Government Polarization Essay

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chapter 6

Why Not a More Democratic Constitution?

I BEGAN BY POSING THIS QUESTION: WHY SHOULD WE Americans uphold our Constitution? Let me now change the question slightly: What kind of consti-

tution should we feel obliged to uphold? I mean, of course, an American constitution—not

necessarily our present Constitution, but a constitution that, after careful and prolonged deliberation, we and our fellow citizens conclude is best designed to serve our fundamental political ends, goals, and values.

The Constitution as National Icon

I am well aware that in expressing reservations about the Constitution, as I have in these essays, I may be

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judged guilty of casting stones at a national icon. “From the time of the founding fathers,” a historian has recently remarked, “there [has] been a sacred aura about the Constitution, manifest in holiday political rhetoric.” During the years between the two World Wars, worship of the Constitution “acquired the trap- pings of a religious cult.”1 This reverential attitude con- tinues. In a telephone survey of one thousand adult U.S. citizens in 1997, 71 percent said they strongly agreed with the statement that they were proud of the Constitution; another 20 percent somewhat agreed.2

In a 1999 survey, 85 percent said they thought the Constitution is a major reason why “America has been successful during this past century.”3

I don’t dismiss the importance of icons for strength- ening beliefs, religious or political, nor do I dismiss the utility of myth and ritual in helping to foster na- tional cohesion. But a faith that rests on little more than a general conformity to conventional beliefs is a fragile foundation for nationhood—not to say for de- mocracy. I want therefore to suggest an alternative.

The only legitimate constitution for a democratic people, it seems to me, is one crafted to serve demo- cratic ends. Viewed from this perspective an American constitution ought to be the best that we can design for enabling politically equal citizens to govern themselves under laws and government policies that have been adopted and are maintained with their rational consent.

This is hardly a novel view. What I am suggesting is that a constitution derives its legitimacy from a moral

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and political judgment announced to the world more than two centuries ago. This judgment (slightly modi- fied from the original) asserts:

That all human beings are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the Pur- suit of Happiness. That to secure these rights, Govern- ments are instituted among a people, deriving their just powers from the consent of the governed. That when- ever a Form of government becomes destructive of these ends, it is the Right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such a form, as to them shall seem most likely to effect their Safety and Happiness.

But two questions immediately arise. First, is polit- ical equality a realistic goal? Second, is it really a desir- able goal?4

Is Political Equality a Realistic Goal?

Some of you may dismiss the noble words I have just quoted as obviously false. If anything about equality is self-evident, you might object, it is that human beings aren’t equal. Whether by genes, birth, luck, achieve- ments, or whatever, we aren’t equal in education, cul- tural endowments, social and communication skills, in- telligence, motor skills, incomes, wealth, the country in which we live, and so on. Though this objection is a

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commonplace, it wholly misses the point. The men who wrote and adopted the American Declaration of Inde- pendence hardly needed to be reminded of such ele- mentary matters. They knew too much about the ways of the world to make assertions that were obviously con- tradicted by everyday human experience. But, of course, they didn’t mean the Declaration to be understood as a statement of fact. They meant it to be understood as a moral statement. Human equality, they were insist- ing, is a moral and even a religious standard against which it is right and proper to judge a political system.

Yet ideal standards might rise so far beyond human reach as to be irrelevant. Is political equality so remote from human possibilities that we might just as well forget it?

I need hardly remind you of the enormous and persistent barriers to political equality and, indeed, to human equality in general.5 Consider that elemental and age-old barrier arising from differences in the treatment of men and women. The authors of the fa- miliar words about equality that I just quoted and the fifty-five delegates to the Second Continental Con- gress who voted to adopt the Declaration in July 1776, were, of course, all men, none of whom had the slight- est intention of extending the suffrage or many other basic political and civil rights to women—who by the laws of that time and for a full century after were the legal property of their fathers or husbands.

Nor did the worthy supporters of the Declaration mean to include slaves or, for that matter, free persons

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of African origin, who were a substantial fraction of the population in almost all the colonies that claimed the right to become independent self-governing republics. The principal author of the Declaration, Thomas Jef- ferson, owned several hundred slaves, none of whom he freed during his life.6 It was not until more than four score and seven years later (to borrow a poetic phrase from Lincoln’s Gettysburg Address) that slav- ery was legally abolished in the United States by force of arms and constitutional enactment. And it took yet another century before the rights of African Ameri- cans to participate in political life began to be effec- tively enforced in the American South. Now, two gen- erations later, Americans white and black still bear the deep wounds that slavery and its aftermath inflicted on human equality, freedom, dignity, and respect.

Nor did our noble Declaration mean to include the people who for thousands of years had inhabited the lands that Europeans colonized and came to occupy. We are all familiar with the story of how the settlers de- nied homes, land, place, freedom, dignity, and human- ity to these earlier peoples of America, whose descen- dants even today continue to suffer from the effects of their treatment throughout several centuries, when their most elementary claims to legal, economic, and political—not to say social—standing as equal human beings were rejected, often by violence; more recently, this lengthy period has been followed by neglect and indifference.

All this in a country that visitors from Europe, such

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as Alexis de Tocqueville, portrayed (correctly, I think) as displaying a passion for equality stronger than they had ever observed elsewhere.

Yet, despite the fact that throughout human history equality has often been denied in practice, throughout the past several centuries many claims to equality, in- cluding political equality, have come to be much more strongly reinforced by institutions, practices, and be- havior. Although this monumental historical move- ment toward equality is in some respects worldwide, it has been most conspicuous in such democratic coun- tries as Britain, France, the United States, the Scandi- navian countries, the Netherlands, and others.

In the opening pages of the first volume of Democ- racy in America, Tocqueville pointed to the inexorable increase in the equality of conditions among his French countrymen “at intervals of fifty years, begin- ning with the eleventh century.” Nor was this revolu- tion taking place in only his own country: “Whitherso- ever we turn our eyes,” he wrote, “we shall witness the same continual revolution throughout the whole of Christendom.” He goes on to say, “The gradual devel- opment of the equality of conditions is . . . a providen- tial fact, and it possesses all the characteristics of a Di- vine decree: it is universal, it is durable, it constantly eludes all human interference, and all events as well as men contribute to its progress.”7

We may wish to grant Tocqueville a certain meas- ure of hyperbole in this passage. We may also want to note that in the second volume that he published

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several years later, he was more troubled by what he viewed as some of the undesirable consequences of democracy and equality. I shall return to his con- cerns in a moment. Even so, he did not doubt that a continuing advance of democracy and equality was in- evitable. And if we look back today to the changes since his time, like Tocqueville in his own day we may well be amazed at the extent to which ideas and prac- tices that respect and promote political equality have advanced across so much of the world—as, for that matter, have some aspects of a broader human equal- ity as well.

As to political equality, consider the incredible spread of democratic ideas, institutions, and practices during the century that just ended. In 1900, 48 coun- tries were fully or moderately independent countries. Of these, only 8 possessed all the other basic institu- tions of representative democracy, and in only 1 of these, New Zealand, had women gained the right to vote. Furthermore, these 8 countries contained no more than 10 –12 percent of the world’s population. At the opening of our present century, among some 190 countries the political institutions and practices of modern representative democracy, including universal suffrage, exist in around 85, at levels comparable to those in Britain, western Europe, and the United States. These countries include almost 5 out of every 10 inhabitants of the globe today.8

In Britain, the working classes and women were enfranchised, and more. Men and women of middle,

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lower-middle, and working-class origins gained access not only to the House of Commons and its facilities but to the cabinet and even the post of prime minister. And the hereditary peers in the House of Lords have, after all, at last been sent packing—well, most of them anyway. In the United States, too, women were en- franchised. The Civil Rights Act of 1964, which pro- tected the right of African Americans to vote, did in fact become law; the law was actually enforced; and African Americans have become a significant force in American political life. I wish I could say that the mis- erable condition of so many Native Americans had greatly changed for the better, but that sad legacy of human injustice remains with us.

Although we must admit to persistent failures and continuing obstacles, if we assume that beliefs about equality are hopelessly anemic contestants in the struggle against the powerful forces that generate in- equalities, we cannot account for the enormous gains in human equality achieved over the past two centuries.

How Does Greater Political Equality Come About?

In the face of so many obstacles, how does greater equality—or better, a reduction in some inequalities— ever come about? Although no brief summary can do justice to an explanation of the historical variations and complexities in the process by which changes toward

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equality take place—and here I have in mind mainly political equality—a summary of the most important elements would probably run something like this:

Despite fervent efforts by privileged elites to pro- mote views intended to give legitimacy to their supe- rior power and status, together with their own unques- tioning belief in the rightness of their entitlements (think of the Federalists!), many members of subordi- nate groups doubt that the inferior position assigned to them by their self-proclaimed superiors is really jus- tified. James Scott has shown pretty convincingly that people who have been relegated to subordinate status by history, structure, and elite belief systems are much less likely to be taken in by the dominant ideology than members of the upper strata are prone to as- sume.9 Given the open or concealed rejection of the elite ideology by members of the subordinate groups, a change in conditions, whether in ideas, beliefs, gen- erations, structures, resources, or whatever, begins to offer the subordinate groups new opportunities to ex- press their grievances. And given these new opportu- nities and moved by anger, resentment, a sense of injustice, a prospect of greater individual or group opportunities, group loyalty, or other motives, some members of the subordinate groups begin to press for change by whatever means are available. Some mem- bers of the dominant group begin to support the claims of the subordinate strata. Privileged insiders ally themselves with outsiders. Insiders may do so for a variety of reasons: moral convictions, compassion, op-

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portunism, fear of the consequences of disorder, dan- gers to property and the legitimacy of the regime aris- ing from widening discontent, and even the real or imagined possibility of revolution.10

So a seismic shift occurs: extension of the fran- chise, legal protection of basic rights, political compe- tition from leaders of hitherto subordinate groups, election to public office, changes in law and policy, and so on. In the United States, Civil Rights Acts were passed in 1957, 1960, and most crucial of all, 1964. What is more, they were enforced. African Americans began to seize their opportunities to vote—and among other things soon tossed out the police officials who had violently enforced their subordination. In India, the scheduled castes have begun to vote in substantial numbers for leaders and parties who are drawn from their own strata and committed to reducing discrimi- nation against them. Though changes toward equality may be and typically are incremental, a series of incre- mental changes can, in time, mount to a revolution.

By such processes, then, a certain measure of po- litical equality and democracy have been obtained in some countries despite enormous and persistent ob- stacles to human equality.

Is Political Equality a Justifiable Goal?

Yet even if a greater degree of political equality and democracy can be achieved, are these goals really de-

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sirable? What’s more, are they so desirable that we should make the constitution of a democratic country— in particular that of the United States—subordinate to achieving these ends?

The desirability of political equality and thus of democracy follows, in my view, from two fundamental judgments. One is moral, the other practical.

The moral judgment holds that all human beings are of equal intrinsic worth; that no person is intrinsi- cally superior in worth to another; and that the good or interests of each person ought to be given equal consideration.11 Let me call this the assumption of in- trinsic equality.

Yet if we accept this moral judgment, a deeply troublesome question immediately arises: Who or what group is the best qualified to decide what the good or interests of a person really are? Clearly the answer will vary, depending on the situation, the kinds of deci- sions, and the persons involved. But if we restrict our focus to the government of a state, then it seems to me that the safest and most prudent assumption would run something like this: Among adults, none are so better qualified than others to govern that they should be entrusted with complete and final authority over the government of the state.12

Although we might reasonably add refinements and qualifications to this prudential judgment, it is dif- ficult for me to see how a significantly different propo- sition could be defended, particularly if we draw on crucial historical cases in which substantial numbers of

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persons were denied equal citizenship. Does anyone today really believe that when the working classes, women, and racial and ethnic minorities were excluded from political participation, their interests were ade- quately considered and protected by those who were privileged to govern over them?

Does Political Equality Threaten Liberty?

Like many desirable goals, political equality might conflict with—and may indeed do harm to—other im- portant goals, ends, values. If so, shouldn’t our pursuit of political equality be tempered by our justifiable de- sire to attain these other goals?

It is frequently said that equality conflicts with lib- erty and fundamental rights. Like many others, Toc- queville appears to have believed so.

But before I turn to his remarks, I cannot forgo adding that I am amazed by a frequent assertion about the supposed conflict between liberty and equality that makes no mention of what would seem to me to be an absolutely essential requirement of any reasonable dis- cussion about the relation between the two. Whenever we talk about liberty, freedom, or rights, are we not obliged to answer the question: Liberty or rights for whom? When we speak of freedom, liberty, or rights it seems to me essential that we go beyond answering the question, “What liberty or right?” An answer to that question only specifies the domain of liberty. But

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we are also obliged to answer the question, “Liberty for whom?”13

Keeping this question in mind, let me return to Tocqueville. His view, if I understand him correctly, was roughly this: An equality of condition among a people helps to make democracy possible, perhaps even inevitable. But the very equality of condition that makes democracy possible also carries dangers to lib- erty. Let me paraphrase Tocqueville:

Since the very essence of democratic government is the absolute sovereignty of the majority, which nothing in democratic states is capable of resisting, a majority nec- essarily has the power to oppress a minority. Just as a man with absolute power may misuse it, so may a ma- jority. Given an equality of condition among citizens, we may expect that in democratic countries a wholly new species of oppression will arise. Among citizens all equal and alike, the supreme power, the democratic government, acting in response to the will of the major- ity, will create a society with a network of small compli- cated rules, minute and uniform, that none can escape. Ultimately, then, the citizens of a democratic country will be reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.14

If I have fairly summarized Tocqueville, how should we interpret his forecast in the light of subse- quent developments? After all, we have the advantage, as he did not, of two centuries of experience with mod- ern democratic institutions. Some readers have inter- preted these passages in Tocqueville as foreshadowing

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mass society, while to others Tocqueville expected that mass democracy would be the seed of twentieth- century authoritarian and totalitarian systems. Yet, if we read the passages as a forecast of the way in which democratic countries would tend to evolve, I think we are bound to conclude that Tocqueville was just dead wrong. When we examine the course of democratic development over the past two centuries, and particu- larly over the century just ended, what we find is a pattern of democratic development that stands in total contradiction to such a prediction. We find instead that as democratic institutions become more deeply rooted in a country, so do fundamental political rights, liberties, and opportunities. As a democratic govern- ment matures in a country, the likelihood that it will give way to an authoritarian regime approaches zero. Democracy can, as we all know, collapse into dictator- ship. But breakdowns are extraordinarily rare in ma- ture democracies; they occur instead in countries that encounter times of great crisis and stress when their democratic institutions are relatively new. Crisis ap- pears to be inevitable in the life of every country. Even mature democratic countries have had to face wars, economic depression, large-scale unemployment, ter- rorism, and other challenges. But they did not collapse into authoritarian regimes.

In the twentieth century, on something like sev- enty occasions democracies have given way to nonde- mocratic regimes. Yet with very few exceptions, these breakdowns have occurred in countries where demo-

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cratic institutions were very new—less than a genera- tion old. Indeed, the only clear-cut case of a demo- cratic breakdown in a country where democratic insti- tutions had existed for twenty years or more seems to be Uruguay in 1973. In the same year, Chile provided a less clear-cut case because of restrictions on the suf- frage that had only recently been lifted. The Weimar Republic had existed fewer than fourteen years before the Nazi takeover. In all three countries the path to col- lapse bore no relation to the Tocquevillean scenario.

Nor, as we know, is that scenario confirmed by the older or mature democracies. As I indicated in the previous chapter, we can find some small variations among these countries in their protection of basic rights. But they all maintain these rights well above the threshold necessary for democracy. Have the fun- damental rights and liberties of citizens grown steadily narrower or less secure over the past half-century? I do not see how an affirmative answer to this question could be seriously maintained. Much as I admire Toc- queville, on this issue, he, like the Framers, could not foresee the future of democratic government.

Far from being a threat to fundamental rights and liberties, political equality requires them as anchors for democratic institutions. To see why this is so, let me once again view democracy as, ideally at least, a political system designed for citizens of a state who are willing to treat one another, for political purposes, as political equals. Citizens might view one another as unequal in other respects. Indeed, they almost cer-

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tainly would. But if they were to assume that all citi- zens possess equal rights to participate, directly or in- directly through their elected representatives, in mak- ing the policies, rules, laws, or other decisions that citizens are expected (or required) to obey, then the government of their state would, ideally, have to satisfy several criteria.

Let me list them here without amplification. To be fully democratic, a state would have to provide: rights, liberties, and opportunities for effective participation; voting equality; the ability to acquire sufficient under- standing of policies and their consequences; and the means by which the citizen body could maintain ade- quate control of the agenda of government policies and decisions. Finally, as we now understand the ideal, in order to be fully democratic, a state would have to ensure that all, or at any rate most, permanent adult residents under its jurisdiction would possess the rights of citizenship.

As we know, the democratic ideal that I have just described is too demanding to be achieved in the ac- tual world of human society. To accomplish it as far as may be possible under the imperfect conditions of the real world, certain political institutions for governing the state would be required. Moreover, since the eigh- teenth century these institutions have had to be suit- able for governing a state encompassing a large terri- tory, such as a country.

There is no need to describe here the basic politi- cal institutions of a modern democratic country; but it

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should be obvious that just as in the ideal, so too in ac- tual practice, democratic government presupposes that its citizens possess a body of fundamental rights, liber- ties, and opportunities. These include the rights to vote in the election of officials in free and fair elections; to run for elective office; to free expression; to form and participate in independent political organizations; to have access to independent sources of information; and to have rights to other freedoms and opportunities that may be necessary for the effective operation of the political institutions of large-scale democracy.

Both as an ideal and as an actual set of political in- stitutions, democracy is necessarily, then, a system of rights, liberties, and opportunities. These are required not merely by definition. They are required in order for a democratic system of government to exist in the real world. If we consider these political rights, liber- ties, and opportunities as in some sense fundamental, then in theory and in practice, democracy does not conflict with liberty. On the contrary, democratic insti- tutions are necessary for the existence of some of our most fundamental rights and opportunities. If these political institutions, including the rights, liberties, and opportunities they embody, do not exist in a country, then to that extent the country is not democratic. When they disappear, as they did in Weimar Germany, Uruguay, and Chile, then democracy disappears; and when democracy disappears, as it did in these coun- tries, then so do these fundamental right, liberties, and opportunities. Likewise, when democracy reappeared

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in these countries so, necessarily, did these fundamen- tal rights, liberties, and opportunities. The connection, then, is not in any sense accidental. It is inherent.

The links between political equality and democ- racy, on the one hand, and fundamental rights, liber- ties, and opportunities, on the other, run even deeper. If a country is to maintain its democratic institutions through its inevitable crises, it will need a body of norms, beliefs, and habits that provide support for the institutions in good times and bad—a democratic cul- ture transmitted from one generation to the next. But a democratic culture is unlikely to be sharply bounded. A democratic culture will support not only the funda- mental rights, liberties, and opportunities that demo- cratic institutions require. People who share a demo- cratic culture will, I think inevitably, also endorse and support an even greater sphere of rights, liberties, and opportunities. Surely the history of recent centuries demonstrates that it is precisely in democratic coun- tries that liberties thrive.

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IF WE BELIEVE THAT ALL HUMAN BEINGS ARE CREATED equal, that they are endowed with certain inalienable rights, that among these are life, liberty, and the pur- suit of happiness, that to secure these rights govern- ments are instituted among a people, deriving their just powers from the consent of the governed, then we are obliged to support the goal of political equality.

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Political equality requires democratic political in- stitutions.

The supposed conflict between liberty and politi- cal equality is spurious, first, because an inherent part of democratic political institutions is a substantial body of fundamental rights, liberties, and opportunities; and, second, because a people committed to democracy and its political institutions will almost certainly expand the sphere of fundamental rights, liberties, and oppor- tunities well beyond those strictly necessary for de- mocracy and political equality.

Among a people committed to democracy and po- litical equality, a constitution should serve those ends by helping to maintain political institutions that foster political equality among citizens and all the necessary rights, liberties, and opportunities that are essential to the existence of political equality and a democratic government.

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