There is a common mistake in all of our language and thinking that drives many of the crises we face today. Our brains have trouble perceiving how time and space interact, and this usually leads to bad long-term decision making. For example, we know promoting a universal norm of smaller families is one of the best ways to mitigate the climate crisis, but most policies around the world today are pushing in the opposite direction, incentivizing women to have more children.
The same can be said for the gap between rich and poor, which is inherited from the injustices of the past, and the policies we choose to address the gap.
This cognitive dissonance creates a special problem when it comes to systems of justice and freedom, normally things that we first deal with through laws, nations’ constitutions, and international human rights conventions. This is the problem: We tend to think of constitutions, or other fundamental and dominant systems of norms, statically. We think of them as fixed things. That is incorrect. The legitimacy of systems of governance derives from people, and people are not static. They are constantly being born and dying. They are dynamic. And most people, all of whom matter, will live in the future. What lies at the base of things like justice and freedom – the dynamic “we” in “We the People” – is more fluid than our brains usually perceive.
It is thus more accurate and true to our values of deriving legitimate governance from the people themselves (per a recent peer-reviewed article), to say that we are constantly constituting as we create new persons, not constituted by god-like founders in the past. We have to account for justice and freedom in the fundamental and ongoing formation of power relations, in the act of having children and ensuring their capacity to consent to the power of others. We thus “constitute” by accounting for the key stages in our development, early childhood and the creation of things like empathy, and the collective impact of that on our ability to socially self-determine. This is how we truly come together, or constitute, as free and equal people. We surpass our constant confusion about what it means to be free by seeing that such a state of being first lies in who we are – the fundamental power relations formed between us as we are created – before freedom can emerge, or not, in what we do.
Making that change, using a verb, frees us from what might be called the constitutive fallacy, an erroneous deference to power structures that oppresses us – like property entitlements that prevent equal opportunities in life for all. Or treating the planning of our families – the creation of children – as “nobody else’s business.” That sense of privacy was not meant to protect would-be parents or children, but was instead designed for concentrations of wealth and power to evade collective obligations to give kids a fair start in life via things like family planning incentives/entitlements pegged to literal birth equity.
How does the verb form free us? If we are dynamically constituting, then that process – limiting and decentralizing power to ensure future generations are free – becomes the dominant norm or ubernorm. We have to first and constantly make a free “We the People.” It precedes and overrides other norms. If we value justice and freedom (or self-determination over top-down systems of influences outside of ourselves like coercion or even incentives, which we can think of as simple sticks and carrots), we have to start from the premise that governance derives its legitimacy – its compelling oughtness – from the norm which through our creation ensures consensual governance.
We have to create future generations in ways that assure they are relatively self-determining, part of a system of laws that reflects their will, and as such free from all forms of power to which they cannot consent.
Using the verb constituting may feel nebulous, leaving us lost in time and space without the familiar static concept of a written constitution, sitting under glass in some far-away place, or militarily defended lines on a globe that define some amorphous “we.” There is a simple way to fix this. If we are constituting or in motion, we will necessarily be focused on where we are going, prioritizing a universal and child-centric (as opposed to parent-centric) system for planning our families that ensures justice and freedom for the majority (those that will live in the future) of persons. We will be sufficiently other-regarding – and free enough – to physically constitute just communities.
In the Fair Start Movement a collective of diverse people are discussing what it means to physically constitute those communities, using the simple and most basic value parameters of 1) minimum levels of welfare approaching birth equity for all, 2) an effective voice for everyone in smaller and more participatory democracies, and 3) restoration of nature, or the nonhuman world, which we can also think of as nonpolity, or the original positions/states of nature that undergird all theories of freedom. These values, just relations between people, and freedom, are simply inseparable from who we are and should be. And who we are and should be first depends on our creation. It’s about people, not population, and a physicalizing of justice through an existential norm that would include all other forms of traditional justice, e.g. distributive, environmental, intergenerational, procedural, retributive. We cannot be free if we carry pre-ordained hierarchies into our creation.
In other words, if we don’t start from a just people policy that gives all kids an ecosocial Fair Start in life, we can never proceed from a just position. We can never really be free. Our language and vision for the future will not orient from any of the values that comprise freedom.
As we move to correct the fallacy in our thinking, we will find ourselves divided between free people, and those who are entrenched in preconstituting modes (whom we might call “precons”), often because they benefit at cost to others from those modes. The divide, at this first and uniquely critical border of human power, is binary: We either support sufficiently just beginnings and are sufficiently other-regarding to constitute, or not. We either constitute/maintain polities and their citizenry in the position of being able to effectively participate in a constitutional convention, and have the capacity to consent to others’ power, or we give up the pretense of being free and equal people.
How can we identify precons? While forthcoming federal policies requiring disclosures regarding the role large companies play in the climate and other crises will help out these people, we can force the conversation with a few questions: How do they account for freedom and justice if not in the ongoing formation of power relations, as we have children? How could they care about children without caring about the conditions in which they are born? Is one’s birth position really a matter of fortune, or the result of things we can control? Is procreation more self, or other, determining? How can we consent to others’ power over us without accounting for the fundamental formation of power relations? If we value welfare, equity, democracy, or nature, wouldn’t we want to reflect those values in the norms that create us? Won’t we want to avoid relegating untold numbers of children to an ecologically degraded future with no guaranteed levels of resource or resilience?
These facts are indisputable: 1) Many benefitted from the mistakes described above by placing costs – ecological and social – on others. They did so in violation of multiple universal human rights that would have otherwise allowed us to constitute as free and equal people. And they did so in part by hiding the impact of the unjust family planning policies from which they were benefitting, instead using distracting downstream policies to prevent effective upstream reforms. 2) Most justly and effectively compensating future generations, who should be treated as a majority, for those violations requires targeting those precons most responsible, and those precons who benefitted the most, from blocking the process of constituting. They stand between us and legitimate systems of governance. 3) We right the fundamental wrong by taking and using portions of their concentrated power and wealth, measured against the relevant fundamental baseline, to constitute free and equal groups of future people via the effective vehicle of Fair Start incentives/entitlements.
Free people will demand these resources, and be opposed by precons, who should be treated as the fundamental threat to our freedom.
In other words these entities, like Exxon, should pay for the costs they externalized on others. And they must do so by complying with the first and overriding human right – Fair Start. We can spread this modeling, and this simple discourse: “Part of your wealth is my and my future child’s family planning entitlement and incentive.” If justice is meant to protect the most vulnerable, and it is, then it starts by protecting future persons, including nonhumans, which are the most vulnerable entities in the moral universe.