In his recent post, Cass invokes the concept of a “constitutive commitment,” by which he means something more than “a policy” and something less than “a constitutional requirement.” I take it that he would distinguish between constitutive commitments and Ackermanian ethereal unwritten constitutional amendments adopted during so-called “constitutional moments.” But (rousing myself reluctantly from a well-earned bout of lethargy) I am still wondering about the concept.
Cass writes, “These rights are “constitutive” in the sense that they help to create, or to constitute, a society’s basic values.” In a pluralist or diverse society (what Hayek called the “Great Society”), however, this brief description of the basic idea gives rise to some obvious questions: who exactly is constituted by which commitments? The claim is probably not that everyone has made this commitment, or is constituted by it, but then who? A majority? A super majority? A critical mass, whether a majority or not? An intellectual elite? The proletariat?
Assuming one of these is specified, in what manner does the “commitment,” whatever it may be, constitute the relevant “us”? Are we somehow defined as individuals by a commitment external to us, or is the group to which be belong so defined, and “defined” in what sense?
As a matter of political science, how does one determine the existence of such a commitment? Opinion polls? Opinion polls over time? In other words, if anything of importance turns on the existence of such a commitment (another question I raise below), what reliable means is there for ascertaining its existence, breadth and content?
In short, how is the concept of “constitutive commitment” of an entire “society” less epistemically and metaphysically problematic than the much-maligned collective “intentions of the framers”? The serious problems with discerning collective group intentions are well-known. I am wondering how constituent commitments are any easier either to identify or defend as real.
Then there is the question of how uncontested such a commitment needs to be to be counted as constitutive? Does it matter that a substantial minority dissent? Does it matter if they do not speak up much any more because, however substantial in numbers, they know they are in the minority and would be pummeled by the majority if they did? (Think of the 30-35% of the Massachusetts electorate who are, gasp, Republicans. Given the stability of the Democrat majority among voters, it is as though these 30-35% do not even exist. They certainly lack all representation at the federal level. Would their silent and/or ignored dissent detract from the “constitutive commitment” of the majority?)
Relatedly, how does one distinguish such a constitutive commitment among the general public in practice from one that “constitutes” the world of elite intellectual opinion makers, such as those in academia or in certain media outlets? Another reason why a member of even a majority of the general public who holds a different view from that of the opinion elite might remain silent is to avoid the very real suffering that can be meted out by this crowd with they are crossed. (Someone not as impervious to hostile criticism as, say, Hootie Johnson or Richard Epstein, which describes most people I think.)
What turns on the existence of a constitutive commitment? That those who share it vote or act in certain ways? That the minority who dissent remain silent or acquiesce in some way? That legislators vote in certain ways? Cass says that one advantage of FDR’s constitutive commitment “strategy is that it avoids a role for federal judges” so I assume judicial review is more or less out of the picture, which distinguishes a constitutive commitment from an Ackermanian unwritten amendment. But perhaps I am misconstruing him here. I guess this is the eternal “so what?” faculty workshop question that I normally avoid asking.
Speaking of avoidance, is there any way of avoiding the sense that someone who invokes the concept of constitutive commitment is trying somehow to elevate, privilege or reify his or her own commitments or moral judgments–giving these judgments some higher status in the General Will of the Community, rather than that of a mere moral judgment, or even that of a mere consensus or a majority view?
All this does seem to relate to Cass’s invocation of a Second Bill of Rights. When he first posted, I had thought to inquire as to the sense in which these claims are “rights” (but as I am trying to be on vacation for a while, I was content to let the matter pass). I was going to ask whether they are natural rights that belong to persons regardless of whether recognized by government–like the freedom of speech? Or are they positive rights that exist because they are adopted as part of the human laws–like the right to a jury trial. As Madison explained, the original ten amendments included both of these two types, though I have concluded that the Ninth Amendment refers only to natural rights. But it now appears that Cass means to claim Roosevelt’s list, or some portion thereof, as “constitutive commitments,” which are neither natural rights nor positive rights, thereby making a more precise account of this type of animal (or is it vegetable?) important to assessing the exact nature of his current argument.
UPDATE: Rereading my post hours later, it seems far more sharp in tone than I intended. I had meant merely to put these questions that occurred to me about the concept of constitutive commitments but, strung together, they seem more harsh than inquisitive. Rather than edit the original text, however, I thought that I, like the first Congress, would add this rule of construction as an express amendment to the original text: The enumeration in this post of certain questions shall not be construed to disparage the post to which I was responding.
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