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RECONSTRUCTING THE COMMERCIAL REPUBLIC Constitutional Design after Madison
By Stephen L. Elkin The University of Chicago Press Copyright © 2006 The University of Chicago
All right reserved.
ISBN: 978-0-226-20134-4
Chapter One Thinking Constitutionally in Light of American Aspirations
Americans need a theory of republican political constitution. This is true even for those sighing with political contentment, for like all members of political orders past and present they too must eventually confront the inevitable deterioration of our political institutions. It is doubtful whether any social arrangement can long withstand unaided the forces of inattention, corruption, and debilitating conflict. The contented must understand this deterioration and what may be done about it, at least if they wish to remain content. And it would help if they could do so before political ruin is imminent. To undertake this practical task, they need an account of the sort of political regime we are committed to realizing, the characteristic sources of its corruption and decline, and how to maintain it in good order. They need, that is, a theory of the political constitution of the American republic.
The contented will need such a theory for an additional reason: there will always be proposals for reform that result in-and perhaps have as their sole purpose-undermining the workingconstitution, which is the very source of their sense of satisfaction. It would thus be well if those busily expressing their contentment with our political order were also able to detect schemes for reform that can do us no good. Their songs of praise should have within them the strong beat of what is essential if republican government is to succeed-namely, a theory of republican political constitution.
Of course, those who are discontented with our present institutions and practices, but who are still committed to some version of what we now have, also need a theory of republican political constitution-at least if they are committed to a full realization of an American republic. A list of the sources of their discontent would include (1) the markedly unequal distribution of wealth and income, including the persistence of a significant degree of poverty; (2) the decline in civic and political involvement; (3) the inequality of political power; (4) the uneasy position of the middle class, caused in part by economic insecurity and cultural conflict; and (5) the weakening of families. A more institutionally focused list would include (1) a judiciary that regularly turns into legal matters the questions of how to organize the economy and how to define its relations to the polity; (2) a Congress with the propensity to turn most matters before it into a problem of how to distribute benefits among the constituents of its most powerful members; and (3) a presidency that, through administrative rulemaking, has come to wield legislative powers over a wide swath of the public's business.
But how should we assess such lists? Do they merely contain the kinds of incidental weaknesses that characterize any attractive political system-the more or less usual complaints, conflict, and mild disarray that is the common stuff of a vibrant democratic political order? Or do they reflect serious failures in our political constitution about which we can and should do something? Is the regime facing a crisis in which an all-out effort of some kind is called for, lest the political order devolve into something less attractive? If there are serious failings, where shall we direct our energies in an effort to repair the damage? Should we focus on reforming political parties? On revitalizing local political life? These are the kinds of questions critics of our present political practices must answer if they intend to promote a more or less fully realized republican regime. If they, and indeed all of us, wish to do more than wring our hands or latch onto the panacea of the moment, we must first understand the sort of political order ours is meant to be and how it is meant to work.
The more reflective among the contented and discontented should thus join hands. Both need a theory of American republican constitution. Indeed, all of us who are committed to some version of the political order that has dominated our political discussions for more than two hundred years need to think constitutionally. While there are always policy questions to be addressed-for example, what to do about social security-there are always constitutive problems as well, difficulties with how we have organized ourselves through political-economic institutions to carry on our collective affairs. Unfortunately for the contented, the discontented, and the mildly interested, we lack a compelling and comprehensive theory of republican political constitution and the inclination to develop one is not, to put it charitably, very widespread. We have pieces of the kind of theory needed, but they are not for the most part understood as such. There are far too many accounts of parts of the political order without systematic attention to the political whole: all arms and legs, we might say, but no body. Or what is worse-arms and legs, after all, being of vital importance-such studies as we have are the political equivalent of hair and eyebrows. Nice but not crucial.
As a consequence, our responses to proposals for institutional reform, and our assessment of evolutions in our practices and institutions, are too often bootless, off-the-cuff evaluations, lacking any deep roots in a comprehensive understanding of the political order we are supposed to be and what that entails. The essential point concerning the subject of constitutional thinking was made long ago by Bolingbrooke: that by "[c]onstitution we mean ... that assemblage of laws, institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of the public good, that compose the general system, according to which the community hath agreed to be governed."
Much of the blame for the lack of systematic attention to a theory of political constitution in its normative and empirical aspects can be laid at the feet of contemporary American political science. If anywhere, it is there that normative inquiry rooted in the real possibilities of political action should flourish, along with empirical analysis tied to plausible normative principles. After all, political science was created by Aristotle for just these purposes. That legacy, however, has been dissipated. The concerns of American political science's two principal branches lie elsewhere: empirically minded exponents of positive theory concern themselves with explanations of how the political world works, and normative theorists ask what sort of enterprise politics is and how best to judge it. Practitioners of neither branch spend much time worrying about how to achieve good political orders, given humankind as it is and might reasonably become.
Our general political discussion does not help matters. Much of it is dominated by the "size of government" question that asks whether there is too much government or too little. There is, of course, some reason to worry about this matter: centralized bureaucracy and rulemaking can be oppressive, and the vulnerable do need direct help from government. But many citizens seem to sense that the real problem is not "how much government" but "what kind of government"-and this is precisely where our political discussion lacks depth. To make real progress in understanding the American political order, we need, if not a new political science, at least a reworked one where efforts at explanation and evaluation are tied to the question of good political regimes and how they may be secured and maintained. That is, we need to construct theories of political constitution.
The great teacher of how to think constitutionally is Aristotle. He argued that one of the principal tasks of political study is to identify the various types of political regimes, to examine how they worked, and to classify them as good or bad. His focus was on the political-economic order as a whole, not just particular institutions and practices. Aristotle's conception of the task of political study should be familiar to most Americans. After all, we were founded in an act of political constitution. Moreover, it is natural for us to look for guidance from those who played a crucial role in showing how best to constitute ourselves as a republic. And we thus turn to the thought of James Madison, the most careful student of how the new republican regime could be made to work. Madison, we might say, is the great teacher of Americans on how a republican political constitution can be constructed, which institutions and practices are necessary for republican government, and how best to maintain them.
Both Aristotle and Madison, we should note, tell us that in thinking about a political constitution we must also think about an economic constitution. Thus, for Aristotle, the middle stratum or class was crucial to the mixed regime of aristocratic and democratic elements that was one of his good regimes. For his part, Madison thought that a central purpose of republican government was to secure private property, and that the propertied were to play a central political role in the new regime. Both offered a political sociology for the regimes that concerned them, a sociology rooted in the organization of economic life. A more accurate description, then, for an account of how to create and maintain a republican political order is "a theory of republican political-economic constitution." That hardly comes tripping off the tongue, however, and so I simply refer to a theory of republican political constitution. But felicity of expression aside, it is important to emphasize the political side of things because we are, after all, concerned with creating-that is, constituting-good political regimes, and that is the quintessential political act. Even more important, both Aristotle and Madison suggest that our concern for the economic domain be in the service of constituting an attractive political regime. Our interest in how economic production is organized, they indicate, should focus largely on whether it makes more or less difficult the realization of a certain sort of political life. This is a rather different emphasis than one sees in contemporary economic discussion in Western democracies. But this is where a serious concern with political constitution leads us, not least because it is difficult to justify acquiring wealth and income as an end in itself. It is what they bring that is important, and virtually any account of what this is will take us beyond economic considerations.
To realize republican government in the United States, then, Americans need an account of its political constitution. At the center of this constitution, I argue, is a self-limiting sovereign people. The idea that republican government is limited government-and that the people must limit themselves-is not a new one. It was understood by Madison, among others, who was plausibly the best theoretical mind among the American founders. Indeed, Madison's constitutional theory centered on a self-limiting people. A fine formulation of why self-limitation is so central to republican government is given by Walter Lippmann. He noted that there is "nothing left but the irresistible power of the mass of men" once the claims of kings and aristocrats are disposed of. As a result, "the people must rule," but if it is to achieve its "own best interests" the people must subject themselves to a system that "define[s] in specific terms the manner in which [they] should rule." As Harvey Mansfield puts it, in the formulations of the most insightful republican theorists, "no favored class with a greater sense of honor or a superior faculty of reasoning than theirs [the people's] is postulated and endowed with power to check the people's choice." The essential problem of republican government, then, is to prevent free men and women from doing that which could destroy their own rule. There is no greater force than themselves to prevent this from happening. If there were, the people would be neither free nor sovereign, and a republican regime impossible.
In this and the succeeding chapters I develop this essential idea of self-limitation not only by analyzing it further, but also by discussing other elements of a commercial republican political constitution that must be in place if republican government is to flourish. I begin by considering the constitutional theory of Madison. Although there are important failings in his arguments, his overall formulation is sufficiently powerful to provide a good foundation on which to build. I then consider some general features of constitutional theorizing-namely, the relation between values and institutions, and the components of constitutional reasoning itself. After that, I focus on the political constitution of self-limitation itself, at the heart of which is the way in which the institutional design, and the politics in which it is embedded, provide strong and regular incentives for lawmaking to give concrete meaning to the public interest. That is to say, if republican government is to succeed, the people cannot rule any way they please. Power must be subject to principle and, more generally, must be exercised in ways that give life to the public interest. It is worth adding that constituting a republican regime is not an exercise for the innocent or faint-hearted. It requires consideration not only of "good" motives and "good" political processes, but also of ambition, self-interest, the desire to subordinate others politically, and the political processes these engender. A republican constitution, moreover, must not only control such motives, it must also make use of them.
ASPIRATIONS AND THE BASIC CHARACTER OF A COMMERCIAL REPUBLIC
What are the grounds for my saying that Americans need a theory of republican political constitution, and why republican rather than some other kind? The question can be answered in a variety of ways, from saying that all peoples must devote themselves to realizing the political regime that a theory of universal justice calls for, to arguing that a people should seek the sort of political life on which they happen to agree. To argue directly for one kind of answer over another is to recapitulate the history of Western political thought from the ancient Greeks forward. For, in one version of that history, this has been its central question. It is, of course, not possible to review that history here.
I ask instead to what sort of regime can it be said that we, as Americans, aspire and to which we should devote our political energies. This may be called an "aspirational view" of the American regime, and its attractions and difficulties will reveal themselves as the analysis unfolds. But constitutional thinking properly understood does not turn on any particular way of establishing which political regimes are desirable in general and for a particular people. All it needs to get started-at least if its practitioners are interested in actual peoples situated in particular places-is some account of what sort of political regime is appropriate to be realized by them with the help of a theory of political constitution.
What then are our aspirations as Americans? Since we are, and must be, situated somewhere, rather than nowhere, and thus have inherited a set of political institutions and a language in which to discuss them, our aspirations reflect to some degree these inherited practices. Our aspirations thus are likely to stem, in part, from the thinking of those who have helped to set these practices in motion, the founders of the American Republic. We must start, therefore, with where we already are, relying heavily on the local stock of political ideas to express that for which we hope. In doing so, we enter into an ongoing "rhetorical community" where words and their meanings, and the argued-for purposes of our collective life, have taken on a life of their own. A variety of symbols and kinds of justifications are thus not only ready to hand, but in some sense recognizably "ours." Consider here these lines in Louis MacNeice's poem "Valediction":
But I cannot deny my past to which my self is wed The woven figure cannot undo its thread
(Continues...)
Excerpted from RECONSTRUCTING THE COMMERCIAL REPUBLIC by Stephen L. Elkin Copyright © 2006 by The University of Chicago. Excerpted by permission.
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