Republicanism and Modern Constitutional Theory
REPUBLICANISM AND MODERN CONSTITUTIONAL THEORY
Recent historical scholarship has traced a linkage between the civic tradition of republicanism and the Constitution devised by the Framers. The histories have turned academic American constitutional thought toward a renewed interest in traditional republican ideas about politics. Neorepublican scholarship seeks to adapt such ideas to various contemporary issues of constitutional-legal doctrine and practice.
Characteristically figuring in this neorepublican "revival" is a cluster of normative notions. As construed by contemporary legal scholars, republicanism demands strong accountability of the government to "the people" considered as their own ultimate rulers. It promotes active citizenship—participation in politics—as partially constitutive of the good life for all. It aims at public regarding laws that define rights in accord with consensually accepted values and set policies in accord with the general good. It urges sincerely deliberative, multivocal, independent-minded political debate ("dialogue") as the way to identify such values, rights, policies, and goods. It demands unrestricted access to political debate and influence for people from all sectors of society regardless of private means; looks askance at social hierarchies, material deprivations, and conflicts of interests that may compromise independent-minded, energetic, or public-spirited citizenship and governance; and seeks protection of cultural diversity and personal self-formation against undue governmental and social encroachment.
In moments of detached contemplation, all these aims and impulses may perhaps cohere as aspects of one aspirational vision of constitutionalism or even as steps in an argument about how constitutionalism ought ideally to work. Set in the field of actual, contemporary American constitutional-legal disputation, however, republicanism figures not as a stock set of answers, but as an agenda of questions. In live contexts of dispute already framed by the past development of American constitutional-legal doctrine and practice, the various "republican" impulses have uncertain, controversial, and sometimes arguably inconsistent implications.
Consider how various "republican" aims have actually been invoked to generate positions in contemporary constitutional-legal debates. For example, republicanism insists strongly on the nonidentity of the sovereign people with the government and on the government's subservience to the people's will. From such insistence stems support for the idea judicially championed by Justice william j. brennan and credited by him to alexander meiklejohn : the "central meaning" of the first amendment is to secure the public forum of debate among citizens against governmental machination and control. Another republican precept, however, is that opportunity for access to this forum and influence in it should be equal for all regardless of wealth and other forms of social power. These two republican antipathies—to government control over the public forum and to socially unequal access to the forum—have carried seemingly contradictory implications for constitutional-legal doctrine. In buckley v. valeo, for example, the Supreme Court condemned legislative attempts to cap political campaign expenditures—professedly as a way of controlling domination of politics by the wealthy—as a departure from constitutionally required state neutrality.
Somewhat similarly, republican concern for the independent-minded public regarding quality of people's political motivations has produced diametrically opposed stances toward governmentally directed redistributions of wealth. From one side, it is argued that redistributions are required to assure the material prerequisites of political competence and independence to all who may participate, as voters or activists, in America's sweepingly democratic political system. From the other side, it is argued that by allowing governments to tamper with distribution we invite exactly the kind of self-serving political motivation that republicanism decries.
Out of regard for protecting cultural diversity and personal self-direction against potentially totalitarian control by the state, scholarship in the neorepublican vein has called for strong judicial enforcement of constitutional barriers (including unenumerated rights) against governmental encroachments on conscience, privacy, and association. At the same time, however, republican-style regard for the polity's underlying sense of solidarity has been cited by scholars and judges as justification for government restraint of arguably self-formative expression or conduct—a Nazi street march, a sexually explicit publication, homosexual sex in private—when construed as offensive or destructive to an enveloping political "community" or "tradition."
Out of regard for the public directedness of laws and for the deliberative quality of law making, some neorepublican scholarship has drawn a broader defense of wide-ranging judicial activism : Against partisan laws, such scholarship sets vigorous judicial scrutiny of the public justifications for statutes challenged under the equal protection and due process guaranties as "irrationally" discriminatory or injurious to liberty or property. Against narrowly strategic and self-serving legislative politics, such scholarship pictures appellate courts—actual or potential—as sites of open-minded deliberative dialogue. At the same time, however, republican encomia to active citizenship and popular self-government have put new energy into james bradley thayer's old objection to the habitually court-privileging character of American constitutional practice: It saps the people's determination to govern themselves.
A number of difficulties confront transplantation of historical republican thought to the contemporary American constitutional scene. First, the normative elements in republican thought depend on descriptive ones that are not fully true to contemporary American experience. Second, republicanism's valorization of political activity for its own sake, as an aspect of the good life, does not match prevailing American understanding. Third, republican thought is not easily reconcilable with the fixture of judicial supremacy in the American practice of constitutionalism.
When historians say the the Framers envisioned a constitutional scheme in which competent representatives deliberate and act in the common interest, this means that the Framers not only desired such a competent deliberative institution, but supposed they had successfully designed one in the Congress their charter constituted. But then, presumably, this supposition would have governed the Framer's conception of the judiciary's role, leaving little room for censorious judicial review of the "rationality" of congressional action. Today, however, few Americans believe that Congress will or can be relied on to perform consistently up to the standard of the Madisonian deliberative model. How, in these circumstances, do we go about redeeming the Framer's design?
One answer offered by neorepublican scholarship is that reviewing courts should aggressively engage in "after the fact" evaluations of both the public merits of congressional enactments and the deliberative quality of congressional processes. The aim is to prevent, by deterrence and nullification, partisan or ill-conceived legislation that presumably would not have issued from a Congress actually functioning in accordance with Madisonian expectations. Leaving aside the difficulties of execution of this judicial commission, it is questionable republican doctrine. It does not speak to republicanism's attribution of value to direct personal engagement in the political process.
In the republican tradition, realization of the putative common good is not the whole point of broad-based political activity. A person's engagement, as an equal, in joint pursuit with others of the common good is republicanly valued as a vital aspect of personal freedom. It is far from clear how this personally emancipatory value of civic participation can at all be realized at two removes: first, from the people to the Congress and, then, from the Congress to the Court. It may be true that a person's ulterior interests can be represented in a functional sense, more or less accurately, by delegates. The experience of citizenship as public freedom, however, is a different matter. Freedom is representable, if at all, only pictorially, not functionally. Representation of interests may conceivably, if things go well, succeed in effectuating people's interests fairly. But representations—dramatizations—of freedom do not realize people's freedom.
Here, historical republicanism may seem to offer assistance. Traditional republican thought articulates political activity into distinct and complementary roles—including those of electors as well as of officials—and professes to see the juice of political freedom flowing through all the circuits. This idea occurs not only in canonical republican writings, such as those of James Harrington; it is apparent as well in the thought of American Framers such as james wilson. The idea supposes that everyone can be politically active, in the freedom-conferring way, in public encounters by which we elect, instruct, and evaluate political representatives. It depends, however, on what today seems an unacceptably inegalitarian assignment of a good—"positive" (participatory) political freedom—that by republicanism's own account is humanly fundamental. Moreover, it attributes to electoral politics a liveliness, immediacy, and accessibility that contemporary American experience cannot easily credit.
In view of contemporary realities in the political life of the continental republic, some observers conclude that the best that can now be done on behalf of the republican strain in constitutional thought is to protect and nurture civic dialogic engagement not within the national constitutional setup, but beyond it. Such observers see local associations, both governmental and nongovernmental, as the realms that in modern life remain for the "positive" freedom of political action. With varying emphases, they accordingly suggest that constitutional law best serves this freedom through judicial specification and enforcement of supportive legal rights respecting municipal and associational autonomy, political expression, cultural and ideological diversity, personal self-formation through associations both intimate and civic, and personal independence construed as "liberty" and "property." In effect, the suggestion is to pump content from civic-republican well-springs into the liberal doctrine of limited government; it is to direct a participatory-communitarian ideology of politics to the purposes of a judicially administered, libertarian higher law.
This makes for a troubled, diluted republicanism. In quintessential republican thought, a right against the government is strictly a matter of here-and-now popular political will. Such a right can exert no force against the political resolutions that alone confer its existence. In quintessential republican thought, if there are constitutional rights, this is only because and insofar as the people politically engaged have so resolved. This is rather a far cry from the judge-led constitutionalism on which Americans have come to rely for assurance of their liberties. The republican premise that the polity, with good fortune, can lead itself by unconstrained political deliberation to a duly libertarian general will is one for which modern political wisdom does not easily allow. Political modernism not only denies the existence of any publicly demonstrable and compelling moral reality; it further doubts the possibility on which quintessential republican thought is grounded: that political conversation, unconstrained by an externally enforced higher law of rights, can itself sustain the social conditions of a true dialogic concourse of free persons.
Frank I. Michelman
(see also: Republicanism.)
Epstein, Richard A. 1987 Beyond the Rule of Law: Civic Virtue and Constitutional Structure. George Washington Law Review 56:149–171.
Fallon, Richard H., Jr. 1981 What Is Republicanism, and Is It Worth Reviving? Harvard Law Review 102:1695–1735.
Michelman, Frank I. 1986 The Supreme Court, 1985 Term—Foreward: Traces of Self-Government. Harvard Law Review 100:4–77.
——1990 Tutelary Jurisprudence and Constitutional Property. In Ellen Paul and Howard Dickman, eds., Liberty, Property, and the Future of Constitutional Development, pages 127–171. Albany: State University of New York Press.
Symposium 1987 Republicanism and Liberalism in American Constitutional Thought. William and Mary Law Review 29: 57–112.
——1989 The Civic Republican Tradition. Yale Law Journal 97:1493–1723.
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