Re: Founding-Centered Constitutionalism

[Carlos Gonzalez]

In response to RJLipkin's last post: I agree that what a few dozen delegates at the Philadelphia convention thought ought not be the cornerstone of modern constitutional interpretation. However, I am not convinced at all that the Founders' conception of self-rule was contemptuous of ordinary people.  The concept is that of agency.  The People are the sovereign, but delegate day-to-day governing authority to an agent government.  There is nothing contemptuous of the People in this arrangement.  It just seems to be based on the reality that the People are not and (due to time and other constraints) cannot be sufficiently focused on or expert in the issues involved in every day governance.  Principal-agent relationships are commonly used to deal with situations where the principal lacks the time or expertise to manage some particular matter.  Nothing in the principal-agent arrangement presumes a contemptuous attitude towards the principal.  Thus, one who is not an expert (and does not have the time to become an expert) in investing might hire an investment advisor to manage one's assets.  Or a group of shareholders in a company (who are not really able to manage the company themselves) hires a management team to run the enterprise.  Or a client needing legal advice hires an attorney.  None of these agency relationships presuppose that the principals are incompetents.  Instead they are based in the reality that the principals simply do not have the time, expertise, etc. to manage some particular matter.  None of this implies a contemptuous attitude towards principals (be they investors, shareholders, consumers of legal advice or the People).  The Founder's conception of popular sovereignty and self rule gives the principal People ultimate authority, but the People delegate day-to-day governance to an agent government.  If the agent gets out of line, the People have the right to alter the agency relationship (via constitutional amendment or revolution).  Moreover, periodic electoral checks by the People, an independent judiciary, separations of powers, and federalism offer (imperfect) safeguards against the agent getting too far out of line.  Nothing in this arrangement is contemptuous of the People. I guess that some of the comments in this thread are reminiscent of the never ending (and recently quite active) debate over the anti-democratic nature of judicial review.  Some get quite lathered up about the countermajoritarian difficulty.  Others respond (quite rightly to my mind) by admitting that the judiciary is undemocratic, and pointing out that the American system of government is not now nor ever has been all about democracy or popular day-to-day governance.  It is instead a government based on elements of democracy, elements of separation of powers, elements of federalism, and even elements of things that are quite undemocratic such as the federal judiciary and the federal reserve.  It is a federalist/pluralist/democratic/bureaucratic republic, and so what if it is not just about populist democracy.    The same basic response applies to those who advocate populist governance and heavy popular involvement in day-to-day governance.  In short, our version of popular sovereignty does not permit heavy populist involvement in day-to-day governance.  No problem.  The system was designed to have some democratic elements, and other non-democratic elements, and that is the kind of system that works best.          Look, it seems to me that the burden of proof is in those who advocate a populist democratic form of government.  Highly populist governments that involve the people too much in day to day governance do not have a strong track record.    In addition, I'm not so sure that the Founders intended or that our modern government completely exclude the People from day to day governance, but I've been going on too long so I'll fry that fish another day.  Carlos Gonzalez Associate Professor of Law Rutgers School of Law RJLipkin wrote....        I agree. Moreover, I do not think that we are compelled to endorse the interpretation that regards the (famous) Founders as embracing a conception of self-rule contemptuous of ordinary people. And if we are so compelled, my response is that the (famous) Framers' view is simply incoherent. I do not understand, even in theory, how the people can be the normative source of political power and self-rule, yet be totally excluded from self-governing as it occurs on a daily basis. Or even if we refrain from rejecting such a view out of hand, we must, at least, explain how the people can be fit as the normative basis of self-government and similarly fit every two, four, or six years to elect the elite politicians, yet must be excluded a prior from a more active and permanent role in self-government. The central point here is that if the (famous) Founders' conception of self-rule is canonically contemptuous of ordinary people, that conception is not easily distinguishable from the monarchist conception, the Founders fought against. Instead of one King, we now have several Kings to govern a grateful polity.        Distinguish between two possibilities: (1) For pragmatic reasons existing at the time of ratification, the American constitutional system was designed in a particular way giving ordinary people a say only in elections and in times of revolution, and (2) This design is canonical; it can be altered through an Article V change, but if it is, the new system will nevertheless pervert the true (best, sacrosanct, take your pick) theory of the (famous) Founders that ordinary people have no (permanent political) role in the day to day vagaries of self-government. I might be persuaded to accept (1). But I think (2) is anathema to the notion of self-rule (even as the (famous) Founders understood this), and a perversion of the same.        In the final analysis, if I embraced a Founding-centered constitutionalism, I'd be more interested in the Founding population, including of course the Founding Fathers, but in no way limited to them. But as I indicated earlier I agree with Bob Sheridan's suggestion that we must question whether a Founding-centered constitutionalism is anything more than one indicia of the appropriate conception of American self-rule. And after two hundred years of American constitutional development, a Founding-centered constitutionalism, though still relevant (though decreasingly so), is hardly dispositive of what the American conception of self-rule includes. Bobby Lipkin Widener University School of Law Delaware