Inter-Bases Conflict, Escape From Value Choices, and Comparative Institutional Incompetency
Individual rights consciousness presumes that the appropriate legal response to a social problem is the discovery and enforcement of novel individual rights.
By emphasizing rights, liberalism generates three stubborn theoretical problems. First, pitting individual rights against one another, liberal legal doctrine often places its essential premises in conflict: it may suffer from "inter-bases conflict." 138 Second, since it professes neutrality to individual preferences and exercises of personal liberties, liberalism may be criticized for striving to escape from value choices. Third, in the context of judicial action, concerns of comparative institutional incompetence have prevented the courts from articulating 'new rights.' We next examine these three problems.
Conflicts in the premises of liberalism arise because legal liberalism is the standardbearer of equality and democratic majoritarianism at the same time that it has been dedicated to the sanctity of individual value preference. Both egalitarianism and majoritarianism are critical to the liberal enterprise. For example, equality of the vote, unencumbered access to the franchise, and regularity of governmental processes are at the heart of liberal constitutionalism. Yet, liberalism is dedicated to the sanctity of individual value preferences: for, with majority rule goes minority suppression, which violates the individual's autonomy. Phrased differently, at its base, legal liberalism is inherently conflicted, as it pits individuality against majority.139
The phenomenon of 'inter-bases conflict' in current liberal constitutional law, can be further demonstrated by three examples. First, the concept of affirmative action co-exists uncomfortably with the liberal legal notion of formal equality of rights in contemporary equal protection theory.140 Similarly, governmental restriction of the political speech of some individuals or entities in order to enhance the speech of others in federal election regulation may be inconsistent with the liberal legal notion of governmental neutrality in the 'marketplace of ideas.'141 Finally, freedoms of expression and the press protect pornography from social control, while equal regard for the status of women and children and social interest in the regulation of order and morality argue for constraints on 'nonobscene but indecent' presentations of sexual relations.142
The second of these problems is that today's liberals avoid value choices. Although liberal theory must mediate among fundamentally conflicting values, it attempts to remain faithful to the maxim that government must tolerate individual and autonomous preferences. Indeed, certain liberal models of adjudication are constructed to avoid judicial selection of values. They promote decisionmaking by 'neutral principles' 143 or by 'process-oriented review.'144 These models reveal the vulnerability of liberal normative theory to the criticism that it searches to escape from value choice.145 Harry Clor argues that when society consists of a variety of discrete communities of value, entitled under law to equal social status and acceptance, the rule of neutrality undermines the power of government 'to make of man something more than a creature of elemental passions and sensations.'146 Liberal theory cannot refuse to privilege values without opening itself to attack for moral relativism.147
Third, liberalism suffers from the institutional restraints placed on judges' ability to fashion rights. Because liberalism invokes a right to correct a wrong, a legal remedy for personal losses or social harms that are not easily classified among traditional legal injuries may depend on the articulation of 'new rights.'148 In this regard, liberalism may be saddled with institutional ineritia, given the character of federal and state court systems.
The judiciary's prudential concerns over its own competence, vis-a-vis the political branches of government, to affect important issues of social policy may prevent it from restructuring entitlements of right. Discovery of a legal right involves the judiciary in the allocation of resources and interests; the more important the social issue, however, the less likely the discovery of individual rights. Professor Neil Komesar has explained the legal system's inertia in enforcing fundamental individual rights to basic life necessities as a function of the judiciary's relative institutional incompetence to arbitrate important socioeconomic issues:
Why are values such as expression and education arguably more fundamental than housing, food, jobs, and, one might add, peace and war?
The answer may lie in the institutional role served by the concept of 'fundamental rights.' . . . These subjects are not excluded from the list of 'fundamental values' because they are unimportant. If anything, they are excluded because they are too important. More exactly, they are excluded because the relative institutional abilities of the legislative process vis- a-vis those of the judicial process are thought to favor the former.149
