing processes of public deliberation, civil disobedience should be carried out in a way that respects the principles of deliberative democracy, which entails a commitment to persuasive, non-violent forms of protest.Civil disobedience is understood in this paper as public, illegal and political protest carried out against state laws or policies. Justification here is understood as a moral or political justification -- where civilly disobedient citizens claim that they are morally or politically entitled to disobey law. It does not imply legal justification.John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1972); Ronald Dworkin, A Matter of Principle (London: Harvard University Press, 1985).     

Bioethics in a liberal society--political, not moral

This paper argues for the importance of the political context of a society for bioethics. In particular, I argue that in a liberal constitutional society, such as the one we find ourselves in, no particular moral perspective is granted a privileged position. Rather, individuals are allowed to live their lives according to values they adopt for themselves, and the rights granted to protect this ability "trump" social consensus, and place boundaries on the social application of personal moral beliefs and values.     

Ferrajoli’s Argument for Structural Entrenchment

This paper engages with Ferrajoli’s contribution to the philosophical debate on constitutional democracy and in particular his conception of ‘structural entrenchment’, or the basis upon which one can defend the normativity of the Constitution as ‘higher law’, which can trump or limit legislation, without infringing democratic principles. Ferrajoli’s own understanding of ‘structural entrenchment’ is compared to Rawls’s and Dworkin’s arguments in support of it. Ferrajoli’s position is neither grounded on a philosophy of history, as in Rawls, nor on a version of moral realism, as for Dworkin, but on a formal understanding of the nature of fundamental rights, and in a conception of democratic sovereignty as ‘joint ownership.’     

How Politicians’ Reelection Efforts Can Reduce Public Trust,Electoral Support,and Policy Approval

Politicians’ desire for reelection motivates them to be responsive to voters’ policy preferences. In the traditional view, voters choose between candidates based on their delivery of favorable outcomes such as ideologically appealing policies or a prospering economy. However, research in psychology shows that, in addition to outcomes, people care about procedural fairness and, particularly, impartial decision‐makers who make decisions without personal motives and interests. This, I argue, confronts politicians with a delicate task: politicians must present voters with favorable policy outcomes but without appearing as if they pursue these policies based on a personal, vote‐maximizing motive for reelection. In four survey experiments, I find support for this argument. Participants were significantly less inclined to trust and vote for politicians and support their policies when political decisions were described as motivated by reelection considerations than when no such motive was present. The findings advance our understanding of how citizens view political representation and have important implications for research on public opinion, legislative behavior, and democratic theory.     

Is there a Moral Right to Vote?

The question raised in this paper is whether legal rights to vote are also moral rights to vote. The challenge to the justification of a moral right to vote is that it is not clear that the vote is instrumental to the preservation of some critical interest of the voter. Because a single vote has ‘no impact’ on electoral outcomes, the right to vote is unlikely to serve the interests of the individual. The account developed in this paper holds that moral voting rights can be justified once we acknowledge that voting by a sub-set of citizens is among the necessary preconditions for democratic institutions making a significant difference to their collective interests. The justification of a moral right to vote does not, then, apply to each individual citizen but only to a sub-set of them. In order to justify inclusive moral voting rights, the further consideration must be added that individuals have critical interests in public recognition of equal status. An inclusive moral right to vote accordingly depends on both collective interest in the outcomes of democratic institutions and on individual interest in equal recognition.     

Controversies in Family Preservation Programs

Summary

This paper examines the controversies over the use of family preservation policies to prevent and treat child abuse and neglect. Policies that aim to preserve families in which child maltreatment has occurred are at least a century old. However, there is renewed interest in such policies, given the dramatic rise in child abuse and neglect reports and a large number of children who spend time in out-of-home placements. New intensive family preservation services were advanced as able to assure the safety of children while working toward a lasting preservation of the family unit. The paper summarizes the research on intensive family preservation services and reports that such programs do not reduce placements nor do they appear to enhance child safety. The paper concludes by proposing that risk assessments and assessments of readiness to change could improve decision-making regarding which families might be aided by family preservation and which children should be protected by terminating their parents' rights.