Securing Deliberative Democracy
Posted: 9 Jun 2004
I prepared this paper for a panel on "The Constitutional Essentials of Political Liberalism" in a symposium, "Rawls and the Law", 72 Fordham Law Review 1381 (2004). The paper has three parts. In Part I, I outline a constitutional constructivism that is analogous to the political constructivism that John Rawls develops in "Political Liberalism". I reprise previous work, in which I have developed a constitutional theory with two fundamental themes: first, securing the basic liberties that are preconditions for deliberative democracy, and second, securing the basic liberties that are preconditions for deliberative autonomy. In prior work, I have elaborated upon the second fundamental theme. In Part II, I sketch certain aspects of the first fundamental theme. I take up the commitments to guaranteeing the fair value of the equal political liberties and protecting free and informed political processes. I explore what the structure of First Amendment law would look like if we were committed, not to protecting an absolutist First Amendment in isolation from the rest of the Constitution, but to securing a fully adequate scheme of the basic liberties as a whole.
In Part III, I continue this exploration by focusing on four important Supreme Court cases that involve clashes between the First Amendment's protection of freedom of expression and the Equal Protection Clause's concern for equal citizenship. In three out of four of these cases, the Court protected freedom of expression to the exclusion (or indeed erasure) of equal citizenship. First, I present Rawls's own critique of Buckley v. Valeo as an exemplar of how to secure equal protection or equal participation together with freedom of expression. Second, I sketch an analogous critique of R.A.V. v. St. Paul for privileging freedom of expression over equal protection. Third, I analyze Roberts v. United States Jaycees as an exemplar of how the Supreme Court itself on occasion has taken equal citizenship seriously in the context of freedom of expression and association. Finally, with this example on hand, I criticize Boy Scouts of America v. Dale for privileging freedom of association over equal protection. Throughout, my aim is to suggest that a Rawlsian guiding framework of basic liberties might help frame our judgments concerning what to do when confronting clashes between freedom of expression and equal protection. Those judgments would be guided by the aspiration to accord priority to the family of basic liberties as a whole, not to give priority to freedom of expression over equal protection.
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