Minimaxing carries with it its own costs, and those costs might very well turnout to be greater than the costs of draconian coronavirus policy.
Political Political Theory is no misprint. Jeremy Waldron’s stuttering title well expresses his intention.
In the last generation, observes Waldron, “political theory” has become synonymous with considering the moral foundations of political life; the writings of John Rawls and Robert Nozick have framed much of the discussion. With the phrase “political political theory,” he signals the need to direct some philosophic attention to the actual operations of political life—particularly the forms, structures, and institutions by which we rule ourselves or are ruled by others. Philosophers used to think institutions too important to be left to the political scientists, and they should return to that kind of study, he rightly suggests.
A Brit who teaches at New York University Law School, Waldron has a background in the school of analytical philosophy, a school that initially needed persuading that politics (rather than epistemology or ontology) deserved any serious philosophic attention at all. Whatever one may think of Rawls, he does seem to have won that point. Waldron takes the next step in bringing the analytical school around to a fuller consideration of politics, while exhibiting the habit of insisting on careful definitions he has learned in it.
As we Americans say, he likes to kick the tires on everything. In fact philosophers generally are supposed to do this—had tires been invented in the time of Socrates, he would have taken a whack at them or, better, interrogated their owners about where they thought they were going on them.
The first as well as the last two chapters of the book make the case for this turn to “political political philosophy,” while its central chapters show how one should proceed after one has made the turn. Waldron justifies his proposal fundamentally by arguing that political institutions frame not only the way we act in the public square but also the way we think about moral and political matters.
If you think all men are created equal, not only will you design institutions that embody that principle, but the principles you design will incline citizens toward that notion. Institutions that channel my actions in a way that requires me to take account of your opinions will make me more likely to take your opinions seriously. I may even begin to take them as intrinsically serious. And once I start taking your opinions seriously, I am well on the way to taking you seriously, too, reinforcing respect for the equality principle of the regime.
The profound psychic and intellectual damage done to victims of long-established tyrannies teaches the same lesson: Political regimes considered as formal structures matter humanly, and indeed philosophically. Waldron reminds us of the Baron de Montesquieu’s warning that “a lack of interest in forms, processes, and structures [typifies] a society en route to a despotic form of government.”
Waldron sharply criticizes that great friend of liberty, Isaiah Berlin, for neglecting institutions. Berlin worried so much about the malign effects of Enlightenment optimism on modern politics that he dismissed the rational design of political institutions as a vain and dangerous aspiration. He failed to consider adequately “the constitutional devices that might be used to uphold the . . . liberty that interested him,” insisting rather that these must more or less evolve over time, by trial and error.
By contrast, Hannah Arendt appreciated deliberate constitutional design as the “furniture that enables us to sit facing one another in politics, in just the right way”—the way of discussion, the way of politics itself, which Arendt, following Aristotle, understood as ruling and being ruled by turn. Mere assertion of “the Rights of Man” will exhaust itself without institutions that help men and women to secure those rights. By exercising their political liberties, citizens act to secure all the others.
The overall aim is to find a way for human beings to live together in our vast, modern states, in which extraordinarily diverse human groups pursue “competing and incommensurable values,” in Waldron’s words. He mis-ascribes this aim to the American Founders, who grounded their thought in natural right. The mistake may stem from his conceiving nature as mere “animality” and thus un-free. On this view (derived perhaps from David Hume’s “Is-Ought” dichotomy, routinely accepted by philosophers in the analytical school), we need “political convention [to] hold ourselves to be one another’s equals” (emphasis in original). Waldron thus applauds “Arendt’s rejection of all theories of a natural basis for human equality,” for allegedly, these theories run “the risk of holding that our natural similarities and dissimilarities are the ones that matter, whether they turn out finally to support the notion of equality or not.”
But that of course is not at all what the American Founders thought. That would be to confuse George Washington and Thomas Jefferson with John C. Calhoun and Jefferson Davis.
To regard natural rights—rights coincident with human nature as such, and therefore true so long as human beings survive—as the moral foundation of the civil rights which enable citizens to secure those natural rights, and equally to acknowledge, as the Founders did, that human nature is flawed, that we often put each another in danger with our ambitions and appetites, is to retain Berlin’s skepticism regarding the wilder Enlightenment notions of human perfectibility while also retaining Arendt’s esteem for institutional forms. It is to reject notions of inevitable social and political progress, the ontology of that large basket of philosophic and political doctrines that turns the study of history into historicism, and the desire for progress into Progressivism—ideologies that have resulted in ills ranging from the bureaucratic “soft despotism” described by Tocqueville to some very hard despotisms indeed.
To his credit, Waldron shows little sympathy with the more optimistic doctrines of historical necessity, which have taken hammer blows from philosophers ranging from Friedrich Nietzsche to Martin Heidegger and from contemporary thinkers who attempt (rather optimistically) to domesticate Nietzsche’s and Heidegger’s teachings to the ways of modern democracy. This leaves Waldron’s political thought eminently sane but unclear in its grounding. If genuinely political life is good, on what grounds can he judge it to be so?
He wants to avoid taking a stand on this, probably because he knows that his fellow citizens disagree so sharply on precisely these questions of grounding. He wants them to see something in political life for them even as they so diversely and in many instances contradictorily conceive of themselves.
Fundamentals aside, the bulk of the book consists of unfailingly astringent discussions of the most important structural features of modern democratic republics. These include constitutionalism (he rightly insists that constitutions not only limit government but empower it to act authoritatively, that is to say with moral as well as physical strength); separation of powers (which he over-optimistically supposes can be established effectively within the administrative agencies of the modern state, which notoriously combine executive, legislative, and judicial functions); bicameralism (he applauds it, so long as the two legislative houses actually “house” different ways of representing the sovereign people, each capturing perspectives and opinions the other would overlook); “the principle of loyal opposition” (which provides the politically indispensable habit of not needing to take politics as a “zero-sum game,” the impact of hammer upon nail); and representation (he rivals James Madison in his esteem for it).
Waldron considers lawmaking—which, in democratic republics, requires institutions that enjoy the widespread support of citizens with deliberative seriousness, consent of the governed, respect for the losers, formal procedures that minimize “mutual misunderstanding” among “people who have very little else in common,” and majority rule, because “eventually decisions have to be made,” and also because majority rule is the way to decide that preserves respect for the equality of each person.
All of this leads up to the book’s longest and most controversial chapter, a critique of judicial review, which Waldron deems “inappropriate as a mode of final decision-making in a democratic society.” (He regards the prospect of constitutional amendment as too dim to be viewed with much seriousness.)
To condense radically his carefully-drawn argument, Waldron takes what amounts to the argument made in Federalist 84 against a bill of rights and extends it to a critique of judicial review. In one of the most-quoted sentences in that eminently quotable set of essays, Publius affirms that “the Constitution is itself, in every rational sense, and to every useful purpose, a BILL OF RIGHTS.” No appendages needed, not only because the key civil rights (including the writ of habeas corpus and the ban on primogeniture) are already included in the body of the Constitution itself, but primarily because the Constitution so structures our political life as to vindicate liberty by forcing ambition (including tyrannical ambition) to counteract ambition, and, more, to “refine and enlarge the public views.”
If so, Waldron asks, why do we need judges to tell us what the (constitutional) law is? Why can’t we just work it out amongst ourselves? The American Progressives agreed, but unlike Waldron, they imagined that “History” was on their side. This is what makes Waldron interesting—he has no ontology, no secularized version of Providence, under which everything is supposed to come out right.
Publius and the other Framers of the Constitution did endorse judicial review—so what does Waldron have? Once again oversimplifying his intricate and stimulating argument, I draw attention to two points.
First, he argues that “tyranny is tyranny” no matter how we get it, but the majority tyranny we fear from a thorough democratization of constitutional judgment is the least bad form. Why? Because majority tyranny features “at least one nontyrannical thing about the decision,” namely that “it was not made in a way that tyrannically excluded certain people from participation as equals”—this, of course, assuming that the decision only affects fellow citizens, and not, for example, a slave population or a colony. Waldron here overlooks Alexis de Tocqueville’s description of the power majoritarian rule exerts on each individual. Liberated from social and political pressure from above, men and women in democratic societies, says Tocqueville, find themselves subject to pressure that surrounds them. “Horizontal” pressure replaces “vertical,” ultimately with more malign effects on liberty of minds and hearts.
Additionally, Waldron explicitly assumes that, in democratic societies, disagreement “is not usually driven by selfish interests.” This assumption Publius most assuredly does not grant. Without succumbing to the ontological optimism of the Progressives, Waldron nonetheless does partake of a bit of the Enlightenment optimism that his nemesis, Isaiah Berlin, so vigorously scorned. It is precisely the tendency of majorities—whether well-intentioned but conformist, as in Tocqueville, or ill-intentioned as they often are in Publius—to override reason with passion that forms the core of The Federalist’s defense of judicial review.
But let’s not end on a sour note. This book deserves careful study, first of all by philosophers, but equally by political scientists and all citizens who enjoy a good argument. And what real citizen, what real philosopher, doesn’t enjoy a good argument?