Habermas and Pragmatism by Aboulafia Mitchell;Bookman Myra;Kemp & Cathy;Cathy;

Author:Aboulafia, Mitchell;Bookman, Myra;Kemp & Cathy;Cathy;
Language: eng
Format: epub
Publisher: Taylor & Francis Group
Published: 2005-08-15T00:00:00+00:00

A pragmatist construction of the problem

I want now to restate the same question as pragmatists might be inclined to see it. From the standpoint of constitutional contractarian political justification, there are always two alternative ways to describe debates over constitutional interpretation that arise in contexts of application. We can see them as debates over which of two or more competing “senses” are the ones really, already, “in” the items in a set of canonical normative propositions, where the set is already securely certified as a sufficient, legitimating constitutional agreement. Or we can see them as debates over which of the contesting, application-dependent senses will render this set of propositional items into a sufficient, legitimating constitutional agreement. An obvious problem with the first view is its puzzling implication – given the fact of reasonable interpretive pluralism22 – that an ostensible, essential constitution’s rational acceptability to the reasonable can somehow be known without knowledge of how major disagreements over the senses of its guarantees will be resolved in practice, when push comes to shove. And yet it seems that only by adopting the first view could anyone, at any given point in time, purport to judge that any given political regime is justified.23 It seems, then, that the possibility of constitutional contractarian justification depends on citizens being able credibly to see debates over constitutional interpretation according to the first, counter-intuitive view, the one that allows a constitutional-essential item to be judged rationally acceptable to the reasonable before anyone knows what senses that item is going to acquire at the business end when brought to bear on major classes of cases of high ethical, political, or ideological salience.

Remember, now, how it is that constitutional essentialism becomes a key component in contractarian political justification. Seeing that we cannot hope to justify each discrete political act against a standard of universal reasonable-and-rational acceptability, we hope instead to justify by that standard a set of abstract, framing principles and ideals for a lawmaking system. But the difficulty, obnoxiously, seems to reappear at the point where the relatively abstract framing principles have to be applied to decide the legal validity of major policy choices. It is in those major-issue contexts that, in constitutional contractarian frame of mind, we become aware of the awkwardness of maintaining that a constitutional norm such as full and equal freedom of conscience remains invariant – remains one and the same norm – under reasonably contesting major applications of it (no accommodation versus required accommodation). It is an awareness that threatens disaster to the proposed constitutional contractarian justification of politics. For how can the justification succeed, if it turns out that the constitutional principles and ideals to which every rational and reasonable person could plausibly be said to owe agreement are just forms of words papering over unresolved and deeply divisive, but undeniably reasonable, political–moral disagreements?

Are we seeing, here, why Habermas has to insist that constitutional-interpretive debates “are always about the best interpretation of the same constitutional rights and principles?”24 Is Habermas so

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