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Further thoughts on Gamwell's distinction between "substantive" and "formative" political principles and some of its implications:

I should want to say that all political principles are substantive in the sense that, or because, they can be validated, finally, only by substantive principles, moral as well as political. But some political principles that are substantive in this sense, or for this reason, are – while are—while others are not – formative not—formative as well as substantive, in the sense that, or because, they regulate the procedures by which all political principles, formative as well as (merely) substantive, can alone be validated. They are the principles, in other words, regulative ofthe way of reason, or of full and free discourse, that has to be followed in order to validate any political principle or proposal.

Formative political principles suffice to specify the rights/liberties – private and public – that liberties—private and public—that are the necessary conditions of the possibility of participating in full and free discourse. As such, these rights/liberties are properly stipulated in any well-framed democratic constitution, along with its stipulation of such things as the basic structure of government (in the case of the U.S.A., its compound structure); the basic procedures, institutions, and offices of government; and the ways and means of amending the constitution itself.

I should want to insist, however – even however—even if against Gamwell – that Gamwell—that a democratic constitution also properly includes specifying what he calls the basic, completely general right of emancipation necessarily implied by formative rights/liberties if they are not to be merely formal and empty. In other words, the constitution properly affirms that every citizen has the right to share, socially and economically, in the common good sufficiently to be able to make her or his own contribution to it by, among other things, exercising the formative rights/liberties that are necessary conditions of the possibility of following fully and freely the way of reason.

I would defend this insistence by arguing that for a democratic constitution not to stipulate but only to anticipate substantive justice is itself merely formal and empty unless it means that not everything that may be produced by the political process is consistent with the constitution. To anticipate the actuality of full and free discourse about the common good is to mandate that, whatever else such discourse may or may not do, it must – in must—in order to be constitutional – concern constitutional—concern itself, above all, with providing or promoting for all citizens through statutory law the substantive conditions, social and economic, necessary to their full political equality. In this sense, that substantive justice is always to be pursued is not open to democratic debate, any more than that formative rights/liberties are always to be protected and promoted. This is so, at any rate, if "to anticipate," like "to presuppose," is to imply – notimply—not, to be sure, as "to presuppose" implies, by a definite or specific necessity, but by an indefinite or generic necessity only.

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