1867. Chris's reply to my criticism

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Chris's reply to my criticism: 

It's important to recognize that "justice" has a heuristic meaning in which it functions to specify what the democratic discourse established by a proper democratic constitution is all about. In this meaning, "justice" may be said to be a formative concept—and to be properly used in a constitution (as it, in fact, is used in the US Constitution).

But no substantive concept of justice that would take the place of the heuristic (formative) concept, including even the substantive principle (or criterion) of general emancipation itself, has a proper place in a democratic constitution. Of course, it is necessarily implied by (even as it, in turn, necessarily implies) the formative principle of communicative respect. But what is implied by constitutional provisions is one thing, what they explicitly provide for or prescribe, something else. And all that properly belongs in a democratic constitution as such is: (1) use of the concept "justice" in its heuristic (formative) meaning to make clear what the democratic discourse instituted by the constitution is all about; (2) specification of the formative rights/ liberties—private and public—that are necessary conditions of the possibility of participating in the democratic discourse; (3) specification of all the institutions necessary to make laws and to interpret and enforce them; and (4) specification of the conditions under which and the means by which the constitution can be amended, allowing that it may not be as democratic in fact as it is supposed to be 
in principle. 

As for the formulations in the Declaration or in the Preamble to the Constitution that might appear to express the substantive principle of justice, they can be accounted for either as using "justice"—or other terms and phrases synonymous with it—in its merely heuristic (formative) meaning or as stipulating properly formative rights/liberties as distinct from any properly substantive ones. (This clearly seems to be the case, for example, with "equality" "life," "liberty," and "the pursuit of happiness" in the Declaration; or of "the blessings of liberty" in the Preamble. On the other hand, the reference to "justice" in the Preamble, as well as, perhaps, its references to "the general welfare" and "domestic tranquility," seem to use the terms in their heuristic [formative] 
meaning.)

17 November 2001