The following is a summary of the thesis of new book by Carter Dillard titled Justice as a Fair Start in Life: Understanding the Right to Have Children (Eliva 2021). The book was recently recommended reading by leading constitutional law professor and political theorist Larry Solum at the University of Virginia. 

There is a particular and fundamental mistake in our language and behavior that impedes freedom. It’s called the constitutive fallacy, or mistaking the first obligation or principle (the grundnorm) as anything downstream from the norm that should create us. 

Put simply: When we have kids, the act has to be child-centric and fair because having children is what most determines the fair society we should orient from. The collective act of having children creates the people around us, and through their development, largely makes them the people they will be. As will be argued below, then, fairness in our creation is thus the first obligation, or grundnorm (because we are before we do, and because who we are is the product of the norms that create us); its praxis means we will be coming from a just place.

There is another way to say this. Before we can have anything like a written constitution, iconic representatives, or lists of human rights, we would first have to be physically constituting ourselves as free and equal people who can self-determine (much the way we would in a popular constitutional convention), relative to an absence of being determined by others, or a zero-baseline. If government derives its power from the people and people derive from their creation, ensuring a creation norm that maximizes consent — again, imagine a dynamic constitutional convention — acts as a sort of “first election” to bring in future persons as new members (who always constitute the majority of persons) before we ever elect any representatives. And we have to constitute ourselves as if for town halls — with fewer and highly developed people — rather than as crowds of consumers for shopping malls, because the former regulate the latter. 

This truly self-determining state of affairs requires, despite our temporal myopia, 1) conceptualizing of power as any form of human influence, and 2) temporalizing our conception of human beings to first assess fairness in the first creation — or procreation — of power relations. These moves constitute us as free and equal people by limiting and decentralizing the power that others have over us. This form of intergenerational justice subsumes all other forms, including distributive, retributive, and ecological, by factoring them into our creation. To the extent we have considered justice in the abstract, we have hidden the fundament: how justice and injustice make us who we are.

How do we know we are moving in the right direction, and that this is happening? Our relative self-determination will be directly inverse to the number of people in our democracies, and those democracies should divide into others at particular thresholds to maintain the baseline.

This dynamic process resolves the fallacy and unifies values like justice, relative autonomy, nature, freedom, equality, etc., at the most fundamental structure of human power. It’s also a pathway to qualitatively determining optimal populations using very specific and current legal standards to determine the values above. We simply cannot create a person without simultaneously impacting all these qualitative values. By seeing freedom as akin to the dynamic emancipation of children, we eliminate false generations of rights that divide values like development and welfare from liberty and we find that truly becoming a citizen requires at a minimum being sufficiently other-regarding to constitute future democracies through collective and child-centric family planning. 

Assuring this level of empowerment and equity begins with policies that 1) fulfill minimum levels of welfare approaching birth equity for all future children 2) ensure each child a meaningful voice in their future democracies. This is not about people as numbers, or as population. It’s about making people matter, politically, and freeing them from others’ power — or physical influence, from disparate inherited wealth to ecological impacts — so that they may actually consent or become relatively self-determining. The closest analogy to this, in our current lexicon, is the freedom to associate.  

We fund these policies by taking wealth (one form of influence) from the top of the economic pyramid as a matter of right, and thus limiting and decentralizing the power others have over us. This is obligatory, given the irrefutable facts that this wealth 1) was created using an unsustainable and unjust system of growth that violated multiple human rights including the Children’s Convention, environmental rights, the right to equal opportunities in life, and the right to an influential role in one’s democracy, 2) foisted its costs, including the loss of freedom, on future generations, and 3) is most comprehensively and effectively redressed using Fair Start family reforms and redistribution of wealth as equitable family planning incentives. The economic pyramid was built by moving the locus of power and control to the top in the form of wealth and political control (based on the threat of violence), rather than forward into future generations, and to preserve relative self-determination must be redirected. 

Again, this is not about population or consumption; it’s about becoming existentially just and abandoning the fallacious reasoning that life is not fair because our creation is not fair — and can’t be. 

This shift, which means humans will matter politically, will eliminate the misconception of procreative autonomy in favor of procreative justice. Procreative autonomy largely derives from religious autonomy. But note how it would violate obligations to separate church and state to live under a world defined by others’ religious beliefs, including the ideas that life is not fair because God and creation is not fair.

Consider also traditional political borders: the line on a map between two nations. Existential justice moves past this archaic conception toward a real and primary border of human power — our creation — and accounts for how it determines our freedom, or more accurately, our relative self-determination. Our current political borders mask the way true personal sovereignty is directly inverse to growth, and in ways other political models would not. 

The fundamental difference between preconstitutional systems like polities and economies, as opposed to legalities, involves the latter limiting and decentralizing power in the constant recreation of their constituents to make obligations relatively self-reflective. That is what it means to constitute. Any policy that does not start with a Fair Start or comparable transition does not come from a just place, is overridden by Fair Start and is fundamentally illegitimate. The proponents of such policies, precons, will be unable to account for how basic values, such as nature, welfare, equity, and democracy, and the actual people impacted, should relate. 

There are many pathways to ensure existential justice, and these include a simple discourse of constituting ourselves as free and equal people. That discourse puts future generations into the stream of power and places their demands upon the living, a move that might have averted the climate crisis had the United Nations properly interpreted its human rights obligations. Regardless, the goal of existential justice is to become part of optimal world populations, qualitatively, that are relatively self-determining and therefore free. 

Here are some examples of how to apply Fair Start, practically: 

1. Urge the United Nations to interpret Article 16 of the Universal Declaration of Human Rights, the right to have children, in a way that is intergenerationally fair, and compensates future generations for the harm we have already caused them from unfair prior interpretations. 

2. Support a recent call for a federal executive order that would require disclosures of past, present, and anticipated family planning and population policies, and their multiplying impact on a variety of factors within the current federal reporting Environmental, Sustainability, and Governance guidelines. 

3. Oppose abortion bans as a violation not just of privacy, but of governments’ historic human rights and democracy obligations to ensure every child has an ecosocial Fair Start in life.

4. Promote our universal right to restored, natural and nonhuman habitats and communities, including restorative climate policies, and the freedom these things create.  

Systems of governance and their laws derive from people, who derive from their creation. Justice (distributive, procedural, retributive, ecological, intergenerational, etc.) and the rule law therefore begin in the dynamic formation of our first relations, or ideally, as we physically and constantly reconstitute democratic communities through forward looking child-centric family planning reforms under Article 16 of the Universal Declaration of Human Rights.

We scam ourselves and others out of justice by pretending to do it downstream, after the fact of the formation of our power relations, and usually because we personally benefit from doing so. That scamming is rampant in civil society and politics, where those purporting to protect animals, the environment, children and other vulnerable categories of persons utterly fail to do so – and mislead – because they embrace inequity in creation, and the resulting power differentials that make formal and downstream law ineffective. This is especially so for the most vulnerable, like animals, for whom formal law offers little protection.

Why focus on our creation? It is not fortune, or the will of a god, that some are born poor and others rich or in other inequitable positions of power. The belief in fortune is part of a myth meant to preserve power structures, and to justify our using future generations as unequal economic inputs who will concentrate wealth and power in the hands of a few. The core of that myth is the isolating idea that having children is matter of personal privacy, and that such privacy protects parents. If we really care about people we will be collectively focused on the wellbeing of future children, who have more at stake than their parents, and future generations more generally, who vastly outnumber persons alive today. Our failure to focus forward in this way fundamentally created the ecosocial crises we face today, like the climate crisis, as we avoided ensuring ecological justice in our creation and instead opted for downstream – and now utterly failed – corrective environmental interventions. Environmental groups curried favor with concentrations of power that rely on population growth, despite the risk – now a reality – that their conservation programs would eventually be undone by that growth and the climate crisis it created.

Evading the constitutive fallacy allows us to avoid the lie of seeing ourselves as constituted into nation states – where we have little role over public affair and are hardly self-determining – by god-like founders in the past. First deriving justice and rules from that ancient process would require ignoring the formation of the power relations that justice is designed to shape. Committing that mistake or fallacy means denying people the relative self-determination, or fairness, of constituting just communities where their voice actually matters, and ignoring the drivers of our daily experience in favor of the abstraction of celebrities and politicians, divorced from the creation and reality of the lives of the people with whom we share the world. The verb form, constituting, instead empowers people, and focuses us linguistically on relative self-determination rather than being determined by others.

To constitute means first and always accounting for the future generations impacted by our lives and ensuring that their creation is just, via Fair Start reforms or comparable modeling that uses the entitlements future children deserve as a correlative incentive to ensure – universally – small, sustainable and well-planned families. This includes ensuring minimum levels of welfare, a move towards birth equity, restorative environmentalism or rewilding, and physically constituting participatory democratic communities along the physical borders of human power. If we don’t do this, we are relying on and furthering an illegitimate system that undemocratically exploits the most numerous and vulnerable category of entities – future generations – in a way that retards freedom, or relative self-determination, for all. The freedom that comes from our existential role as sovereigns in a democracy precedes and enables the personal freedom and empowerment we experience, as workers, consumers or otherwise, in that democracy.

What’s an example of moving past the constitutive fallacy? Consider what rules for containing Covid-19 are most just, balancing public health, personal choice, and the maintenance of one’s livelihood? To answer this question we would have to be constituted into relatively self-determining groups or democratic communities capable of answering the question, and our having first done that would have likely evaded the overcrowding, poor public health, destruction of nature, etc. that drove the pandemic. The same revision in thinking would apply to the climate crisis, and dozens of other problems.

Practically we can do this – as free and equal people – by limiting and decentralizing existing concentrations of private and public power, taking the resources the people in those concentrations hoarded by externalizing costs, and instead investing them in Fair Start reforms as the entitlements/incentives described above. We may do so because the act of constituting overrides downstream rules, like property entitlements. This will happen over the opposition of preconstitutional people, or precons, who simply block justice. We can test the progress of this process – the ongoing first and fundamental election – by looking for its application in the pronouns in our language, and to see whether we are constituting together the persons those pronouns explicitly and implicitly refer to.