Rawls and the Veil of Ignorance in the Constitution

On this Constitution Day weekend, one of the timeless components that has allowed the United States Constitution to survive for over 225 years has been the design elements that help prevent self-dealing and reduce overt temptation. John Rawls (1921-2002), an American moral and political philosopher focused on the political decision-making process and the inherent biases. In a gross oversimplification of Rawls’ theory, Rawls essentially argues that by providing a “veil of Ignorance” on a decision, we reduce personal self-interest and bias and improve policymaking.

There are multiple elements of the “Rawlsian” Veil of Ignorance within the Constitution where a designed screen of ignorance of future events and impacts is designed to reduce bias.  The 22nd Amendment was easier to pass than others because it did not apply to the then-sitting president.  In his article in the Yale Law Journal (http://www.yalelawjournal.org/pdf/401_gdga52hy.pdf), Adrian Vermeule notes many such elements within the Constitution which apply to the uncertainty of future events and are thus shielded by the veil.  Then, the veil of ignorance serves as a deterrent to lawmakers to engage in self-interested behavior because they are unsure how or whom the rules or laws will benefit.

To be effective as a Veil of Ignorance, the approach to the lawmaking must be:
*Prospective in Nature
*General in Application
*Durable to the point of near permanence
*Delayed effectiveness to minimize any self-interested impacts

Vermeule specifically cites the Bill of Attainder clause, where Congress may not pass a law designed to apply to anyone specific person, as a case where future uncertainty of who may be impacted creates a veil of ignorance, thus suppressing self-interested behavior.

Likewise, in looking at the Emoluments Clause, the restriction that Congress may not vote themselves a raise, or that a Congressmember may not receive the benefit of a raise they voted on in the event they are elevated to another position – such as Cabinet member – provides an additional example of the veil. Thus they are veiled from self-interest.

Other examples are the Incompatibility Clause, which prevents a member of Congress from simultaneously serving in another branch of the Federal government, the Succession Clauses, and the 25th Amendment to the Constitution, setting out the order of succession to the Presidency with “permanence,” to reduce the possibility of Congressional or Executive Branch self-interested behavior.

Another is the “Ex Post Facto” clause, which prevents the Congress and President from retroactively applying new law.  Thus, there is no guarantee as to the effect of the law, creating a version of the Veil of Ignorance as to the actual impacts of the law.

Ultimately, the framers attempted to insulate the Congress with a Veil of Ignorance to reduce incidents of self-interested behavior and ideally allow them to focus on the collective good rather than their own self-aggrandizement.

Rawls and the Veil of Ignorance in the Constitution
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