Constitutionality Framework

The value criterion is...consistency with the US constitution.

Here are some of the best justifications for a constitutionality framework.

I value justice.

Debates over what the correct conception of justice is are ultimately irresolvable.  Views on what “justice” means on even the most basic level differ from actor to actor. Miller 99:

Miller, D. Principles of social justice. (1999) Cambridge, Mass: Harvard University Press. http://books.google.com/books?id=y2wMzJtEZ_8C&pg=PA42&source=gbs_toc_r&cad=3#v=onepage&q&f=false

This impatience has been mirrored to a considerable degree by social scientists engaged in the empirical study of justice. Even though they are often aware of the leading philosophical theories of justice, they are likely to regard disputes between the protagonists of such theories as irresolvable. This is a legacy of the positivist view that empirical and normative questions are radically distinct, and moreover that the answers we give to the latter depend in the end on personal value-commitments that are beyond the scope of rational justification. In order to avoid getting drawn into this quagmire, empirical social scientists attempt to bracket off the question what justice really is, and see them-selves as investigating "justice beliefs" or "justice behavior" without theoretical presuppositions. In his Introduction to a major survey of social psychological studies of distributive justice, Kjell Tornblom writes, "An attempt will not be made here to define the concept of justice. This would appear to be a 'hopeless and pompous task' . . . is 'beyond the capacity of any scientific analysis' and 'is not the business of psychological studies of justice phenomena' anyway. Past research has convincingly shown that the notion of justice seems to mean different things to different people and in different circumstances." Here, then, subjectivism about justice is combined with an implicit view about the kinds of questions that can and cannot be answered scientifically to create a sharp division between the social scientist who studies justice empirically and the political philosopher who tries to define the concept or to promulgate nonnative principles of justice.

Acting in consistency with legal precepts is the only way to avoid irresolvable disputes over the meaning of justice and ground abstract notions in specific principles. Barnett 98:

Barnett, R. E. (1998). The structure of liberty: Justice and the rule of law. New York: Oxford University Press. http://www.libertarianismo.org/livros/tsofrb.pdf

Moreover, this assumption views legal precepts as distinct from and at least sometimes opposed to the requirements of justice. However, the analysis presented here offers a quite different picture of this relationship. Justice, at least in its first derivation, is extremely abstract and general. For justice to be brought to bear effectively on individual decision, specific legal precepts are needed to guide conduct. Such precepts are the necessary means by which just results or ends are to be achieved in practice, and they are also the means by which persons decide how to act justly so as to avoid a dispute that requires resolution. Most importantly, perhaps, this objection to the use of legal precepts assumes that persons deciding how to act or judges deciding how to resolve a dispute have access (independent of legal precepts) to a conception of justice that is specific enough to decide the outcomes of disputes. Where this assumption is false and a conception of justice, such as one based on natural rights, does not provide specific enough guidance, as is commonly the case, legal precepts are the inescapable means of putting the abstract requirements of justice into practice. Where this assumption holds true and abstract natural rights do recommend for or against certain conduct, legal precepts generally have no difficulty mirroring the requirements of justice. Where the just result is very clear and a legal precept violates it, this is an argument for changing or refining the precept at issue, not discarding the use of precepts altogether. Indeed, as I explained in Chapter 1, the primary function of background natural rights is, to provide a means of evaluating and reforming legal rights.

Thus, justice requires consistency with the US Constitution because the Constitution establishes an assumption of rationality and universality that citizens and the state are equally held to.  Williams 11:

Samuel Williams. “From Oppression to Democracy: An Argument for Reparations for African Americans from a Discourse Ethics Perspective” 2011. Michigan State University. http://etd.lib.msu.edu/islandora/object/etd%3A1110/datastream/OBJ/view

The just social order, in this case, was the constitutional order adopted in the formation of the United States. The Constitution established the normative framework for political and social interaction among members of the new nation. The constitutional order, though it evolved over time, set the terms and norms for legal and political interaction for members of the nation. The constitution defined the organization of political power, including citizenship, the rights citizens were to have, and how the state was to be established and regulated. Society was to be governed by law rather than arbitrary authority. Likewise, though the constitution allowed for social and economic hierarchy, citizens could not be deprived of their rights without due process. Both the commitment to the rule of law and due process commit the framers of the Constitution and the citizens to the assumption of rationality and universality in social and political discourse. At the point of any conflict with the state or other citizens, a citizen could appeal to the Constitution, and its corresponding principles, of universality and rationality as the basis for asserting his or her rights. It follows that once the citizens adopted rationality and universality as a background to the constitutional and social order, they could not rationally resort to arbitrary action to deny anyone inclusion in the moral and political community.

Thus the value criterion is consistency with the US Constitution.

[This framework originally and generously contributed by Byram Hills AJ.]