This blog, over a great number
of past postings, has been presenting a dialectic argument that traces the
history of political biases in this nation.
More specifically, it has traced the common view of governance and politics
among the population from an original parochial/traditional view to a natural
rights view. Added to that narrative,
the blog has described a current challenge to the natural rights view, that
being critical theory. In each case, the
blog has presented these views from the perspective of an advocate for each view
respectively.
And
now, this blogger presents a proposed synthesis, the liberated federalism view,
which he promotes. In this endeavor,
it’s time to present this last construct – to describe and explain it. But before the actual model is described,
some of its elements need to be identified.
In doing so, this blog will dedicate several postings to this task, starting
with this entry and the ones to follow.
The
first element is the covenant or compact. This element, for the purposes of this
model, retains its meaning found in the parochial/traditional perspective,[1]
but because of the current social and
political environment, which is encouraged by the natural rights perspective,
certain attributes need to be emphasized.
Unfortunately, the term, covenant, as it is currently used,
has become synonymous with the word contract.
But within this model there is a significant difference between the idea
of contract, and that of covenant or compact.
Contracts are agreements between or among individuals or groups over
limited issues or binding clauses.
Covenant or compacts refer to obligations that:
…
ought to be seen as more comprehensive and more binding … [It] suggests an
indefeasible commitment and a continuing relationship. The bond is relatively unconditional,
relatively indissoluble …
Covenant is more ambiguous [than
contract] … The ensuing obligations are not fully specified in advance;
instead, they derive from the nature and history of the relationship. Respect for parents, nurture of children,
civic virtue: these duties and ideals
are neither founded in consent nor created through negotiation [as in the case
of contracts].[2]
And with this quote, this
account will begin to describe what Philip Selznick shares with his readers concerning
the various elements that this blogger relates to liberated federalism, the construct
under review.[3]
The
function of a covenant or compact includes making clear what the fundamental
moral attributes and standards are in the union formed by those involved in
agreeing to the provisions of such a document.
That is, there is an explicit or implied deference to moral
determination beyond individual will, a positive view of the self that can make
and keep such commitments, a genuine interest in the welfare of fellow members
in the union, and a clear listing of principles for a distinguished and
identifiable way of life.
These
notions of a covenant or compact run parallel to those espoused by Daniel
Elazar in his writings concerning federalism.[4] And in this, readers should take note that
this rendition of what federalism is does recognize its structural elements –
especially in terms of government structure – but the emphasis is more on what
Elazar calls its processes – those ways of conducting business which honor the
notion of being federated or of being partners with others.
Along
with covenant or compact is the next element of this model, which is
equality. Equality, as identified in
this nation’s basic national covenant – the Declaration of Independence – which
is a foundational document. It has a
strong moral component utilizing both religious and secular thinking. If nothing else, experience has shown the
evil that follows when the moral principles of this hallowed document are disregarded,
particularly in relation to ensuing travesties to human dignity and to the
conceptions of personhood.
More
ambitiously, equality acts to encourage, from a collective or communal state of
mind, the formulation of a reflected and felt constitution – a true expression
of a people since this principle assures that all need to be on equal standing
within the arrangement. And beyond equality’s
role in the formulation of a constitution, the same sense and value motivate
the creation and maintenance of a healthy commonwealth that is derived from
that constitution. “Moral equality is
the postulate that all persons have the same intrinsic worth.”[5]
Selznick
describes this element from two levels:
baseline equality and equal treatment – more on this below. At either level, equality refers to the belief
that despite inequality in talent, wealth, health or other assets, the entailed
value calls for equal consideration of all persons’ well-being, that all have
an equal right to maintain their dignity and integrity as individual
persons. This ascribed status is given,
by this researcher, the title of constitutional integrity.
Constitutional
integrity has a normative quality since it reflects a respect for being human
beyond the biological aspects of that condition. Selznick quotes Bernard Williams on this
point:
That
all men are human is, if a tautology, a useful one, serving as a reminder that
those who belong anatomically to the species homo sapiens, and can speak a language,
use tools, live in societies, can interbreed despite racial differences, etc.
are also alike in certain other respects more likely to be forgotten. These respects are notably the capacity to
feel pain, both from immediate physical causes and from various situations
represented in perception and thought; and the capacity to feel affection for
others and the consequences of this, connected with frustration of this
affection, loss of its objects.[6]
Factually,
the judgment is made from the behavior of humans, that homo sapiens are equal
in their ability to make moral choices.
There exist no elite standing in this regard; each is humbled by the
leveling attribute; each is subject to moral discretions; each can realize
fully his or her own capacities as a person.
These attributes are what lead to meaningful self-respect and a sense of
empathy that allows one to reach out to others according to Selznick and, upon
reflection, one’s own common sense.
Equality
has certain aspects that Selznick uses to further analyze this element. The first, as indicated above, is what he
calls baseline equality. This aspect
refers to the minimal level of equality to which each person is entitled. It is constitutionally or formally defined. In the history of the United States, this in
turn, has to do with jurisprudential development of the Fourteenth Amendment in
regard to its provision of equal protection[7]
and, to some degree, the due process provisions.[8]
Of
particular concern are the legal entanglements of the fundamental interests
of the states, the rights of individuals as they are identified in the Bill of
Rights, and the corollary issue of suspect classification (when a group or
class is judged to have been subject to discrimination). That concern suggests two questions:
·
Do the actions of the
state represent fundamental interests of that government as defined by its
police powers, such as public safety, and justify any adverse treatment of
individuals?
·
And how do those
interests compare to the rights of individuals affected by those actions?
These questions suggest that
when situations are targeted against some group or person, what are the countervailing
values: usually the value of equality
vs. the value of some legitimate state interest. In addition, Selznick asks whether individuals
who are adversely affected by the actions of the state are members of a group
with a history of constitutional abuse being directed against them.
That writer highlights the effects of history and the
relation of individuals to their commonwealth:
The
constitutional doctrine of equal protection does not ignore or erase
differences of talent, achievement, contribution, or good fortune. It is not a device for leveling gradations or
for making society more homogeneous. It
is, however, a path to community.
Equal protection speaks above all to membership, and membership presumes
that all who belong share a core identity.
This identity is wholly compatible with rich diversity so long as that
diversity does not undermine equality of membership. The most serious threat to such equality is
division based on moral stigma. Whatever
its source, whether it be a certain racial or ethnic origin or level of native
intelligence, the effect of moral stigma is to rank some people as
intrinsically less worthy than others.
Vindication of moral equality, in the face of strong impulses toward
moral hierarchy, is the primary mission of equal protection of the law.[9]
Within a community there
is the expectation that all members can fully participate or else there can be
no meaningful commonwealth. There is not
just an expectation of being protected against abuses of power, but a whole
range of duties and rights attached to membership and to the protection of being
members.
While
these rights and duties might be bound by limited resources and options, they
are what make membership meaningful. And
this line of thought will be further pursued in the following posting as it
addresses equal treatment, the other form of equality identified by Selznick. But before leaving this notion of baseline
equality, the term should be held with serious consideration and commitment
among the populace of a federated union.
[1] In a few words, covenants or compacts are sacred
agreements that usually set up arrangements among people. Actually, the overall classification is
compacts, of which covenants is one type.
Covenants call on God to witness the agreement and compacts, unless they
are covenants, do not. In everyday life,
marriage vows are either covenants or regular compacts. The Declaration of Independence is a covenant;
the US Constitution is a compact.
[2] Philip Selznick, The
Moral Commonwealth: Social Theory and
the Promise of Community (Berkeley, CA:
University of California Press, 1992), 479-480.
[3] Ibid.
[4] For example, Daniel J. Elazar, “Federal Models of
(Civil) Authority,” Journal of Church and State, 33, 2 (March 1, 1991),
231-254 AND Elazar, D. J. (1994). How federal
is the Constitution? Thoroughly. In a booklet of readings, Readings for Classes Taught by Professor Elazar (1994), prepared for a National
Endowment for the Humanities Institute. Conducted in Steamboat Springs,
Colorado, 1-30.
[5] Selznick, The Moral
Commonwealth, 483.
[6] Ibid., 483-484.
[7] Mark V. Tushnet, “Equal Protection,” in The Oxford
Companion to the Supreme Court, edited by Kermit L. Hall (New York,
NY: Oxford University Press, 1992), 257-259.
[8] Thomas O. Sargentich, “Due Process, Procedural,” in The
Oxford Companion to the Supreme Court, edited by Kermit L. Hall (New York,
NY: Oxford University Press, 1992), 236-237
AND Peter C. Hoffer, “Due Process, Substantive,” in The Oxford Companion to
the Supreme Court, edited by Kermit L. Hall (New York, NY: Oxford University Press, 1992), 237-239.
[9] Selznick, The Moral
Commonwealth, 489, emphasis in the
original.
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