Keeping the Republic

“The Constitution Is Broken And Should Not Be Reclaimed.” This headline from a New York Times editorial written by two law professors (from Harvard and Yale), is simply a more hyperbolic expression of a point of view that has become increasingly prominent in the writings of law professors, journalists, political scientists, and politicians who deem the Constitution to be not only “broken,” but also “paralyzing,” “undemocratic,” and “obsolete.”

Even more prevalent are arguments for abolishing or radically changing key aspects of the document: the Electoral College, the Senate, the Amendment Process, the Presidential Veto, and the lifetime appointment of Supreme Court Justices.

Keeping the Republic is a defense of the American constitutional order, and a response to its critics, including those who are estranged from the very idea of a fixed constitution. The central argument of the book is that the Constitution provides for a free government because it places effective limits on the exercise of power.  This is an essential ingredient of any good government—even one that aims to be a popular government.  That the people should rule is a given among republicans; that the people can do anything they want is a proposition that no sane person could believe.  Thus, the limits that the Constitution places on American political life are not a problem, but a solution to a problem.  That problem we define more precisely as the difficulty (even the danger) of popular government in a massive modern state (the focus of Chapter 1).  The United States was the first nation to attempt to create a durable answer to that problem

The following are the most politically relevant attributes of modernity. In a modern state no person can, without fear of ridicule, claim to be better than another as a matter of birth. Equality is the rule. In the public sphere, rank does not have its privileges. Claims of superiority are only considered valid if they are based on a rational principle, merit. Of course, equality and merit are often honored in the breach. But such hypocrisy does not undermine the compelling nature of such claims.

The modern state is enormous in scale.  Before the modern period, large political entities were empires rather than nations, and they lacked the level of political integration, stable borders, and administrative control that modern states enjoy. Self-government is not possible in an empire. It is inevitable that the vast populations of modern states will bring diversity with them.  Modern states encompass many different ethnic, cultural, racial, and religious groups. Nations as different from one another as Canada, Nigeria, the United States, and India have experienced conflict, sometimes violent, between groups of citizens whose differences of ethnicity, religion, or language were stronger than their commitment to a common national home. Among the large modern states only Japan is ethnically, culturally, and racially homogeneous.  

Since the modern state numbers in the tens or hundreds of millions, direct participation is impossible except for a small fraction, counting both office-holders and an activist fringe. Each citizen comes to compose an infinitesimal fraction of the whole. Not only does this place practical limits on direct participation but it also makes it very difficult to resist the conclusion that any one individual is simply too insignificant to matter politically and, therefore, one may readily become passive.  Because all modern states claim to rule in the name of the people, those who belong to it are called citizens not subjects, as they would be called in a monarchy. And yet, arithmetic reality threatens to turn them into subjects, in fact if not in name. Thus, the claim of “popular sovereignty” does not, per se, protect against autocratic rule.

In modern states, populations are highly mobile.. As a result of both international and internal migration whole new communities and neighborhoods have arisen and their inhabitants have not yet put down strong roots and continue to live among strangers.  The long human era when most people lived and died not very far from where they and their ancestors were born is now coming to an end.

To ensure peace and security, modern states must command and mobilize huge military. To do so, it must match the military might of the most aggressive and powerful state that might threaten it.. Not only does this strain organizational capacity, but it imposes an enormous recurrent tax burden on the citizenry. Modern states require a level of routine coercive capacity unknown and unavailable to their pre-modern counterparts.

The government that is strong enough to protect the people is strong enough to tyrannize them as well. Modern history is replete with examples of leaders using their armies and national police forces to terrorize the population or punish their opponents, and of generals ordering their troops to turn their guns on elected governments and to replace those governments with a military dictatorship. What this sad history reveals is that, in addition to the other challenges posed by modernity, modern states can be dangerous.

The quest for material well-being and longer lives ensured that the fruits of modern science and technology would be aimed at providing prosperity, longevity, and physical wellbeing, as well as military capability. As a result, the vast majority of people in a modern state will be wealthier than human beings have ever been, except for the tiniest minority.  And in some places even middle-class citizens will enjoy a material abundance unknown even to the pre-modern aristocracy. Unfortunately, as Hobbes foresaw, well-being does not breed contentment.  As citizens’ more immediate wants are satisfied, new desires emerge that they seek to fulfill.  As productive capacity increases, citizens become less content with their current levels of consumption.. Thus, the more government accomplishes in providing for people’s wants the more the people pressure it to do even better. The ever-expanding demand to provide for human welfare complements the need for security to make government ever more powerful and intrusive. And, as advances are made in nutrition, sanitation, and medical science, people in modern states live much longer and infant and child mortality decline.  Populations will therefore grow, contributing to the problems caused by size.

The book is largely devoted to substantiating the claim that the constitutional order the Framers established was and remains the best political and governmental framework for coping with the threats to free government that modernity poses.  And yet, if that order is so excellent, why has confidence in the constitutional design and trust in government declined so markedly in recent times?  And, despite the low level of trust, the public demands that the federal government should do even more to improve the lives of the people, often in the form of “programmatic rights,” i.e those that only the government can secure such as healthcare and a clean environment. The later chapters of this book explore this seeming paradox. To address this question the book revisits the most critical periods of 20^th Century policy transformation—the New Deal and the Great Society as well as the period since the 70s, which has engendered a form of anti-constitutional relations between the courts, the bureaucracy and Congress, which the book labels “stealth government.” It then offers an alternative way of understanding the path to useful political reform: working with the “constitutional grain” rather than against it. The book concludes with a reflection on the art of “thinking constitutionally.”

Dennis Hale is professor of political science at Boston College, author of The Jury in America: Triumph and Decline, and editor of three other volumes.

Marc Landy is professor of political science at Boston College and coauthor of Presidential Greatness and The Environmental Protection Agency: Asking the Wrong Questions: From Nixon to Clinton.