Abstract
It is at the constitutional junction of law and politics, that a number of prominent American public lawyers have located their ‘civic republicanism’ as a theory about the empowerment of civil society. Civic republicanism is a theory that draws on a number of disciplines and integrates the insights into constitutional theory to suggest a thorough rethinking of the premises of constitutionalism. While the republicans all share the basic premise of the interrelationship I described between self, community, politics and law, they diverge in their accounts of the precise institutional vessel of the political dialogue. They disagree about where to locate the constitutional ‘home’ of the deliberative practice. One of them designates the Supreme Court as the most appropriate forum of the deliberative practice, another the Congress, while a third seeks to locate his republican politics in the ‘constitutional’ mobilisation of the citizenry at large. The initial disparity between the theorists, between elite and populist institutional solutions, has given way, more recently, to some convergence. But the problem of designating the appropriate constitutional realm of the political dialogue still remains the issue that most sharply divides civic republicans. The following sections will explore the answers they give to the problem independently. I will in each case, rehearse the basic premise only briefly and focus more extensively on the various suggested constitutional outlets of the political dialogue to explore how it is that they perform the function of ‘carrying’ the political dialogue onto legal-institutional ground.
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Notes
Ackerman, 1991, 295-6
Ackerman, 1984, 1013
ibid.
‘If Ackerman is right,’ comments Simon, ‘then the most contentious issues of modern constitutional theory have been fought out on a map that misses the most significant features of our political landscape.’ (1992, 501)
Ackerman, 1984, 1038, my emph.
ibid., 1039
I find it far from obvious that Ackerman’s position is incompatible with Ely’s treatment of the paradox. But Ackerman insists that Ely’s theory cloaks rather than dispenses with the problem (Ackerman 1985, pp737ff). I think that Ackerman would find it difficult to sustain this critique that Ely simply passes over judicial value judgements, in view of the position he too reseves for the Court in times of Ordinary politics’.
Ackerman, 1984, 1038
ibid., 1020
Ackerman, 1989, 19
And how do we identify an instance of popular mobilisation as a constitutional moment? In (1991) Ackerman designates criteria for this task in a detailed and precise account of a set of formal stages that the ‘moment’ must pass through to qualify as a constitutional one. Very briefly these involve (i) that one branch of government alleges a mandate to transformative policy (ii) opposition to this by another branch of government leading to stalemate (iii) a critical election which addresses the choice to a deliberating citizenry and (iv) acquiesence to the will of The People by the initially reactionary branch, followed by the sanctioning of the new state of affairs by the Supreme Court (Ackerman, 1991, ps 48ff, 266ff, 272ff). In those few constitutional moments that Ackerman has identified and discussed (the Founding-Philadelphia Convention, in (1991), and the Reconstruction and New Deal in the two volumes to follow (1991)) he claims the formal criteria were fulfilled and furthermore there was clear proposal, long deliberation and super-majoritarian consent. There have been, however, he acknowledges, also ‘lesser’ constitutional moments such as the Civil Rights movement and the ‘Reagan revolution’ (1991, 108ff, 51) that did not fulfil all the conditions. For a well-argued charge of inconsistency at this point, see Klarman (1992, pp769-70). If Ackerman abandons his constraining formal criteria and characterises as ‘near-miss’ constitutional (moments), episodes that scarcely fulfil those criteria, how will he insulate his ‘moments’ from every case of popular mobilisation? ‘If the 60s Civil Rights movement why not the 20s Ku Klux Klan crusade?’ Especially since Ackerman obviously inserts no evaluative threshold or premise (and explicitly-1991, 308, does not include ‘political correctness’) in his criteria of a constitutional moment.
Ackerman, 1991, pp240, 272-274
Ackerman, 1984, 1042
ibid., 1020
ibid., 1022
Even in Ackerman’s major examples of constitutional moments, there is always a question of precisely what level of national participation is necessary to the occurence of a constitutional moment. Historically it has been overwhelmingly the case that Ackerman’s constitutional moments have been initiated and pursued by active minorities of the population who have come up against and managed to curb the ‘normal-political’ attitude of large indifferent majorities. These majorities were conducting business as usual, in a non-constitutional, non-identity-generating mode. If this is the case, do we identify the politics of the minority as ‘constitutional’ on a qualitative basis, or do we compromise the notion by projecting it on the indifferent majorities? If we opt for the latter-without mobilisation and the rest-the argument for the two degree democracy is hardly sustainable; if we opt for the former and accept that minorities can conduct constitutional politics then what happens to the question of identity in community? If, that is, we abandon the criterion of We The People-as a whole-mobilising around community issues, how will the identity-generating involvement of the few spill over to furnish the sense of identity of the Nation/citizenry as such? (I run nationality and citizenship together intentionally, because Ackerman draws no significant distinction between We The People (the legal capacity) and We Americans (nationality).)
Simon, 1992, 512
I am referring here the the constitutional provisions that designate the conditions and the procedure of Amendment of a Constitution.
Ackerman, 1991, pp314ff
ibid., 1991, pp295-296
Ackerman, 1984, 1050
Kahn, 1989, 20
Ackerman, 1984, 1039, 1032-1033
Ackerman’s debt to the earlier constitutional theorist Alexander Meiklejohn is evident here. The transcendance of the private persona is reminiscent of Meiklejohn’s urgent appeal to abandon the excessive individualism of American life in favour of a higher public rationality. If people stopped thinking like ‘farmers, trade-unionists, employers, etc, and become more of citizens devoted to the common welfare,’ wrote Meiklejohn (1960, 74) the plan of self-government enshrined in the Constituion would be accomplished.
Ackerman, 1984, 1072
For Ackerman (and the republicans in general) it is vital to distinguish politics that are motivated by self-interest and politics of suspended self-interest, or the individual’s and community’s permanent interests. But many have argued that these dichotomies are descriptively implausible and normatively suspect. Pope (1990, 347-351) brings the example of the black workers’boycott in NAACP v Clairbome Hardware Co (393 So.2d 1290, 1295-97 (Miss. 1980), reversed 458 U.S. 886 (1982)). The case concerned the boycott of white merchants after a petition by of a Mississippi local union had petitioned the county government, urging them to provide equal treatment for blacks, and were rejected.) These demands-later to be viewed as political and fundamental-were initially seen as narrow, self-interested and factional.
Michelman, 1988, n.2
An argument similar to Crick’s (1971)
‘Citizenship stands for freedom as activity: the constant re-determination by the people for themselves of the terms on which they live together.’ (Michelman, 1988, 1518)
For the origin of the distinction positive/negative freedom, see Berlin (1969)
Sunstein, 1986
Sunstein argues against the liberal/rebublican dichotomy, in favour of his own ‘liberal republicanism.’ (1988, 1566-71) Because the republican revival, he claims, draws on a tradition that is both liberal and republican. ‘In their emphasis on the possibility of forming public policy through deliberation, on political equality, on citizenship, … republicanism and liberalism are at one.’ (1988, 1567-8) And while the ‘most collectivist forms’ of republicanism contradict ‘the most atomistic versions of liberalism … [republican thought, understood in a certain way, is a prominent aspect of the liberal tradition.’ (1988, 1569). Many have criticised Sunstein for conceding too much to liberalism. Sunstein explains he is ‘too fearful of public power,’ (1988, 1551) and ‘not hostile to the protection of individual or group autonomy from state control.’ (1988, 1569) Consequently he sets up criteria for when perspectives of ‘losers’ in the political process should have been taken into account. This he presents as a protection of the condition of the deliberative process, but for communitarians and radical republicans it smacks too much of inaliable rights and liberal ‘loser’ talk. As Sullivan says, ‘[a]ny criteria [about when perspectives of losers should be taken into account] will turn out to look suspiciously like rights emanating from “above” or “outside” politics-just what the republican deliberative norm was meant to avoid.’ (1988)
Michelman, 1988 1509. Note the inclusiveness of the categor ‘pluralist’: depending on where the emphasis falls it applies to theorists as diverse as Hobbes, laissez-faire liberals and individualists of all kinds, libertarians, mainstream constitutional lawyers, fundamental rights theorists, etc.
Sunstein, 1988, 1540, 1548
Michelman, 1986, 25
ibid., 32
ibid., 33
ibid., 31
ibid., 33
ibid., 31 To make his claim for the situated nature of meaning, practical reason and identity, Michelman draws on a vast variety of resourses. His references include Sandel, Taylor, Rorty, Pitkin, Maclntyre, Arendt, Cover and Habermas.
Sunstein, 1988, 1563
ibid., 1544
ibid.
Michelman, 1986, 25
See generally Habermas, 1971, pp308ff
Michelman, 1986, 32-33
All references to Alexy, (1989, pp 108, 120, my emphases.) I am suggesting only that these similarities are indicative and nothing like a strict one-to-one mapping of criteria.
Sunstein, 1988, Also Minow (1987), Winter (1991, 1002): ‘Ultimately we must come to see it is our similar embodiment and shared social situatedness that jointly provide the common grounds upon which the work of empathy can-and must-be done.’
Sunstein, 1988, 1569
ibid., 1544
The republican ideal of the pursuit of a common good is one of the most contentious aspects of the theory. Republicans argue that the articulation of a common good is compatible with the nurturance of social plurality (Michelman, 1988, 1533). But this claim to the best of both worlds has been condemned as implausible. Sullivan writes: ‘[Republican dialogue appears unworkable … [Because members of different groups] conceive of the good differently depending on their different histories, experiences, needs, and attributes. Such fractures on perspective will mar agreement on an overarching common good.’ (1989, 1718)
Republicans claim that the deliberative process can settle ‘normative disputes with sustantively right answers …[or] uniquely correct outcomes ‘(Sunstein, 1988, 1541, 1555) This assertion has been often and seriously questioned (eg Powell (1989)) The criticisms, however, I think, fail to recognise the proximity of the republican argument to Habermas’ (see thesis [3] below); where similarly, conditions for uncoerced dialogue are put forward as, optimally, conditions of truth of normative (as well as factual) statements.
Sunstein, 1988, 1549
Michelman, 1986, 27
Michelman, 1988, 1503
Michelman, 1988, 1500
Sunstein, 1985, 140
On a very experimental note, it would be interesting to compare Sunstein’s with Hayek’s criteria on how distanced or dis-interested legislative deliberation could be achieved (Hayek, 1979). Hayek’s basic scheme is to distinguish governing from law-making; the first is delegated to the competition of political parties, ‘government assemblies’, which are ‘quasi-commercial corporations competing for citizens,’ (1979, pp 132-3) a situation similar to the one Sunstein deplores in (1986). The second task, law-making, is entrusted to the ‘legislative assembly’, an assembly that Hayek prescribes be ‘composed of independent public figures, mature individuals, free from considerations of personal or group interest.’ (1979, 116) His ‘nomothetae’ operate in a climate that is very different from interest-group politics, are assured tenure and do not depend on party support. The similarity is only apparent of course and the differences of motivation and ideological background between Sunstein and Hayek are deep. Despite this, would it worry Sunstein that Hayek puts forward his “detachment” proposal under the label of ‘dethroning politics’? For an excellent critical retelling of Hayek’s suggestions see Bellamy (n.d.)
Sunstein, 1988, 1588ff
Sunstein, 1996, 7
Michelman, 1988, 1520
ibid., 1522
478 US 186 (1986). The US Supreme Court upheld the State of Georgia’s ban on homosexual sodomy between consenting adults in private.
Michelman, 1988, p1521
Michelman, 1986, 24
ibid., 69
Dworkin, 1986, 189
ibid.
Michelman, 1986, 76
ibid.
ibid., 77
Let us ask with Michelman what the dialogue is ‘for’ and see how Drucilla Cornell, and Seyla Benhabib, two of Michelman’s favourite writers, answer the question (Respectively in 1988, at 1220-24 and 1985, at 348) Cornell explains personal identity and freedom via law as grounded in interpersonal ‘dialogic reciprocity’. Reciprocity is ‘for’ identity then, presumably not the judge’s. Benhabib’s recourse to dialogue is in order to reveal and substantiate plurality, where by plurality she means ‘that our embodied identity and the narrative history that constitutes our selfhood … is only revealed in community of interaction with others.’ This ‘revelation’ addresses and concerns (‘is for’) the individual in community, not the judge. I do not want to labour the point further except to say that dialogue only has the identity-generating effect if it reveals to the participating members the narrative they share; the dialogue must be located in the community that is providing the narrative, not the community that is providing the official interpretation. In Michelman’s later writings, the externality of the judicial dialogue is removed through the notion that our dialogue is ‘of course’ conveyed to their dialogue (see below). This argument creates new absurdities but evades the one above. In any case, Dworkin steers clear of all this. One can pass over Michelman’s criticisms here, because Dworkin defines clearly what his presuppositions for ‘best’ interpretations are, and it being ‘dialogical’ plays no part in it being ‘best’.
As Paul Craig has explained, the role that Michelman reserves for the court in the republican dialogue is first of all ‘to establish the conditions for the process of dialogue. This process can only operate where certain prescriptive social and procedural conditions exist which serve to prevent any such dialogue from being coercive and a violation of one’s identity.’(1990, 353)
Michelman, 1988, 1525
ibid., 1533
Brest (1988)
Michelman, 1988, 1531
ibid. Also Sunstein, 1988, 1578
Sunstein, 1988, 1573, 1585-89. For similar suggestions see Sandel, 1988, 20
Michelman, 1988, 1531, my emph.
Even Kahn, one of the most perceptive critics of republicanism, limits his criticism to Michelman’s earlier work, while acknowledging that that more recently Michelman has ‘moved away from the Court-centred perspective on the discursive community … to argue for a non-state centred notion of republican citizenship.’ (1989, p28, fn 120)
Citizenship only makes sense when it is conceived as our imput into the official processes, even simply as designating that relationship of individual to the state. Any other use of the term that removes its intimacy with the law shifts the coordinates unrecognisably. Are we meant to agree with Abrams’comments on Michelman, that ‘acts or judgements that emerge from this [informal] process of recollection are regarded as law, regardless of the formal source from which they emanate.’[?] (1987, p 1593) Or are we simply to concede that our informal dialogue crosses the line into law’s expert, exclusive and official discourse without any loss of meaning, without compromise?
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Christodoulidis, E.A. (1998). American Civic Republicanism. In: Law and Reflexive Politics. Law and Philosophy Library, vol 35. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-3967-0_4
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