POLITICAL PARTIES,
THE CONSTITUTION,
AND THE FUTURE OF
AMERICAN POLITICS
Charles R. Kesler
THE UNITED STATES CONSTITUTION IS A PARTISAN DOCUMENT, though it says nothing of political parties. It is partisan above all because it stands for a particular kind of government, for republican government, which it undertakes to guarantee to the states.1 But who or what guarantees that the national government itself shall remain republican? The Constitution's own "auxiliary precautions" - separation of powers and legislative checks and balances - are just that, auxiliary. In the final analysis, it is "We the People" who are, in The Federalist's words, "the primary control on the government," and thus the essential guarantors of American republicanism.2
The problem, of course, is how to enforce this guarantee, given that "it is impossible for the people spontaneously and universally to move in concert towards their object."3 In order to save themselves, therefore, the people must accept some informal, extra-constitutional authority, and consequent organization. This is the need that American political parties were invented to fill, first as emergency mechanisms and then as regular, though still informal, parts of our politics.4 They were devised to preserve the Constitution against its enemies, to protect the Republic by encouraging good men to keep a jealous guard of it - by keeping a watchful eye on one another.
Loyalty to the Constitution was thus the historic touchstone of America's party politics. Whatever parties did, and in due course they did plenty - recruiting and nominating candidates at the local, state, and national levels; motivating voters to go to the polls; dividing up the spoils of office - they did ultimately in the name of guarding the Constitution. And though this reason could become a pretext for abuse of political power, it also provided the indispensable standards by which abuses could be judged. Serious partisan disputes were therefore constitutional disputes. So it was with Jefferson's Democratic-Republican opposition to the "monocrats" in 1800; Jackson's hostility to internal improvements and the "Money Power" in the 1820s and 1830s; Lincoln's refusal to allow the Constitution to become a pro-slavery document in the 1850s; the debate over social and economic regulation in the late 18th century, and so on.
In all these cases, American parties operated to restrain the passions of ambitious political men by forcing them to vie with other ambitious men in support of the Constitution. At the same time, parties harnessed such men's virtues and talents by connecting them to broader views of constitutional doctrine. The public benefited by being offered a choice between well-developed interpretations of these doctrines. A party system - in which more than one party could respectably and routinely contend for office - was able to emerge because the Constitution had room for several interpretations, though not for every interpretation, of its powers and principles.5 Parties competed to prove their fidelity to the Constitution, each grudgingly conceding the legitimacy of the other(s), but insisting on its own superior credentials - and thus its right to define what was common ground, and what forbidden ground, in the public life.
In practice, these boundaries were set by the majority party, but the fight was always over who would get to set them-whose view of the Constitution would prevail. When the competing views became sufficiently discordant, the American people faced a critical election whose consequences might include the overturn of the existing majority party, and the establishment of a new one. Such realigning elections are rare but revealing: they set the grounds of electoral competition for the next generation or two, and renew the nation's dedication to the moral and political goals of republicanism proclaimed in the Declaration of Independence and incorporated in the Constitution. Thus America's party system reflected the continuing vitality of the Constitution, and presupposed a healthy respect and even reverence for it.
Today, however, one seldom hears about the Constitution in connection with our political parties. Except for controversies over judicial and especially Supreme Court nominations - centering on abortion and the right to privacy - our political parties have little to say about the Constitution's relevance to their own functions. Partly this is because so many of the barriers the Constitution was once thought to raise to federal legislation have been removed or disregarded over the past 60 years. It has been a long time, for example, since the G.O.P. objected to a proposed new federal program not simply because it was spendthrift or imprudent, but because it was unconstitutional.
But the deeper reason why the Constitution's significance for our party system has declined is that the Constitution itself has been under running intellectual and political attack for about a hundred years. As a result, the Constitution no longer provides a clear raison d'être for our parties. Deprived of their deepest ground of legitimacy, however, the parties have not prospered under the new dispensation; their public respectability has ebbed. Ross Perot's abortive presidential candidacy in 1992 was a sign of this, an ominous conjunction of disdain for political parties and barely suppressed impatience with the Constitution.
To be sure, that American political parties grew markedly weaker in the past few decades is well known, and the causes of the decline - e.g., a more educated and independent-minded electorate; television, direct mail, and the arts of the permanent campaign; the rise of the welfare state-have been extensively discussed.6 There is no need to repeat those accounts here. What this essay contends is that beneath these various factors is another, deeper cause, which has to do with the parties' disconnection from the Constitution and its principles. Whereas once the parties stood or tried to stand on the solid rock of the Constitution, now they struggle to gain a footing amid the sinking sand of a new generation of post-Constitutional doctrines.
What the future holds in store for American political parties will depend to a large extent on how they stand in regard to the Constitution. Our first order of business, then, is to examine how and why the older view of the Constitution and American political parties came to be transformed.
NATURAL RIGHTS AND ELECTIVE REPRESENTATION
Our most direct and authoritative access to the political principles of the American Founders is through the Declaration of Independence, which teaches that the ground of political right and obligation is human nature. By virtue of their being human, men possess equal and unalienable rights - natural rights - which "governments are instituted among men" to secure. The institution, alteration, or dissolution of a particular government is a choice that the governed must make wisely, if the decision is to be respectable and if it is to effect their real "safety and happiness." This choice belongs to the people, who are conservative, i.e., long-suffering; they seem disposed to heed the counsels of prudence. Indeed, insofar as it is not only their right but "it is their duty" to effect their safety and happiness, they are under obligation to follow what prudence "dictates."
But what are these "dictates"? They include the statement of causes, of reasons, given in the Declaration for the break with Great Britain and the decision for independence. The responsibility for assembling these reasons, and more important, for judging that George III's underlying intention was tyrannical, is taken squarely upon the shoulders of the Declaration's signers. They appeal to "the Supreme Judge of the Universe" for the "rectitude of their intentions," and pledge to each other their lives, fortunes, and "sacred Honour." The consciousness of their honor binds them together as they speak and act prudently on behalf of the people's right. In this manner, wisdom (of a few) and consent (of many) are brought together in what might be called the prototypical American party statement.
The Constitution attempts to preserve and extend this combination of wisdom and consent in two ways: by constitutionalizing wisdom through written restraints on government, the separation of powers, an independent judiciary, and other "inventions of prudence";7 and by providing the American republic with offices whose mode of appointment, term, and distinctiveness make them suitable platforms for future statesmen. In Publius's words: "The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous. . . " Under the Constitution, it is through elective representation that such rulers will be selected and, through the possibility of re-election, kept virtuous while in office. As Publius explains: "The elective mode of obtaining rulers is the characteristic policy of republican government."8 Not every officer of the United States government is chosen by popular election, of course, but every one derives his powers "directly or indirectly from the great body of the people," and every major one is chosen or confirmed by some body (state legislatures, the Senate) responsible to an electorate.9
Through the application and modification of the elective principle, then, republican government is able to be good government, combining stability and energy with republican liberty.10 Political parties effect a further modification of the elective principle, making it easier for candidates and voters to associate on the basis of common opinions and interests. The addition of political parties to the constitutional scheme required but one modification of the document's language and one further evolution in political practice. The single constitutional change needed to accommodate political parties was the Twelfth Amendment, which in effect transferred from the electoral college to political parties many of the deliberative functions integral to presidential election. Then came the political change. After several decades, including a short period when national party competition had almost expired, the parties were revived and their deliberative and nominating functions were confided to national conventions rather than local grandees or party caucuses in the House of Representatives.
By these steps, parties were made consistent with the independence of the president and the general constitutional principle of separation of powers. Though striped of most of its deliberative functions, the electoral college served (in this new arrangement) to structure the party system, organizing it around state-by-state competition for the presidency, which helped to keep the national parties rooted in state and local organizations, and state and local officials involved in national party affairs. What is more, the electoral college served to moderate party politics by encouraging parties to compete for votes across many different states containing widely varying interests.
For these and other reasons, most Americans came to hold the view that once political parties had been adapted to the Constitution's purposes, they would (and as a matter of fact, did) strengthen republican government - adding a further barrier to minority faction, and bolstering national opinion against the dangers of majority faction.
THF NEW VIEW OF RIGHTS
Over the course of the past century, however, a new and critical interpretation of the Constitution emerged that implied a wholesale revision in the relation between political parties and the Constitution. This critique was based on a new theory of rights and representation, in many respects antithetical to the old.11 Although there were important variations in the details of the critique - for example, between Woodrow Wilson's and Herbert Croly's versions of it - its main elements were constant. They first came to political prominence in the Progressive Era, began to be institutionalized in the New Deal and Great Society, and live on in the programs and decisions of today's administrative state and activist judiciary.
The new view of rights rejected the premise of traditional American republicanism, that men had rights from nature which it was the purpose of government to secure. Instead, it saw rights as products of historical development, the outcome of centuries and even millennia of political evolution. These rights were, accordingly, changeable, and if they were to remain relevant to modern times they would have to be adapted continually to new social and economic circumstances. This idea is familiar to us today in the notion of the "living Constitution," often invoked to justify far reaching and unprecedented decisions by activist judges. But in its origins it was meant to apply to every branch of government; it was a theory of "the State."12
By making rights dependent on historical change, this theory may seem to open the door to moral relativism. Its formulators tried to shut that door, however, by regarding history as cumulatively or finally rational; there was an "end of history" that disclosed the final truth about man, which was that he is a being of infinite dignity, possessing a full panoply of rights that the state must protect for the sake of his full self-development or self realizaion.13 This doctrine derived from the political philosophy of Kant and Hegel, mixed with elements from the English historical school. Its American followers refused to accept Hegel's view that history ended in the rational state of constitutional monarchy, however, preferring to depict the end as a cooperative commonwealth of ever more equal citizens and ever more obliging government. Thus the "end of history" meant the end of any possible theoretical or practical challenges to equalitarian democracy, but not the end of democratization.
Further democratization was necessary in order to transform a regime based on natural rights into one that could secure real, evolving, social rights. The old view had held that rights were something natural or God-given, inhering in individual human beings, antecedent to the social contract. The new theory taught that rights emerged from the social contract, that they were defined by a bargain struck between the government and the governed, which bargain was subject to continual renegotiation as circumstances altered. In the traditional view, the contracting parties were individuals bearing rights, who set up government as their trustee and servant. In the new view, the contract is between the people and their rulers, or civil society and the state. The people come into being without an explicit act of choice; they have common historical, ethnic, linguistic, or religious roots, as in the 20th century (really, Wilsonian) doctrine of national self-determination. Moreover, they enter the contract bearing not rights but power (or freedom based on power); they get rights out of the balance of power between themselves and their government.14
As dangerous or precarious as that may sound, there was nothing to fear if history itself were progressive, if democracy were here to stay and monarchy, aristocracy, and tyranny were things of the past. Then it could be regarded as settled that henceforth the people would be the government - that was the meaning of democracy - and that they could be trusted not to abuse their power over themselves.15 Accordingly, the real threat to democracy came not from demagoguery or tyranny of the majority, but from a tyranny that existed outside the public sphere, outside government - in civil society itself.16 "Political tyranny was wiped out at Philadelphia on July 4, 1776," as F.D.R. put it in his 1936 Address Accepting the Democratic Nomination. But a new form of "economic tyranny" soon rose in its place:
The age of machinery, of railroads; of steam and electricity; the telegraph and the radio; mass production, mass distribution-all of these combined to bring forward a new civilization and with it a new problem for those who sought to remain free. For out of this modem civilization economic royalists carved new dynasties. New kingdoms were built upon concentration of control over material things . . . It was natural and perhaps human that the privileged princes of these economic dynasties, thirsting for power, reached out for control over Government itself. They created a new despotism and wrapped it in the robes of legal sanction. . . . The hours men and women worked, the wages they received, the conditions of their labor - these had passed beyond the control of the people, and were imposed by this new industrial dictatorship.17
In reality, then, only one form of political tyranny had been over-come in 1776, that of political royalists or monarchists. The divine right of kings had been toppled, but not the divine right of capital. To be sure, a measure of civil and religious liberty had been won in 1776 and secured by the Constitution in 1787; but the narrow and selfish doctrine of rights on which the Founding had been based was inadequate to support genuine, well-rounded, progressive human freedom. In F.D.R.'s words: "For too many of us the political equality we once had won was meaningless in the face of economic inequality."18 The old political equality could not itself be sustained without the aid of the new economic equality. The old freedom was too formal; it masked a private system of domination by the rich, which soon extended to government.
The formal quality of the Founders' view of natural and civil rights was, in Roosevelt's interpretation, its undoing. For the rights to life, liberty, and the pursuit of happiness, while justifying limits on governmental power, left it largely up to individuals to govern their private economic appetites and to look after their economic needs - to anticipate periods of unemployment, to save for old age and medical emergencies, to extend charity to the unfortunate, and so forth. But these are precisely what most men cannot or should not be counted on to do, the New Dealers argued, particularly in the corporate and industrial age. For the modern industrial system and the rich who profit from it conspire to make these tasks difficult and unattractive; and besides, a certain insouciance or improvidence on the people's part blinds them to their long-term interest. Under these conditions, men cannot be held responsible for their own natures, for supplying the necessities of their natures. That is too daunting, too overwhelming a duty for individual men, families, voluntary associations, or even state and local governments to perform. In Roosevelt's words, the economic royalists granted "that the Government could protect the citizen in his right to vote, but they denied that the Government could do anything to protect the citizen in his right to work and his right to live."19 So the federal government must now turn to the protection of the right to work (i.e., to a job), and even to the right to a salubrious vacation from work; the right to social security; to medical care; to education; and so forth-to all the social and economic rights that are needed to make equality meaningful and freedom substantial.20
In other words, to quote one of F.D.R.'s favorite maxims, " ‘necessitous men are not free men.' "21 Necessity and freedom cannot coexist; freedom begins at the point at which man's necessities have been satisfied. By contrast, in the older view, freedom is the way in which man takes responsibility for himself while coming to grips with his necessities. Freedom is natural to man, but precisely because man's freedom is made possible (though not guaranteed) by nature, it is limited by nature. This allows man to be responsible for claiming his freedom through his own virtue, talent, and luck, without being ungrateful to nature and God for the potential that he is actualizing. For Roosevelt and the Progressives, however, freedom that is bounded by nature or dependent on nature is not real freedom, which is the work or creation of man in history. Hence the federal government must be redirected to provide for Americans' social and economic needs, must take care of our necessities in order that we may be free. The justification for this new mission comes from the redefinition of rights "in terms of a changing and growing social order," a re-definition away, that is, from nature.22
Herbert Croly was perhaps the most candid exponent of the new view. What it pointed to, he admitted, was a "radical transformation" of national policy and democratic principles from the "excessively individualized democracy" of the Founders to "a more highly socialized democracy." This, in turn, would require "the American state" to assume responsibility for "a morally and socially desirable distribution of wealth."23 The federal government would effect this redistribution through taxes and new experimental programs of social uplift and social engineering. Unlike the limited government established by the Constitution, this government, empowered to experiment on society, would be no strict observer of separation of powers or of the distinction between public and private. Neither positive constitutional rights nor natural rights would restrain it. For "if the chief purpose of a democratic political system is merely the preservation of such rights," Croly wrote dismissively, then it is nothing more than a glorification of the spirit of faction. Only "if these Constitutional and natural rights are considered a temporary philosophical or legal machinery, whereby a democratic society is to reach a higher moral and social consummation," can the promise of American life be realized.24
THE NEW VIEW OF REPRESENTATION
Supposing that the purpose of government is to bring about "a higher moral and social consummation," what does this imply for the function of political parties? In this scheme, clearly, parties do not work to preserve or perfect the Constitution, but rather to transcend it. They orient themselves not by the unchanging principles of its republicanism but by a vision of the future, a different and much better future than the Constitution or its Framers contemplated. They become vehicles for reaching, actually, approaching a promised land of democracy, which though constantly receding remains always alluring. They become conduits for what nowadays is called "leadership." The older understanding called for a system of elective representation designed to secure, and to exercise, men's inherent and unalienable rights; the new regards these rights, rooted in a retrograde view of human nature, as factious, and therefore regards elective representation as partial, incomplete, subjective.25 A just or complete representation cannot be based merely on subjective freedom, on the right of each voter or interest group to pursue its own interest.
Partisans of the old constitutionalism agreed, of course, that selfishness was not enough, but they looked to popular virtue, statesmanship, and parties incorporating constitutional principle to raise citizens' sights to the common good. For them, elective representation, as embodied in the Constitution, would "refine and enlarge the public views by passing them through the medium of a chosen body of citizens," distinguished by their wisdom, patriotism, and love of justice.26 Accordingly, Publius predicted that the Senate would generally contain men "most distinguished by their abilities and virtue," and foresaw a "constant probability" and even a "moral certainty" that the president would be someone "pre-eminent for ability and virtue."27 But the latter-day critics of the Constitution thought that both it and the political parties operating under its aegis were contaminated by the egoistic view of rights.
Therefore, new kinds of representation were needed to compensate for the excessive individualism of America's electoral system. These new forms of representation would serve the new view of rights, would give voice to qualities other than property, interest, virtue, ability, or even reason. Above all, the needs or private necessities of men would be heard. For so long as men were necessitous, they could not be free; so long as their desires were unmet, their reason would be unheeded: their reason could be sovereign only if their passions were satisfied. The new view of rights thus empowered the passions, demanding a minimal (but relative, therefore not so minimal) level of material welfare in order to make civil and religious rights worthwhile. The result was what we now call entitlements.
Entitlements arc promises of material benefits made by government to broad classes of people whom it considers needy. These promises have in effect become a new social contract between the government and the governed. Their growing importance may be charted, roughly, by comparing the percentage of the federal budget devoted to "uncontrollable" social welfare spending versus the percentage devoted to defense, law enforcement, regulation of commerce, and other government activities characteristic of the old social contract.28
But what difference do entitlements make for political parties? Unlike natural rights, which point to elective representation - e.g., "no taxation without representation" - entitlement rights do not seem to need or to culminate in elective representation. They must be voted on in the beginning, of course, but their essence is to function as so many autonomous claims against electoral politics, as "trumps" that overrule political majorities. Future generations who might balk at the pricetag of these entitlements will be reminded that they have a duty to shell out the promised payments, not that they have a right to consent to taxes. For them, the operative principle will be "no representation without taxation"! Again, unlike the older political rights, entitlements require no spirited exertion to claim them, and hence no political parties to press such claims. Entitlements are spiritless. They go to the needy, i.e., strictly speaking, those who lack the wherewithal, even within themselves, to make a positive claim of any kind. If they could, if they claimed benefits as recognition for some contribution they make to the common good (freedom, virtue, wealth, etc.), then this would suggest that their needs do not in fact swallow up their rights. Their freedom would not be dependent on material well-being, after all. But entitlements find their appropriate political forum not in parties, legislatures, or executive offices but in bureaucracy.
Once they moved to the forefront of American politics, the new rights began to alter drastically our political system. To propagate entitlements across the country required in the first place an unprecedented centralization of administration in Washington, which was accomplished in the late 1960s and early 1970s. This, in turn, required a new and radical decentralization in the national legislature, particularly in the House of Representatives, in order to oversee the manifold federal programs now being implemented at the state and local level.29 (These included vast new regulatory efforts as well as social welfare activities.) The political effect of this was to make congressmen into ombudsmen, spending more time and money than ever on casework and constituent service in order to help their friends and supporters through the maze of federal programs. The electoral effect was to make congressmen so user-friendly that they seemed almost non-partisan; it became much harder to defeat incumbent congressmen.30
Members of the House thus came to enjoy a certain protection against the ebb and flow of partisan politics. Consequently, the House as a body became more insulated from the currents of national political opinion, and seemed to drop out of the pattern of electoral realignment. Four out of the last five presidents were Republicans - but Republicans have not captured the House in nearly 40 years. Perhaps political realignment is now impossible given the combined effects of the new view of rights and of the administrative state on American political parties.31 Franklin Roosevelt seemed to envision something like this in 1932 when he announced portentously, "The day of enlightened administration has come."32 If so, then the New Deal was meant to be the realignment to end all realignments. After it, there would be no questions of justice left in America that could not be solved by more of the same - entitlements, regulation, redistribution.33
THE PRESIDENT AND PARTY LEADERSHIP
Man does not live by administration alone, however, and before turning to the alternatives to elective representation that now confront and weaken our parties, let us glance at the presidency, still the focus of American party politics. As originally conceived, the presidency was to be an office above party. The president's statesmanship was to have been directed or shaped by the Constitution; but the "energy" of his office, compounded of its unity, duration, competent powers, and other qualities, also gave him a certain salutary freedom from the positive law.34 The addition of political parties to the original constitutional scheme served to constrain presidents' independence somewhat, but could not overcome the constitutional character of the office. At the same time, parties multiplied presidential ties to Congress, and probably strengthened presidential influence over policy-making. At any rate, these tensions between the requirements of statesmanship and of party government became a normal part of the presidency by the mid-19th century.35
The modern tendency, however, is to attempt to resolve these tensions by reducing statesmanship to "leadership." The statesman as leader does not have to be magnanimous or to possess extraordinary prudence in order to make difficult choices about the common good; he has only to be in the lead, "out front" of the trends shaping his people's future. In this conception, the statesman is essentially a vessel for the Spirit of his Age. As such, his authority comes not from his character or the powers and duties of his office but from his connection to the historical trends coursing through his people, which means especially, through their felt historical needs. This connection cannot run through a written, fixed Constitution, or even through political parties claiming to represent that Constitution's spirit, but must be through a new kind of party devoted to leadership, and necessarily culminating in a leader.36
The statesman is quintessentially a party leader, therefore, inasmuch as it is through a political party that he communicates with his followers and prepares them for the next stage in the march of progress. Parties are, then, no longer parts claiming to represent or speak for the whole people under the Constitution; parties represent the people's future to their present selves; and presidents, as party leaders, must use images and imaginative rhetoric to convey their "vision" of the people's future in order to inspire their party followers. What issues from this is a politics of imagination and passionate belief, not of "the cool and deliberate sense of the conununity."37 Rather than parties devoted to constitutional principle one gets parties addicted to post-constitutional enthusiasms. It used to be enough for a president to preside over the government; now each administration wants to refound the country, as can be gathered from the century's slogans - the New Freedom, New Deal, New Frontier, Great Society, "New Covenant."
Yet the substance of these inspiring new visions of leadership is hard to distinguish from the uninspiring agenda of administration that we have already discussed. It is essential to "the vision thing" to promise socioeconomic advance, but this requires programs that must be administered; and it is difficult for a president to be a leader and an administrator at the same time. The result is that leadership tends to crumble away into administration. We are left with "the education president," "the environmental president," "the civil rights president," and so forth; but like Humpty Dumpty, the whole President of the United States cannot be put back together again. Besides, by trying to lead public opinion the president too often ends up following it - reacting to opinion polls, dancing to the tunes called by interest groups, etc. Political parties, which used to steady him amid the crosswinds of public opinion, now look to the president for leadership and their own sense of mission. Too often, they discover that the afflatus has left him.
CHALLENGES TO ELECTIVE REPRESENTATION
As the natural rights foundation of American government has eroded, the whole structure of our politics has tilted away from elective representation and party politics and towards new, non-elective and non-deliberative modes of representation. Of these, at least two deserve consideration here.
I. Bureaucratic Representation. The new view of rights criticizes political or elective representation of the sort ordained by the Constitution because it is too formal: it cannot overcome the social and economic inequalities of American life. The self-interestedness of civil society, in other words, cannot be overcome by representing civil society in the government. Instead, "the American state" must rise above civil society; to do so, it must have the support of a class that can represent the common good. Hegel called this the "universal class" of civil servants or bureaucrats.38 If the common good is to be secured, there must be at least one class in the State that is unselfish, that has nothing but the common good as its object. Of course, this class must have a proper education and upbringing (lots of Hegel) in order to prepare and implement laws unselfishly. America never went so far as to build a bureaucratic class into the Constitution, but in the civil service system and in the formal and informal roles played by experts in the administrative agencies we do have a simulacrum of Hegel's system.
And in truth, to fulfill the promise of the new social and economic rights, to achieve "a morally and socially desirable distribution of wealth," something like this class is needed. For if civil society is a realm of irredeemably self-interested activity, then somehow the higher ethical order must be infused into it from outside, if justice is to be done.39 In such a project, it would be foolish to ask the consent of the self-interested to the redistributive taxation or public-spirited regulation that must be applied to them. Here a notion of consent developed by Kant and Hegel comes to the rescue of democratic appearances: consent may be presumed from what a rational and moral being would agree to, without actually having to ask any particular human being for his approval.40 Thus if a rational being could agree, e.g., to cost-of-living adjustments for entitlement programs, it becomes unnecessary to ask actual taxpayers or their representatives to approve such increases. In fact, consent ceases to be a right and becomes a duty - on the part of taxpayers and other human beings, that is.41
These are cases, and there are many others in modern government, where unelected representatives wield power as if in the name of justice or wisdom alone, without any perceived need to get the actual consent of the governed. What might seem a dangerous arrogation of power is often defended on the grounds that for people at the bottom of the economic pyramid, deprived of their social and economic rights, bureaucratic representation is more representative, because more sympathetic and useful, than elective representation.42
Why bother then with political parties? At most, one needs interest groups (or coalitions of interest groups) to press for more benefits and to guard against abuse of power; but coalitions are not political parties, at least not in the constitutional sense spoken of here. (Indeed, the open secret of the "New Deal coalition" was that the Democratic party was on its way to becoming something quite different from a traditional political party.) The possibility of bureaucratic abuse of power does remind one of the utility of elected officials, who need and appreciate votes; and Congress and the Executive do keep an eye on the bureaucracy. But the other main watchdog on the agencies - the so-called public interest law firms and advocacy groups - operate more in the spirit of Hegel's universal class than of elected representatives. Their names tell the story: they belong to the "public-interest sector," not to the egoistic world of their fellow citizens.
2. Racial-ethnic representation. The principle of presumptive consent undercuts political parties from another direction, too. The formalism of natural and constitutional rights neglects race and ethnicity as much as class. Therefore, it is not surprising to see new claims for group rights based on race and ethnicity emerging out of this critique of the Constitution. The idea of individual rights is, from this viewpoint, both too universalistic and too particularistic. Too universalistic, because it abstracts from racial and other differences; too particularistic, because it takes account of innumerable subjective differences when tallying up the consent of millions of people. So it is more concrete, and more rational or objective, to try to represent men through some sort of groups, with large differences among them preserved but the small differences worn away. The modem American twist on this Hegelian idea is to use racial and ethnic groups rather than Corporate or vocational ones.43
In the past, racial, ethnic, and religious minorities worked through political parties, advancing their interests by bargaining with other groups under the same party umbrella. By spreading their influence in party circles, they could leverage their strength in key districts and states far beyond their overall numbers. But today many of these groups follow a separatist path, desiring geographical concentration and isolation of their strength rather than its diffusion through a political party. Partly this is because the critique of the Constitution has rubbed off on the parties. That is, they are seen as racist or bourgeois (think of the battles inside and outside the 1968 Democratic National Convention), just like the rest of the power structure. Partly, too, the popularity of this new kind of virtual representation is due to the passion for authenticity that it feeds. It celebrates the notion (now enshrined in many "affirmative action gerrymanders" around the country) that blacks can only be authentically represented by a black, Latinos by a Latino, and so forth. In this respect, the basic argument for the new view of rights-that what really needs representing is men's historical desires or will, not their reason or interest-leads to the self-destruction of the very notion of human rights and of equal citizenship under law.
CONCLUSION
Allegiance to the Constitution is still strong and deep among the American public, but discontent and even disgust with the operations of government seem to be growing. This disaffection extends to our political parties, too, which seem increasingly to be viewed as little more than factions. Perhaps this is why divided government has been the norm for the past 25 years. If neither party commands the firm support of a majority of Americans-if neither party can make a legitimate claim to represent the country's opinions, affections, and interests - then it makes sense to pit them against each other: to protect the Constitution from both of them.
To rescue the Constitution from its many critics will require both wisdom and political courage. The party that demonstrates these virtues first will help to preserve the Constitution, the country, and itself If such an effort is not made, one can say for sure only that the American people's disgust with political parties will one day wear off on our political system, including the Constitution.
NOTES
1. In Article IV, section 4: "The United States shall guarantee to every State in the Union a Republican Form of Government, and shall protect each of them against invasion, and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."
2. See Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Clinton Rossiter (New York: New American Library, 1961), No. 51, 322.
3. The Federalist, No. 40, 253.
4. For a fine overview of the justification and development of American parties, see James Ceaser, Presidential Selection: Theory and Development (Princeton: Princeton University Press, 1979).
5. Roughly speaking, Americans could take either a more democratic or a more republican view of the democratic republic established by the Constitution. The former view emphasized popular sovereignty, the latter popular responsibility.
6. For a lucid summary of this literature that also notes the ways in which parties were strengthened in the 1980s, see James Ceaser, "Political Parties - Declining, Stabilizing, or Resurging"? in Anthony King, ed., The New American Political System, 2nd version (Washington, D.C.: American Enterprise Institute Press, 1990), 87-137.
7. The Federalist, No. 51, 322.
8. The Federalist, No. 57, 350.
9. The Federalist, No. 39, 241.
10. See The Federalist, No. 37, 226-227, No. 62, 380-382, No. 63. 382-387, and No. 70, 423-428. The result is not simply the "form" of good government, protecting individual rights through an independent judiciary and so forth, but the substance of good government as well: the Constitution encourages office-holders and citizens to enact policies that serve the public good.
11. It had antecedents, however, in certain aspects of the political thought of antebellum America. Of particular interest is John C. Calhoun's rejection of the natural rights basis of American constitutionalism. He criticized the "great and dangerous errors" arising from the "opinion that all men are born free and equal - than which nothing can be more unfounded and false." Calhoun's doctrine proceeded to reject the role of political parties as guardians of the Constitution; indeed, like Woodrow Wilson and later critics, he regarded parties as a means of overcoming the Constitution's separation of powers and checks and balances. But unlike them, Calhoun deplored this circumstance, arguing that parties delivered the national government all the more surely into the hands of the unjust "numerical majority." See John C. Calhoun, A Disquisition on Government, ed. C. Gordon Post (Indianapolis: Bobbs-Merrill, 1953; orig. ed., 1853), 25-27, 44-45.
12. For a comprehensive discussion, see Woodrow Wilson, The State: Elements of Historical and Practical Politics (Boston: D.C. Heath & Co., 1895.)
13. See, e.g., Wilson, The State, 659-661 (secs. 1270-1274); Herbert Croly, The Promise of American Life, ed. Arthur M. Schlesinger, Jr. (Cambridge: Harvard University Press, 1965; orig. ed., 1909), 21-26, 409-454; John Dewey, Liberalism and Social Action (New York: Perigee Books, 1980; orig. ed., 1935), 3-9, 31-37, 88-93.
14. Woodrow Wilson's account of this may be found in Constitutional Government in the United States (Columbia: Columbia University Press, 1908), chs. 1-2. Cf. Franklin D. Roosevelt, "Campaign Address on Progressive Government at the Commonwealth Club, San Francisco, Calif., September 23, 1932," in The Public Papers and Addresses of Franklin D. Roosevelt, ed. Samuel I. Rosenman (New York: Random House, 1938), vol. 1, 742-756, at 743-749, and 753: "Government is a relation of give and take, a contract, perforce . . . Under such a contract rulers were accorded power, and the people consented to that power on consideration that they be accorded certain rights" (753).
15. See Wilson, Constitutional Government in the United States, 40; The State, 603 (sec. 1171); "The Study of Administration," in Arthur S. Link, ed., The Papers of Woodrow Wilson (Princeton, Princeton University Press, 1968), vol. 5, 359-380, at 365, 374-380.
16. Thus many of the Constitution's safeguards against governmental and majority tyranny - most notably, the separation of powers - were thought by the Progressives to be obstacles to democracy. See Charles R. Kelser, "Separation of Powers and the Administrative State," in Gordon S. Jones and John Marini, eds., The Imperial Congress: Crisis in the Separation of Powers (New York: Pharos Books, 1988), 20-40.
17. Franklin D. Roosevelt, "Acceptance of the Renomination for the Presidency, Philadelphia, Pa., June 27, 1936," in The Public Papers and Addresses of Franklin D. Roosevelt, vol. 5, 230-236, at 232-233.
18. Roosevelt, "Acceptance of the Renomination," 233; and cf. Dewey, Liberalism and Social Action, passim.
19. Roosevelt, "Acceptance of the Renomination," 233-234.
20. Cf. The list of rights in Roosevelt's proposal for an "Economic Bill of Rights," in his 1944 Annual Message to Congress, The Public Papers and Addresses of Franklin D. Roosevelt, vol. 13, 32-44, at 41.
21. See Roosevelt, "Acceptance of the Renomination," 233.
22. Roosevelt, "Campaign Address on Progressive Government," 753.
23. Herbert Crowly, The Promise of American Life, 23, 25. The Founders, too, were concerned that there should be a distribution of wealth conducive to democracy. But they saw this as a goal of prudent policy, not as the dictate of a radically new kind of right that impeached natural rights. They therefore sought to protect property rights, to encourage enterprise, and to enforce the obligation of contracts in order to provide a broad and stable middle-class basis for American democracy. Inheritance laws also played an important role. Cf. Alexis de Tocqueville, Democracy on America, trans. George Lawrence (New York: Doubleday, 1969), 51-55.
24. Crowly, The Promise of American Life, 79.
25. Cf. Crowly: "It is in the nature of liberties and rights, abstractly considered, to be insubordinate and to conflict both with one another and, perhaps, with the common weal." If based on abstract rights, "democracy becomes an invitation to local, factional, and individual ambitions and purposes." The Promise of American Life,79.
26. The Federalist, No. 10, 82.
27. The Federalist, No. 64, 391; No. 69, 414.
28. Entitlements and other "uncontrollable" spending surpassed discretionary federal spending for the first time in FY 1975, and have surpassed it ever since. The figures are collected in the Economic and Budget Outlook: Fiscal Years 1993-1997 (Washington, D.C.: Congressional Budget Office, 1992), 118.
29. See John Wettergreen, "Bureaucratizing the American Government," in Jones and Marini eds., The ImperialCongress, the Presidency, and the Growth of the Administrative State (Washington, D.C.: Crane Russak, 1992).
30. See Morris Fiorina, Congress: Keystone of the Washington Establishment, 2nd ed. (New Haven: Yale University Press, 1989).
31. For speculation along these lines, see the interesting essays in Byron E. Shafer, ed., The End of Realignment? Interpreting American Electoral Eras (Madison: University of Wisconsin Press, 1991).
32. Roosevelt, "Campaign Address on Progressive Government," 752.
33. See Charles R. Kesler, "The Reagan Revolution and the Legacy of the New Deal: Obstacles to Party Realignment," in Dennis Mahoney and Peter W. Schramm, The 1984 Election and the Future of American Politics (Durham: Carolina Academic Press, 1987), 245-264; and the chapters by Sidney Milkis and Robert Eden in the present volume.
34. See Harvey C. Mansfield, Jr., Taming the Prince (New York: The Free Press, 1989), chap. 10.
35. On the general theme of statesmanship and political parties, see Harvey C. Mansfield's excellent Statesmanship and Party Government: A Study of Burke and Bolingbroke (Chicago: University of Chicago Press, 1965).
36. Wilson, "Leaders of Men," in Link, ed., The Papers of Woodrow Wilson, vol. 6, 646-671; and Constitutional Government in the United States, chs. 3 and 8.
37. The Federalist, No. 63, 384; and cf. No. 71, 432, where Publius emphasizes that presidents must have "courage and magnanimity enough" to resist the whims, passions, and momentary delusions of the people.
38. G.W.F. Hegel, Elements of the Philosophy of Right, trans. H.B. Nisbet (Cambridge: Cambridge University Press, 1991), secs. 205, 289.
39. Strictly speaking, for Hegel the civil servants are an estate or part of civil society - its highest part. See Hegel, Elements of the Philosophy of Right, secs. 205, 294.
40. See Immanuel Kant, "Perpetual Peace," in Lewis White Beck, ed., Kant on History (Indianapolis: Bobbs-Merrill, 1963), 92-97.
41. Something like this doctrine stands behind the right of experts in federal agencies, e.g., the Environmental Protection Agency, to make detailed regulations on the basis of extremely broad laws. True, Congress may repeal laws and regulations of which it disapproves, and it is Congress's authority, not the agencies', that nominally lies behind the regulations. But the rules and regulations are presumed valid on the basis of the regulators' expertness and disinterestedness.
42. See, for example, Peter Woll, American Bureaucracy (New York: Norton, 1963), 138-141; cf. 175: "And the bureaucracy, which is actually more a representative body than Congress, combines essential democratic ingredients at the same time that it formulates important policy. Administrative agencies, removed from the electoral process, can take action without consulting Congress, and such action is as responsive to the demands and needs of the community as any that Congress could take . . ."
43. For Hegel's views on corporations, see Elements of the Philosophy of Right, secs. 250-255.