Thomas Paine "In America the Law is King" Lawn Signs

 

I suppose everyone (or at least everyone residing in a "blue state" has seen these signs. Being fond of Paine myself, but not liking this quote, I had to check if that line really could be found somewhere. And I want to quickly disclose that I didn't rush off to my copies of his books and papers and start hunting around: I used google.  

But before getting into what Paine said, what do I have against that quote anyhow? What's wrong with the idea of the law being king? Well...think about it: what if this law was put in place by one of the awful monarchs whose authority American revolutionaries wanted to cast off? Or, considering more contemporary objection, what if  the currently effective laws were put in place by a  merely sham democracy? I mean, Russia, North Korea have lots of laws. Many of Orban's are still around in Hungary. Should those codes be "crowned" and celebrated?

No doubt it will be objected that it sounds like I think I should be able to obey only those laws I happen to agree with. What a mess that type of arrangement would be! Am I saying that everyone should be able to pick and choose what laws they think should be authoritative, or do I really think that only Walter Horn should be able to pick the legitimate ones? 

Actually, I'm not saying either of those things. It's my view that all and only those laws that have been democratically enacted (via an actually decent process) are the ones that should be exalted (though we will likely want to obey lots of others for our own safety). And this is because legal codes should not be thought of as kings any more than some monarch or president. Only the people as a whole should get the crown. If they are the ones appropriately enacting laws, such laws should be revered. Otherwise, meh.

It's interesting -- and will be unsurprising to those with much familiarity with his writings -- that Paine took much the same position that I am advocating. Here's the essence of google provided to me on that matter: 

In Paine's view, the law could only be "king" if it was directly crafted by the people, rather than handed down by a monarch. 

In the very same paragraph of Common Sense (1776) where he says "the law is king," Paine describes a hypothetical ceremony where a crown is placed on the charter of laws. He then immediately states that the crown should be destroyed and "scattered among the people whose right it is." To Paine, any royal authority was just stolen people-power. 

In his later masterpiece, Rights of Man (1791), Paine directly argued that no past generation has the right to bind future generations to its laws. He believed: 

• Government is a contract among the living.
• The people retain the perpetual right to change, alter, or completely abolish their laws and constitution whenever they see fit.
• A law is only valid if it originates from the "consent of the governed." 

Paine explicitly rejected the idea that any government or legal system has authority over the population. In Rights of Man, he wrote:

"The nation is always sovereign, and has an inherent, unalienable, right to abolish any form of government it finds inconvenient, and to establish such as accords with its interest, disposition, and happiness."

So, When modern signs quote Paine's "the law is king," they are usually highlighting the principle of the rule of law—meaning nobody, not even a president, is above the law. But for Paine, "the law" was not a tool of control; it was a protective shield created by the people, for the people, which they could redesign at any time.

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I find this discussion generally congenial, both in substance and as representative of Paine's views, although the "consent of the governed" part is not something I would endorse without alteration. I won't go into that matter here, because I have discussed it in a bunch of other blog posts (most recently with respect to the views of Willmoore Kendall), but for those who would like more on Paine, see this.

Waskow I: What could cause an irreligious and bellicose left-wing agitator to become a rabbi?

 

The name Arthur Waskow meant nothing to me until my friend Joan Soble, in one of her lyrical Substack pieces, mentioned that someone with that name had recently written a pamphlet called The New Constitution, an item that is freely available online. I took a look at this work, which has a dedication signed 'By Shir Hashirim Rabbi Pesach-Lev / Dr. Paul Zeitz' — one person with two names, or two people with one slash? — containing remarks like "Love is not the absence of awe" and "The name of God is not a word at all but a breath — Yahh — the breath we share with every tree, every neighbor, every stranger." There are also a lot of Hebrew words in this introductory material, and it may be obvious to those familiar with my writings that I am not the ideal reader here.  But, whoever's fault it may be, this (possibly co-authored?) dedication includes a lot of the kind of writing that I can live without, so I skipped through it and jumped ahead to get some sort of picture of what the late Reb Waskow's idea of a better U.S. Constitution might have been. When I saw that his proposals seemed pretty sensible, I began to wonder whether Waskow had a background in politics or government, which led me to check his Wikipedia page. I discovered there that Waskow was not only a well-known Rabbi who was closely involved with something called "The Jewish Renewal Movement," but had also been a lifelong progressive protester who, after obtaining a Ph.D. in American history, worked as an aide to Congressman Kastenmeier of Wisconsin for a couple of years. Then, Wikipedia goes on to say, Waskow helped found the Institute for Policy Studies where he was a resident fellow until 1977. 

Waskow was a frequent anti-Vietnam War protester, and was also involved in agitation against global warming, and racial discrimination as well as for a two-state Palestinian solution, women's and LGBTQ rights, and other progressive positions. In a word, if I had been following the news instead of engaging in odd, time-consuming activities as a young adult, things like reading the entire output of two different George Moores (G.E., the early analytic philosopher, in addition to the Irish novelist/essayist/iconoclast), I'd have surely known who Waskow was. In fact, I'll bet my older brother Dick, who was an active Vietnam War protester himself (while I was mostly just scared of being drafted) would have known Waskow's name--in spite of being as indifferent to Judaism as both of his siblings. In fact, Dick might have actually chanted with Waskow on one or more occasion.

Nevertheless, I do share some things in common with Waskow (eventually "Rabbi Arthur Ocean Waskow"). While I never had the slightest interest in my "Jewish heritage," I did once write a book on the psychology of mysticism and religious experience. And, while my government employment was on the state rather than the more exalted Federal level, Waskow and I both spent several years in legislative chambers and committee rooms. Most importantly, it's clear that we share a devout interest in getting a new and quite different U.S. Constitution. 

When I found out that shortly before his death last year at 92 (in Philadelphia where my aforementioned 82-year-old brother Dick now resides in a nursing home, stricken with Parkinson's), Waskow had published some autobiographical writings, I thought I might read those along with his Constitution pamphlet and write something on the life as well as the thought. Hence, this blog.

Perhaps some of my readers will remember the beautiful death made by Lord Marchmain in Brideshead Revisited even after a life of complete apostasy. Cordelia suggests (following Chesterton) that God has us on a long fishing line and has twitched her father back into his final sign of the cross on his deathbed. Like Waugh's religious hero, Waskow spent most of his life caring little about his religious background — he says he was only 'nominally Jewish' as a kid — until his 'Freedom Seder,' written in the aftermath of Martin Luther King's assassination.#  In any case, by the time Waskow has gotten to writing his autobiography, he is regularly mentioning "The Spirit" [referred to by "they/them"] as being present and rising or falling during various events in his life. But I'm afraid that the non-believers among us are likely to translate those references into something like "This occurrence made me happy; this other one saddened me." It can't just be a coincidence that when Waskow is uncertain or confused, The Spirit is as well.

The book jumps around in time, and there are several gaps concerning matters readers are sure to be interested in -- like the author's love life. Waskow mentions his first wife only to say that they have split, and he says nothing whatever about meeting or falling in love with his second spouse: she just starts to be there at his sit-ins. He does mention his second marriage ceremony, but it is mostly to tell a story about sufficiently making up with his nearly estranged brother at the event, a healing that made it possible for them to collaborate on a book. 

There is much more to be found here about Waskow's political advocacy, and some of it, like his description of his role as a delegate for D.C. at the sad and violent 1968 Democratic convention is absolutely riveting. We learn here that his delegation put forward the first ever black candidate for President at a large party convention in the U.S., and the discussions of Eugene McCarthy and Paul O'Dwyer are likely to make readers hate them and cheer their losses in the races that followed. Nevertheless, one is likely to want more. For example, Waskow tells us that he testified for the Chicago Eight. But while he mentions his nervousness (and The Spirit's similar take), he tells us nothing of what he had to say at that famous trial. 

More touching than the rapprochement with his brother is Waskow's discussion of his falling out with fellow agitator, Marc Raskin (Rep. Jamie Raskin's father). In this case, the dispute -- over a pay reduction for staff at their co-founded Institute for Policy Studies -- came after collaboration on their 1962 book, the anti-nuke Limits of Defense. Raskin was the Director of the Institute at the time, and Waskow, along with the rest of the staff, was surprised by a dramatic salary cut forced by asset reductions. Waskow (who at one time used lawsuit damages in a successful First Amendment case to offer $3000 to each of his two children if they'd care to spend a year protesting various evils), found he didn't care for this unexpected alteration in the terms of his employment and promptly quit the Institute. The two men had been close allies for years after meeting on Capitol Hill right after college, but were entirely estranged for a couple of decades following Waskow's departure from IPS. The narrative here shows Waskow to be at least dimly aware that the beef might have been his fault. Their final meeting during Raskin's cognitive decline makes for a poignant passage in the autobiography.

The main thing one is likely to take from this little book is how both fearless and tireless Waskow was. He spends only a bit of time trying to explain why his version of the Torah, and Judaism generally, is so much farther left than that of so many of his ancestors, but his recounting of a classroom discussion of the rape of the Biblical Dina (I had always seen "Dinah") is quite moving. I suppose, however, that whatever the particular reasons may have been, both for the liberality of his views and for associating them with his religious faith, it is quite clear that Rabbi Waskow spent much of his life fighting ferociously for his progressive beliefs. He must have gone to at least a thousand protests, spoken at ten times as many meetings, and even went to prison a couple of dozen times. The regrets he mentions in the book generally have to do with his not blocking even more streets or arguing with even more police than he actually did. I mean, he's still sorry he wasn't more belligerent to a teacher who wasn't sufficiently impressed with his test-taking abilities when he was seven. It's hard not to admire -- or at least wonder at -- that sort of feisty mensch.

In Waskow II, I will take a look at the firebrand's proposals for a new and better U.S. Constitution. 

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# However, I have seen an on-line interview with Waskow in which he mentions that he grew up in a nearly all-Jewish neighborhood in Baltimore and went to a Jewish camp each summer. Couldn't it be that Marchmain's magnificent chapel  (which produced the famous "Golly" from Charles Ryder) as well as his always having a priest at his beck and call made it hard for him to fully abandon Catholicism, and that Waskow's childhood associations might have made it equally difficult for his Judaism to stay merely 'nominal'? I note further that if God (Waskow's 'Spirit') really does have an interest in tugging those born Jewish back to Judaism, and those born Catholic back to Catholicism, that's not merely a conservative theology — it's a reactionary one, treating religious identity as a matter of blood and birth rather than choice. That's the kind of thinking I'd expect to be more at home with white supremacists and Christian nationalists than with egalitarian progressives like Waskow.

Is there any safe and effective way to completely replace a constitution?

                

In countries all over the world, populations regularly amend or even replace their constitutions. But complete overhaul is almost never a simple trick, and in some places -- like here in the U.S., where substantial alterations seem to me to be desperately needed -- even minor amendments are almost impossible to enact.

 

Joshua Braver's new book, We, the Mediated People: Popular Constitution-Making in Contemporary South America (OUP, 2023) provides a sort of manual (one might even call it a hornbook!) for achieving such transformations. Braver, a faculty member at the University of Wisconsin Law School, argues that a successful process will likely involve illegality, but it should never be allowed to devolve into complete lawlessness. Getting what Braver calls "Extraordinary Adaptation" right is tricky. But failure can bring utter chaos, civil war, or totalitarian dictatorship. (Or numerous attempts may result in no changes at all.) The book also contains thoughtful discussions of the views of Hobbes, Sieyes, Schmitt, and Arendt on these matters.

I review Braver's valuable contribution to the literature on constituent power and constitutional change here.

Some Striking Things That Franz Neumann Wrote in 1935

I have posted quite a bit about Carl Schmitt here. Somewhat less about Hans Kelsen, but at least something. However, I may not have written a single word to date about my favorite Weimar era scholar, Franz Neumann. 

A few days ago, I posted some extracts from a 1935 work of his on the rule if law in my Substack (which I mostly use for the purpose of directing people here). So, for the sake of providing a shuttle in the other direction for once, I now link those timely Neumann remarks: they can be found here. 

But I also want to add a coda. After hearing a rather McCarthyite speech by a too-familiar leader at Mt. Rushmore the other day, I find myself prompted to add this: 

It's interesting to me that and why the 1935 German volk didn't have the same antipathy to the word "socialism." This is in spite of the fact that the treatment of corporations by the National Socialist party was quite similar to their treatment by the U.S. Republican Party today (deregulate, untax, and fleece/solicit bribes). Nevertheless it's much more useful to current U.S. "leadership" for socialism to be seen as an evil idea than it was in Weimar. The main goal is the same: to make sure that there is no unified opposition to the particular type of leadership held by those in power. But because of the absence of the same sort of "other" to fear and loathe in the U.S. today (the country is wildly diverse in race, religion, ethnicity, etc.), it's important here for income/wealth/class not to be perceived as a possible basis for unified opposition. Taking "socialism" as a horrific plan to eliminate all property rights is helpful in keeping the populace in line with Republicanism, whatever their income level. Again, because of a largely non-diverse citizenry, in spite of goals nearly identical to MAGA's, that fear wasn't necessary to retain support in Weimar Germany.

Jack Lively and William Nelson on the Natures of Democracy and Popular Sovereignty

 

 

I was reading philosophy back in the late 70s and early 80s when the books discussed here came out, but I was not reading anything on democracy or political philosophy until a constituent of a legislator I was working for recommended Henry George's Progress and Poverty. (This elderly gentleman wrote my boss a compelling letter about the unparalleled virtues of the land value tax and included the information that "I am a Georgeist, my father was a Georgeist, and my grandfather was an abolitionist." Naturally, the legislator in question never looked at this letter but simply passed it along to me for a response. I didn't just write this constituent back though: I ended up hosting weekly single-tax meetings for several years at my second-floor apartment in Allston. The discussions there bore some resemblance to those of The People's Front of Judea in Monty Python's Life of Brian. But my attendees had a considerably higher average age, and I'm not sure now how all of them got up the stairs. 

Although I no longer spend much time on books or magazines with names like "Land and Liberty" or "The Power of Soil, Our Common Birthright," as readers here have surely guessed, I now read a lot of political philosophy. But back in the 1970s (to paraphrase an Incredible String Band song), my philosophy readings were still focused mostly on metaphysics, epistemology, and Spinoza (on whom I wrote my dissertation), as I continued to frantically cast about for somebody (though maybe not Spinoza or McTaggart) to prove that people are immortal. 

I have cleared my throat at such excessive length before beginning this piece as a way of excusing myself for never having seen a word from two fairly popular (and efficiently titled) books on democratic theory from those days: Jack Lively's 1975 Democracy and William Nelson's 1980 Justifying Democracy. While I have by now gotten through quite a bit of the literature discussed in those two books -- writings by people like Bryce, Schumpeter, Arendt, Dahl, Arrow, Eckstein, and Tullock/Buchanan -- I figured it was past time to have a look at Lively and Nelson themselves, if only for remedial purposes. Having now had this look, I have a sense where both philosophers seem to me to have gone wrong: their opening definitions led them astray and really could not have failed to do so.

Even if authentic versions of democracy must depend on the equality of votes and voters, democracy should not be deemed to be identical with equality, political or otherwise. That is Lively's initial error. But neither should the essence of democracy be taken to involve a mechanism that will produce morally correct decisions. That is Nelson's early misstep. These mistakes are fatal because, once missed, the crucial connection between democracy and popular sovereignty cannot be subsequently forced in. If you try to separate the concept of democracy from the idea of residents getting what they want, there's a good chance that you will end up with something that is entirely undemocratic.

To begin with Lively, his remarks on faulty attempts to cure perceived shortcomings in majority rule for persistent and apparently powerless minorities are quite sharp. I speak here of his critiques of 'solutions' like Dahl's "Minorities Rule" and the idea that numerical vote deficits might be offset by somehow harnessing the greater desire intensities of minority voters. Lively hammers home how comfortable the status quo is likely to be for well-to-do elites and why that makes veto power sufficient for most of their needs. He specifies the various ways that small, wealthy groups have been able to handle their own lack of numbers and how difficult it can be to dislodge any group that can afford to produce vetoes at will, noting that they may need little more than that ability to remain ascendant. Thus, for the Elon Musks of the world, "majority tyranny" has always been something of a paper tiger. Even if it were true that poor, greedy, and ruthless voters always comprise the majority, there are plentiful means for the wealthy to keep them at bay. 

These empirical diagnoses and the critiques of various snake-oil cures are important and correct. But the conceptual error lingers. The problem for Lively's overall analysis runs deeper than the observation that if equality is always illusory, there may be no democracies anywhere -- an uncomfortable conclusion the analyst might soften by treating democracy itself as a matter of degree. The more fundamental difficulty is that political equality cannot distinguish democracy from forms of rule that have nothing to do with it. Consider Hobbes' state of nature. It gives everybody roughly the same political power -- i.e., none. Nevertheless, that jungle is not only not a perfect democracy; it is as far from a democratic polity as it's possible to be. Similarly, if we consider a monarchy in which the king has just been beheaded, making it currently unclear how or where public policies will be enacted or enforced, we again may have something like political equality, but nothing like democracy. 

The same failure of intentionality appears in government by sortition, where random individuals are chosen to make and execute policies for everyone. In any such jurisdiction, if the citizenry gets what it wants, it will be largely accidental.# When Lively makes such assertions as "there are some circumstances in which limits on majority decision may be set on democratic grounds" or "the principle of political equality can be violated by majority decision" it should be clear that, by making equality both the main goal of political theory and the basic criterion for democracy (rather than just one necessary condition for its existence), he has doomed his project from the start. 

To be democratic, the procedure for determining public policy must be focused on getting the majority what it wants. That is consistent with some democracies being quite unpleasant, so there may be good reasons for limiting democracy's scope. But as I understand the term -- and I think my concept is quite orthodox --nothing can be an authentic democracy that has any first principle other than The people get to choose their policies and representatives, and  majorities get to stand in for the people as a whole.

Now, I am not suggesting that the fact of political inequality, the varying amount of influence that different individuals can have on election results, is unimportant. Far from it. The fact that someone like Musk has so much more power to affect an election than any randomly chosen million other people is a colossal problem for democracy. The point is that it is something that cannot be fixed in the ways commonly suggested because not all types of political effectiveness are equivalent: equal vote weights are essential to democracies, but equal access to money or charisma are not. Thus, we cannot address political inequalities by attempts to build up or make up deficiencies of these inessential characteristics in voter cohorts without creating nonsense.🗡 The appropriate way to address these inequalities is instead via restrictions, things like campaign finance rules  that move from the top down, rather than the bottom up. Unfortunately, even if successful attempts were still being made to restrict activities like "dark money contributions," they would likely do little for poor, persistent minorities. I don't deny that this is a serious problem for democracy. I simply insist that it is no solution to claim that where political inequalities exist, we don't have (or have less) democracy. On my view, it is better to simply admit (with Churchill) that democracy is problematic: perfect democracy, in spite of its matchless intrinsic value to a citizenry, has little promise for producing a perfect (in the sense of happy or good) polity. Fortunately, that is not its role.

It would seem that Lively should have noticed the utopian aspects of his theory when he criticized Sartori in this way: "It is too easy to say that, given the absence of legal bars to political involvement, equality of opportunity has been established." Of course it hasn't — but nobody, including Sartori, ever suggested that the conditions necessary for democracy would also guarantee equality of opportunity. As Lively himself notes, political involvement is a function not just of the absence of legal obstacles but of such things as "attitudes," "resources," "sense of political efficacy," "apprehension of the extent to which [one] can alter [government decisions]," "access to information," "competence in assessing [one's access to information]," "willingness to pay [in time and money]," and "experience of social organization." How in the world could democracy be thought to require the equality of all those sorts of things? 

Lively puts conceptions of popular governance on a continuum with the highest level involving all the people doing all the deciding, legislating, enforcing, etc., down to levels six and seven. At six, rulers should not even be chosen by the people, but by those previously elected by the populace. And at the lowest level of popular governance, rulers need only "act in the interests of the ruled." Both ends of this continuum -- The Terror on one end, and complete paternalism on the other -- seem inapt to Lively (as I think they should to everyone). Even if the first level were workable in some Soviet fashion (which it isn't), the result would be largely anarchic. And, regarding level seven, if these alleged interests are not determined democratically, the people actually have no role in their governance at all, while if there is to be electoral involvement, we will need to climb back up to a higher level. 

I myself am content with level three, where rulers are accountable to the ruled and can be removed by them. For his own part, Lively is ambiguous about what level we should aim for, but one gets the sense that he could also live with level four, where the rulers need only be removable by representatives of the ruled. In my view, impeachment jurisdictions like the U.S. show how generally pointless that sort of removal "right" is.ψ 

Unsurprisingly, Lively is less interested in answering the question of the appropriate level of "people involvement" in government than in searching for ways to improve "political equality," for that, he believes, is the summum bonum of democratic theory.

Jack, with his wife, the novelist Penelope Lively

The first few pages of Justifying Democracy paint a convincing picture of Nelson carefully avoiding the same sorts of conceptual pitfalls that swallowed Lively. He assures his readers that he is well aware of a tendency of theorists to "confuse questions of definition and questions of justification or evaluation." He is focused, he says, on "finding a conception of democracy that is sufficiently close to our pretheoretical conception," so some of us may not notice (or let pass) that he adds "...and that can be justified by cogent moral argument." Nelson claims that he doesn't assume "that democracy is a good form of government." But, of course, if any decent conception of democracy must be justifiable by cogent moral argument, it's not clear how it could be anything but righteous. This makes his insistence that he does not presume that whatever is a democracy must be "a good form of government" somewhat difficult to square with his previous remarks, but perhaps he is just speculating that there may be other forms that can be justified by superior moral arguments, or that democracies, for all their moral virtues, are not workable for other, more mundane reasons. 

When Nelson asserts that he takes democracies to be systems "for making governmental decisions," and so requiring definition in terms of procedures rather than substantive policies, one gets a sense that he has regained his balance, especially after he adds that he intends to focus on "how the various institutions affecting governmental decision-making should be structured" rather than on what the decisions turn out to be. We will find, however, that our earlier wariness was justified. While his conception does distinguish processes from results, it's clear that it is only a sufficiently high probability of producing morally acceptable results that he thinks can qualify a system as democratic.* On his view, every democratic theorist has an obligation to demonstrate why the method he or she advocates -- whether it is a traditional or revisionist concept -- is morally good. And Nelson is completely comfortable in both confessing that he does not have "a complete moral theory of [his] own to offer" and nevertheless foretelling that the conclusions in his book will, because they must, consist solely of judgments in moral theory. 

Given Nelson's focus, it is unsurprising that there is considerable discussion of utilitarianism in the  book, including an interesting discussion of Sartori's version of act utilitarianism. (Partly because of the really astonishing popularity of Peter Singer's 1975 book on animal rights, utilitarianism was much more popular when Nelson was writing than it is today.) There are also valuable discussions here on Mill, Singer, Foot, Pateman, and Rawls. I will not discuss that material here because it is outside the scope of topics suitable for this blog piece, but I want to stress that some of it seems to me quite good. There is also a chapter on governmental authority, which I find generally congenial, but perhaps I would have liked even more before reading the recent Kenneth Himma book on that subject that I reviewed here. I mention these virtues because I don't want readers to infer from my criticisms above on definition or below on popular sovereignty that I think this is a worthless book. Indeed, even the material in those two sections will provide readers with useful information and  sometimes intriguing arguments. When the book originally came out, it was praised for its critiques and panned for its positive theory; I generally concur with that assessment, but would add that there is something that can be learned from every section in it...but also warn that some of the  more polemical material isn't worth the trouble of working through. The discussion of Arrow's Impossibility Theorem, for example, takes up quite a bit of space without really going anywhere. 

Nelson's first pass on attempts to justify majority rule involves a discussion of the virtues of neutrality (proposals are treated identically) and anonymity (voters are treated identically) as set forth by Arrow and Sen. He doesn't mention that majority procedures need not possess these characteristics, though it is certainly a point in their favor that they can. However, Nelson suggests that a coin-flip mechanism could share those two virtues and recognizes that this may be why a number of theorists have pointed out the importance to authentic democracy of popular sovereignty -- constituent power. But before devoting a chapter to the latter concept, he makes some of the same criticisms of majoritarianism that we have seen in Lively (and many others before and after him): giving majorities the reins may have unpleasant results for minorities. There is no doubt that those consequences should be acknowledged by any good theory of democracy.

Before turning specifically to popular sovereignty, Nelson gives us a brief, convincing chapter on whether broad participation in policymaking might alone make for an acceptable criterion for democracy. Besides a good discussion of Schumpeter's views on this subject (according to which, basically, if something can pass as democracy among the not-too-discerning, we ought to call it that), Nelson lands these haymakers: "Participatory democracy...is a system that (morally speaking) traps people. The more they participate in the political process...the more deeply they become committed to the system even if their views do not prevail." And "If it were true that participation constituted consent, all that would follow is that those who participate have an obligation to obey the laws or acquiesce in the policies of their government. A government that...achieved widespread participation would then be a legitimate government, but only in the sense that [such participants are] obligated to go along with their government." Such considerations would seem to demonstrate that it's not actually participation, but congruence with majority choice that really makes a jurisdiction democratic. This should lead us to expect that Nelson's remarks on whether democracy should be understood as popular sovereignty, a way in which people can get what they want, should be dispositive. 

Frankly, however, that chapter is a bit disappointing. After the meandering material on Arrow -- that never suggests the possibility of non-ordinal preference measures -- mentioned above, Nelson follows Benn and Peters in making the (I think correct) point that, to the extent that there is a will of the people, "it cannot be determined independently of the particular [voting] procedure employed." Of course, not every procedure chosen will be democratic. In my own view, for example, it must weigh each vote equally, and it must be majoritarian. Nelson sometimes says that he believes in majority rule, but any such preference is, for him, always outweighed by the requirement that the electoral results will benefit the people. It must be desirable for the resulting policies to reflect the will of the populace, however it is assessed. His failure to make the very fact of self-rule intrinsically valuable — or even to consider the possibility that such arrangements have fundamental and irreplaceable import — makes the section largely point-missing. There are two appendices to this chapter, but, sadly, they also provide very limited value. 

Indeed, this is the key shortcoming of both books. If one fails to realize that citizens-getting-what-they want is essential to democracy, one's book on democratic theory can only be so good. We may take the point of "people power" to be increased freedom a la Kelsen. Or we may just consider it axiomatic along with Hall (and, I think, Wall). But once one goes down the road of trying to make democracy, in its essence, a system that will make a pleasant polity or choose "correct" laws, or make a land just, righteous and kind, we are no longer engaging in democratic theorizing. Both of our authors are utopian, and, understandable as that impulse may be, I think it would have been more useful for them to turn their undeniable skills to handling the problems that authentic democracies can make for polities, rather than insisting that, where we find such problems, there can be no democracy.

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# Sortitionism is an ancient scheme for which there is substantial modern enthusiasm. I have set forth some of my concerns here. On this matter, I agree with Abizadeh. See this. 

🗡I discuss this matter at considerable length here (even including in that piece a video clip from an Amy Schumer sitcom)! Wall (2007), cited therein, is an important paper on this subject.. 

ψLevel two, because it requires that every person in the jurisdiction be "personally involved in deciding general laws and policies" without specifying which laws and policies are the general ones, seems to me quite likely to collapse into level one, which will probably limit its attractiveness to Leninists and Cordeliers.

* I actually found it quite jarring to read, shortly thereafter, that Nelson believes it is incorrect to attempt to justify democratic procedures by claims regarding such things as citizen participation or equality of influence, because, since the laws produced by these procedures may be objectively "good or bad, just or unjust....We must focus on the kind of laws or policies the procedure will yield." It is hard to imagine a remark that more clearly contradicts what he had just insisted was the plan of his book.

What are the Limits of Constituent Power?

 

In the field of study on the margins of law, politics, and philosophy there are a number of phrases that are as iconic as “Great taste! Less filling!” or “Where’s the beef!?” Consider these taglines by Carl Schmitt, Jean-Jacques Rousseau, and Emmanuel Sieyes, respectively 

• Sovereign is he who decides on the exception.

• Since the laws are nothing but authentic acts of the general will, the sovereign can act only when the people are assembled. 

• The nation is the law itself….No nation has ever been able to decree that the rights inherent in the common will, i.e. in the majority, should pass into the hands of the minority.

All three resonate with both a ring of truth and a kind of majesty that is hard to deny. It is therefore entirely unsurprising that the literature on such matters as  constituent and constituted powers, or the relationship between sovereignty and the general will is not just immense but also absolutely fascinating. 

An idea that may strike one who is musing about the force of these three proclamations is that they must be understood in a particular way to have much chance of seeming true. It’s quite obvious, e.g., that given the existing arrays of polities in the world today, some may be such that nobody will actually ever decide on what Schmitt calls an “exception”; in fact, there may be places where no exception to the legal status quo will ever even be proffered by anyone.  Furthermore, it can’t be doubted that a substantial number of (at least apparent)  sovereigns have managed to act in a large variety of ways in spite of the fact that the people there have never been assembled. And, of course, numerous nations have delivered any number of “rights” – whether or not these have been correctly deemed to be “inherent in the common will” – directly into the hands of one or another local oligarchy. 

But no such prosaic observations as those will do much in the way of diminishing the power of these canonical pronouncements. I believe that is because there are a couple of other, perhaps not quite so literal, ways of understanding them. First, rather than supposing them to be descriptive of the world of realpolitik, they may be taken as stipulative definitions – suggestions for good ways to understand the terms “sovereign” or “passage of rights.” A second possibility is that these assertions are intended as aspirational. That is, Schmitt might be suggesting that what we should want is that all and only sovereigns be the entities that decide (or have the power to decide) on crucial exceptions. Similarly, perhaps Rousseau simply hoped for commonwealths in which actions of a certain type can only be taken when the people have been assembled in a particular way.  And maybe Sieyes was just expressing his firm opposition to minority rule.

Unfortunately, the alternative readings that correspond to the stipulative or aspirational connotations may also produce a variety of interpretations -- or at least continuing arguments. So, for example, it may be doubted whether it is appropriate for “sovereign” to be understood in the proposed manner, or one may disagree about what powers really ought to be kept from majorities and reserved instead for one or another elite group.

In addition to the various ways in which many of the most important propositions involving “people power” may be taken, there are fine distinctions that political philosophers have wanted to make in this area. For example, in her contribution to the massive new OUP Handbook on Constituent Power, Simone Chambers concedes that “the concepts of constituent power and popular sovereignty are sometimes difficult to distinguish from each other.” After all, she continues, “constituent power is the authority to create or reshape a constitution,” and the latter, whether written or unwritten, provides the foundation for all lawful edicts in any democracy.  Thus, since “sovereignty implies a superlative claim to political authority,” where there is popular sovereignty it might seem that the people must occupy the place of the highest political authority, which would seem to make popular sovereignty and constituent power at least nearly synonymous. Nevertheless, Chambers insists that the concepts are clearly distinguishable, for she takes “sovereignty” to imply the power to enact specific policies and so push citizens and things around, while "constituent power” instead  implies a “generative or creative power to choose the rules” rather than the capacity to actually enforce any particular program. 

Of course, anyone may use these terms as they wish, and it is always wise to try to understand precisely how they have been used by prior well-known writers on these subjects. But perhaps I am not alone in sensing the limited value of all the logic chopping here. For we could just as easily distinguish types of constituent power/sovereignty, noting that some do and some do not involve various executive activities. Obviously, if keeping these connotations strictly separate is clarifying, it might be quite useful to do so, but I’m not sure that goal is reached when “sovereignty” (writ large) is confused with “popular sovereignty” as in this assertion by William Selinger in his contribution to a recent symposium on this subject: “Since Carl Schmitt, constituent power has been increasingly interpreted as no different from sovereignty.” I mean, even if Schmitt was guilty of muddling these matters to a fare-thee-well, I don’t believe he ever suggested that all instances of sovereignty, in the sens e of ultimate power, can reasonably be suggested to be based on the desires (or perhaps others would say interests) of the relevant constituents. That is, I don’t think even Schmitt (with all of his fondness for dictatorships) ever explicitly suggested that  sovereignty of every kind must always be a matter of constituent power. Consider Rex, who has conquered a new territory and taken control of the people and laws there. Surely, it must be correct to say that Rex is that territory’s new sovereign, but the locals – though it is odd to call a newly subjugated people a constituency – may have no power at all. In this way it seems that all the chopping will sometimes only make matters murkier. When that happens, we readers may also wonder where, exactly, to find the beef.

For my taste, one of the best places to look is Lucia Rubinelli’s Constituent Power: A History, which, to drain these advertising metaphors completely dry, manages to be both a great read and comfortably filling. I have reviewed her fine book, along with an also important new work by J.H. Snider on U.S. state constitutional referendums, here.