Is this
thread still alive? I've come a bit late to the discussion, but hopefully there
is still some interest. I have a couple of substantive points, the first
being a response to the last posted question and the second which raises a hard
to answer question related to popular sovereignty:
FIRST, in the last post Robert Justin Lipkin left us
with the following foundational questions:
...Are we still in such fear of the masses
that we would insist that although the people are the normative source of
government, in general they're incapable of governing themselves? I find this
idea close to oxymoronic. That the people can be the normative authority of
government, but they are not themselves capable or eligible for governing
prompts the question: If ordinary people are so base, so untrustworthy, so
ignorant, so untutored in the rarefied skills of self-government, then how can
we consider them the normative source of that very government?...
One possible response: Yes, The People are base,
untrustworthy, uniformed, etc. most of the time. As such, (as Marci Hamilton
points out in her contributions to this thread on the founding generation's
understanding of popular sovereignty) The People ought not dominate actual
day-to-day governance, but should delegate governing authority to an agent
government. Sometimes, however, The People rise above base self-interest,
ignorance, etc. In these rare instances The People may engage
in meaningful and fruitful acts of self-governance. I wish I
cold take credit for this response, but I can't. Its Bruce Ackerman's response
(at least as I read Ackerman's theory). Most seem to find Ackerman's theory of
constitutional moments problematic for one reason or another. However, the
basic insight behind the theory -- that The People might be incapable of
self-government most of the time but at other times quite capable of self
government -- seems to me basically correct. Why would we think that The
People (or a people) are always and forever one or the other? It seems to me
completely plausible that a people might be both incapable and capable of acts
of self-government at different times, under different circumstances, etc. If
(like most individuals -- think Ulysses and the sirens) a people have both good
and bad moments, the research agenda questions (but not their answers) are quite
straightforward:
1. Under what circumstances will a people exhibit a
base self-interest and ignorance incompatible with a high degree of popular
involvement in governance?
2. Under what circumstances will a people rise above
base self-interest and ignorance and thus become capable of meaningful and
useful acts of self government?
3. Given that a people will sometimes be incapable
and at other times quite capable of acts of self-governance, how should the
institutions of day-today governance be structured?
4. Given that a people will sometimes be incapable
and at other times quite capable of acts of self-governance, how should the
institutions regulating popular acts of self-governance be structured?
I have no answer to these imponderables. The founding generation, however,
had a clear answer to at least the fourth question. Their answer leads me to my
SECOND point, which is really more of a question.
My understanding is that both federalists and
anti-federalists basically believed that The People would/could engage in acts
of self-governance (ratification of constitutional norms) through extraordinary
conventions, but NOT through ordinary legislative bodies. The basic
understanding was that extraordinary conventions (but not ordinary legislatures)
would embody We the People. The approval of the Constitution by nine of the 13
extraordinary conventions would be tantamount to approval by We the People. Both
federalists and anti-federalists agreed on the notion that only extraordinary
conventions, but not ordinary legislatures, were the institutions through which
The People could act to ratify constitutional norms. This understanding produced
Article VII.
Why, then, did the founding generation choose to
allow Article V ratification of constitutional amendments by ordinary
legislatures? If the founders had such an aversion to ordinary legislatures
as the institutions through which the People could engage in the self-governing
act of constitution ratification, and if they pointedly insisted on conventions
as the only acceptable method for popular ratification of the Constitution's
main body, why would they draft Article V, which allows for ratification of
constitutional amendments by ordinary legislatures?
To my mind this represents a major puzzle. Article
V's amendment ratification by legislatures seems to be in direct contradiction
with the insistence on conventions and pointed rejection of legislative
ratification behind Article VII. I would be fascinated to hear (both on or
off list) any thoughts others might have on this dilemma.
Carlos E. Gonz�lez
Associate Professor of Law
Rutgers School of Law
----- Original Message -----
Sent: Thursday, May 22, 2003 6:19
PM
Subject: Democracy Now
I have found the
thread on sovereignty very helpful. Unfortunately, however, I do not
think we've addressed a set of central questions. Let me work toward those
questions by stating the following: (1) It's controversial at best whether the
Founding was democratically inspired, or motivated by the idea of popular
sovereignty, or by some form of republicanism. Keep in mind, what was true of
the politicians of the time was not necessarily true of the more modest folk
who fought in the Revolutionary War and ratified the Constitution. Our focus
on a small group of men, no matter how remarkable they may have been, already
distorts understanding the quest for independence and a new constitutional
beginning. (2) And, of course, those who believe that republicanism is clearly
the foundation of American constitutionalism will nonetheless insist that (1)
is at best controversial, if not just plainly false; so controversy abounds
over this issue. (3) Even if you insist that (1) is clearly false, subsequent
events, most notably the Civil War Amendments, the vivification of First
Amendment jurisprudence, the privacy and civil rights revolutions, the
development of Fourth Amendment doctrine, and so forth, certainly are
important features of constitutional change since the Founding, and (4)
Republicanism does not presently have the same hold on the popular imagination
as does democracy; indeed, I suspect that (some of) the Framers' republicanism
makes little sense in the present culture. Hence, we can probably say that
constitutional development since the Founding arguably entails that (some form
of) democracy now has no serious competitor as the political theory that best
explains the actual processes of American government and society (with, of
course, notable exceptions) and the normative ideals for future refinement.
With these facts (assumptions?)
in mind let me ask these questions: (a) If some conception of democracy is (or
should be) the present theory of American government and society, which
conception of democracy is it? Which form of self-rule best explains and
justifies (in democratic terms) this society's operations? Moreover,
which conception provides a standard for reforming and perfecting contemporary
institutions so that they may more faithfully reflect the best conception of
democracy? (b) If one denies (a), is there a conception of
republicanism, a hybrid conception of democracy and republicanism, or a
totally novel theory of self-rule that provides the best explanation and
justification of American constitutional society, one which includes a
projection of how that novel theory of self-rule should direct us in the
future?
The reason for these
questions involves a pragmatist commitment, though perhaps hyperbolically
stated, that the future is the measure of all things. That future should, in
my view, be dedicated to an articulation and instantiation of the best
democratic theory. Theoretically and practically we should move towards
democracy now. But even if that's wrong, the future should be dedicated to
some coherent notion of American self-rule, so that American constitutionalism
and politics can get off the ad hoc track they're presently running on
and construct some vision of the future, if not the Founders' vision, then at
least our own.
My own view is that
most strong forms of republicanism--those exhibiting canonical dead-ends
disallowing the electorate from having an effective final say in government
decisionmaking--conceal a pathological aversion to genuine self-rule. Any
genuine self-rule, in my view, must include within the relevant political
community people, and, of course, any group of people will include those who
strike fear, loathing, distrust, and so forth in others. Still, we must keep
in mind, on the one hand, that self-rule doesn't entail mobocracy. We
can build into the constraints of democratic government obstacles designed to
encourage deliberation with the further aim of producing the reflective
convictions of the community's conception of the common good. (Far from
distinguishing republicanism from democracy, these added features arguably are
required to explain the necessary (but not sufficient) role majority rule
plays in any attractive theory of democracy.) But if that system of self-rule
does not require that every set of obstacles ultimately concludes with
ordinary (and extraordinary) people having an effective final say, then I
can't see how it's a system of self-rule at all. We can, instead, bring back a
benevolent King with a knack for listening before he
rules.
I'll close with this final
question. Are we still in such fear of the masses that we would insist that
although the people are the normative source of government, in general they're
incapable of governing themselves? I find this idea close to oxymoronic.
That the people can be the normative authority of government, but they are not
themselves capable or eligible for governing prompts the question: If ordinary
people are so base, so untrustworthy, so ignorant, so untutored in the
rarefied skills of self-government, then how can we consider them the
normative source of that very government. In my view, the two--the normative
source of government and self-government by people--go together, though not
necessarily without timeouts.
Bobby Lipkin
Widener University School
of Law
Delaware
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