Opposing radical individualism, Lawler and Reinsch look to the unwritten constitution as the key to understanding how to form citizens in a democratic age.
Editor’s Note: This essay appeared in Cultivating Virtuous Citizenship?: A Law and Liberty Symposium on the Ryan Foundation’s American National Character Project.
President Donald Trump’s inaugural address did not contain the word “liberty” and made only passing reference to “glorious freedoms.” But the president did pay rather conventional homage to the ideal of self-government. “What truly matters is not which party controls our Government, but whether our Government is controlled by the people. January 20, 2017, will be remembered as the day the people became the rulers of this Nation again.”
Of course, Trump also famously claimed that his hard-won knowledge of how to play the corrupt system made him uniquely (not to say divinely) qualified to act as a tribune of the people. “I have joined the political arena so that the powerful can no longer beat up on people that cannot defend themselves. Nobody knows the system better than me, which is why I alone can fix it.” Self-government of the people would be realized through the courageous action of the beloved leader. That may or may not sound like a recipe for tyranny, but it is certainly not the vision of self-government that used to hold sway in American political life. It does not exactly sound like “the people” acting as “rulers of this Nation”—unless “the people” is treated as a singular noun whose “rule” flows through Trump-as-avatar.
Say what you will about this plebiscitary messianism, at least it’s an ethos, one that explicitly speaks to the American yearning for self-rule. A growing portion of our intelligentsia, both progressive and libertarian, instead wishes to toss the idea of self-government to the side of the road so that we might enter into a more enlightened technocratic future. In their vision, specialized experts are entrusted—ultimately, and not just conditionally—with policymaking power. After all, who is rationally more capable of exercising power responsibly and efficiently? Yes, there will be mistakes, but this regime will do better than any others. Certainly, better than one that defers to the vagaries of public opinion, which an ocean of evidence shows to be deeply confused and insensitive to facts and reason.
Sometime after the conclusion of the War of 1812, Commodore Stephen Decatur famously toasted, “Our Country! In her intercourse with foreign nations may she always be in the right; but right or wrong, our country!” Superficial critiques notwithstanding, this still-resonant sentiment is anything but jingoistic. As Albert Hirschman pointed out, “may she” clearly implies the possibility that she will not, and the emphatic sense of possession implies that we will seek to ensure that she is. We do not say: “May the rulers of the country in which we dwell act well, and may we ever be dissociated from their failings.” Proponents of technocracy often come surprisingly close to embracing this responsibility-abjuring formula, though. In their view, citizens are passengers; they should count themselves lucky if they live under a system that will get them the most competent pilot, and free themselves of the psychic burdens imposed by altogether fanciful notions of self-rule.
Neither of these two extremes offers a path to real self-rule; perhaps more importantly, in our current mistrustful environment, neither offers a remotely viable form of justification for our government. Neither Donald Trump and his cohort, nor Cass Sunstein and his, has anything approaching sufficient political resources to win the trust of a majority of the public. It is out of necessity that we seek a government that really feels like “ours” — because there is no mutually agreeable outsider who can stand in for us.
Our Constitution provides us with an answer to this dilemma right in Article I: in providing two chambers of representatives not beholden to any other power center, the framers gave us an organ of government that is structurally indispensable for coping with the diversity of an extended republic. Our contemporary Congress is falling down in this role, leading many people to write it off as irrelevant or fantasize about its replacement. We can’t afford such indifference or escapism. Instead, getting the dumb generalists in Congress to engage in real politics remains the best way to keep our republic self-governing in some meaningful sense.
Why? Because all of us are dumb generalists most of the time, and we find it intolerable to give over the awesome powers of the modern state to people who regard themselves as above evaluation by dumb generalists. If we are dumb on many specific matters (and, God help us, we really are), we are nevertheless right to reject the pretensions of our would-be overlords, whether they pretend to an implausible mandate from “the people” or form themselves into impenetrable guilds of knowers. We can be supremely confident of this, because those who would hold themselves above us are merely human, with all of the limitations and blind spots that infirmity entails. Seeing no better arbiter available, experts beneficently offer to judge themselves—but this is every bit as hubristic as it sounds.
Congress necessarily justifies itself quite differently. Representatives do not say “only we can fix it,” but rather “we can honestly, honorably, and representatively grapple with real problems in a way that is true to the bewildering variety of interests in our country.” Citizens instructed to approach government bureaucrats as supplicants inevitably find the experience enervating. Citizens pushing the representatives whose jobs depend on their support to forge constructive compromises can, potentially, find the experience energizing.
Self-government in the 21st century isn’t realistically going to mean the revival of some Jeffersonian ideal of participatory democracy. That said, it is pusillanimous and anti-republican, not to mention mean-spirited, to sneer at the importance of common citizens’ judgments in holding the bearers of state power to account. The surest way to empower citizens’ judgments is to reenergize Congress. That requires restoring functionality, direction, and a sense of self to a body that has clearly become adrift in recent years. It also requires that Congress never see itself as subordinate to the executive branch, even in those situations in which it finds it convenient to follow the president’s or bureaucracy’s lead. War powers come to mind, but so do mundane issues relating to the power of the purse, where Congress seems to choose executive-managed autopilot rather than meaningfully debating the fiscal claims of competing national priorities.
Those of us who retain some faith in self-government, however naïve it may sometimes seem, should mount a vigorous but qualified defense of our Constitutional inheritance—one that insists that our Madisonian separation of powers embeds the right ideals into our political life, but that admits our current politics are doing a poor job realizing them in practice. That is less rhetorically compelling than saying that the Constitution can directly empower “We the People” to take control of everything if only those dastardly politicians would get out of the way; and less sophisticated than saying that in a world of ever-proliferating knowledge, the only morally worthy thing to do is defer to experts. But it is an honest day’s work, worthy of a free people who aspires to govern themselves.