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Rebuilding the Institutions of Self-Government

I’m thankful to Richard Reinsch for putting together this lively and interesting forum on the pressing difficulty of self-government in America today, and to those who responded to my initial essay in the Liberty Law Forum. Each response brings a different perspective to this debate. They range from optimistic about the practice of self-government in America (Gerard Alexander), to pessimistic about our slide into majoritarian, direct democracy (Robert Paquette), to critical of any definition of self-government that prevents individuals from making their own choices about how to direct their lives (Jason Kuznicki). Ben Peterson also joined the conversation to emphasize that institutions play a very limited role in vindicating self-government, and that the primary check on government comes from the civic virtues that are cultivated by society rather than government.

Each response merits a careful reading and, when considered together, they help reveal the great complexity entailed in the concept of self-government, which is one of the great challenges in addressing the issue of our capacity for self-government today. Moreover, after reading the responses, I think it’s fair to say that Willmoore Kendall’s critics aren’t going anywhere.

I can’t say I’m surprised.  Kendall’s ideas were unorthodox as he was writing, and they certainly are unorthodox today.  But we neglect him at our own peril—not because he had all of the answers to our problems, but because he had a good sense of how constitutionalism can improve the practice of democracy in America. It’s in this area—the effect of constitutionalism and governmental institutions on how people govern themselves—that Kendall has so much to teach us.

There is much that I would like to explore in my response to my critics, but with limited space, I will focus on two points, and the main of which has already been touched upon. First, I agree with some of the criticisms that others, especially Jason Kuznicki, leveled against Kendall. Kendall’s early work, in particular, focused excessively on the role of civic virtue in American democracy and neglected the utility of institutions to support responsible self-government. I don’t know whether Kendall really advocated the establishment of a Christian theocracy (it is possible, after all, to praise the Mayflower Compact for the role it played in establishing a sense of American constitutionalism, without embracing every particular it adopted); but even if he did, it would not detract from the insights he offered later in his life about the importance of congressional deliberation.

My somewhat lengthier point focuses on the most provocative responses to my initial essay. Ben Peterson (and Robert Paquette, to a lesser extent) chastise me for not attending to the important distinction between civic virtue’s primary role in promoting self-government, and institutions’ secondary role in that objective. Peterson in particular argues that “the idea that political institutions can foster virtue . . . is alien to the thought of the Framers.” Paquette generally agrees, though he acknowledges that America’s transition from republic to democracy has profoundly harmed the prospects for self-government.

The main thrust of this argument is that we cannot solve today’s problems of congressional self-government by thinking creatively about institutional structures and rules. It all comes down to the virtue (or lack thereof) of the people. My approach, then, is destined to miss the mark because it focuses on the wrong cause of our problem.

The position that institutions cannot stand in for virtue certainly finds support in The Federalist, and Peterson quotes Madison’s essay on this point to great effect. So I agree that institutions cannot foster virtue, but I disagree with his conclusion that “Improvements in our national political institutions depend upon improvements in civic virtue fostered by our social institutions, not the other way around.” Madison and Hamilton, at least, were keenly aware that civic virtue affects the way institutions work, but also that institutions affect the way civic virtue works.

This admission, that institutions affect the way people behave, and therefore can capitalize upon or squander civic virtue, pervades The Federalist. In Federalist 10, Madison says that “No man is allowed to be a judge in his own case, because his interest would certainly bias his judgment.” He then adds, “With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time.” Why is it that bodies of men are more biased than individuals? It must be that the institutional context in which they operate has changed their behavior, in this case for the worse.

Five essays later, Madison’s coauthor Alexander Hamilton elaborates:

Has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? The contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. Regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one.

As a result, said Hamilton, “A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses, for which they would blush in a private capacity.”

Like Madison, Hamilton argues that groups of people are prone to excesses, particularly the excesses of faction, because responsibility for improprieties is reduced when groups act collectively. This is a simple but important insight about human behavior, and it reminds us that civic virtue operates not in a vacuum but in an institutional context that profoundly affects it.

So the Framers were keenly aware that institutions do affect civic virtue and self-government. The wise legislator will be careful to set up institutions that make legislators behave responsibly rather than irresponsibly.

I’m not arguing that self-government is more a matter for institutions than for civic virtue. What I am saying is that institutions matter a great deal more than we typically realize, and that if we want to promote responsible self-government, we need a better science of politics with regard to institutional design. Most of Congress’s rules, structure, and procedure are left open by the Constitution for modification. If getting the rules, structure, and procedure are at least part of promoting self-government, it behooves us to consider the people (including, but not limited to, Willmoore Kendall) who have thought about those issues most carefully.

Reader Discussion

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on August 04, 2017 at 12:04:19 pm

It is good that Professor Postell summarized the forum and express appreciation for Reinsch and the informative responses by Alexander, Paquette, Kuznicki, and Peterson.

I think professorial propriety obfuscates discovery and confines students to narrow pasts. Fortunately for the students, some are dissident to official education. The professors, by focusing on isolations of the past, stonewall themselves from the leading edge of the people’s slow march toward civic morality. But egregiously, by overlooking the preamble to the constitution for the USA, professors retard possible progress. Institutional neglect of the preamble is intentional. It empowers the theism-government partnership. Only the people can reverse the 230 year American trend.

Most people want peace so that they may pursue personal interests during their lifetime and for their children’s lives and grandchildren’s lives and beyond. Some want to take advantage of the-objective-truth and are eager to benefit from the discovery. Some are willing to collaborate for comprehensive safety and security during every decade of their lives. Some are dissidents. The willing address justice for now and the future but do not want to master the debates of the past. They regret the use of force, but realize the rule of law is necessary to constrain the dissidents who cause harm. The theism-government partnership keeps the willing people from collaborating.

It is impractical for every person to attempt to discover the-objective-truth; it is a collaborative, human quest. Societies form on shared opinion and therefore cannot be trusted to focus on the-objective-truth. However, individuals and particular societies may iteratively collaborate to discover the-objective-truth and use it to lessen human loss and misery. The factions agree that the goal is discovery and the consequence is utilization of the results.

If the discovery accommodates everyone’s personal pursuits, there is no need for regulation or law. On the other hand, if one party has goals that conflict with the-objective-truth, constraint may be needed. A super-majority appreciates laws that constrain theft. However, denial that a child is a person is more controversial: Some people think it is alright to deny a newborn human equality and dignity. Concern for ova is almost non-existent, and that is an error in civic morality. Neither theism nor political systems can be counted on to discover civic morality. Only willing people can discover and offer ultimate justice (a phrase borrowed from Abraham Lincoln, 1861).

Rather than working to advance a theory from the past, professors could be working to help extant people live at the edge of the inexorable march toward comprehensive safety and security. In the USA, that quest could be ordered by the preamble to the constitution. It is a civic agreement that covers as many categories of civic morality as 325 million people can publicly handle. The preamble addresses civic issues, leaving private any personal practices such as religion. The-objective-truth may be used for discovery leading to public integrity.

Willing, informed Americans, who created the preamble and the articles that follow, included the promise of republicanism. Only 2/3 of delegates signed the draft, and the 1/3 dissidents had reasons. Many details assure that democracy cannot spoil the republic. For example, in Congress, a continually fixed number of Representatives, now 435, reflect populations, but each state has 2 senators. For example, California has 53 representatives while Wyoming has one. However, to assure the people’s sovereignty, as declared in the preamble, articles can be amended so as to replace republicanism with democracy. I think the people who would like that amendment are disruptive dissidents---collectivists, much like Saul Alinsky.

By repressing the power of the preamble, institutions suppress self-government. That is the point of falsely labeling the preamble “secular.” The preamble offers a civic agreement that leaves religion for individual privacy or chosen association. It makes no sense to expect civic virtue to arise from a religious society, or any other society. Not all religions have theism, and no two doctrine have the same God. Civic virtue can come from a culture of collaboration for comprehensive safety and security. In a comprehensive culture, every no-harm society may flourish according to factional interest. Some literature cited in the forum supported the preamble, but beyond me, the word did not occur in the forum. The professors do not recognize the agreement offered in the preamble.

Reference to Kendall was especially surprising, because Kendall seemed so attracted to theism as the source of civic virtue. The focus on theism as a basis for civic morality was disproved by American Christianity’s advocacy for slavery, as witnessed by Fredrick Douglass in a citation by Kuzniki. In fact, approval of slavery calls into question the Church’s canonization of the Holy Bible. If the Bible is the Word, slavery may prevail; mankind may discover who is master and if race is involved. But the important failing by Kindall is to extol congressional debate. In civic justice, willing people discover the-objective-truth and how to benefit, and Congress acts accordingly. The President administers the law, and the court recommends constitutional amendment if the law conflicts with the-discovered-objective-truth. In a civic culture, Supreme Court opinion does not overrule the-objective-truth. A free press is constrained to represent the-objective-truth. Albert Einstein, in 1941, pointed out that liars cannot communicate, but the press keeps on lying. Professors may be constrained to represent the-objective-truth.

It seems Peterson and Paquette coerced Postell into accepting “America’s transition from republic to democracy,” as a done deal. How foolish! Further, the subject morphed to “congressional self-government” with blame to the people. Above, I asserted that civic virtue cannot come from social institutions, theism, or government, but may come from willing people---willing individuals. People collaborating to live in peace every decade of their lives solves the problems Madison noted, in Federalist 10. Madison did not offer a grounded solution. And Hamilton seemed prescient as to Congress behaving such that “they would blush in a private capacity.” The Democratic Party, Libertarian Party, and Republican Party each seems worse than Congress.

Saul Alinsky and Alinsky-Marxist orgainzations (AMO) have demonstrated how “groups of people are prone to excesses.” And AMO works to combine factions into collectives that disrupt civic virtue altogether.
AMO generates conflict for chaos. Google “D.L. Adams+Alinsky” to review the history through 2010. “The wise legislator” stays focused on conforming to the-objective-truth rather than demands, collective or not.

This forum has shown that civics professors are so isolated by particular faction or competitive scholarship that they have lost sight of the limited, amendable authority granted the constitution for the USA and the institutions it created. The subject of the preamble and thus the constitution is We the People of the United States. It’s true that the people neglect the preamble. However, they are coerced to do so by the theism-government partnership that lives high on the hog on the people’s backs. The people do not take the time to make certain their vote will advance civic morality---the person they elect will serve the people rather than self, faction, and the theism-government partnership. It’s a matter of propriety. Professors seem to forget they are citizens and get so far out on their limbs it is hard to imagine them finding their ways home---to the preamble and the willing people. Professors could help willing people push the edge of civic morality.

I think students are aware of professorial folly, but young adults are dedicated to graduating and can’t perceive through a scholarly fog the power of the preamble. It is a vicious tragedy.

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