In echoes of Australian anxieties about the 'nanny state' a
paper on 'The Role of Individual Substantive Rights in a Constitutional Technocracy' by Abigail Moncrieff offers what the author describes as -
a novel theory of substantive constitutional rights and of the role that they play in an increasingly technocratic legal world.
The central descriptive assertion is that substantive rights serve as presumptions in favor of private ordering, which protect a limited set of regulatory regimes from technocratic tinkering, and that the characteristic that defines the set of protected regimes is a high degree of economic and moral uncertainty. Decisions to engage in speech, religion, association, reproduction, and parenting, the decisions that receive substantive constitutional protection under modern doctrine, are decisions that are of unusually uncertain individual and social value. The central normative assertion is that this defining characteristic provides a good reason to hinder regulation in these regimes because, in the presence of these deep uncertainties, technocratic regulators will have no legitimate regulatory theory to pursue. Regulation in these regimes, thus, will be more likely than average to constitute purely arbitrary infringements of liberty, even though some regulatory projects will address concrete harms or enact moral consensuses. Substantive constitutional rights provide an elegant tool for creating a conditional barrier to regulation, raising the cost of regulating without completely forbidding it.
She claims that -
American law has become and is becoming increasingly technocratic. To a greater and greater extent, our laws and regulations center on data—information and analysis. Partly, this technocratization arises from the increasing pervasiveness of law and economics, including welfare economics, for evaluating regulatory interventions. Law becomes technocratic as we choose particularly technocratic metrics, such as market functioning and group welfare, for evaluating regulatory interventions—metrics that are (or at least are imagined to be) more precisely measurable than democratic metrics such as political preference and representational success. In another important respect, though, the trend arises from the growth in information technology, which allows for technocratization of even non-technocratic evaluative standards. When we look to preferential, representational, and even moral success as our lodestar today, we have new tools — still crude, but improving — to measure that success. Indeed, modern regulators largely depend on technocratic measurement not only to formulate rules but also to justify them. To an increasing extent, therefore, our constitutional democracy is also a constitutional technocracy.
Our technocratic tools, however, are neither infallible nor omnipotent. There are many important regulatory questions — famously including interpersonal comparisons of utility — that we cannot measure at all or at least cannot measure reliably. Technology simply has limits. What, then, should a constitutional technocracy do if, because of these limits, a whole regulatory regime seems insusceptible to technocratic analysis? That is, if standard technocratic tools fail to provide answers for a given regime, how should modern regulators approach their job? Part of this paper's thesis is that, in such circumstances, the appropriate response is simply to abstain from regulating. If technocratic tools systematically fail in a particular regulatory regime, we should presumptively leave that regime to private ordering—we should be presumptively laissez-faire. The core of this paper's thesis is that our constitutional technocracy already contains such laissez-faire presumptions to protect regimes in which there are peculiarly high barriers to technocratic measurement and justification. The laissez-faire presumptions are our individual substantive rights.
