Legislative Consent and the Public Good
Invocations of “the public good” are a paradigm case of contested principles. In many instances people who disagree about the public good are disagreeing not merely about whether a given policy will actually produce the results that its proponents claim it will produce, but also about whether results of that sort should bear the honorific title “public good.” Some restrict the public good to material benefits like health, physical safety, and economic prosperity. For others it may involve a common national identity, virtue, or even religious piety. When the two sides in a disagreement invoke different conceptions of the public good to justify or condemn state policy, we have a classic instance of contested principles. Simple statements like “Result X would promote the public good” will beg the question when what is really in dispute is which conception of the public good to use in evaluating result X. Given the importance of “the public good” as a justification for policy, it is perhaps the most important contested phrase in political debate. It is important precisely because citizens are constantly trying to renegotiate the extent of the government's reach. At any given time there will be some persons who want the state's power to reach into new areas and others who think the state's reach is already too long.
Debates over the public good assume the rejection of what Cass Sunstein has called “naked preferences,” instances where a majority imposes its will simply because it has the raw power to do so.1 Rule by sheer force of numbers can confer no more legitimacy than the principle “Might makes right.” Instead, citizens should think of themselves as under a moral obligation to appeal to some moral principle or public value to justify coercive laws. It should go almost without saying that states cannot and should not always legally enforce this moral obligation.2 The principles need not always be explicit. Often debate can take place where the end in question is so clearly a part of the public good that the only question is the best means to achieve that end. The important point is that
1 Cass R. Sunstein, The Partial Constitution (Cambridge: Harvard University Press,
1993), pp. 27–29.
2 Even setting the problem of knowing a person's true motives to the side, a law of that
sort would be open to such incredible abuse that it would fail its own test. Reasonable
persons would not affirm it from a legislative point of view.