MODERN government acquires legitimacy from adherence to a constitution that “we the people” have authorized. This is the principle of public autonomy that, reflecting the ostensibly democratic founding of the modern state, assumes juridical form as constituent power. Government also acquires legitimacy by virtue of particular conditions imposed on the way it can use its powers. This is the principle of private autonomy that, reflecting respect for individual liberty, acquires juridical form as constitutional rights. Which of these principles has primacy? This is one of the most perplexing questions of modern politics.
Civic republicans prioritize the former, the democratic principle of equal citizen participation in the processes by which they are governed. Liberals prioritize the latter, the principle that upholds the primacy of protecting the citizen’s basic rights. By upholding the value of both principles, a regime of constitutional democracy is assumed to be able to resolve conflicts between them and to determine the circumstances under which either the will of the people must be circumscribed to guarantee the rights of the subject or basic rights must be qualified in pursuit of the common good.
The tension between these principles nonetheless continues to torment constitutional discourse. If the constitution merely establishes a framework of government for a single generation, that tension can be negotiated through political deliberation. But if, according to the precepts of constitutionalism, the constitution is intended to be permanent, the question of the relative priorities of these competing principles becomes much more pressing. Without a clear steer, the question is most likely resolved quietly on a case-by-case basis by unelected judges. This likelihood led republicans like Jefferson, convinced that one generation had no right to bind another, to fear that the establishment of a permanent constitution subverts democracy.
Some theorists argue that there is no need to trade between the principles of democracy and rights. They question whether republican values demand acquiescence to the unrestrained will of the people and whether liberal values rule out a reciprocal acknowledgment of the limits on individual rights, suggesting that the two values can be reconciled because they are interdependent. This is the critical issue around which the distinction between a regime of constitutional democracy and one founded on the philosophy of constitutionalism revolves.
The tension between democracy and rights played out differently in the politics of the American and French Revolutions. From the outset, the framers of the US Constitution were concerned about the impact of democracy on their regime. Advocating the establishment of a modern republic that included powerful institutional mechanisms to mitigate what Madison in Federalist 10 calls the deficiencies of a “pure democracy,” they implicitly upheld the primacy of individual rights. French revolutionaries, by contrast, modeled their regime on the republican virtues of ancient Greece and Rome, a quest that drove them to pursue a revolutionary cause without limitation. Into this febrile environment stepped Benjamin Constant. Following his arrival in Paris in 1795, he offered guidance on how the new French republic might direct its revolutionary fervor toward more stable institutional arrangements.
Reflecting on those developments twenty years later, Constant observes that the intensity of deliberation over constitutional forms that had engaged French writers since the Revolution was now out of favor. In the decade following the Revolution, the French “tried some five or six constitutions and found ourselves the worse for it.” Instead, “in the name of freedom … we got prisons, scaffolds, and endless multiplied persecution.” Far from liberating the people, the descent of the Revolution into the Terror had simply made them fearful, insecure, and ripe for servitude.1
His explanation is instructive. The great failure of the revolutionaries was in trying to build their regime by “grinding and reducing to dust the [inherited] materials that they were to employ.” Having removed this “natural source of patriotism,” they sought to replace it with “a factitious passion for an abstract being, a general idea stripped of all that can engage the imagination and speak to the memory.”2 Authority could only be restored and political power generated by strengthening institutional arrangements that command respect. The only hope of reconciling competing principles of democracy and rights, he concludes, was by devising a constitution that accorded with the customs of the people.
Constant’s argument synthesizes the principles of Rousseau and Montesquieu. From Rousseau, he derives the principle that a regime gains legitimacy from popular sovereignty, and from Montesquieu, the principle that the ruling power gains authority not only from popular will but also from how power is exercised. Modern governments must be able to claim a democratic mandate but, to strengthen their authority, they must act within accepted constitutional forms.3
The Revolution took a wrong turn, Constant maintains, because it conflated two rather different concepts of liberty. Modern liberty, founded on individual subjective rights, protects a zone of privacy and independence from the exercise of arbitrary power. The ancient idea of liberty, by contrast, expressed independence from rule by foreigners and required the participation of citizens in collective self-government. This was the type of liberty that could only be realized in a small, culturally homogeneous city-state pursuing a politics of virtue founded on martial spirit, a type of state that was invariably a slaveholding, warrior republic of male citizens. It was also the type of liberty that could not be enjoyed equally. For some to be free, others had to be slaves.4
Acknowledging the value of each kind of liberty, Constant argues that the task is to find a balance between the two. The prevalence of the modern concept is as distortive as the dominance of the ancient: the atrophy of politics by retreat to a private sphere could be as dangerous as a total politicization of society. Liberty in the modern world involves a novel challenge: it must accept the distinctions between public and private, political and social, and participation and independence. Political liberty presupposes civil liberty, and the primary aim of the constitution must be to establish an interlocking arrangement in which these two forms of freedom reinforce one another.
How can this be realized? Constant argues that the emergence of a civil society founded on subjective rights need not diminish the domain of the political founded on objective law. Indeed, the autonomy of the political and the autonomy of the social presuppose one another. His profound point is that democratization releases social power at the same time as it extends the nature, scale, and range of governmental power. Under a modern constitution, hierarchical ordering, a characteristic feature of regal authority, diminishes, but “the political” continues to operate as “society’s symbolic underpinning, the source of its collective identity and cohesiveness.”5
This “symbolic underpinning” must be reflected in a constitution drafted not in terms of command and obedience but on the principle of highly differentiated modes of association. To maintain the government’s authority and legitimacy, the modern constitution must assume the crucial function of representing society, to which end it must somehow establish its authority as a neutral power. It must be able to bolster the authority of the office of government against the forces of division.
Writing in the mid-nineteenth century as a member of the first postrevolutionary generation, Alexis de Tocqueville was driven to understand the significance of the two great political revolutions of the late eighteenth century. His task was to explain the profound implications for government and society of the decline of monarchy and aristocracy and the emergence of democracy.
Tocqueville produced two major studies, each of which became a classic of modern political thought. Democracy in America, published in two volumes in 1835 and 1840, and The Ancien Régime and the French Revolution in 1856 analyze the crisis of European regimes. How, he asks, might political freedom be realized in these emerging democracies? These societies cannot prevent these modernizing developments, he concludes, but “it depends upon themselves whether the principle of equality is to lead them to servitude or freedom, to knowledge or barbarism, to prosperity or to wretchedness.”6 The freedom he upholds as a cardinal virtue is not individual freedom from political engagement but the maintenance of the conditions of freedom as collective self-government.
Tocqueville recognized that the relentless force destroying monarchy and aristocracy and driving toward democracy was “the gradual development of the principle of equality.” Whereas his contemporary, Karl Marx, had once rhetorically declared that democracy “is the resolved mystery of all constitutions,” Tocqueville set himself the task of unpacking that solution. His lasting reputation derives from his total commitment to the political as a distinct domain of human interaction, a commitment that leads him to make a powerful contribution to a “new science of politics … for a new world.”7
The new regime he foresaw sweeping the world was not simply democracy in the broad sense of moving toward an equality of conditions.8 He saw that the only regime that could truly legitimize a modern government was a constitutional democracy. The primary aim of Democracy in America was to reveal the basic principles and working practices of such a democracy. Revolutionary movements destroy traditions and create new opportunities, but the paradoxical threat he identifies is that the liberty generated in this upheaval can also lead to an equality that, enforcing conformity, destroys liberty. Tocqueville follows Constant in arguing that any new basis of authority must find its expression in the constitution.
Constitutional democracy, he argues, can be understood by reference to changes in three basic phenomena: power, constitution, and law. Political power is transformed in modernity; no longer emanating from the ruler, it assumes the amorphous form of social power. Democracy must therefore be conceived not as a system of government but as a form of society in which power is generated from the growth of equality. This power “appears to belong to no one, except to the people in the abstract, and which threatens to become unlimited, omnipotent, to acquire an ambition to take charge of every aspect of social life.”9 The key challenge is to establish a constitution that channels this social power and, through institutionalization, harnesses it and converts it into political power.
Symbolically, power rests with “the people,” but it is only through the constitution that it is channeled into a political form that enables people to conceive of themselves as a unity. Beyond this, it is unclear whether the constitution merely establishes the office of government or is able to determine the constitutional order of the state. Tocqueville was sensitive to this ambiguity. He emphasizes that to be effective, the constitution’s formal written principles and procedures must work with the grain of society. “Without ideas held in common,” he notes, “there is no common action, and without common action, there may still be men, but there is no social body.”10
The third innovation concerns a transformation in the role of law. The democratic impetus leading to a documentary constitution converts it into a kind of higher-order law with, at least in the American model, the judiciary acting as its guardian. This is an important aspect of constitutional democracy. If the danger to democracy is a sense of equality that jeopardizes liberty, the bulwarks against this threat are lawyers. The influence of lawyers on governmental power, argues Tocqueville, is “the most powerful existing security against the excesses of democracy.” This is because their professional training endows them with certain orderly habits that “render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude.” They neutralize the vices inherent in popular government because, however much they value liberty, they “are attached to public order beyond every other consideration.” And they “secretly oppose their aristocratic propensities to its democratic instincts, their superstitious attachment to what is antique to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience.”11
Once equipped with the power to declare laws unconstitutional, the American judge “perpetually interferes in political affairs.” And since there are so few political questions that do not eventually come before the judiciary, organized political movements soon begin to express themselves in the language of constitutional law, and “the spirit of the law” gradually extends beyond the courtroom to “the bosom of society.” “Without this admixture of lawyer-like sobriety with the democratic principle,” Tocqueville concludes, “I question whether democratic institutions could long be maintained.”12
Tocqueville identifies constitutional democracy, born of the combined transformation of power, constitution, and law, as the legitimating principle of modern regimes. His purpose was to persuade European politicians of its value and so avoid the threat of an emerging “democratic despotism.” That threat was most real in his own country. In the four decades before he set off on his American voyage, France had experienced revolution, constitutional monarchy, regicide, the Terror, war, republican government, empire, monarchical restoration, and in 1830 revolutionary overthrow. But he is careful not to project an idealized image of constitutional democracy. Democracy releases new energies and confers new rights, but it also creates new possibilities for servitude born of standardization and normalization. Noting that “every man allows himself to be put in leading-strings, because he sees that it is not a person or a class of persons, but the people at large who hold the end of his chain,”13 he expresses a profound paradox of constitutional democracy.
Tocqueville’s ideas about power, constitution, and law have also shaped the thought of the most influential European social philosopher of the late twentieth century. Jürgen Habermas’s major work of the 1990s is a powerful analysis of the legitimacy of contemporary constitutional democracy. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy ostensibly advances the thesis that “in the age of a completely secularized politics, the rule of law cannot be had or maintained without radical democracy.”14
Habermas’s study of constitutional democracy must be situated within his general social theory. In earlier work, he argues that modernity is signified by a growing systematization of ordinary life, leading to social relations being formally organized by law. He identifies four stages in this increasing juridification of social relations: the bourgeois state developed during the period of absolutism, the construct of which we saw in the work of Hobbes; the constitutional state associated with nineteenth-century jurists of the Rechtsstaat and exemplified earlier in the work of Locke; the democratic constitutional state identified as having “spread in Europe and in North America in the wake of the French Revolution” examined by Tocqueville; and finally the democratic welfare state, a twentieth-century product of the struggles of workers’ movements to provide social welfare that Habermas, following Tocqueville, recognizes is now being undermined by “the ambivalence of guaranteeing freedom and taking it away.”15
During the 1970s, Habermas argued that this last stage was leading to a “legitimation crisis” in which the political system was not generating sufficient problem-solving capacity to guarantee its own continued existence.16 Between Facts and Norms examines the crises that fiscal strains, welfare burdens, bureaucratization, and growing social complexity are imposing on contemporary constitutional frameworks. He acknowledges that functionally differentiated, decentered modern societies cannot easily be politically constituted; they may be integrated systemically but cannot be integrated socially through shared meanings. The critical issue is whether this political relationship can be reconstructed within a constitutional arrangement that respects both individual rights as normative ideals and democratic will-formation through the governmental system.
To address this, Habermas first considers the strains between the two main schools of constitutional order: liberals who prioritize respect for individual rights and republicans who uphold the value of popular sovereignty. Redefining the differences between them, he suggests that the principles they advance are not antagonistic but reciprocal. Constitutional democracy is capable of fully acknowledging both private and public autonomy, reason and will, rights and democracy.
This internal relation between rights and democracy is explained by reconstructing the regime of constitutional democracy entirely in the language of rights. Five sets of rights needed to establish a constitutional democracy are specified. The first three establish a horizontal association of free and equal persons. These are rights to “the greatest possible measure of equal individual liberties,” status rights acquired as a member of the association, and rights to due process of law. Such rights guarantee the private autonomy of the individual, recognizing the individual as a subject of the law. The next two sets of rights acknowledge the individual as a citizen. First is the right to equal participation in the processes of opinion-formation and will-formation, which expands private and public autonomy simultaneously. The final set establishes rights to the basic material conditions needed so that citizens can actually make use of their civil and political rights.17
This rights-based account is the core of Habermas’s co-originality thesis: “The principle of popular sovereignty is expressed in rights of communication and participation that secure the public autonomy of citizens and the rule of law is expressed in those classical basic rights that guarantee the private autonomy of members of society.” He acknowledges that his argument has the greatest plausibility with respect to rights that safeguard the exercise of public autonomy and seems less plausible with respect to classical individual rights that guarantee private autonomy. But he stresses the point that without basic rights securing private autonomy, there can be “no medium for legally institutionalizing the conditions under which these citizens … can make use of their public autonomy.” Private autonomy rights, or negative liberties, which republicans might treat as constraints, are to be reinterpreted as enabling conditions.18
The key to Habermas’s thesis is that “political power is not externally juxtaposed to law but is presupposed by law and is itself established in the form of law.”19 On this, he is following Heller, though surprisingly without citing him. Habermas presents democracy as an expression of rightful authority, and by “law” here, he must surely mean (again following Heller) an idealized expression of “political right.” It is on this implicit understanding that Habermas maintains the mutual presupposition of public autonomy and private autonomy.
Habermas’s sophisticated philosophical treatment has transformed the terms of the debate.20 But it has not escaped criticism. Frank Michelman, for example, argues that once the actual processes of constitution-making are examined, the rudimentary tension between liberal and democratic presumptions persists, and Habermas’s attempt to resolve this by postulating some hypothetical universal agreement is “pure abstraction, a transcendental-logical deduction necessitated by the prior determination of a thinker to think something.”21
Habermas has responded by maintaining that the internal relation between will and reason evolves over time so that we should see constitutional ordering as “a self-correcting historical process.” Michelman’s argument that it leads to an infinite regress, he suggests, is “the understandable expression of the future-oriented character, or openness, of the democratic constitution.” But constitution-making should be seen as “a tradition-building project” in that “later generations have the task of actualizing the still-untapped normative substance of the system of rights laid down in the original document of the constitution.” It requires acceptance of a “dynamic understanding of the constitution,” such that it can be conceived as “a self-correcting learning process,” whereby “with the inclusion of marginalized groups and with the empowerment of deprived classes, the hitherto poorly satisfied presuppositions for the legitimacy of existing democratic procedures are better realized.” Subsequent generations, Habermas concludes, “can learn from past mistakes only if they are ‘in the same boat’ as their forebears.”22
This explanation clarifies, but does it resolve? One obvious limitation is that it offers a conceptual solution to a practical problem. But even on its own terms, it leaves doubts. Whereas Michelman argues that Habermas skews reciprocity towards liberalism,23 Charles Larmore thinks the co-originality thesis privileges republican democracy. In Habermas’s scheme, Larmore argues, individual rights do not limit the authority of popular sovereignty but “draw their rationale from their supposed ability to make democratic self-rule possible.” Basic rights are therefore presented as devices that empower individuals to participate in the process of democratic self-rule. Rather than protecting us from collective will, rights are shaped in such a way as “to protect the means necessary for creating a collective will.” In Habermas’s version, Larmore concludes, democratic self-rule is “the sole normative foundation of the modern liberal-democratic state.”24
Habermas’s argument rests on the claim that in modern functionally differentiated and culturally heterogeneous societies, the legitimating principles of constitutional democracy cannot presuppose the validity of conceptions of the common good. Legitimating principles must be procedural: the right must be prior to the good. Unable to depend on the standard republican argument about civic virtue, he turns instead to a set of universal principles he calls “discourse ethics.” This ambitious move nevertheless becomes less compelling in the context of change over time. Even if he solves the paradox between democracy and rights in the task faced by framers of the constitution, the argument fails if future generations who did not consent with one another are similarly bound by that constitution.
Habermas’s attempt to resolve this by suggesting that successors should recognize they are “in the same boat” as their forebears is revealing. The “boat” must surely be something more fundamental than the enacted constitution. As Alessandro Ferrara notes, the metaphor requires that we “conceive of the political identity of the people as something that pre-exists the constitution,”25 that is, there must be a broader sense of a political association that precedes the constitution. This is what I have been calling the state. “We the people” endowed with a historically derived cultural and political identity recognize that our forebears drafted these governing arrangements as a constitution. The problem for Habermas is that this brings him back to the question of the common good and the sense of patriotism as loyalty to a set of common values that make up a political tradition.
It is a problem for Habermas because he maintains that the only patriotism that can be coherently embraced today is what he calls “constitutional patriotism” (Verfassungspatriotismus), an allegiance to the principles inscribed in the constitution.26 This surely underestimates the degree to which a common life that shapes the political identity of a people continues to provide the basis of political allegiance. In making this move, Habermas’s thesis begins to look much less like an argument for “radical democracy” or even “constitutional democracy.” In promoting allegiance to the principles in the constitution, it ends up as nothing less than a defense of constitutionalism.
The concept of constitutional democracy contains apparently ineradicable tensions between democracy and rights, will and reason, power and right, and ultimately between facts and norms. In their different ways, social contract thinkers help us appreciate how these tensions might be negotiated. Habermas’s study of constitutional democracy is the latest of this type. He clarifies the character and extends the ambition of constitutional democracy, not least in synthesizing the classical constitutionalism of Locke and the aspirational constitutionalism of Rousseau. But like those of his social contract predecessors, this seems ultimately to be an account in which the conclusions follow from built-in assumptions.
Contractual thought experiments illuminate the conditions of legitimate order, but they underestimate the role of power in the task of generating authority. The constitution does not acquire authority by virtue of its creation. Its authority is generated through social processes in real historical time, and that authority is always conditional. Contractual writers show how the tensions between democracy and rights can be reconciled in thought. In practice, though, constitutional democracy is ever an exercise in continuous upheaval generated by the indeterminacy of its founding principles. Habermas’s “boat” needs to be filled with common historical experiences generated by memories of past conflicts over competing ideas of the common good. Abstract constitutional principles acquire determinate meaning only because of what has been learned, especially through historical instances of what happens when a people fail to uphold them.
The written constitution performs a critical role in providing a framework for institutionalizing such social conflicts. It is a medium through which people express their sense of the right, the good, and the just in ways that transcend particular interests. But the regime retains its democratic character only when, far from achieving reconciliation between basic principles, it holds them in a condition of indeterminacy. Democracy, notes Claude Lefort, is “instituted and sustained by the dissolution of the markers of certainty.”27 Democracy persists through continuous and active political deliberation over the right and the good. Conflict and dissent are constitutive features that must be preserved, and they are preserved by ensuring that the meaning of these basic and contestable values remains the subject of continuous political negotiation through democratically constituted and democratically accountable processes.
This feature of democracy places structural limitations on the degree to which it can be sublimated into constitutionalism. Once a political regime is conceptualized in the language of rights, lawyers too readily assume that it contains an overarching framework to be attended to by the judiciary, with legislative and administration activity being reduced to mere regulative action that can be trumped by a claim of right.28 This overvalues the ability of the judiciary to reach political judgments on intensely contestable rights claims and undervalues the importance of the implicit rights judgments that legislatures and other officials make.29 The maintenance of institutional sites of democratic deliberation, decision-making, and accountability are essential markers of indeterminacy. They are essential preconditions for upholding Tocqueville’s vision of political freedom.
Can modern societies maintain political unity while keeping open this theater of contestation, or is it inevitable that Tocqueville’s conduits, the lawyers, will colonize constitutional discourse to such an extent that they stifle open deliberation and extinguish indeterminacy? To the extent that they have done so, we find ourselves in the grip of a pervasive ideology, an ideology of constitutionalism that blends the values of classical and aspirational constitutionalism so that the constitution is transformed into the authoritative medium through which all inherent tensions between power and right are resolved. This theme is taken up in Part III.