10.6092/issn.2531-6133/13299
In philosophy, legal theory and law, the Grundnorm, or basic norm, is often assumed to be the constitution, or that which overrides other norms. That is incorrect. This paper argues that the grundnorm should be the norm which regulates human procreation. This norm must proceed from the theoretical absence of human power, or a zero baseline. This essay attempts to correct the grundnorm fallacy with what will be called the Zero-Baseline Model. The correction reorients our human rights regimes and family planning systems, in ways that lead to an inevitable list of specific policy reforms that largely invert current family planning models and policies in use at the United Nations, European Union, the United States, and elsewhere. Those reforms can all be described in a simple narrative of reorienting family planning laws and policies from what would-be parents desire, subjectively, towards what all future children need, objectively. And as the evidence shows, those reforms prove highly effective and much more efficient in promoting child welfare, reducing economic and other inequalities, mitigating the climate and other ecological crises, protecting non-humans, and building democracy, than their alternatives.
application/pdf
2531-6133
13299
1
en
Carter  Dillard
https://creativecommons.org/licenses/by/4.0
University of Bologna Law Review
Family Planning
Constituting Over Constitutions
Text.Serial.Journal
https://bolognalawreview.unibo.it/
6
Articles & Essays
2021-07-19
2021-07-16
2021-03-27
2021-07-19
48-75
UBLR
Carter  Dillard
2021/07/19
10.6092/issn.2531-6133/13299
48
Independent Researcher
2531-6133
1
Family Planning
en
75
Constituting Over Constitutions
https://bolognalawreview.unibo.it/article/download/13299/12829
6
llVOLUME 6                                    llISSUE 1                                                          ARTICLES & ESSAYS



                            UNIVERSITY OF BOLOGNA LAW REVIEW
                           https://doi.org/10.6092/issn.2531‐6133/13299

             Received: 28 Aug. 2020 | Accepted: 14 Jun. 2021 | Published: 19 Jul. 2021

                                                     A

                         Constituting Over Constitutions


                                           CARTER DILLARD
Carter Dillard, Master of Laws at New York University School of Law (United States of America) with
a thesis reformulating the right to have children (Jeremy Waldron); former member of the Steering
Committee of the Population Ethics and Policy Research Project, Future of Humanity Institute, and
former visiting scholar, Uehiro Center, Oxford University (United Kingdom); policy advisor, Fair
Start Movement; he can claim a string of extensive academic and public policy work on the fields
of family planning and animal protection.

  @ cjd328@nyu.edu
  ID
       0000-0002-3774-9643


                                               ABSTRACT

In philosophy, legal theory and law, the Grundnorm, or basic norm, is often assumed to be the
constitution, or that which overrides other norms. That is incorrect. This paper argues that the
Grundnorm should be the norm which regulates human procreation. This norm must proceed
from the theoretical absence of human power, or a zero baseline. This essay attempts to correct
the Grundnorm fallacy with what will be called the Zero-Baseline Model. The correction reorients
our human rights regimes and family planning systems, in ways that lead to an inevitable list of
specific policy reforms that largely invert current family planning models and policies in use at
the United Nations, European Union, the United States, and elsewhere. Those reforms can all be
described in a simple narrative of reorienting family planning laws and policies from what
would-be parents desire, subjectively, towards what all future children need, objectively. And as
the evidence shows, those reforms prove highly effective and much more efficient in promoting
child welfare, reducing economic and other inequalities, mitigating the climate and other
ecological crises, protecting non-humans, and building democracy, than their alternatives.


                                              KEYWORDS
            Constitutional Law; Public Policy; Grundnorm; Zero Baseline Model; Family Planning


                                         TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   49
Background and the Limits of Human Cognition         .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   54
The Zero-Baseline Model . . . . . . . . . . . . .    .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   58
The Praxis of Constituting . . . . . . . . . . . .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   70
Conclusion . . . . . . . . . . . . . . . . . . . .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   75



                                                   48
2021]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                      [Vol. 6:1


        INTRODUCTION

This paper will invert what is commonly seen as an act of self-determination by parents,
procreation, to reveal instead its true nature as an act of other-determination, on a
massive scale more determinative of the future child’s life and the communities future
children will comprise than of the lives of the parents. This will lead to a revision of Hans
Kelsen’s Grundnorm theory, and in this revision, I will argue that polities, or ideally what
will be legalities, form dynamically from the inside out via the norm that determines
procreation, rather than I will argue that legalities form dynamically the norms which
determines procreation from inside-out, rather than through traditional outward-facing
borders defined by traditional Constitutions and defended by violence.                                     We are
constituting, not constituted, in the past. Or if put another way, the creation norm
always precedes and overrides other norms which are wrongly perceived to be more
fundamental, including rules of rec ognition and other seemingly constitutive norms.
The practical revisions in law and policy to correct what we perceive to be fundamental
will entail a special form of liberation. This revision raises key questions in the formation
of any conception of liberal governance: If governance should create morally valuable
options while treating all equally, must family planning systems be designed to give all
kids a fair start in life, eliminating the arbitrary impacts of nurture that procreative
autonomy would impose on future generations? Does that process include an ecological
baseline, such that the future generations can self-determine free of all forms of
oppression – including climate change – imposed by prior generations? Can states
intervene in family planning decisions, as a matter of enforcing a peremptory norm and
a child’s human right to a fair start in life, to assure this? This revision is offered to
inform the process, and to reverse a common misperception about what actions are
personal versus interpersonal in nature in the context of procreation. That reversal
could raise an impossibility theorem: That there is no way to make sense of liberation,
empowerment, obligation, the rule of law, or legitimacy without accounting for the
creation of persons, oriented from the zero-baseline discussed below, and determining
how objective values in that process will inevitably enable or disable subjective choice.
            In philosophy and law, the most basic norm, or Grundnorm, is usually assumed to
be the superior norm guiding human behavior from which all inferior norms are
derived.1 That is incorrect. The fallacy is based on a series of mistakes, described in more


1
    See, e.g., Stanley L. Paulson, The Neo-Kantian Dimension of Kelsen’s Pure Theory of Law, 12 OXFORD J. LEGAL STUD.
    311 (1992); Brian H. Bix, Kelsen, Hart, and Legal Normativity, 34 REVIJA ZA USTAVNO TEORIJO IN FILOZOFIJO PRAVA
    [REVUS J. CONST. THEORY & PHIL. LAW], 25 (2018) (Spain); HANS KELSEN, REINE RECHTSLEHRE: EINLEITUNG IN
    DIE RECHTSWISSENSCHAFTLICHE PROBLEMATIK [PURE LEGAL DOCTRINE: INTRODUCTION TO THE LEGAL PROBLEM] (F.



                                                          49
                                 CONSTITUTING OVER CONSTITUTIONS


detail below.2 Instead, the most basic norm is that which ought to account for the
creation of humans, or the creation norm. This is the norm that frames—in the realm of
human rights—population ethics, going beyond quantities of persons and maximizing
economic growth to deal with the unavoidable qualities, relative positioning of persons,
relation of persons to their ecologies, etc., as we constitute legalities.3 It is lexically
primary human right and correlative duty, the first and constantly recurring duty we
face, as we reconstitute ourselves through children.                      If population ethics is about
counting people, then the form referred to as constituting herein is about making people
count – which is perhaps the core commitment of liberalism.
          The mistake of not seeing the Grundnorm as creation norm is impeding
family-planning policy reforms that are ten to twenty times more effective than their
alternatives at promoting child welfare, reducing economic and other inequalities,
mitigating the climate and other ecological crises, protecting non-humans, and building
democracy.4
          This inquiry began during the development of the deontological framework for
population ethics and policies, as part of the Population Ethics and Policy Research Project,
within the Future of Humanity Institute at Oxford University in 2014. The inquiry and
the claims in this essay can be thought of in these simple terms: The fundamental idea
of liberalism and the advent of human rights and democracy all rested on the necessary
condition of people capable of self-rule, people who differed sharply from one another
at the time, those born and raised under the preceding ideologies. Where did these new
people come from? This essay will argue that, for the most part, they have yet to appear
on earth.5


  Deuticke ed., 1934); Miriam E. Oatman, General Theory of Law and State by Hans Kelsen, 40 AM. POL. SCI. REV.
  131 (1946).
2
  See infra Part I.
3
  See “How Important Is Population Ethics?”, Practical Ethics (blog), http://blog.practicalethics.ox.ac.uk/2014/1
  0/how-important-is-population-ethics/.
4
  Matthew Hamity et al., A Human Rights Approach to Planning Families, 49 SOC. CHANGE 469 (2019); Editorial,
  Population Growth and Climate Change, 337 BMJ (2008), https://www.bmj.com/content/337/bmj.39575.691
  343.80.      M. Greenstone, A Looney, J Patashnik, and M Yu, Thirteen economic facts about
  social mobility and the role of education, Brookings Institution website, available at:
  https://www.brookings.edu/research/thirteen-economic-facts-about-social-mobility-and-the-role-of-ed;
  John Guillebaud, There Are Not Enough Resources to Support the World’s Population, Ockham’s Razor with Robyn
  Williams website, available at: https://www.abc.net.au/radionational/programs/ockhamsrazor/there-
  are-not-enough-resources-to-support-the-worlds-population/5511900 published June 10,                       2014;
  Smaller families mean better lives for all.                Population Matters website.            Available at:
  https://populationmatters.org/smaller-families. Accessed February 12, 2020; Paul A. Murtaugh &
  Michael G. Schlax, Reproduction and the Carbon Legacies of Individuals, 19 GLOB. ENV’T CHANGE 14 (2009);
  “Having Kids White Paper”, Having Kids website, https://havingkids.org/faqs/white-paper-draft/.
5
  The inquiry could also be stated this way: What is the state’s interest in procreation? The answer disposes
  of the artifice of the state and becomes simply this: Being free and equal people.


                                                       50
2021]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 6:1


This essay will describe the creation norm as a simple scale (0, 1, 2, . . .) in which: (1) all
subsequent things being equal, self-determination should fall and being determined by
others should rise, in linear form (given the political equality of persons), as people join
the relevant polity (or “legality”, more accurately), which exists against a baseline of
non-polity (or point zero).             (2) Self-determination is maximized through unique,
temporalized, and interlocking values as well as specific thresholds for the quantity,
qualities, relative positioning of persons to one another and their ecologies, and
formation of new legalities, described in detail below. These values and thresholds orient
around zero as a balance point (for example, the baseline deviation of which is causing
harms like climate change and induced a shortening of pregnancies6 ). These values and
thresholds represent the objective frame that makes subjectivity possible and are an
ideal balance between group security and personal independence.                            (3) Persons are
positioned to convert the influence of others into norms through consent, i.e., we can
imagine the positioning of the antecedent and decentralized “we” group of free and
equal persons,7 the reference to which expressly or implicitly initiates and justifies
modern Constitutions as in “we the people”. This means that, consistent with point (1)
above, legalities become increasingly illegitimate8 because self-determination and
personal sovereignty should give way to being determined by others, and the consent to
others’ power—and hence inclusive normativity—become increasingly impossible. (4)
Concentration of power in extant persons and institutions is transferred to future
generations, to make them a sufficient antecedent group, or “we the people” in quantity,
quality, and relative positioning as they enter the legality.9
          The norm maximizes consent by balancing the positive freedoms to morally
valuable options in life that come with children’s development and increased roles in
self-governance, with the negative freedom of smaller and decentralized legalities and
the restoration of nature.10 It re-orients our current systems of socially and ecologically
unsustainable human rights which give would-be parents the unfettered right to

6
   See, e.g., “Many pregnancies are shorter as climate change causes more 90-degree days”, UCLA Newsroom
   (blog), https://newsroom.ucla.edu/releases/shorter-pregnancies-climate-change.
 7
   This differs from Rawls and others’ original positions approach. See Richard Dworkin, The Original Position,
   40 UNIV. CHI. L. REV. 500 (1973).
 8
   For a more traditional take on illegitimacy see CARL SCHMITT, LEGALITY AND LEGITIMACY (Jeffrey
   Seitzer trans., 2004); see also, “Legal Theory Lexicon:             Legitimacy”, Legal Theory Blog, at
   https://lsolum.typepad.com/legaltheory/2018/05/legal-theory-lexicon-legitimacy.html.
 9
   See GARY S. BECKER, A TREATISE ON THE FAMILY (2nd ed. 1991) (“[T]he interaction between quantity and
   quality explains why the education of children, for instance, depends closely on the number of children”.);
   Susan J. G. Alexander, A Fairer Hand: Why Courts Must Recognize the Value of a Child’s Companionship, 8 T.M.
   COOLEY L. REV. 273, 302 (1991). (“[W]hen people have fewer children, the value of each individual child
   increases enormously. Parents are willing to spend more on each child, e.g., by investing more in each
   child’s training”.).
10
   See Hamity et al., supra note 4.


                                                      51
                                CONSTITUTING OVER CONSTITUTIONS


proliferate, and would give future children have no right to guaranteed levels of welfare
at birth, and would give humans no right to nature.11 The norm pushes in the opposite
direction of recent and blatant pro-natal moves by many governments to maintain
population-driven economic growth despite the fact that it exponentially increases
climate and other ecological impacts.12 Thus, this norm is a necessary condition for any
conception of human freedom, which makes the conception (4) dimensional, reforming
former and relatively static conceptions, like Isaiah Berlin’s.13 Freedom, in this sense,
could be better referred to as our natural sovereignty; it values people, makes people
count or matter, and extends liberalism beyond the state–subject paradigm to protect us
from one another at an irreducibly fundamental level.
          This essay refers to the creation of norm—which tries to constantly reconstitute
the ideal antecedent “we”—as the “zero-baseline model”, or “constituting”, as in
“constituting an inclusive legality”, as opposed to the relatively static, top-down, and
enforced concept of a modern nation-state’s constitution. Legitimacy derives from
people, and people derive from the creation norm—that is the value and nature of
constituting, as opposed to some historical document disconnected from the people to
whom it refers. No country is constituted; if we take human rights and democracy
seriously, there are groups of people who are either constituting or de-constituting
relatively legitimate or illegitimate societies,                  or relatively consensual social
organizations that are more or less         legalities.14   Constituting, in this sense, means moving
beyond being a people for whom a cessation of violence and settling of property rights in
a top-down state structure suffices as freedom and toward being a people physically
constituted into consensual and normative communities of free and equal people.
          Through the lens of the zero-baseline model, things like the climate crisis and its
impact on self-determination might take on a new significance, as we are forcibly
subjected to the threatening power and influence of others. Things like recent pro-natal
legislation in the United States, which will continue to exacerbate the crisis, also take on
new meaning.
          The creation norm has never existed in positive law or been practiced. Had it
been, the world would look nothing like it does today. This essay will argue that the
11
   See Carter Dillard, Comprehensive Animal Rights, Having Kids website, https://havingkids.org/comprehensive-
   animal-rights/.
12
   See Dylan Matthews, “Mitt Romney and Michael Bennet just unveiled a basic income plan for kids”, Vox
   (blog), https://www.vox.com/future-perfect/2019/12/16/21024222/mitt-romney-michael-bennet-basic-
   income-kids-child-allowance; and Jeff McMahon, “The World Economy Is a Pyramid Scheme”, Forbes, April
   5, 2019, at https://www.forbes.com/sites/jeffmcmahon/2019/04/05/the-world-economy-is-a-pyramid-
   scheme-steven-chu-says/.
13
   See ISAIAH BERLIN, LIBERTY (2nd ed. 2002).
14
   For a take on legality moving in this direction see SCOTT .J. SHAPIRO, LEGALITY (2011).


                                                     52
2021]                                   UNIVERSITY OF BOLOGNA LAW REVIEW                [Vol. 6:1


creation norm is that which constitutes legalities, or legitimate social organizations, and
if what this essay argues is true, the world remains in pre-constitutional states of
illegitimacy. Establishing the norm as the foundation from which future generations are
created, legitimating all forms of social organization would require radically rethinking
population ethics, law, and family-planning systems from their current trajectories.
             Establishing the norm would require moving from a subjective norm that
protects what parents want, to an objective “child-centric” norm that prioritizes what
children need (because having a child is more of an other-determining than a
self-determining act), using the specific values and thresholds referred to above, for
their creation. The shift would require recognizing the creation norm as a peremptory
norm in international law and embracing it as a socially and ecologically
regenerative—and hence central organizing principle—for new policies that could prove
ten to twenty times more effective at mitigating the climate crisis, restoring our ecology,
improving child welfare, reducing economic equality and building democracy than
current policies.15             The transition to this norm essentially entails us becoming
sufficiently other-regarding, or child-centric, to reconstitute our polities into legalities,
by changing the way we “make” people.
             What does the transition look like in practice, and how feasible is it? In short, the
transition involves a significant and worldwide transfer of resources—treated as
fundamental decentralization of public and private power in the form of substantial
future child entitlements that will merge the economic margins of rich and poor (or
more accurately powerful and powerless)—in order to incentivize changes in the way we
plan our families and have children. Given the current distribution of resources, the
malleability of family-planning decisions, current fertility rates, shifting gender
dynamics, the threat of the climate crisis, and the way the zero-baseline model unifies
the many generations of human rights, liberalism, communitarianism, etc., this shift is
feasible.
             This essay will lay out the zero-baseline model and the assumptions it is based
on and will begin to spell out a system and discourse for the model’s implementation in
law and social praxis, including its potential role in specific campaigns developing
international law and in pending federal climate litigation and proposed federal and
state child welfare legislation in the United States. While the model is discussed in the
familiar context of nation-states, it can be applied to the dynamics of any grouping of
persons and forms of power (e.g. exemplification) that influence upon and within those
groups.
15
     See Hamity at al., supra note 4.


                                                       53
                                 CONSTITUTING OVER CONSTITUTIONS


If there is one thing this essay should convey, and especially at the discussion of
“pregnant pronouns” and the lesser power asymmetry below, it is that the way most of
us experience and react to power is myopic, temporally and otherwise, and that we are
capable of instead more broadly comprehending the dynamic social ought of
constituting legitimate societies. Attacking the pregnant pronouns in any normative
claim, with questions about how the claimant is accounting for values like wellbeing,
equity, nature, and democracy in the creation of the persons to whom the pronouns
refer, seriously problematizes the claims.




      BACKGROUND AND THE LIMITS OF HUMAN COGNITION

As discussed above, creating a comprehensive liberal normative system, like a
human-rights-based democracy,16 would first require an antecedent norm that accounts
for the creation of the system’s members, the relations between them, and the degrees of
power or influence (as opposed to specific forms of power or influence, like violence)17
they would exert upon one another. And, as discussed, this norm does not exist for many
reasons and may have never so-far existed.18 These reasons include a series of mistakes
in the development of liberalism in addition to the cognitive challenges discussed below.
          This essay will not discuss these mistakes in detail, which are covered in a
companion article.19          In short, liberal theory and practice (1) conceived power too
narrowly, focusing on forms like violence, and ignoring subtleties like the conditions of
child development and anthropogenic impacts on our ecology; (2) never seriously
accounted for the birth of persons into the social contract and the way they inevitably
exclude others from their sovereign role in that contract; (3) never seriously accounted
the need to ensure that all persons are capable of being emancipated, or actually capable
of participating in a social contract; (4) made the order error of conceiving freedom in

16
   See MARY ANN GLENDON, A WORLD MADE NEW: ELEANOR ROOSEVELT AND THE UNIVERSAL DECLARATION OF HUMAN
   RIGHTS (2002).
17
   “Power” or “influence” here is conceived of simply as a degree of any effect, consequence, influence, result,
   etc., the cause of which is a human. This includes the sort of subtle effects that collectively caused the
   climate crisis. That crisis threatens political structures, as well as our species, in ways never seen before,
   and it is proof that more-narrow conceptions of power—as authority, violence, control, etc.—should now be
   seen as dangerously myopic and as tied into the psychological limits of the way humans perceive. Power is
   about the capacity of each person to influence, and, therefore, it is about each person’s presence. Alexander
   Barker, St. Benets, University of Oxford, “What is Power?” (unpublished manuscript, Word file).
18
   SARAH CONLY, ONE CHILD: DO WE HAVE A RIGHT TO MORE? (2016); Carter Dillard, Antecedent Law: The Law of
   People-Making, 79 MISS. L. J. 873 (2010).
19
   Carter Dillard, Illegitimacy, Willamette L. Rev., Forthcoming Spring 2020.


                                                       54
2021]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 6:1


terms of what people can do without first accounting for who people are and first relate,
in terms of their quantities, qualities, relative positioning, etc.; and (5) tried to seed an
ideology of human liberation from a completely antithetical position: that of parents’
property rights in their future children.20 Perhaps the biggest mistake in all of this was
relying on social processes, e.g. courts’ interpretations of traditional constitutions, to
subvert the Grundnorm. That is an order error; there is no social source or process that
precedes the norm itself. Understanding that means taking rights seriously.
          The absence of a theorized creation norm may account for the key conundrum in
liberalism today: The average person has little influence over the forms of human power
that influence him or her, like climate change and other environmental crises, global
markets, risk of nuclear war, etc. A person most often lives under compulsory norms and
social forms that do not reflect his or her deliberate input and will. How is that possible
in an era defined by the supposed rise of human rights and democracy, which, by any
interpretation, was meant to empower individuals and make them self-determining?
          Could the absence of such a creation norm be accounted for by limits on human
cognition, our temporal myopia, our tendency to notice and focus on obvious forms of
influence, like violence, over subtle ones like greenhouse-gas emissions?
          Accounting for political obligation and autonomy by temporally accounting for
all the people with potential to influence our lives, in a world of close to 8 billion people,
is not something our human brains can easily perceive.21 The dynamics of autonomy and
self- versus other-determination in this sense, or the temporalized presence and
interaction of the actual people in the social contract are not things we normally
comprehend. Human brains readily focus more on the symbols of that power and
contract, our elected representatives, the words of an ancient and property-based
constitution,22 and violence and the threat of violence from law enforcement than
focusing on the myriad ways we influence and define—and thereby limit—the lives of
persons who do not yet exist.23 We are more apt to see freedom in a myopic and
downstream way (as exemplified by the notion of procreative autonomy), as if freedom



20
   Id.
21
   Darrell A. Worthy, A. Ross Otto and W. Todd Maddox, Working-Memory Load and Temporal Myopia in Dynamic
   Decision-Making, 38 J. EXPERIMENTAL PSYCH.: LEARNING, MEMORY, AND COGNITION 1640 (2012); Bruno Goncalves,
   Nicola Perra, and Alessandro Vespignani, Validation of Dunbar’s Number in Twitter Conversations, arXiv (2011):
   arXiv:1105.5170v2. The birth and development of humans—qua the addition of new members of a liberal
   normative system contingent on particular ecologies—simply happens too slowly and amorphously for
   humans to readily perceive and account for.
22
   Carter Dillard, Future Children as Property, 17 DUKE J. GENDER L. & POL’Y 47 (2010).
23
   PHILIPPE JULIEN, JACQUES LACAN’S RETURN TO FREUD: THE REAL, THE SYMBOLIC, AND THE IMAGINARY (1994); Id.;
   Dillard, supra, note 18.


                                                       55
                                    CONSTITUTING OVER CONSTITUTIONS


were some sphere that magically separates us in time and space from the rest of the
universe.24
           This temporal error,25 i.e., the difficulty of even conceiving of future humans,
goes both ways: humans fail to account for how behaviors today determine the future as
well as how social position or class is determined by past events. And that temporal error
leads to a spatial one, a myopia, exemplified by H.L.A. Hart’s famous statement of the
basis for choice-rights theory (and a basis for many subsequent free-market theories and
policies).26 Hart’s theory of choice-based rights begins with a minimal and subjectivist
moral account of rights:

             [I]f there are any moral rights at all, it follows that there is at least one
             natural right, the equal right of all men to be free. The moral justification
             [for the right] does not arise from the character of the particular action to
             the performance of which the claimant has a right; what justifies the claim is
             simply—there being no special relation between him and those who are
             threatening to interfere to justify that interference—that this is a particular
             exemplification of the equal right to be free.27

           Hart’s account is myopic. How did the actors in this scene get to where they are?
What is the context, historically, that accounts for their interaction? What form of
limiting social organization has surrounded them and surrounds them now?28 What
accounts for any difference in the levels of influence they have over each other in that
instance?        This myopia has affected modern political discourse in what Nagle and
Murphy called the “myth of ownership”, or the perception that property rights and
social positioning are naturally occurring phenomena,29 as is an expectation that the
state exists to protect them (through violence). Is there any reason to institutionalize
this myopic notion of freedom as a value?30
           The zero-baseline model tries to account for these errors in the way humans
perceive and process information about their environment and that interfere with
24
   Joseph Raz, The Morality of Freedom (1986).
25
   Worthy et al., supra note 21.
26
   See Walter E. Block, Private Property Rights, Economic Freedom, and Professor Coase: A Critique of Friedman,
   Mccloskey, Medema, and Zorn, 26 HARV. J. L. & PUB. POL’Y 923,951 (2003).
27
   H. L. A. Hart, Are There Any Natural Rights?, 64 PHIL. REV. 175,191 (1955).
28
   Planned Parenthood v. Casey, 505 U.S. 833 (1992); Washington v. Glucksberg, 521 U.S. 702 (1997).
29
   LIAM MURPHY & THOMAS NAGEL, THE MYTH OF OWNERSHIP: TAXES AND JUSTICE (2002).
30
   See Philip Pettit, The Instability of Freedom as Noninterference: The Case of Isaiah Berlin, 121 ETHICS 693,716 (2011).
   To Raz and Pettit’s critique, the zero-baseline model simply adds this: any sense of personal autonomy is
   an illusion that ignores the norm or norms which created the person in question and surrounds him or her,
   and his or her future, with other persons. The antecedent and external autonomy defined by the people
   with whom we share the world encompasses any subsequent and internal autonomy, or “personal sphere”,
   we may misperceive as the exclusive form of autonomy.


                                                           56
2021]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                        [Vol. 6:1


achieving liberalism.31              The model requires and uses novel concepts, like the
temporalizing verb-form conception of “constituting”, as opposed to the noun-form
conception of a “constitution”, which will be unfamiliar to the reader, but are explained
below, are necessary to account for the model of intergenerational consent and
self-determination advocated for here.                    The model involves other concepts, like a
spatial-temporal border that seeks to account for all ways humans might influence one
another, as well as a duality, or pincer, described below, in which a non-human-centric
ecological ethic is paired with a child-centric family-planning model.32
           This missing antecedent norm, or creation norm (Grundnorm33 ), or the
“zero-baseline model”, could hold the key to solving the conundrum and ensuring the
special form of political evolution—the dynamic balance between community and
autonomy—that liberalism always promised. The zero-baseline model contributes to the
fields of population ethics, biopolitics, and legal theory by offering a new and
comprehensive deontological framework, baseline, or point of orientation for
evaluation,34 discourse, praxis for family-planning and population policy reform that
would be ten to twenty times more effective35 at mitigating climate change, eliminating
child poverty, improving economic inequality, and reaching other sustainable
development goals than downstream approaches (i.e., norms that address behaviors
after the creation of persons).36 The model will be presented as a necessary, but not
sufficient,      condition of any reasoned conception of political obligation and
self-determination/autonomy, and hence liberty and freedom.37




31
   See “What Is the Zero Baseline Model”, available at https://fairstartmovement.org/what-is-zero-baseline-
   modeling-or-constituting-in-politics-and-law/.
32
   See Dillard, supra, note 11.
33
   Contrast traditional but relatively downstream conceptions of the Grundnorm.See HANS KELSEN, PURE THEORY
   OF LAW (Max Knight trans., 1967); Juan Carlos Riofrío, Kelsen, The New Inverted Pyramid and the Classics of
   Constitutional Law, 7 RUSS. L. J. 87,118 (2019), https://doi.org/10.17589/2309-8678-2019-7-1-87-118; Kelsen’s
   Grundnorm was subsequent. What norm accounts for the presence of the people in Kelsen’s systems? What
   norm should that be? Would a Grundnorm be normative without accounting for and aligning the fundamental
   values described below?
34
   See Legal Theory Lexicon 066: Baselines, https://lsolum.typepad.com/legal_theory_lexicon/2008/05/legal-
   theory–2.html.
35
   Ibid., note 2.
36
   See The Fair Start Model of Family Planning, Having Kids website, accessed August 15, 2019,
   https://havingkids.org/wp-content/uploads/2019/05/FairStartModel2019-1.pdf.
37
    See Alex Cole, Topics in Political Theory: Is Freedom from Power Possible?, Discourses on Liberty (blog), February
   3, 2012, http://discoursesonliberty.blogspot.com/2012/02/is-freedom-from-power-possible.html.


                                                         57
                                  CONSTITUTING OVER CONSTITUTIONS


      THE ZERO‐BASELINE MODEL

The zero-baseline model works by revising the consent-as-justification theory38 of
political obligation and autonomy by temporalizing it, de-abstracting its spatial
component (accounting for actual people and their influence on the world), and
expanding its perspective by three hundred and sixty degrees to account for all human
influence.39 It does so by first treating the relevant borders of human influence as
starting at the pre-existence of future generations,40 and ending with the edges of extant
spheres of human influence.41
           The perspective this model requires envisions, a four-dimensional social
contract—or Grundnorm—requiring the consent or constructive consent of all extant and
future persons42 and thus, their integration into human-rights-based democracy. The
model accounts for the mutual consent between extant and future persons, through
those persons’ entry into, relationship to, norms of, and right to exit the
human-rights-based democracy.43                  In this model, humans come together in social
contract, constituting society from a state of nonpolity, thereby converting all actual and
potential human influence into law through the consensual integration of extant
persons. The model allows for the measuring and thus, the minimizing of the inevitable
and linear loss of political autonomy and self-determinability that comes from adding
new members to the human-rights-based democracy. It maximizes members’ consent to
the influence that results from the existence of the others.44 The model is antecedent, or
a Grundnorm, because it accounts for the capacity to influence simply by existing.
           Conceptualizing the model begins with a series of assumptions derived from the
conceptions of consent traditionally used in consent-as-justification theories.45 These
assumptions spell out the necessary conditions for the existence of consensual
38
   See Harry Beran, In Defense of the Consent Theory of Political Obligation and Authority, 87 Ethics 260 (1977).
39
   See supra, note 17, for definition of “influence”.
40
   See Matthias Doepke, Gary Becker on the Quantity and Quality of Children, 81 J. DEMOGRAPHIC ECON. 59 (2015). See
   e.g. Eric A. Hanushek, The Trade-off Between Child Quantity and Quality, 100 J. POL. ECON. 84 (1992).
41
   See Joel Feinberg, The Rights of Animals and Future Generations, in PHILOSOPHY AND ENVIRONMENTAL CRISIS 43
   (William T. Blackstone ed., 1974). Carter Dillard, The Primary Right, 29 PACE ENV’T. L. REV. 860 (2012). See also,
   ALAN WEISMAN, THE WORLD WITHOUT US (2007).
42
   Derek Parfit, Future People, the Non‐Identity Problem, and Person‐Affecting Principles, 45 PHIL. & PUB. AFF. 118
   (2017).
43
   Dillard, supra note 41.
44
   The model could be represented in this way: 0 is nonpolity, 1 is absolute political autonomy or the individual
   sovereignty, and >1 begins the social contract with varying levels of political obligation and autonomy,
   depending in part on the application of the Grundnorm, relative to 0. With the zero-baseline model, systems
   remain pre-constitutional because they cannot account for the paradox of maximizing autonomy through
   the integration and obligation that happens between 1 and >1, for example, at the level of the townhall
   meeting hypothetical discussed below. The model thus acts as a measuring stick for the antecedent
   conditions of political obligation and autonomy.
45
   See Richard Dagger & David Lefkowitz, Political Obligation, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY (2021).


                                                         58
2021]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                        [Vol. 6:1


identities,46 including the ways in which persons in a group themselves within society
(i.e., how they form, or “constitute”47 ). (The assumptions do not spell out the conditions
for what those identities subsequently do; they are assumptions simply about the
entities’ existence.) The model relies on the following assumptions:
     a. any theory of political obligation and autonomy must account for all forms of human
        influence, including the absence of human influence, or non-polity, as a point of
        orientation.48
     b. because we are before we do, the norm that creates us is lexically primary.49
     c. members of a human-rights-based democracy must be of certain constitutive
        quality,50 i.e., capable of consenting,51 reasonable,52 emancipated,53 able to
        communicate with each other at a constitutive level,54 etc.
46
   In case it’s not readily apparent, “consenting identities” refers to those people capable of consenting, i.e.,
   the actually emancipated adults, the adults who are at or above the constitutive quality threshold required
   to be met for membership into the society in the model.
47
   See “ Reframing Population and Family Planning to Focus on Justice”, available at https://fairstartmovemen
   t.org/reframing-population-and-family-planning-to-focus-on-justice/.
48
   See Carter J. Dillard, Rethinking the Procreative Right, 10 YALE HUM. RTS. & DEV. L. J. 1, 10 (2007). The interplay
   between population growth and nonpolity is what drove the need for government, according to Locke. Or, as
   may be the case, the government was created by self-interested elites, with its creation leading to population
   growth:
                The imperative of collecting people, settling them close to the core of power, holding
                them there, and having them produce a surplus in excess of their own needs animates
                much of early statecraft. Where there was no preexisting settled population that
                could serve as the nucleus of state formation, a population had to be assembled for
                the purpose.
   From JAMES C. SCOTT, AGAINST THE GRAIN: A DEEP HISTORY OF THE EARLIEST STATES (2017).
49
   See JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT (Erin L. Kelly ed., 2001).
50
   Some scholars have taken the perspective of current members and their willingness to admit and enter
   into contract with others, in some case with those who may be disabled or of another species. See, e.g.,
   MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP (2006). But what if
   the prospective members are not disabled or of another species but will simply lack some sort of minimum
   civic quality?
51
   Contrast this with the constructive consent of the new parties themselves (i.e., offspring). See, e.g., John
   Lawrence Hill, What Does It Mean to Be a “Parent”? The Claims of Biology as the Basis for Parental Rights, 66 N.Y.U.
   L. REV. 353, 384 (1991). (“[T]he procreative right arguably is contingent upon the constructive consent of
   the resulting child”.).
52
   See Marilyn Friedman, John Rawls and the Political Coercion of Unreasonable People, in THE IDEA OF A POLITICAL
   LIBERALISM: ESSAYS ON RAWLS 16 (Victoria Davion & Clark Wolf eds., 1999); see e.g., Carter Dillard, Empathy with
   Animals: A Litmus Test for Legal Personhood? 19 ANIMAL L. REV. (2012). Could certain meta-ethical positions,
   like subjectivism, be explained as simply lacking a constitutive perspective, and requisite qualities, like
   empathy? See also, Maxine Eichner, Who Should Control Children’s Education?: Parents, Children, and the State,
   75 U. CIN. L. REV. 1339, 1361 (2007) (describing why a democracy requires critical thinking in its citizens),
   at 1341; see also JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 260, 276 (2d ed. 2011); see e.g., JOSEPH RAZ,
   PRACTICAL REASON AND NORMS 144 (1975). Referring to the need for people of “sufficiently high quality” in
   democracies (quoting JOSEPH A. SCHUMPETER, CAPITALISM, SOCIALISM AND DEMOCRACY 290 (3d ed. 1950).).
53
   This term refers to a child we would accept into society who becomes mature enough to be considered
   an adult and who is free of the wardship of his or her parents. See DAVID ARCHARD, CHILDREN: RIGHTS AND
   CHILDHOOD (1993). Archard’s discusses that varying levels of peoples’ quality may be controversial, but that
   controversy disappears when parents are forced to explain why they put certain efforts (or any efforts) into
   rearing their children.
54
   For example, the United States Constitution says, “we the people”, and there is a common assumption that
   the whole document should represent a discourse all Americans can have. And this assumption includes in


                                                          59
                                 CONSTITUTING OVER CONSTITUTIONS


    d. the constitutive quality requirement must be a part of the model that creates a
        human-right-based democracy because it is preferable to exclude merely possible
        people rather than extant people.55
    e. each new member of a human-rights-based democracy is an equal individual
        sovereign who excludes (via things like majority rule) other members from the
        sovereignty equally,56 and must account for and consent to each new member’s
        capacity to influence, as well as their actual influence over themselves.57
     f. because each member of a human-rights-based democracy retains ultimate
        political authority, the first would-be members must (in what might be called the
        “first election”) constructively consent to become a new member of the
        democracy, consent to the addition of new members to the democracy, and must
        be free to reconstitute new human-rights-based democracies relative to the
        non-polity baseline.
    g. in an ideal human-rights-based democracy, the consensual addition of new
        members would be the only thing that reduces political autonomy and creates
        political obligation.58

These assumptions could be summarized more simply:                            there is no law without
obligation59 ;   no obligation without         consent60 ;   no consent without accounting for the
quantity, quality, and relative positions of the relevant entities; and no such accounting

   “all Americans” those Americans who are illiterate or who cannot read English; the Constitution is still a
   means of common communication.
55
   See Dillard, supra note 22. See also Santosky v. Kramer, 455 U.S. 745, 789 (Rhenquist J., dissenting):
                It requires no citation of authority to assert that children who are abused in
                their youth generally face extraordinary problems developing into responsible,
                productive citizens. The same can be said of children who, though not physically or
                emotionally abused, are passed from one foster home to another with no constancy
                of love, trust, or discipline.
   Consider John Stuart Mill’s take on the circumstances one is born into:
                Capacity for other nobler feelings is in most natures a very tender plant, easily killed,
                not only by hostile influences, but by mere want of sustenance; and in the majority of
                young persons it speedily dies away if the occupations to which their position in life
                has devoted them, and the society into which it has thrown them, are not favorable
                to keeping that higher capacity in exercise.
56
   Each member’s role in a democracy is, cetus paribus, inverse to the size of that democracy. See e.g., JEAN-
   JACQUES ROUSSEAU, ON THE SOCIAL CONTRACT 50-51 (Donald A. Cress trans., Hackett Publishing Company 1988)
   (1762) at 50-51. Note that equality and egalitarianism, in this formulation, can simply be explained as
   comprehensively accounting for power. Anything other than equality would require an explanation of the
   power differential.
57
   This assumption, and the constitutive quality assumption, may have been why Mill seemed to think that
   procreation violated the harm principle in many cases. See e.g., (Elizabeth Rapaport ed., Hackett JOHN STUART
   MILL, ON LIBERTY Publishing Company 1978) (1859).
58
   Among the ways we commonly otherwise reduce it: delegation of authority to representatives, the use
   of sanctions or incentives to ensure compliance with norms, tolerating power not accounted for by its
   conversion into law, etc.
59
   See generally H.L.A. HART, THE CONCEPT OF LAW (3d ed., Oxford University Press 2012) (1961).
60
   Contrast this with others’ take on the nature of law. See FREDERICK SCHAUER, THE FORCE OF LAW (2015).


                                                      60
2021]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 6:1


without nonpolity, or the relative absence of human influence. Thus, nonpolity (to be
contrasted with states of nature and original conditions in prior political-obligation
models)61 is the zero-baseline from which quantity, quality, relative positioning, and the
resulting loss of human autonomy must be measured; any other baseline would not be
comprehensive. Just as we use total darkness as the implicit baseline to determine how
bright a room is, we must use the total absence of human influence (nonpolity) to
measure the influence resulting from a person’s existence or actions.
          Given these assumptions, the Grundnorm (the constituting norm) is comprised of
four interdependent requirements: to minimize the loss of political autonomy in a human-
rights-based democracy, and hence maximize consent, integration, and justified political
obligation, would require, as a matter of lexical primacy, that (1) each new entrant be
of a minimum constitutive quality or capable of constituting with others, (2) that there
be a maximum number of members constituting the human-rights-based democracy, (3)
that they enter relative to each other so that they exclude equally,62 and (4) that they
are capable, given their quality, quantity, and relativity, of reconstituting their legalities
relative to some level of nonpolity.
          The existence of these four variables is inevitable in the act of procreating. The
Grundnorm, thus, necessitates backdating the standards, e.g., requiring conditions of
entry that ensure constitutive quality and emancipation,63 rather than ignoring entry
and subsequently excluding persons as insufficient in some way.
          This model would alter common approaches in fields such as population ethics64
that currently focus only on quantity and utility rather than accounting for the antecedent
factors at play when we account for the constituting norm.65
          The constituting norm changes our perspective.                      Instead of a quantitative
concept of population, the focus turns to the dynamic “we” that enables constitutions
and the many values which that thick concept66 implies. Instead of asking what role a
given population or quantity of persons plays in a particular outcome,67 e.g., the creation
of greenhouse gas emissions, we can begin to evaluate how the four variables have and
61
   See DAVID BOUCHER & PAUL KELLY, THE SOCIAL CONTRACT FROM HOBBES TO RAWLS (1994).
62
   For example, each person gets equal time to speak in the townhall hypothetical, infra.
63
   Locke’s infeasible solution was to prevent unreasonable people from ever leaving the wardship of their
   parents. See e.g., Dillard, supra note 48, at 40.
64
   What is being espoused here is to be distinguished from the field of philosophical inquiry currently known as
   “population ethics”, which is dominated by utilitarians and largely focuses on how population and welfare
   relate. Population ethics will partly determine what the substantive content of post-constituting law should
   be, but this article raises legal and political questions beyond population ethics.
65
   See generally Hilary Greaves, Climate Change and Optimum Population, 102 THE MONIST 42 (2019).
66
   See “Thick concept”, Wikipedia website, https://en.wikipedia.org/wiki/Thick_concept.
67
   See Paul R. Ehrlich & Anne H. Ehrlich, Population, Resources and the Faith-Based Economy: The Situation in
   2016, BIOPHYSICAL ECON. & RES. QUALITY, Aug. 2016, at 1, 3.


                                                      61
                                   CONSTITUTING OVER CONSTITUTIONS


will subject persons, who in liberal societies should be self-determining, to existential
threats created by others, or in other words, having their lives and futures so determined
by others.
           Note also how equality or fairness as a value, or being what Rawls called “free
and equal people” 68 is accounted for simply as a matter of power, or accounting for all
human influence relative to nonpolity or a zero-baseline. Any power differential that
would precede their coming together, or constituting, would mean we had not
accounted for all the power people have had over each other. When we do so from a
zero-baseline, we coincide with equality. Hence the phrase “free and equal” might
actually be redundant.
           This model uses eight ultimate and interdependent values (each of which can be
pegged to existing positive law standards)69 to set the minimum and maximum
thresholds for the quality, quantity, relativity,70 and nonpolity requirements. The model
is put into action, as discussed below in Part II, by using the values to restructure the
fundamental — and universal — human right to procreate as it currently appears in
ethics, law, policy, and praxis and gearing all family planning around the restructured
right.71 The model replaces the current value at the core of the structure of the right,
which is “procreative autonomy”, a contradiction in terms that beautifully exemplifies
human temporal myopia,72 and that seems to have been designed to alleviate collective
obligations to future children.73                How can the act of creating another person be
autonomous           and      self-determining,           as     opposed         to     inter-relational         and
other-determining?74 The mode replaces procreative autonomy with the eight values in
the Grundnorm.75
68
   Claus Dierksmeier, “John Rawls on the Rights of Future Generations”, in HANDBOOK OF INTERGENERATIONAL
   JUSTICE (2006).
69
   Backdating existing positive law standards can convince skeptics to accept the zero-baseline model, but
   these standards should not supplant our ideals when using the model to develop policies.
70
   That is, the relative position of the people created, for example, how they relate to each other in terms of,
   say, access to healthcare?
71
   See Dillard, supra note 48.
72
   See Martin Held, Sustainable Development from a Temporal Perspective, 10 TIME & SOC’Y 351 (2001).
73
   See Dillard, supra note 22. Parental procreative autonomy may also be a way in which parents’ guilt about
   having brought a being into existence who was bound to suffer and to die, experiencing harms that would
   not have befallen the being had he or she not come into existence, an existence that was solely created by an
   action of his or her parents. Some see this creation of life as unethical regardless of the child’s status, health,
   or place in the world. See DAVID BENATAR, BETTER NEVER TO HAVE BEEN: THE HARM OF COMING INTO EXISTENCE
   (2006).
74
   See Dillard, supra note 48.
75
    U.N. Secretary General U Thant famously stated that “the Universal Declaration of Human Rights describes
   the family as the natural and fundamental unit of society. It follows that any choice and decision with regard
   to the size of the family must inevitably rest with the family itself, and cannot be made by anyone else”. See
   also Proclamation of Teheran, Final Act of the International Conference on Human Rights, A/CONF.32/41
   at 3 (April 22 to May 13, 1968) (“Parents have a basic human right to determine freely and responsibly the
   number and spacing of their children”.). Thant’s statement makes no sense. The choice and decision should


                                                         62
2021]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                      [Vol. 6:1


Is there an analogy for this move? Speech norms (which are based on self-expression
rather than autonomy) are a much better model for the values that might underlie a
creation norm. Speech norms are also nuanced, with clear limiting duties, to ensure
human-rights-based democracies function.                      Why wouldn’t the creation norm that
preceded speech norms be as well?
           The values that comprise the Grundnorm, which try to maximize obligation and
autonomy through entry, role, and exit are the following: Treating procreation as the
improved continuation of the parent’s life (“improved continuity”, or I.C.),76 a minimum
level of welfare at entry, the nexus or zero-baseline point at which the values are first
determined, fairly defined by the welfare77 of other entrants (> M.W.(F)), a qualitative
threshold of a minimum quality of equitable individual sovereignty defined by the
standard for emancipation, or reason (> E); a quantitative threshold of a maximum
number of individual sovereigns defined by a minimum of individual sovereign roles in
their democracy (< R);78 and finally, a quantitative threshold of a maximum number of
individual sovereigns defined by nature (< N), the nexus or zero-baseline point or
balance point at which the values are last determined.
           The zero-baseline model can be illustrated and supports intuitions triggered by
examining the pronouns, which might be called “pregnant pronouns”,79 in any abstract
normative claim. The claimant should be asked to de-abstract their usage, which will be
relatively contextual and atemporal to specify the people to whom the pronouns refer,
taking into account (1) the dynamic nature of those pronouns (temporalizing them to
account for various relevant slices of time, using the preexistence and nonpolity borders
discussed above), (2) the quantity, quality, and relative positions of the people in those
pronouns, and (3) the relation of those people to their physical environment or relative
states of nonpolity. Requiring temporalizing and specification should (1) require the

   follow a norm that is consonant with the declaration and as such should reconstitute human-rights-based
   democracies, a third form of social organization, beyond families and the state, that Thant may not have
   been able to envision.
76
   See Tehran Proclamation; See Carter Dillard, Valuing Having Children, 12 J. L. & FAM. STUD. 151 (2010) (arguing
   that rather than procreative autonomy, the objective value at the base of the right to procreate is the values
   of continuing one’s life, but making it better). Improving continuity, as a value, structures the relationship
   between constituting, eugenics, and what might be called “euphenics” in a neologism. In short, the three
   overlap.
77
   Despite the political framing of the model, this value is highly material because humans use objects to orient
   their relations with one another. See Julien, supra note 23; see also Dillard, supra note 22. The unique position
   of homeless persons is a poignant example of this. We identify, categorize, and treat them differently based
   on the specific form of property they lack.
78
    The model, especially through the value of one’s individual sovereign role, implies a fundamental human
   right to be heard and to matter and a correlative duty to listen. Ideally our dominant norms, or laws, are
   normative because they reflect our input and, as such, our consent.
79
    See, e.g., https://havingkids.org/what-are-pregnant-pronouns-the-key-to-a-better-future-and-consensual-
   and-legitimate-governance/.


                                                        63
                                   CONSTITUTING OVER CONSTITUTIONS


claimant to move toward the zero-baseline model in the specification or the
contextualizing of claims (contravening commitments to things like procreative
autonomy80 or representative democracy) and (2) insisting the claimant prioritize
applying the model before making his or her initial claim as a necessary condition and a
more effective means of achieving his or her outcomes.
           After defining the pregnant pronouns, we can begin to sharpen the impact of
specification and measure the loss of political autonomy by examining the pregnant
pronouns for what might be called the “lesser-power asymmetry”. In the ascertainable
set of persons to whom the pregnant pronoun is referred, can we identify persons that
the claimant, after careful consideration of commitments might be making in their claim
or elsewhere, be required to exclude from the set of persons to which they are referring?
Through the discourse and by examining the claimant’s own behavior relative to the
eight values in how she or he constitutes and reconstitutes her or his various social
groups, are there people the claimant would not reasonably trust with a particular
power, duty, privilege, etc., upon which their claim relies and that is implied in it?81
Moreover, is that particular power, duty, or privilege one that is lesser, included in the
set of powers, duties, privileges, etc., in those granted by membership in the
human-rights-based democracy? If we do not trust our fellow citizens with custody of
our children, why do we elect them in the first election of citizenry,82 i.e., trust them in
the democratic rule-making process?
           In other words, by generalizing about the actual persons in our normative claims,
we allow ourselves to ignore the actual implications of their quantity, qualities, relative
positioning, and positioning relative to their ecology. Pushed to actually specify, we will
find the pregnant pronouns are often the key variable in our claims and are not who we
need them to be. Moreover, when we look at the asymmetry of how we would exclude
people from lesser-included powers that those excluded people should have as members
of whatever democracies we share, we find disturbing things about our own place in those
democracies.
           How can we account for that asymmetry?                          One answer could be that the
human-rights-based democracy either excludes all members equally from their
sovereign role, in a variety of ways (crowding out voices and the value of each vote, the
use of representatives, the use of procedural limitations, etc.) or does so in ways that
exclude some more than others. In other words, we tolerate sharing our democracies
with people whom we don’t really trust, because neither they, nor we, play a role in the
80
   See Sarah Conly, supra note 18.
81
   See Wesley N. Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L. J. 16 (1913).
82
   See Dillard, supra, note 19.


                                                          64
2021]                          UNIVERSITY OF BOLOGNA LAW REVIEW                                 [Vol. 6:1


democracy, or because we believe we can exclude those persons from any role while
maintaining our own. The presence of those persons who we would exclude from the
lesser rights but not greater rights drives home the point: we disempower or are
disempowered by others.83
          The pregnant pronouns and lesser-power asymmetry, as well as concepts like
constituting, integrating, and constitutive identities help overcome the cognitive
dissonances and other limitations on how we perceive and process information by
pushing us toward what might be called a “liberal” or “constituting” perspective. That
perspective simply requires accounting for the people who influence and thus have
power over your life. But unlike Rawls’ model, wherein a particular perspective or sense
of justice was a precursor of being reasonable,84 this constituting perspective
comprehensively accounts for how those people, and hence their forms of organization
and normativity, came to be and are coming to be. The lesser-power asymmetry forces
us away from seeing future children as economic persons,85 whose creation is geared
around filling shopping malls, toward whom it would be necessary for the functional
town hall that precedes and regulates the shopping mall. Contrary to Rawls, from this
perspective, future generations are not some amorphous entity, they are instead a
vulnerable class of people to be protected by the sort of concrete policies and praxis
described below.
          Five additional aspects of the model are worth noting.
          First, the values and dynamics addressed by the model apply to any social
grouping and system of norms. We should resist the tendency to think in the framework
of existing nation states, though that framework will be useful for the praxis and policies
that will implement the model.
          Second, the zero-baseline model, or constituting and integrating Grundnorm,
requires the explicit decentralizing of power—in its many forms—into future
generations. For instance, the California Legislature could enact statutes that require
persons with an amount of wealth above a certain threshold to pay the State, in the form
of a tax, money that will then be used for “baby bonds”, in which low-income babies
receive a set amount at birth and more each year. Such “baby bonds” would transfer
power (in the form of wealth) to those born without power. Under this scheme, existing


83
   Obviously, this is a way of demonstrating the differences in the world today between pre-constitutional
   systems and an ideal human-rights-based democracy in which the consensual addition of new members
   would be the only thing that reduces political autonomy.
84
   See Friedman, supra note 52, in AUTONOMY, GENDER, POLITICS, ch. 8 (2003).
85
   See generally Having Kids, letter, https://havingkids.org/wp-content/uploads/2019/07/Wajahat-Ali-letter-
   final.pdf.


                                                    65
                                 CONSTITUTING OVER CONSTITUTIONS


power is decentralized into future generations and allows the entry (via birth) of a baby
in a low-resource family to meet the consent requirement for all relevant entities.86
          Third, although the model may look minimal, it is merely initial. It is limited to
the distinct work of accounting for constitutive identities, rather than accounting for what
they subsequently do.
          Fourth, zero-baseline modeling and the internationally coordinated intensive
family-planning interventions it requires was not feasible until recently and certainly
was not at the mid-millennial advent and early development of liberalism. Humans
simply did not have the international law,87 reproductive technology,88 knowledge of
child development, rise of gender equity, etc., necessary for this modeling. But there are
many pressing consequential reasons (beyond the sufficient reason of legitimating our
human-rights-based democracies with a Grundnorm), including climate change, rising
inequality, the need to meet sustainable-development goals, rising automation of labor,
the rapid development of gene-editing technology—for why we should implement this
model today.
          Last, from the constitutive perspective, hierarchy, in any form, including
representative democracy or celebritism,89                       may be accounted for as the
pre-constitutional and de-constituting normative push in directions away from the
zero-baseline model and its values. Social hierarchy is the institution of the chaos and
cacophony that invites top-down solutions and orientation around objects rather than
interpersonal relations between free and equal subjects.90 The hierarchists will use
de-constitution to make orienting from the liberal or constitutional perspective
infeasible, while also propagating Hart’s illusion of autonomy, because it supports their




86
   See “The Right to Have Children”, Having Kids (blog), available at https://havingkids.org/wp-content/uplo
   ads/2018/06/The-Right-to-Have-Children-What-is-the-best-account-and-how-do-we-implement-it-in-law
   -and-practice.pdf.
87
    Consider how foreign threats have justified things like pro-natalism and other degradations of democracy.
   https://www.independent.org/pdf/tir/tir_20_02_03_howden.pdf. Pre-constitutionalism abroad, as an
   existential threat, justifies pre-constitutionalism at home. But what if we could apply the model universally,
   targeting pre-constitutionalism everywhere, in ways the world could not in the early days of liberalism?
88
   See generally https://www.nature.com/articles/d41586-019-01906-z. Could we realistically control things
   like human gene editing in a top-down fashion, or does the history of things like the enforcement of abortion
   prohibitions show the need for a truly integrated norm?
89
    “Celebritism” refers to the political commitment of celebrities. Lena Partzsch, The Power of Celebrities in
   Global Politics, 6 CELEBRITY STUD. 178 (2015).
90
   See Julien, supra note 23.


                                                       66
2021]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                     [Vol. 6:1


hierarchy, or what some call a population pyramid Ponzi scheme.91 As a result, subjects
become lost in a sea of people.92
           The lived experience of political obligation, autonomy and a reconciliation of
seemingly conflicting fundamental modes of positive communitarian freedom and
negative liberal freedom could come in the dynamism of the values that compose the
zero-baseline model.           The model is essentially emancipatory, aligning the positive
freedom to and the negative freedom from with the emancipation that comes from a
spatial-temporal model that maximizes universal consent.
           To illustrate, we can apply the thresholds described above to a simple hypothetical
of the scenario that must precede all liberal collective action (including the decision to
minimize the collective and separate off into a free-market or comparable system): A town
hall meeting in which members of the town must agree on a plan.
           In this scenario, each additional member that joins the town hall meeting
excludes other members, e.g., through time at the podium, of the possibility that the
plan will reflect the will of another. That inevitable exclusion is reduced or exacerbated
contingent upon the constitutive qualities of each member and whether they are
reasonable, e.g., respecting limits on their time at the podium, calling for an
unreasonable plan, etc.93 Whether the town hall meeting actually involves free and
equal people engaged in collectively making the rules under which they will live,
depends on the relative positioning of the members to each other and the power
differentials that existed before they entered the meeting. It also depends on the
relation of the members to the natural ecology surrounding the process (e.g., are
members preoccupied with some existential ecological crisis?). As the town grows, a
negative feedback loop (a self-exacerbating collective-action problem) develops, with
each member having less of a role and less incentive to have a role as the learned
helplessness of being lost in the crowd sets in.94                    The speed with which that loop
develops depends on the quantity, qualities, relative positioning of the members to each
91
   See Jeff McMahon, The World Economy Is A Pyramid Scheme, Steven Chu Says, Forbes, April 5, 2019,
   available at https://www.forbes.com/sites/jeffmcmahon/2019/04/05/the-world-economy-is-a-pyramid-
   scheme-steven-chu-says. See also, Santosky v. Kramer, 455 U.S. 745, 790 (1982) (Rehnquist, J., dissenting)
   (“Few could doubt that the most valuable resource of a self-governing society is its population of children”.);
   Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (referring to education as “perhaps the most important
   function of state and local governments”); Prince v. Massachusetts, 321 U.S. 158, 168 (1944) (“[D]emocratic
   society rests, for its continuance, upon the healthy, well rounded growth of young people into full maturity
   as citizens, with all that implies”.).
92
    See https://havingkids.org/wp-content/uploads/2019/07/Wajahat-Ali-letter-final.pdf.
93
   The Supreme Court has addressed “constituting” in a sense in Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“[O]ver
   no conceivable subject is the legislative power of Congress more complete than it is over the admission of
   aliens”.) (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909)).
94
   See Ilya Somin, Democracy and Political Ignorance: Why Smaller Government Is Smarter (Stanford
   University Press, 2016).


                                                       67
                                   CONSTITUTING OVER CONSTITUTIONS


other and their ecology of the members, i.e., whether the group is relatively constituting
or de-constituting before they ever even begin the process of collective rulemaking. All
of this becomes more complex as we account for intergenerationality.
              Minimizing the loss of social self-determination in the planning process requires
that each new entrant be of a minimum constitutive quality. It requires there be a
maximum number of entrants. It requires they be arranged relative to each other and
their ecology in particular ways.
              The model leads to a specific confluence of values. For example, the autonomy
would-be parents gain through self-development and meeting a standard of readiness to
parent, aligns with objective, constitutive and naturalistic reasons for having children, the
diminishing interest in having additional children,95 and the quality–quantity tradeoff of
a smaller family. These things align with the autonomy of a highly developed child and the
morally valuable options and equality of opportunities in life they will have, which further
aligns with the autonomy created by gender equity, cooperativeness within groups like our
town hall scenario above, a level of inherent security in groups that avoids the need for
top-down limitations on autonomy, as well as fluidity among groups.
              The resulting smaller populations and high levels of development align with
one’s having a meaningful voice in public affairs and the rules under which one must
live. This participatory agency aligns with the autonomy created by fulfilling one’s need
for meaningful group membership, which in turn aligns with reduced consumption and
property-oriented around nonpolity, rather than group belonging or power and ranking
over others. One’s consumption and property orient around nonpolity instead of one
using those things to relate to other people. And that re-orientation supports the
decentralization of concentrations of power into future generations, discussed below.
              And all of these align with a healthy and safe environment and the freedom—or
autonomy—from others that is only possible through interaction with the non-human
world. This in turn aligns with the autonomy the animal liberation movement advocates
for.96 Note that this alignment spans many types of freedom, from communitarian to
libertarian, that might be seen as conflicting, were we not temporalizing our perspective.
              The model is unique, particularly in one important regard. The thresholds above
can be set using existing legal standards we claim to already adhere to, like basic parental
fitness, the Children’s Rights Convention, biodiversity and wilderness restoration
targets, education benchmarks, federalism and representative ratios, redistribution


95
     See Dillard, supra note 76.
96
     See Dillard, supra note 11.


                                                 68
 2021]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                      [Vol. 6:1


 policies that attempt to create equality of opportunity, etc. The model will show that, by
 our own standards, we are not who we should be or who we claim to be.97
           Also, because the schema above represents the standard for political obligation
 and autonomy by maximizing consent, it also represents the Grundnorm for truly
 integrating (by their own true will) members into a legality. Hence, it serves as a
 human-rights-based criterion for evaluating the legitimacy of legal systems.
           In summary, how can human-rights-based democracies solve the democratic
 dilemma of making good choices while being integrative and inclusive?98 How do we
 ensure freedom, or the balance between community and autonomy, inherent in concepts
 like unified independence and ordered liberty?99 We must understand that we cannot
 include persons in any type of grouping without excluding persons, in some way, and as
 such, constitute ourselves in quality, quantity, relative arrangement, and, relative to our
 ecology, to maximize consent and obligation and thereby minimize the loss of political
 autonomy. Incontrast, we ensure that we never meet the political ideals of liberalism by
 ignoring procreation, seeing birth positioning as a matter of random fortune, and
 pretending the people with whom we share the world just fell from the sky (or were
 delivered by a stork).
           A comprehensively normative system100 requires that we create normative
 people. When people say “there ought to be a law”, there should be an antecedent norm
 that makes the statement meaningful. At its base, democracy involves the capacity to
 influence, which in turn begins with the existence of the person. If we take democracy
 (or individual sovereignty, from the appropriate and more compelling individualized
 perspective) seriously, we must focus on the creation of individuals and thereby unravel
 the age-old legal conundrums of balancing community and autonomy, unified
 independence, and ordered liberty.101




97
     See Rawls, supra note 49. A rational person could not honestly conclude that their being wealthy is a good
    reason to accept a system that only favors the wealthy.
 98
    See Robert A. Dahl, A Democratic Dilemma: System Effectiveness Versus Citizen Participation, 109 POL. SCI. Q. 23
    (1994). https://www.jstor.org/stable/2151659?seq=1#page_scan_tab_contents, accessed August 15, 2019.
 99
    See e.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992); see also Washington v. Glucksberg, 521 U.S. 702
    (1997).
100
    See RONALD DWORKIN, LAW’S EMPIRE (1986).
101
    See Washington v. Glucksberg, 521 U.S. 702 (1997).


                                                         69
                                 CONSTITUTING OVER CONSTITUTIONS


       THE PRAXIS OF CONSTITUTING

 Modifying political obligation and autonomy models is complex. For that reason, and
 because the new modeling requires the cooperation of prospective parents across the
 globe, this article provides a useful heuristic throughout: Remodeling family planning
 means changing from a parent-focused and subjective family planning model to a
 child-focused and objective “Fair Start” family planning model,102 as well as specific
 actions to ensure that change, messaged through an operational non-profit that has
 begun the discourse, Having Kids.103 A simple test for the change in perspective is to ask
 whether we can seed resource transfers through universal basic income laws that
 provide resource-poor children with money that has been collected in the form of taxes
 paid by the wealthy, as cooperative entitlements owned by future children, or whether
 those resource transfers are seen as ethically suspect incentives aimed at parents.
           In essence, our reliance on future generations as economic inputs and
 non-humans and their habitats as resources, keeps us in a state of pre-constitutionality.
 We can invert the population pyramid to change this and target those with the most
 resources in order to fund the transition.104
           The Fair Start model (which is the public branding for the zero-baseline model)
 requires (1) parental readiness before procreating; (2) a transfer of resources to would-be
 parents designed to decentralize influence into future generations, using the heuristic of
 “giving each child a fair start in life”; and (3) a norm, for all, of smaller families who can
 invest more in each child.105 By focusing on the objective needs of future children,
 parents and communities are forced to abandon the myth of procreative autonomy.
 They must replace it with objective reasons for having children, which must align with
 other aspects of the model to maximize consent and thereby maximize political
 obligation and autonomy.              Practically speaking, Fair Start modeling involves (1)
 reforming the interpretation and practice of the fundamental right to have children as it
 exists in the Universal Declaration of Human Rights and implementing conventions106
 and (2) intensive family-planning incentives (which are actually entitlements held by the



102
    The model, and the ability to operate a child-first normative framework, would be a useful litmus test for
    whether a person is acting with the minimum level of empathy and helping behavior, or constitutive quality,
    necessary to constitute.
103
    https://havingkids.org/. The use of a possessive verb with the creation norm is inconsistent, but the
    organization adopts common parlance for pragmatic reasons.
104
    See https://havingkids.org/protect-future-ivanka-trump-marco-rubio/; See also and https://www.vox.com/
    future-perfect/2019/12/16/21024222/mitt-romney-michael-bennet-basic-income-kids-child-allowance.
105
    See Doepke, supra note 40.
106
     See Dillard, supra note 48.


                                                      70
 2021]                           UNIVERSITY OF BOLOGNA LAW REVIEW                                  [Vol. 6:1


 future child),107 administered by the U.N.F.P.A. and U.N.I.C.E.F. using the Children’s
 Rights Convention as one initial baseline.108
           The zero-baseline model accounts for the loss of autonomy and the liberating
 confluence of smaller families that develop each child, ensuring children play a
 meaningful role in their democracies, and lower population variants that match the
 natural ecologies in which democracy was born and that best promote human
 flourishing. Sovereignty requires that democracies be small, dynamically forming and
 reforming, and populated by highly developed people. This is consistent with the
 healthy, safe, and biodiverse ecologies in which they exist. In other words, the values
 above align under the zero-baseline model as iterations of human autonomy or freedom
 and enable a dynamic of group formation and reformation and of balancing values while
 minimizing the loss of autonomy. This view of democracy, focused on the people that
 actually compose it, looks nothing like modern, static, and bloated nation states.
           There are reasons to consider the zero-baseline model as the dominant
 peremptory norm, including the need to preserve the model simply as a hedge against
 the harm being done to the values today (e.g., the destruction of the non-human world),
 as well as the efficacy of the model in furthering agreed-upon outcomes like the Paris
 Accord and the Sustainable Development Goals.109 The zero-baseline model proves to be
 ten to twenty times more effective at mitigating climate change, improving child welfare
 and equity, building democracy, reaching other development goals—and avoiding
 unacceptable ecological and social risks—than any downstream efforts.110
           But one reason that the model becomes the dominant peremptory norm,
 overriding all conflicting interests, including property rights claims against the demand
 for resource transfers outlined above, stands out in particular. Because we are before we
 do, the creation norm is lexically prior, and therefore overrides conflicting norms,
 including public and private property rights that might be asserted against the transfer
 of resources described here.             There can be no justification for the inequity and
 centralization of power in some extant persons, relative to the creation-norm based
 claims of incoming children, and Murphy provides a useful analogy: They challenge the

107
    See The Fair Start Model of Family Planning, Having Kids website, at https://havingkids.org/wp-
    content/uploads/2019/05/FairStartModel2019-1.pdf (last visited Aug. 15, 2019).
108
    See Ashley Berke, “Dear UN: We Can Do Better for Kids”, Having Kids (blog), July 31, 2019, 2019, at
    https://havingkids.org/uncandobetter/ (last visited Aug. 15, 2019).
109
    See, e.g.,“Paris Agreement”, Wikipedia, https://en.m.wikipedia.org/wiki/Paris_Agreement (last visited Aug.
    15, 2019); see also https://sustainabledevelopment.un.org/?menu=1300; https://havingkids.org/fair-start-
    research/.
110
     See Hamity at al., supra note 4; The Fair Start Model of Family Planning, Having Kids website
    at https://havingkids.org/wp-content/uploads/2019/05/FairStartModel2019-1.pdf (last visited Aug. 15,
    2019).


                                                      71
                              CONSTITUTING OVER CONSTITUTIONS


 assumption that we own property in a meaningful way that can be separated from taxes
 and other public obligations we owed relative to that property.111 But have they in turn
 assumed we are properly constituted in any meaningful way and can assess public and
 political obligations without first accounting for the borders of human power, without a
 way for electing one another, without a way to actually emancipate citizens? Is there an
 antecedent myth of a human-rights-based democracy that legitimates downstream
 norms without a truly constituting and legitimating Grundnorm?
          The overriding nature of the zero-baseline model means that any person may
 further the Grundnorm by any means effective, regardless of any contravening norms.
 Constituting is analogous to self-defense against the aggressive and non-consensual
 invasion of our world by others. This means securing guaranteed minimum incomes for
 children (or “baby bonds”) pegged to family-planning reform (including through things
 like zero-interest family-planning loans),112 enabling legislation for no-procreation
 probation and parole orders for abusive and neglectful parents, expediting approval of
 long-acting male contraceptives for market, incorporating a “smaller family” policy into
 UN sustainable-development goals, and undertaking a variety of other measures.113
          A key question remains as to how to choose which concentrations of power, both
 public and private,114 to prioritize the decentralization required for universal basic
 income measures for poorer children. The applicable types of concentrations of power
 include any resources currently used to incentivize large or unprepared families, and the
 resources of individuals and organizations that pose acute threats to nonpolity through
 things like the exacerbation of climate change. Those concentrations of power would be
 targeted for downstream welfarist redistribution, through taxes and other measures.
 Why these resources? These resources should be targeted because they pose the greatest
 threats to the legitimate obligation and autonomy the model seeks to promote.
          Our framing of the praxis and constitutive discourse employs three different
 narratives. Fair start family planning and the zero-baseline model ensure the following:
          (1) The simultaneous liberation of future children and non-humans (the most
 vulnerable and numerous moral entities we can conceive) from property hood and
 constant colonization at the spatial-temporal border discussed above. The praxis of the
 model targets the hegemony of a small group of living persons over an untold number of
 vulnerable moral entities.
111
    See MURPHY & NAGEL, supra note 29.
112
    See kiva.org as a possible vector.               See also, Byrd Pinkerton, Jillian Weinberger, and
    Amy Drozdowska, “Free college tuition helps, but it’s not a silver bullet”, Vox (blog), at
    https://www.vox.com/2020/2/12/20997880/free-college-tuition-kalamazoo-promise-the-impact.
113
    See generally https://havingkids.org/.
114
    This distinction conflicts with the model but is used here for the sake of ease.


                                                  72
 2021]                          UNIVERSITY OF BOLOGNA LAW REVIEW                                  [Vol. 6:1


           (2) The unification of child welfare, environmental and animal protection, and
 human rights and democracy movements around this new modeling, given the model’s
 comprehensive and superior efficacy.115
           (3) The manifestation of a real (spatial-temporal) social contract that can be used
 as a model agreement between would-be parents and concentrations of power that
 satisfies disparate and competing political perspectives and excludes unreasonable or
 pre-constitutional people.
           Given climate change, the need for an immediate, conscious, and accelerated
 move       toward      United       Nations      low-variant        world-population         projections,
 sustainable-development goals, and the meeting of the obligations of the Children’s
 Rights Convention,116 all facilitated by the specific wealth transfers and new
 family-planning incentives (which are actually entitlements held by future children) that
 will be most effective at minimizing human suffering in the future.117
           Part of the praxis involves two actual social justice initiatives: The first is a
 lawsuit recently filed against the United States for how its actions and inactions
 regarding climate change have violated the constitutional right to privacy in wilderness
 (nonpolity), by degrading conditions in that wilderness,118 and the second is a legislative
 initiative that would authorize family courts to impose “no procreation” orders against
 persons convicted of felony child mistreatment.119 Together, these concrete actions
 begin the tasks of redefining political autonomy and obligation by illuminating the
 bookends of political obligation and autonomy: the preexistence of future generations
 and nonpolity. These bookends apply the zero-baseline model to initiate the constitutive
 discourse through a simple question:
           How can freedom deprive children of minimum levels of welfare at entry, e.g., the
 right of parents to create additional children who will be kept and raised in the horrific
 conditions of state custody because the parents previously abused or neglected their first
 child, but not the right to simply be left alone—free from the life-threatening impacts of
 climate change—in the solitude of wilderness? Such a state of affairs is not freedom; it
 is pitting extant and future people against each other for the benefit of elites and others

115
    “The Fair Start Model of Family Planning”, Having Kids, https://havingkids.org/wp-
    content/uploads/2019/05/FairStartModel2019-1.pdf (last visited Aug. 15, 2019).
116
    See id.
117
    See Hamity at al., supra note 4.
118
    See Karen Savage, Judge Dismisses “Right to Wilderness” Climate Suit Against U.S. Government, Climate
    Liability News, August 1, 2019, https://www.climateliabilitynews.org/2019/08/01/right-to-wilderness-
    climate-lawsuit/ (last visited Aug. 15, 2019).
119
    See Ashley Berke, “Ask Florida Senator Lauren Book to Prevent Child Abuse With SB90”, Having Kids
    blog, March 14, 2019, https://havingkids.org/florida-senator-lauren-book-prevent-child-abuse-sb-90/ (last
    visited Aug. 15, 2019).


                                                     73
                                  CONSTITUTING OVER CONSTITUTIONS


 above them in the social hierarchy. It is using people to disempower one another and
 ignoring the simple truth that we need to create free people before they even begin to
 socially self-determine and regulate their own affairs.
           This discourse requires people to de-abstract their normative claims and account
 for the quantity, quality, relativity, and ecological positioning of all of the people upon
 which their claims rely and the values at stake and dynamics at play. This would in turn
 push people toward accepting constituting (which is essentially a thick conception of a
 constitution) as a fundamental normative framework.                         Constitutive discourse, the
 discourse around the values and process of the model, assesses the relative illegitimacy
 of systems of social organization, combining the subjective exercise of all forms of
 human influence with the objectivity of the model and its irrefutable basic values,
 starting from and ending with the touchstone of nonpolity.
           Quite simply, we can only reduce the age-old tensions between the individual
 and the collective and between freedom and security and thereby further human
 autonomy by creating sufficiently capable people (in terms of quantity, constitutive
 qualities, relative positioning, and ecological positioning) who may reconstitute their
 legalities at will.120 Families cannot create that capability in isolation.121 We create
 capable people by overcoming the cognitive dissonances and misperceptions we carry
 regarding the nature of human autonomy and decentralizing concentrations of human
 power (governmental, corporate, oligarchical, prospective parental, etc.) into future
 generations through zero-baseline modeling and its layperson translation, Fair Start
 family planning. Because, as a preremptory norm, the model overrides all conflicting
 norms, all may engage in its praxis by any means effective. And because of the nature of
 the model, those who oppose it can be classified, treated as pre-constitutional, and as a
 threat to the autonomy of the model would further.
           A simple analogy: a river with future children on one side and would-be parents on
 the other. The parents are pulling the kids across, acting in isolation from one another. As
 such, some kids cross in turbulent parts of the river and are washed downstream, or come
 across harmed for life, while others wade through ankle-deep parts with all the resources
 they need. As the mass pulling-across happens, the ecology of the river is trampled and
 destroyed. The process has resulted in our side of the river looking like chaos, inequity,
 and ecological collapse. Our challenge is to build a bridge in the middle of the river that
120
    How close a particular polity is to being able to subdivide and reconstitute into legitimate legalities could
    be assessed, initially, by examining how the lesser power asymmetry applies there.
121
    See “Marshmallow Test” Redux: New Research Reveals Children Show Better Self-Control When They
    Depend on Each Other”, Association for Psychological Science website, https://www.psychologicalscience.o
    rg/news/releases/marshmallow-test-redux-new-research-reveals-children-show-better-self-control-whe
    n-they-depend-on-each-other.html.


                                                       74
 2021]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                  [Vol. 6:1


 can bring the children over in a way that emancipates them and ensures they are agents
 that can consent to the power of others. Is that simple ask—to work together to give all
 kids a fair start in life—something around which we can build revolutionary action?122




          CONCLUSION

 The zero-baseline model derives from irrefutable truths about how freedom requires
 limiting the total amount of human power (or “influls”) present in the world, inherent
 limits on human cognition and processes for determining rules, minimum levels of
 human development to determine those rules, etc. The model provides a liberal or
 constitutive perspective and tool for a specific spatial-temporal cognition to help
 overcome the psychological limitations discussed above, those that hide the inevitable
 first behaviors and dynamics that promote or degrade human autonomy. This cognition
 goes well beyond Rawls’ prerequisite “sense of justice” and looks to actually exclude
 pre-constitutional people. This modeling could prove the key to solving many of today’s
 social and ecological crises through a concrete praxis that is emancipatory, effective, and
 designed to appeal across the political spectrum.
              Again, the only way to be free from human power is to consent to it, via norms.
 That requires accounting for certain first and inevitable dynamics in the process and
 reflecting that accounting in a first norm, or Grundnorm, that should constitute us.123
 There is no person, no realm of human experience, including freedom, outside of the
 realm of a creation norm. The zero-baseline model is a candidate for this first norm and,
 hence, a necessary condition of political obligation and autonomy. If we want free
 people, we have to secure the resources necessary to do so. They will not fall from the
 sky.




122
      See generally Richard A. Posner, The Problematics of Moral and Legal Theory, 111 HARV. L. REV. 1637 (1997).
123
      This interpretation of legal systems, which follow the Grundnorm, would comprise a fourth version of the
      conception of “law as a seamless web”. see Lawrence Solum, “Legal Theory Lexicon: The Law Is a Seamless
      Web”, Legal Theory Blog (blog), October 1, 2006, https://lsolum.typepad.com/legaltheory/2006/10/legal_th
      eory_le.html.


                                                         75
