Brunella Casalini. Rights and Citizenship in American Constitutional thought

Transcription

1 Brunella Casalini Rights and Citizenship in American Constitutional thought Since the early 70s two prevalent paradigms have influenced American political thought: the first inspired by An Economic Interpretation of the Constitution of the United States, written in 1913 by Charles Beard, the second by The Liberal tradition in America, written in 1955 by Louis Hartz(1). If Beard attempted to demonstrate that the thought of the founders and their major philosophical sources were determined by economic class-interest; Hartz (drawing on a simplified version of Tocqueville's interpretation) argued that Americans knew only the perspective of Lockean liberalism. Having escaped from the experience of the European Ancien Régime, Americans, for Hartz, did not free themselves with the use of state power. Being born equal, they could follow Locke's glorification of individual natural rights and come to share unanimously his defence of property rights. In the "post-sixties" historians have challenged Beard's and Hart's views, launching a sustained criticism of the thesis of American liberal roots and discovering a new hegemonic tradition, dominating American political thought during the Revolution and the Founding, that is: Republicanism. According to Baylin, Pocock and Gordon Wood(2), concern for public good and virtue, rather than with individual rights and private interests, were the lynchpins of eighteenth-century American thought. The almost unanimous consensus that grew around the republican revival, seemed for a while to leave open only one controversial issue: At which point of their history did Americans begin to depart from the republican framework? Answers to this question have varied greatly, but almost all republican scholars concede that a new capitalist liberal and individualist culture has supplanted republicanism in the twentieth century, consequently causing the decline of American political institutions and civic culture. Rights talks and pluralism have come to occupy the scene of contemporary America, shaping politics and legislative process as a mere conflict among free and atomistic individuals who struggle to satisfy their private interests. This historical work has not remained a simple archaeological operation. Indeed, in contemporary constitutional theories republicanism has readily become a useful past, one that has raised hopes of revitalising American public life and saving it from liberalism negative effects. The most interesting result of this trend has been a second reading of the Constitution

2 and the bill of rights. A new reading directed above all against two groups, whom we may respectively consider the heirs of Hartz and Beard: "people who think that the Constitution is designed only to protect a set of identified "private rights" and people who treat the document as an effort to provide the rules for interest-group struggles among selfish private groups"(3). The latter, the so called "democratic pluralists", have drawn their legitimisation from an economic and conservative interpretation of The Federalist n. 10. From the abovequoted An Economic Interpretation of the Constitution of the United States, to Robert Dahl's Preface to democratic Theory (1955), Publius' main aim has been described by democratic pluralists as that of providing a protective ideology for the wealthy few, and ensuring their status and power vis-à-vis the majority(4). Competition among different interests in a pluralist society was Publius' solution to the dangers of democracy in contemporary pluralists' view. A corollary of this pluralist vision was that there cannot be any objective public interest in politics, and legislation was simply an adjustment of interests. "Rights foundationalists", on the other hand, see the American Constitution as a constitution of guarantees: constitutionalism is nothing more than a "system that establishes legal rights that the dominant legislature does not have the power to override or compromise"(5). In their view, the Bill of Rights is the expression of countermajoritarian rights and is intended to impede popular majorities. Dworkin's conception of rights as trump cards is just the latest, albeit more sophisticated, version of this interpretation of the American constitution. Legislative majorities, according to Dworkin, are inevitably subjected to the influence of external preferences, preferences that people have about what others will have. The legislative process is so inevitably inclined to violate the rights of citizens to be treated as equals and this is why - in rights foundationalists' view - the protection of fundamental rights must rely upon the exclusive domain of the Supreme Court. Dworkin's justification of judicial activism is thus linked to the idea that modern democratic decision-making is incapable of reflecting public reason and impartiality. Integrity, then, in modern constitutional democracy is conceivable only as a product of a good judicial judgement about the best constructive interpretation of the community legal practice. This, liberal interpretation of basic rights presupposes a rigid boundary between the political and non political identities. The priority is given to the protection of a pre-political private sphere, while political liberties are largely instrumental. A completely different account of American Constitutionalism and of the founders' vision is proposed by contemporary republican theories. According to them, the conventional wisdom, that the Bill of Rights is overwhelming about counter-majoritarian

3 rights, is the result of the transformations produced by the letter and the spirit of the XIV amendment and by the Supreme Court's partial incorporation of the first ten amendment in the XIV made in the second half of this century. The central issue in the founders' mind, according to republican theorists, was neither the tension between majority rule and minority rights, nor the creation of a pluralist democracy, but how to construct a democratic system that truly served public interests and expressed the voice of the people. In other words, the Framers' problem was how to create a deliberative democracy. Starting with this new interpretation of the founders, all authors advocating a contemporary republican revival focus on popular sovereignty, citizenship, political equality and deliberative decision-making. They emphasise that citizens, rather than being independent and isolated individuals, belong to a political community, and that the political community's main political activity is to partake in a political dialogue that ideally ends in the pursuit of a common or public good, not the mere satisfaction of private interests. However, comparing Amar, Ackerman and Sunstein's proposals (three of the main contemporary examples of constitutional republicanism) we see that those constitutional theories differ sharply among one another, at the level of theory, in particular as relates to their ideas of democracy and citizenship. I will argue here that these differences spring from two different souls of Republicanism. On the one hand we have the Aristotle/Arendt republican tradition, and on the other the Cicero/Machiavelli republican tradition. The former, which promotes a so called "civic humanism", is, as Philip Pettit puts it, inherently populist. He says, "it hails the democratic participation of the people as one of the highest forms of good". "Such an approach suggests that the people ought to rely on states representatives and officials only where absolutely necessary ". Civic humanism rests on a positive conception of the "people", seen, often uncritically, as an homogeneous public. The other view, "classical republicanism", "by contrast, sees the people as trustor, both individually and collectively, and see the state as trustee: in particular it sees the people as trusting the state to ensure a dispensation of non-arbitrary rule"(6). Unlike the Aristotelian tradition, classical republicanism does not see men as "political and social animals": individuals are "corruptible beings", bearers of different and competing ends, and their participation in political affairs is a way to prevent the government from degenerating into tyranny, which is dangerous for individual liberty(7). I will hold here that only this latter view seems to offer a plausible alternative to liberalism in contemporary societies, as it is an alternative that does not conflict deeply with liberalism - as Rawls himself recognises in Political Liberalism(8)-, but rather injects some liberal elements in the classical republican tradition, integrating demands of justice and community membership into the concept of citizenship, which liberals tends to

4 reduce to a set of individual entitlements. I'll start by offering a necessarily short account of Amar's provocative theory that completely changed common understanding of the Bill of Rights. Amar offers an holistic interpretation of the Bill of Rights: the Bill of Rights can be read as a constitution if someone trys to make it consistent with the entire structure of government and the relations of power between government and citizens(9). In this new light the Bill of Rights reveals the strong hold the principle of self-government, of rule by the people, had in the Framers' vision. Indeed, according to Amar, the Bill of Rights "cohere around a notion of citizenship. This citizenship derives its meaning from membership (actual or potential) in public associations essential to [American] democracy: the electorate, the militia, the jury. The first Amendment" - he writes - "is not only about and individual's right to express herself, but even more importantly about the conditions that enable the electorate to make informed choices. The Second Amendment is less about an individual's right to own guns than about the conditions that enable [American] society to protect and govern itself. The several amendments dealing with the jury, while conferring rights in an accused, more fundamentally establish the conditions that enable We the People to monitor and help administer the criminal justice system and thus keep it from becoming an abusive weapon of government"(10). The Founders established a representative democracy. However, conscious of the risks of delegating power to officials, they also designed an elaborate set of mechanisms directed to impede officials from ruling in their own self interest. These mechanisms were not limited to the system of checks and balances, to the division of power between the three main branches of government or between state and federal government. Equally important, even if less recognised, Amar maintains, was the direct power they gave ordinary citizens to restrain all the three branches of government - voting in elections, fighting in the militia and serving in juries. But the main traces of the framers faith in rule by the people is, according to Amar, represented by the fact that the constitution may be amended by a sort of national referendum, outside of the procedure envisaged by the article V of the constitution. When the framers' wrote article V they were describing - he argues - the way in which We the People can give the organs of government the power to amend the constitution. So, they did not intend to deprive We the people of that right, which in fact was inalienable. That this rights could not be given up by the people, Amar observes, was recognised by Jefferson in the Declaration of independence and by the Federalist papers. For example, in Federalist 78, it is pointed out that Hamilton alludes to "that fundamental principle of republican government which admits the right of the people to alter or abolish the established constitution whenever they find it inconsistent with their happiness". Thus the constitution "empowers and limits government, but neither empowers nor limits the people, because the Constitution

5 itself is predicated on the People's pre-existing power"(11). In Amar's majoritarianism, in fact, there is a sharp distinction between government officials and the People. The legislature doesn't speak for the people and so we find in this view also a strong reason for judges to strike down statutes. Amar's interpretation of the constitution thus depicts the vision of a strong participatory democracy, in which public opinion must always be, potentially at least, capable of exercising a form of control and direction on the ordinary political process with the use of instruments of direct democracy, such as referenda and plebiscites. Amar describes the amendment process outside article V as an implicit potentiality, not yet fully expressed, in the American constitutional democracy, and its strong participatory democracy as something that his new reading of the Constitution may finally help to realise in a future. Ackerman's depiction of American democracy as a "dual democracy", instead, is not only a unexpressed possibility, but an historically provable reality. Indeed, Founding, Reconstruction and New Deal are the three constitutional moments in which American democracy has revealed - according to Ackerman - is dualist nature(12). With an analogous twisting of conventional wisdom, Ackerman - like Amar - proposes an innovative reading of the American constitution that undermines the idea that it was intended as a mere limit to popular sovereignty and recognises a right of the people to amend the constitution outside article V. For Ackerman, the Constitution offers a twotrack system of democratic law-making: a higher law-making track for the People, a lower law-making track for the government. Normal politics are delegated to the ordinary legislative process: they are daily stuff, characterised by the apathy of the public and a narrow self-interest of the political actors. Constitutional politics, instead, occurs in special moments when particular matters of social policy become the heated focus of wide public concern. They require that a significant number of American citizens transcend their normal passivity and involve themselves, over a certain period of time, in the exercise of engaged civic virtue. In Ackerman's view constitutional moments do not involve - as in Amar - forms of direct democracy, nor are they the expression of a popular majority that can be equated with "a simple tally of votes taken into whatever conditions"(13). As Michelman points out, among populist constitutional proposals Ackerman's theory is the one that more seriously grapples "with the question of what counts as an expression of the legislative will of the people"(14). Indeed, in constitutional moments politics must be carried out by a significant, "mobilised majority" of the people, that arises and consolidates over time on the basis of a long and energetic public debate on the constitutional matter in question; the result of a constitutional moment is not the Will of All, but the Will of We the People.

6 Ackerman's democratic theory explicitly aims at being less demanding in terms of civic virtue and participation and more suitable to the conditions of modern, complex societies than Amar's theory. Ackerman's dualist democracy asks citizens to shift their main attention from their private life to public issues only in particular and episodical moments, whereas, in ordinary politics, the citizens' duties are restricted to voting, paying taxes and little more, and their time and energies are legitimately devoted to all sorts of private concerns Ackerman's theory of "private citizenship" poses a series of problems concerning the plausibility of the kind of schizophrenic citizen he describes (A citizen capable of shifting - as Castiglione observes - from a "consumer-oriented view" to a "citizen-oriented view of political involvement"(15)). This problems are connected, I believe, with his unsuccessful attempt to combine liberalism with a civic humanist interpretation of republicanism, deriving from Pocock and Hannah Arendt(16). This is also the reason why, beyond their different conceptions of citizenship and other more "technical" differences in the arguments (which I will not go into here), in Ackerman and Amar's constitutional theories it is possible to single out a common populist inspiration, a common faith in the idea that the most basic requirement of justice in political arrangements is the entitlement of the people to decide the country fundamental laws.. They both seem to conceive liberty as share in self-government by the people, and they both exclude ordinary politics from the deliberative process. The government's activity is described in factual terms identical to those of pluralist democratic theories and this gives to both authors strong reasons for assigning to the Supreme Court a wide power to invalidate statutes, when they conflict with the will of the people as expressed in constitutional moments. The populist inspiration of these political theories is nothing particularly new in American political tradition. Populism, from Jefferson to Christopher Lasch, has always been an attractive doctrine for Americans. But, there are sound arguments for maintaining that this was not the kind of culture the Federalists' shared, and the main source of inspiration of American Constitutionalism In the Federalists' perspective, Amar and Ackerman's theories hide the same dangers than Jefferson's proposal for periodical constitutional conventions. It is worth reminding here the Federalist n. 49, in which Madison observed that "frequent appeals to the people would in great measure deprive the government of the veneration, which time bestows on every thing, and without which perhaps the wisest and freest government would not possess the requisite stability A nation of philosophers is as little to be expected as the political race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage, to have the prejudice of the community on its side". Amar and Ackerman's strategies link the constitution to popular government drawing attention to an argument of provenance. They stress the fact that the constitution is

7 from the people. Sunstein's strategy, instead, argues that the constitution is about popular government, that the purpose of the constitution is to put in place and perfect the process of democratic participation(17). In both of this strategies lie an attempt to solve the tension between constitutionalism and popular sovereignty and to meet the problem of the dead-hand control of ratifying generations. However, while the first strategy affirms the priority of the democratic will of the people to the establishment of individual rights, which are to limit the ordinary political process (as in rightsfoundationalists' theories); the second strategy, which I will now take into consideration - seeks an internal nexus between basic rights and the deliberative political process in a representative, constitutional democracy. Therefore, whereas Ackerman and Amar grant majorities an almost unlimited power to change the constitution when expressing their will in constitutional moments (only the people have the right to decide what their rights are)(18), Sunstein believes that the constitutional commitment to a form of deliberative democracy necessarily entail some rights, such as the freedom of speech, if we are to make sense of the claim that the results of a change in the constitution are democratic. Sunstein's theory draws on a sounder grasp of Madison's republicanism, which clearly distinguishes it either from democratic pluralism or from civic humanism: "Madison willingly abandoned - he says - the classical republican understanding that citizens generally should participate directly in the process of government. Far from being a threat to freedom, a large republic could help guarantee it. At the same time, Madison's understanding," - Sunstein adds - "was sharply distinct from that of modern pluralists. He hoped that national representatives, operating above the fray, would be able to disentangle themselves from local pressures and deliberate on and bring about something like an objective public good"(19). According to Sunstein, then, the Federalists continued to insist on the possibility of a virtuous politics, but tried to create such a policy responding realistically to the difficulties of the real political world and without indulging on an unrealistic assumption of human nature. They did not stress the fact of civic participation as the supreme good, neither did they conceive liberty as share in self-government. They conceived the constitution "as a complex set of precommitments strategies, through which the citizenry creates institutional arrangements to protect against political self-interest, factionalism, failure in representation, myopia and other predictable problems in democratic governance"(20). The constitution was conceived as a guarantee against arbitrary government, because it required government to act providing "reasons that can be intelligible to different people operating on different premises"(21). From classical republicanism Sunstein derives four central commitments: deliberation,

8 political equality, universalism and citizenship(22). The commitment to political deliberation is a link to the idea that political actors do not operate simply to aggregate private preferences, but must be able of subjecting their desires and interests to scrutiny and review. Politics does not aggregate and implement exogenous preferences, it has a deliberative and transformative dimension. Its Function is to select preferences and to provide opportunity for preference-formation. The commitment to political equality requires equal access of all individuals to the political process. Republicanism, thus, contemplates the possibilities of reforms to reduce the influence of wealth or status on the political process and to furnish an equal access of all political groups to the media. The commitment to universalism is connected with the view of the political process as a dialogic process in which ideas, interests, opinions or conflicting conception of the public good can be mediated, and impartial, neutral solutions reached. Republicanism, finally, values citizenship. Citizens must always have instruments to control public officials and national institutions, which also implies various forms of decentralisation as well as a revaluation of federalism. The new centrality given to normal political process, and to its capacity to produce principle decisions trough deliberation, in Sunstein's theory gives cause for a reconsideration of the Supreme Court role. In rights foundationalism, but also in a certain measure in such approaches as those of Ackerman and Amar's, where the judiciary in normal politics become the temporary substitute of the will of We the people expressed during constitutional moments - the Supreme Court assumes a wide power of control regarding legislative statutes. On the contrary, Sunstein's view drastically limits the discretionary power of the Supreme Court, relocating its function in the mutual scheme of checks and balances designed by the founders. From the commitment to deliberative democracy, it follows in fact that an aggressive role for courts is limited to two classes of cases: the first involves rights that are central to the democratic process; the second involves groups that are unlikely to receive a fair hearing in the legislative process(23). The deliberative function assumed by the courts through judicial review in American democracy is looked on with suspicion by Sunstein for two fundamental reasons. The first reason is that constitutional adjudication operates removing certain topics from public debate. This removal may have a two-fold result: it may - as Holmes points out - foster democracy, decreasing factional struggles; but it may also immunise certain issues from public control, particularly when they are perceived highly as socially disruptive. "A system that immunised from collective control the issues that produce the most conflict would hardly be democratic; under such a system - Sunstein argues - democratic process would operate only when the stakes were low, and the largest issues would be resolved behind the scenes or by particular groups"(24). The second reasons

9 has to do with the idea that in a well-functioning constitutional democracy "the real forum of high principle is politics, not the judiciary - and the most fundamental principles are developed democratically, not in the courtrooms"(25). Sunstein does not focus his critique on the value neutral jurisprudence of the Supreme Court, or on her nineteenth century invention and defence of the right to privacy, as Michael Sandel has done in Democracy's Discontent(26). His point is that pluralism will receive better guarantees when judgements about controversial issues are not delegated to judges imposing their high-level theories. The example of abortion is worth considering here. The 1973 decision of the Supreme Court to constitutionalize abortion has taken away this burning question from political deliberation, but the effects of this decision, as of many others Court decision concerning value choices, are at least controversial. The are reasons to believe that Roe v. Wade has sharpened, rather than neutralise, the conflict between groups pro-choice and pro-life groups. In a case such as Roe v. Wade, according to Sunstein, "The Court would have done far better to proceed slowly and incrementally, and on grounds that could have gathered wider social agreement and thus fractured society much less severely. The Court might have ruled that abortion could not be prohibited in case of rape or incest, or that law at issue in Roe was invalid even if some abortion restrictions are acceptable Such narrow ground would have allowed democratic processes to proceed with a degree of independence - and perhaps to find their own creative solutions acceptable to many sides And in this fashion other branches of government might have participated in evolving interpretation of the constitution, with a possible conclusion from democratic sources, that the right to sex equality is broader than the Court (properly in light of its institutional position) understands it"(27). This example shows how, for Sunstein, a republican interpretation of American constitutionalism involves much more then rights and the rule of law(28). The liberal conception of constitutionalism, stressing its protective purposes, reduces it to a defence of judicially enforceable legal rights, thus devaluing citizenship and political processes and eroding the political system indispensable sources of social solidarity and consensus. On the contrary, in Sunstein's theory constitutionalism is not just a constraint on majorities. It does not abandon the concept of rights, but understands them "either as a precondition for or the outcome of an undistorted political process". Though -safeguarding the idea of rule of law, it does not consider it the sole and greatest virtue of a political system. Sunstein's constitutionalism offers positive provisions to perfect the political process and to minimise its pathologies. With close links to John Dewey's political philosophy, Sunstein imagines politics as a "debate-based form of decision-making", in which different interest groups try to reach a mutually beneficial agreement that answers all of the relevant considerations and functions as a

10 regulative ideal. In this view, the requirement itself that all decisions must be justified in public regarding-terms is seen as contributing - "even if by the way of the civilising effect of hypocrisy" - to the achievement of public-regarding outcomes(29). These outcomes, founded on what we can call shared-value-neutralism (to use a term of Petit's(30) ), and on the very same processes of discussion, deliberation and persuasion through which they are achieved, are the sources from which will spring a "communal we". This "communal we", unlike in communitarian views, is considered to be dynamic and always in a state becoming For a reconstruction of the main paradigms in the twentieth century American political thought, see: D. T. Rodgers, "Republicanism: the Career of a Concept", The Journal of American History, June 1992, pp cf. J. Pocock The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (1975); B.Baylin, The Ideological Origins of the American Revolution (Cambridge University Press: Cambridge, 1967) and G. Wood, The Creation of the American Republic, (Norton: New York, 1972 ) C. Sunstein, The Partial Constitution, (Harvard University Press: Cambridge, Mass., 1993) p Cf. G. W. Carey, The Federalist Design for a Constitutional Republic (University of Illinois Press: Urbana and Chicago, 1989), n. 6, p. xxxi R. Dworkin, "Constitutionalism and democracy", European Journal of Philosophy, 3 (1995), p P. Pettit, Republicanism. A Theory of Freedom and Government (Clarendon Press: Oxford, 1997), p. 8.

11 7. 7. For the general differences between the Aristotelian and the Machiavellian republican traditions, see: M. Geuna, 'La tradizione repubblicana e i suoi interpreti: famiglie teoriche e discontinuità concettuali', Filosofia politica, n. 1, aprile 1998, pp Cf. J. Rawls, Political Liberalism (1994) For Amar's interpretation of the Bill of Rights, see A. R. Amar, The Bill of Rights, (Yale University Press: New Haven and London, 1998) A. R. Amar and A. Hirsch, For the People (Free Press: New York, 1998), p. xii Op. cit., p See: B. Ackerman, We The People. Foundations (The Belknap Press of Harvard University Press: Cambridge, Mass., and London, 1991) and id., We The People. Transformations (The Belknap Press of Harvard University Press: Cambridge, Mass., and London, 1998) F. I. Michelman, 'Constitutional Authorship', in L. Alexander, Constitutionalism. Philosophical Foundations, (Cambridge Univerisity Press: Cambridge 1998), p Ibidem D. Castiglione, 'Public Reason, Private Citizenship', in M. Passerin D'Entreves e U. Vogel, Public and Private: Political, Legal and Philosophical Perspectives, (Routledge, forthcoming) See: B. Ackerman, We The People. Foundations, cit., pp For the distinction between these two strategies, cfr.. G. Sager, 'The Incorrigible Constitution', New York University Law Review, vol. 65 (1990), p. 909.

12 These point as been rised by many of Ackerman's critics, see, for example: D. Herzog, 'Democratic Credentials', Ethics, april 1994, pp C. R. Sunstein,' Interests Groups in American Public Law', Stanford Law Review, 38 (1985), p C. R. Sunstein, The Partial Constitution (Harvard University Press: Cambridge, Mass., 1993), p Op. cit., p C. R. Sunstein, 'Beyond the Republican Revival', Yale Law Journal, vol. 97 (1998), pp Cf. C. R. Sunstein, The Partial Constitution, cit, pp C. R. Sunstein, 'Constitutions and democracies', in J. Elster and R. Slagstad, Constitutionalism and Democracy (Cambridge University press: Cambridge, 1997 (I 1988) ), p C. R. Sunstein Legal Reasoning and Political Conflict, cit., p M. Sandel, Democracy's Discontent. America in Search of a Public Philosophy (Harvard University Press: Harvard 1996) C. R. Sunstein, Legal Reasoning and Political Conflict, cit., pp For a similar republican interpretation of the American Constitution, see: R. Bellamy, 'The Political Form of the Constitution: Separation of Powers, Rights and

13 Representative Democracy', Political Studies, XLIV (1996), pp C. R. Sunstein, Democracy and the Problem of Free Speech (Free Press: New York 1993), p P. Pettit, 'Reworking Sandel's Republicanism', in The Journal of Philosophy, 1998, p. 90