Constitutional Government and Democracy by Carl J. Friedrich (Little, Brown and co. 1941)
Designing Democracy: What Constitutions Do by Cass R. Sunstein
What a difference a few decades can make—even or perhaps especially among “progressives” at Harvard. A useful case in point is provided by one of the current “demigods,” Cass Sunstein, who seems to infest every aspect of current law, politics, and celebrity journalism, and the late Carl J. Friedrich, one of his more educated precursors. Where recognition of the grounding of human reason in experience once tethered even the establishment left to certain basic understandings of the requirements for civilized life, those in positions of extreme privilege now show only contempt for even minimal restraints on their ideological will to power.
When Friedrich wrote his 1941 edition of Constitutional Government and Democracy he remained the champion of “progressive” democracy, with its emphasis on socioeconomic rights (Franklin Roosevelt’s “Four Freedoms” including freedom from “want” and “fear”) and other innovations that undermined limited government and ordered liberty. But he still recognized that constitutions by their nature are intended to be effective, regularized restraints on state power. He even recognized that formal, structural elements, such as the American Constitution’s separation of powers, are intended and needed to forestall and prevent actual tyranny.
Subscribing, more or less, to the standard, Whig view of history as the growth of reason and liberty in opposition to the enervating influences of faith and Divine Right, Friedrich nonetheless recognized the importance of traditions of law-abidingness and even “a common tradition rising from a joint past as the procreator of that real constitution which transforms a written charter into a political power of lasting importance.” Moreover, as a student of politics as well as constitutional law, he recognized the need to situate a nation’s frame of government within its public traditions and institutions (e.g. America’s two-party system) in order to understand how the constitution—as myth as well as law—would affect the lives of the people. Constitutions, Friedrich noted, may come in many forms, and may be consistent with many differing cultures and economic systems. But they must be recognized as limitations on state power if they are to do their job of providing public order such that people may go about their lives in safety and security—or pursue “progress” toward the social democracy and international rule he valued—without devolving into tyranny.
None of this is to express agreement with Friedrich’s particular views. He placed great faith in the power and goodness of governmental elites and their administrative assistants to organize the societies they govern and was willing to cede vast areas to governmental control in the name of unity and a politicized conception of justice. Yet, both in Constitutional Government and Democracy and in his later works (one thinks, here, of Tradition and Authority) he recognized the role of culture in shaping political preferences and, more importantly, of acting as the medium in which the fundamental institutions, beliefs, and practices of a given people interact with the state and determine, in significant measure, what that state should look like, and what it should do.
Such constraints concern Harvard Law Professor and former Obama administrator Cass Sunstein as well, but in a manner directly opposite to Friedrich’s. His 2001 volume Designing Democracy: What Constitutions Do is aptly named because, for Sunstein, what constitutions “do,” is “design” democratic nations and peoples. Perhaps the easiest way to make clear Sunstein’s intent, and attitude, is to note the thrust of his chapter, “Against Tradition.” Here Sunstein informs his readers that tradition stands in the way of necessary “large-scale transformations in current practices.” He further claims that judicial respect for tradition is rooted in a “tradition” going back to (and no further than) the Supreme Court’s overreaching decision in Lochner v. New York, which denied states the right to regulate their own commercial systems as violating abstract notions of freedom of contract. This bit of calumny rests on a highly questionable interpretation of a very narrow set of legal cases and is flat-out false as a source of any wider implications. To it Sunstein adds the usual charge that tradition is responsible for many bad things, (especially racism and sexism), that our traditions are multifarious and conflicting and, worst of all, are “boring” and “hardly a source of rights in any interesting sense.”
There are, of course, few worse sins one can commit against a professor at an elite institution than to bore him. Nonetheless, it might be worthwhile for we mere mortals to consider what it is Sunstein is rejecting and why. Tradition, for Sunstein, serves, at best, as a cautionary tale, a check on the ability of the state to do good for the people. More generally, in his view, tradition is the dead hand of an inegalitarian—hence evil—past. As such it must justify itself if it is to be shown tolerance in public discourse. It is difficult to justify something that has been so willfully mischaracterized as here, dismissed as something that cannot be described, soon after having been dismissed as “un-American” because, well, “progress” is the true American tradition. Such an understanding of tradition is, indeed, lacking in any modicum of coherence. Yet Sunstein, even in 2001, had available to him an entire literature on tradition; given the availability of, for example, Alasdair MacIntyre’s body of work, one would think a “non-boring” academic of Sunstein’s stature would be ashamed to dismiss this mode of thought and action with such an egregious set of half-truths and mischaracterizations.
But dismiss tradition Sunstein does, and so he must. For Sunstein’s project is nothing less than the transformation of constitutionalism into the tool by which constitution drafters may in turn transform societies. As he puts it in his introduction, “the central goal of a constitution is to create the preconditions for a well-functioning democratic order, one in which citizens are genuinely able to govern themselves.” No doubt much of Sunstein’s audience would find such a goal highly attractive. But what does it entail? What does it mean to “create the preconditions” not just for democracy, but for a “democratic order” in which people are “genuinely able to govern themselves?”
Sunstein’s democratic constitution must reshape society in accordance with “the internal morality of democracy.” This requires instantiating radical changes so as to make the people truly democratic—free and equal citizens who use rational arguments developed in conditions conducive to open-minded debate. Again, many would find such a goal attractive. But what does it require? The use of political power to restructure political, economic, social, and even religious institutions and associations to make them sufficiently “diverse” and “open” to see to it that we all become the kind of people Sunstein believes worthy of democracy.
As in so many of his almost countless books, Sunstein eschews the kind of theoretical analysis and justification of his values that might expose them for the conventionalist detritus they are. Instead, again, as in his dozens of other books, Sunstein utilizes highly skewed readings of a few cases and many slanted hypotheticals to “show” that disagreeing with him makes one lazy, stupid, or (probably) worse. A central motif of this particular volume is the argument that any democratic society must be rooted in a constitution whose “pre-commitment strategies” take central moral issues “off the table” by privileging individual autonomy above community and tradition. As important, Sunstein posits an “anticaste principle” that begins with a call to fairness, but defines that fairness as banning “social disadvantage because of a difference that is both visible for all to see and irrelevant from the moral point of view.” The unanswered question, of course, is “who decides what is irrelevant, and from what moral point of view.” That the answer is “elite institutions, especially courts” and “standard secularism” is made abundantly clear by his excoriation of traditional views of family and sex roles, including those one can find set forth by Pope John Paul II and instantiated in Catholic teaching and practice. Of course, Sunstein prefers to leave the actual contours of his “anticaste” principle unclear, preferring to vest his judges with the power to set a “legal standard” for judging the validity of government regulation of religious associations that would “force a candid assessment of the nature of the intrusion and the strength of the underlying interest, and not rest content with homilies… about the legitimate autonomy of religious institutions.” In other words, there will be no special protections for religious organizations and practices, which after all tend to value tradition and not “reason” of the highly instrumental sort which alone is recognized as such by Sunstein. They will be subjected to “neutral” principles and, generally speaking, found wanting—if not now, then soon.
Sunstein will continue to prosper. And tradition will continue to be rejected by judges and academics. After all, if allowed to play its natural role, it would serve as a check on the kind of ideological programs Sunstein and other progressives value. It would put the project of “transforming society” off the table, in most instances, and leave progressive judges with the “boring” job of finding and applying the law in a manner consistent with pre-existing practices.
If pressed to justify their programs, elite “democrats” like Sunstein may simply cry “racism, sexism, and homophobia” to silence most of their opposition. What such tactics obscure is the historical fact that slavery and most forms of insidious discrimination have been undermined in the West through arguments and movements subjecting improper and even evil practices to the judgment of a wider, specifically Christian tradition and that tradition’s insistence on a specific conception of human dignity. Facile gestures toward Kantian categories may be less “boring” than such a tradition, but it is shameful, frankly, that they pass for reasoned argument at the apex of American political and academic life. Whatever his failings, Friedrich at least was capable of recognizing the need for a society’s norms to grow from its experiences—its pre-existing institutions, beliefs, and practices—if they are to survive the inevitable conflicts of an imperfect world. Asked his religion, Friedrich is reputed to have responded “Homer.” Self-indulgent, no doubt. But one wonders, even after his abysmal failure as a chief bureaucrat in the Obama Administration, if Sunstein would be able to find anything beyond his own ever-repeating ideological gyrations worthy of such pious respect.
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