Colin Bradley (University of Southern California Gould School of Law) has posted Freedom as a Constitutional Value (Constitutional Values, Shreya Atrey & Rosalind Dixon, eds., forthcoming) on SSRN. Here is the abstract:
This chapter explores what it means to treat “freedom” as a constitutional value. Specifically, it focuses on the implications of the republican idea of freedom as nondomination for constitutional rights, modalities, and institutions. First, it argues that constitutions can be seen as “goodness-fixing kinds” and that constitutional values are the “constitutive virtues” of constitutions. This frame provides guidelines for determining what values count as constitutional values generally, or for this or that constitution. The chapter then traces the significance of republican freedom as a constitutional value for constitutional rights and remedies; practices of judicial review; and the constitutional law of democracy, or the regulation of popular control of government. On the latter, it argues that republican freedom recommends abandoning traditional ideas of “popular sovereignty.” Instead, it suggests that the polity, or the structure of political organization, should be designed to minimize the likelihood that the sovereign it constructs dominates individual citizens. This requires providing horizontal independence or social justice, avoiding capture, and empowering citizens equally. It shows how this idea can illuminate historical and contemporary republican strategies for combatting “oligarchy.” Finally, the chapter suggests how we might determine for constitutions generally and for this or that actual constitution, whether it is in fact committed to republican freedom as a constitutive virtue, i.e., a constitutional value.
Recommended!
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