Constituting Over Constitutions
| Autore | Carter Dillard |
| Carica | Independent Researcher |
| Pagine | 48-75 |
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Constung Over Constuons
C
ARTER
D
ILLARD
Carter Dillard, Master of Laws at New YorkUniversity School of Law (United States of America) with
a thesis reformulating the right to havechildren (Jeremy Waldron); former member of the Steering
Committee of the Population Ethics and Policy Research Project, Future of Humanity Institute, and
former visiting scholar, Uehiro Center, Oxford University (United Kingdom); policy advisor, Fair
Start Movement; he can claim a string of extensive academic and public policy work on the fields
of family planning and animal protection.
@cjd328@nyu.edu
ID 0000-0002-3774-9643
ABSTRACT
In philosophy, legal theory and law, the Grundnorm, or basic norm, is often assumed to be the
constitution, or that which overrides other norms. That is incorrect. This paper argues that the
Grundnorm should be the norm which regulates human procreation. This norm must proceed
from the theoretical absence of human power, or a zero baseline. This essay attempts to correct
the Grundnorm fallacy with what will be called the Zero-Baseline Model. The correction reorients
our human rights regimes and family planning systems, in ways that lead to an inevitable list of
specific policy reforms that largely invert current family planning models and policies in use at
the United Nations, European Union, the United States, and elsewhere. Those reforms can all be
described in a simple narrative of reorienting family planning laws and policies from what
would-be parents desire, subjectively, towards what all future children need, objectively. And as
the evidence shows, those reforms prove highly effective and much more efficient in promoting
child welfare, reducing economic and other inequalities, mitigating the climate and other
ecological crises, protecting non-humans, and building democracy,than their alternatives.
KEYWORDS
Constitutional Law; Public Policy; Grundnorm; Zero Baseline Model; Family Planning
TABLE OF CONTENTS
Introduction ............................................ 49
Background and the Limits of Human Cognition . . . . . . . . . . . . . . . . . . . . . . . . . 54
TheZero-BaselineModel...................................... 58
ThePraxisofConstituting..................................... 70
Conclusion ............................................. 75
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2021] UNIVERSITY OF BOLOGNA LAW REVIEW [Vol. 6:1
This paper will invert what is commonly seen as an act of self-determination by parents,
procreation, to reveal instead its true nature as an act of other-determination, on a
massive scale more determinative of the future child’s life and the communities future
children will comprise than of the lives of the parents. This will lead to a revision of Hans
Kelsen’s Grundnorm theory, and in this revision, I will argue that polities, or ideally what
will be legalities, form dynamically from the inside out via the norm that determines
procreation, rather than I will argue that legalities form dynamically the norms which
determines procreation from inside-out, rather than through traditional outward-facing
borders defined by traditional Constitutions and defended by violence. We are
constituting, not constituted, in the past. Or if put another way, the creation norm
always precedes and overrides other norms which are wrongly perceived to be more
fundamental, including rules of rec ognition and other seemingly constitutive norms.
The practical revisions in law and policy to correct what we perceive to be fundamental
will entail a special form of liberation. This revision raises key questions in the formation
of any conception of liberal governance: If governance should create morally valuable
options while treating all equally, must family planning systems be designed to give all
kids a fair start in life, eliminating the arbitrary impacts of nurture that procreative
autonomy would impose on future generations? Does that process include an ecological
baseline, such that the future generations can self-determine free of all forms of
oppression – including climate change – imposed by prior generations? Can states
intervene in family planning decisions, as a matter of enforcing a peremptory norm and
a child’s human right to a fair start in life, to assure this? This revision is offered to
inform the process, and to reverse a common misperception about what actions are
personal versus interpersonal in nature in the context of procreation. That reversal
could raise an impossibility theorem: That there is no way to make sense of liberation,
empowerment, obligation, the rule of law, or legitimacy without accounting for the
creation of persons, oriented from the zero-baseline discussed below, and determining
how objective values in that process will inevitably enable or disable subjective choice.
In philosophy and law, the most basic norm, or Grundnorm, is usually assumed to
be the superior norm guiding human behavior from which all inferior norms are
derived.1That is incorrect. The fallacy is based on a series of mistakes, described in more
1See, e.g., Stanley L. Paulson, The Neo-Kantian Dimension of Kelsen’s Pure Theory of Law, 12 O
XFORD
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EGAL
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311 (1992); Brian H. Bix, Kelsen, Hart, and Legal Normativity, 34 R
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