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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.

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