THE PHILOSOPHER, THE HISTORIAN, AND THE POLITICAL MEANING OF REVOLUTION
Historians correctly warn their political scientist friends against the danger of an overly present-centered reading of the stakes of politics. For example, the issues roiling French politics must be understood within the symbolic framework inaugurated by the rupture begun in 1789. Seemingly unrelated actions, whose motivation seems to depend only on simple self-interest, may acquire a meaning that their authors have not consciously intended. Similarly, German politics is framed by the symbolic context created by both Frederick the Great’s early legal codification of the Allgemeines Landgesetz and by the failure of the 1848 revolution to institute a liberal parliamentary regime that could unite the different German lands. The case is complicated by the fact that the formal legality of the Rechtsstaat is only potentially compatible with the material quest for national unity. The presence of this past is still felt today in the politics of German unification. The United States too is affected by such a symbolic historical matrix, despite its tendency to forget or deny the political significance of its revolutionary origins. This forgetting and denial are themselves significant. For example, when the Americans fought a civil war that was the most bloody in all previous history, each side claimed to be defending the basic principles on which the original union had been established. Indeed, the motives of each side were themselves mixed. President Lincoln, who fought to preserve the Constitution, began his famous Gettysburg Address with the phrase, “Four score and seven years ago,” referring to the date of the Declaration of Independence as the founding moment.1
Americans act as if their revolution were preordained, viewing it as the logical outcome of principles of freedom developing naturally on a virgin continent among a people united by shared values. The problem is not so much that this vision ignores the existence of the native peoples, as well as that of the British (and French). The difficulty is that, however they interpret their origins, Americans do not consider their roots as political; their country is assumed to have been born liberal. The Revolution is not seen as a rupture with the past and the inauguration of a new history; it is called a revolution but treated as if its result were nothing but the restoration of existing rights. This should give the political historian pause at the same time that it challenges the philosopher: What was it, really, that American Revolution? Why call it a revolution? After all, one of its strong supporters in England was Edmund Burke, whose later critique of the French Revolution would make him the father of conservatism. The apolitical interpretation implies that the Americans engaged in political actions only in order to preserve their society from perceived threats to its continuity (whereas the French sought to change society itself). Despite its unquestionably radical political character, which produced more emigrés than the French Revolution, the American Revolution resulted in a paradoxical antipolitical orientation that has marked American self-understanding since the Revolution’s successful conclusion. This political self-denial needs to be explained and its effects understood. The historian’s study of the chain of real events must be supplemented by the philosopher’s reflection on the symbolic framework in which the events acquire their sense—in this case, their antipolitical meaning. This symbolic framework is the origin rather than the cause of meaning; it originates a historical process whose significance transcends the immediate intentions and activities of its agents.
The path of the American Revolution can be divided into three distinct moments whose continuity and interdependence were not always evident to the participants. Its immediate context was set in 1763 by the end of the Seven Years’ War, known in the colonies as the French and Indian War. The victorious Americans and English faced very different consequences of their victory. For the colonists, the defeat of the French meant they no longer needed the protection of English power; for the mother country, which was now at the head of an empire, it was necessary to govern the new possessions while also repaying the debt accumulated during the war. The English had to take initiatives, whereas the colonists were quite happy to be left alone. It was logical to try to make the colonies pay since the war had brought them benefits and peace would now bring new profits. This political initiative by the English was also suggested by the generally accepted mercantilist economic policy theory. While colonial resistance also had a material basis (many early rebels were smugglers, for example), this alone did not justify the risky process that would lead them to political independence. Their initial resistance spoke first of all the language of the times, denouncing a violation of “the rights of an Englishman.” The English of course thought they knew quite well the nature of these rights. But the colonists contested their claims, and in the years of skirmishes that followed, new initiatives by both sides forced a constant redefinition of what these rights truly meant. The body of the Declaration of Independence in 1776 lists these stages and skirmishes in its justification of the need finally to separate, but the list is preceded by a short philosophical statement of those “truths” that the Americans had come to “hold” as “self-evident.” To explain how the factual grievances and the truths came to be identified with basic rights that gave meaning to the imperative of independence, a method for reading history philosophically has to be made explicit.
The Revolution could not stop with a definition of rights; it was necessary to win national sovereignty in order to ensure their realization. Once independence was declared, it had to be given political reality.2 That meant first of all winning the War of Independence, which was realized in 1783. Just as the long debate seeking to define American rights had changed the meaning accorded these rights, so the experience of the war changed the sense of the sovereignty that the Declaration affirmed. At the outset the thirteen colonies were so focused on their differences that many felt it necessary to include the Declaration of Independence in their state constitutions. But the War of Independence was the struggle of an entire nation. It was, however, a nation whose constitution, rightly named the Articles of Confederation, created a weak central government in order to protect the autonomy of the member states. This posed problems even during the struggle for independence, as states’ pursuit of their self-interest threatened the collective future. When the war was no longer there to hold them together, centrifugal tendencies became more threatening. The challenge was to find a way to maintain unity while preserving difference. It became necessary to find a positive content for the concept of representation that the colonists had rejected when the English invoked it to justify their rule (on the specious basis of the colonists’ “virtual representation” in Parliament). This search had further unintended consequences because of the abstract way in which representation was first understood. The relation of the represented to their representation put the accent on the former, such that the people who were represented could criticize the adequacy of their representation, while the representative had to demonstrate his own necessity. This meant concretely that relations between the sovereign nation and the sovereign states as well as the relation of the rights won in the earlier colonial struggle to the political institutions needed to ensure their realization were defined as representative. The struggle for rights of the first period could not be separated from the battle for sovereignty in the second. But the two had to be made compatible with one another.
It might seem at first that the opposition of the two concepts of representation (of rights and of the sovereign people) found a synthesis in the new constitution proposed in 1787. While this claim can be justified, it suggests that the political revolution culminated in an antipolitical society. The usual explanation of this result is that the Constitution guarantees only the kinds of liberal and capitalist rights that belong to the domain of private life.3 This interpretation evades historical and philosophical problems by projecting contemporary values onto historical actors, assuming that they sought to realize the values that contemporary society attributes to them. Two silences in the Constitution rule out its interpretation as a successful synthesis whose results are antipolitical, socially conservative, or favorable to liberal capitalism. These silences open the space for the creation of a republican democracy. The two unforeseen institutions that the Constitution did not mention were the competitive coexistence of political parties and the practice of judicial review. These institutions emerged in the wake of what its contemporaries called the Revolution of 1800. Jefferson’s electoral victory in that year was itself a historical innovation; it was the first time that political power passed peacefully from one party to another. Its significance was that American society admitted to itself that it was at once one and yet divided. That is why, three years later, when Jefferson appealed to his electoral majority to deny the legitimacy of an appointment by his predecessor, the public could accept the counterclaim by the Supreme Court that the Constitution stands above any temporary majority. The two aspects of representative politics are united as the democratic moment of party competition is joined to the republican constitutional framework. To reconstruct the political logic that led to these innovations, a method for the philosophical reading of history needs to be suggested briefly.
PRINCIPLES FOR READING
Rather than interpret it in terms of its contemporary results, the reality of the American Revolution needs to be read from the standpoint of the self-theorization that was forced on it as it confronted new challenges that its previous principles could not accommodate. That constantly reformulated theory was doubly reflexive. At a first level, it articulates the three periods through which the Revolution was seen to develop; these can be interpreted respectively as the lived experience (le vécu) of the struggle for sovereignty, the conceptualized form (le conçu) of that social autonomy, and the political reflection (le réfléchi) of these first two moments.4 The lived experience corresponds to immediate or prepolitical existence; the conceptualized form expresses the social relations instituted by that lived experience; what is reflected as the unity of these two moments makes explicit their political implications. This triadic articulation can be also seen to have been repeated within each of the three revolutionary periods. For example, the lived experience of the first period corresponds to the brute givens of colonization, including two crucial absences, the open frontier and the nonexistence of social orders, and one important presence, the habit of religious freedom.5 The colonists were forced to conceptualize this immediate experience in the form of social rights only when the English intervened in this society, which had conceived of itself as self-regulating. The political reflection of that autonomous society that guaranteed the rights of its citizens occurred when the question of independence could no longer be avoided. This doubly triadic structure, among and within the periods of revolutionary development, explains why the final moment of political reflection is not a transcendence of the two previous moments, which find their true meaning and disappear into it.6 Each moment is autonomous; there is no causal necessity at work in the movement from one to another; the meaning of any one of them may not be understood by its contemporaries or may even be misunderstood—as in the case at hand, concerning the political results of the Revolution.
This doubly reflexive structure explains how each period can take up anew and develop the theoretical and practical results of its predecessor. The moment of political reflection in which one period culminates institutes the lived experience of its successor. The way this logical pattern produces institutional results can be illustrated by a simple example. The Declaration of Independence, which is the political reflection of the moments of lived colonial experience and its social self-conception during the first phase of opposition, does not conclude the revolutionary experience. Independence had to be not only declared but given adequate institutional form. The members of the Continental Congress who voted the Declaration immediately left Philadelphia to return home; more important than the national struggle in their eyes was the need to invent constitutions adequate to the particular societies of their home states. The different constitutions created by the thirteen do not contradict the political unity proclaimed by the Declaration of Independence. Their diversity becomes a contradiction that cannot be ignored only when it is necessary to reflect the national sovereignty in a confederal constitution. That constitution had to incarnate unity while conserving diversity in the same way that the social experience of the struggle against England was reflected politically in the Declaration of Independence that unified a diverse country. But the political unification of social diversity was necessarily unstable in both cases because the reflective status of the political had not yet been given institutional form. That is why the Revolution could continue. The unstable political unity of the Confederation represents the lived experience of the third period just as the unrealized promise of the Declaration did for the second.
Before turning to the actual historical articulation of the third period and its relation to the Revolution of 1800, the conceptual paradox from which I began must be underlined: the American Revolution was a political movement and yet it was incapable of understanding itself politically. The moment of political reflection was regularly transformed into the lived experience of a new articulation of the original revolutionary structure. This self-critical relation in which temporary moments of reflective synthesis are immediately set into motion by the very process that led to their achievement needs to be explained. The political reflection of lived experience and its conceptualized social form is inherently unstable. Political reflection proposes categories (and institutions) that make sense of and give meaning to the moments that preceded it, but it thereby changes the sense that the participants had attributed to their own experience. That is why political reflection becomes in turn a new moment of lived experience, setting the cycle again into motion. This triadic structure cannot be imposed from outside on an already completed history; it emerges from within the constantly renewed attempt to make sense of a historical process that, because of this dynamic, can justly bear the title of revolution. The positive sense of experience is constantly challenged as society faces the need to explain its own legitimacy to itself—and to “a candid world,” as the Declaration adds. This concern with political legitimacy—rather than personal need or interest—transformed the attempt to maintain what were at first only traditional rights (of the English) into a modern revolution that challenged previous political tradition.
If the results of the Revolution could not be understood politically, the instability of the synthetic moment of political reflection must be one of the grounds of this difficulty. The concept of political reflection expresses the interdependence between society and a political intervention that becomes necessary because modern societies can no longer appeal to external forms of legitimation—be they gods or the traditions of the ancestors; they have to legitimate themselves by means of their own internal resources. They can do this because, despite their difference from traditional societies, modern societies are also symbolically instituted. Societies are not simply defined by factual relations among entities that can be observed from outside by a neutral observer. They are sets of meaningful relations. Politics is therefore not an intervention whose legitimation lies outside society, and neither does the cause of political action lie in factual social conditions. The concept of political reflection expresses the interdependent relation between society and political intervention. Politics is thus the way that society acts on itself in order to maintain or transform its (meaningful) social relations.
Two inverse dangers threaten this political reflection. If society acquires the appearance of autonomy, such that political reflection appears unnecessary or even harmful, the ability of that society to reflect on itself and thus to open itself to change is threatened. Alternatively, if politics becomes separate from society, it may close itself to social experience and, in its illusion of absolute liberty, seek to impose a social perfection that makes future political intervention unnecessary since a perfect society has no more need to reflect critically on itself. The first error produces an antipolitics; the second a utopia that is also antipolitical. In this context, the two extraconstitutional institutions developed in the wake of the Revolution of 1800 acquire their full sense. Parties represent the political action of society on itself; judicial review prevents the separation of the political sphere from society while guaranteeing rights whose meaning is not fixed but allows for an expanded sense of social justice. Read this way, the results of the American Revolution only appear to be antipolitical; in fact, the results were and are quite political—as long as we know how to define the political.
READING AMERICAN THEORY HISTORICALLY
The conceptual expression of the lived experience of the colonists was a demand for the “rights of an Englishman” that was at once historically rooted and open to interpretation. These rights were articulated with the help of concepts drawn from sources as diverse as natural and contractual law; Greek, Roman, and English history; and of course the Bible. When the English challenged their interpretations of these rights, the colonists fought back by appealing to their opponents’ own conceptual-historical language drawn from Whig theory. The Whig vision of history begins from the premise that the existence of society depends on the presence of a power whose essential nature leads it to seek always to expand at the cost of social freedom, which must always be alert to defend itself. This theory could be interpreted in an optimistic or pessimistic vein. The optimistic view portrays freedom reconquering its rights after the Norman Conquest, first with the Magna Carta, then with the Declaration of Rights, and finally in the Glorious Revolution of 1688 that gave birth to a stable society organized around the new, limited, and balanced power called “the King in Parliament.” The pessimists, on the other hand, argued that conquering freedom is not inevitably bound to be successful; the excesses that followed the Revolution of 1640 warned against naive optimism. Appealing to a stern Protestant theology, these pessimists became critics of the established order; their identification as Old Whigs suggests that the foundation of their critique of the corruption of the court party was an appeal to the traditional “rights of an Englishman,” accompanied by a rejection of the kind of economic progress that was making England a mercantile empire.
When Old Whig theory is turned against the established power, its religious and biblical roots lead it to encounter classical political theory. If power can expand, the reason must be that freedom has been “corrupted”; freedom lacks the virtue necessary for good politics, which must be founded on the distinction between the common good and private interest. Thus the Old Whigs acquired the name “Commonwealthmen.” Their version of Whig thought was taken over in the colonial struggle once the Americans were forced to define what they meant by the “rights of an Englishman.” From this starting point, the colonial opposition could conceptualize its claims at the social level; resistance was justified by a critique of the “corruption” of the prosperous English society and by an appeal to colonial virtue. Although Burke famously took the colonists to task for their hypersuspicious mentality that “sniffed conspiracy in every tainted breeze,” they proved that their own virtue was no abstraction; it was affirmed in the experience of popular resistance, which had the further benefit of instituting de facto forms of social self-government (for example, in the resistance to the Stamp Tax, or the refusal to wear clothing imported from England, and even the tar-and-feathering of Loyalists). This movement, initiated by the merchant class, quickly passed to the direction of popular committees called Sons of Liberty. The social struggle became political once the question of sovereignty was posed. This passage to the political took time; it was based in the Old Whig political theory, which had to be led to reflect on the contradiction between the primacy of Old Whig freedom affirmed in colonial lived experience and the equally Old Whig affirmation of the social virtue manifested in the Commonwealth. That potential contradiction was hidden for a moment by the Declaration of Independence; it was only conceptualized in the second period, when independence had to be realized, and it was reflected finally in the constitutional politics of the third period.
The first Continental Congress met in 1774. This congress had no legitimate political status. It could only propose resistance to measures perceived as oppressive, then suggest compromises to a Parliament in London that refused to grant it any political status, and finally dissolve itself to return to the states. In this way, the first congress depended on social conditions (including the interests of the English merchants to whom the proposed compromises were in fact addressed). A second congress met in 1775, after the first battles at Lexington and Concord. Its delegates considered themselves still to be ambassadors from their states. But this time, under the pressure of events, the congress proposed a Declaration of the Causes and Necessity of Taking Up Arms. A year later, it opted for political independence after a final conciliatory gesture was unsuccessful; significantly, its action was now addressed to the king, since social pressure had not affected the attitude of Parliament.7
On the basis of what right did the delegates found their political claims? The Declaration of Independence incorporates two arguments: its proclamation of certain “self-evident truths” is followed by a historical recapitulation of the misdeeds accumulated since 1763. That second and longer part of the Declaration makes use of Old Whig logic: it shows that England had been “corrupted” and that American freedom must isolate itself from the Old World in order to protect its rights. The implication is that these rights are the basis of political sovereignty. But the Declaration did not propose political institutions to guarantee rights against the kind of anarchy that had followed the Revolution of 1640. This failure points to a latent contradiction in the American use of Old Whig theory. Neither the self-evident truths that found American rights nor the social relations expressing them suffice to explain the status of the political sovereignty declared in 1776.
The independent colonists drew on the concept of the commonwealth to define the republic as the reflected form of their new institutions. This catchall concept hid an issue that had been present during the first period and could now emerge as the lived experience of independence in the second period. The problem had been present earlier, when England had tried to legitimate its mercantile policies by means of the concept of “virtual representation.” The thesis was simple. A good power is one that represents the common good of society; the “King in Parliament” is supposed to ensure such representation by the immediate copresence of the three estates of the kingdom in the elaboration of laws. This doctrine implied that the colonies had no more need to be represented than did the English citizens of Manchester. But self-government had defined the sense of their lived experience for the colonists; they had invented theoretical refinements to justify that experience, distinguishing, for example, between internal and external taxes in order to justify resistance to the latter. Now that they were free, their republican concept of representation of the common good had to take a form that was different from the English model. It was clear that the representation of social orders could not be adopted in a country that had none. How were sovereignty, freedom, and self-evident rights to be represented? Was representation even the proper form for the new political institutions? If so, what was to be represented, by whom, and how? The constitutions adopted by the independent states sought a social form adequate to the lived political experience of the first phase as it was now reflected by the question of political representation.
The contrast between the constitution of Pennsylvania and those of the other states illustrates the difficulty that confronted the newly independent Americans. The colonial political leaders of Pennsylvania had discredited themselves by seeking to slow the movement toward independence whereas the leadership in the other colonies had taken the direction of the movement. The authors of Pennsylvania’s free constitution belonged to the middling or artisan strata of society. They assumed that the society their constitution would represent was based on a relative equality of conditions; as a result, they produced the most directly democratic of all the new constitutions. A society of equals would be best represented by a unicameral legislature flanked by a weak executive and an elected and revocable judiciary. All laws had to be made public and debated by the public before being adopted, a year later, by the legislature. A council of censors was to be popularly elected every ten years to function like a classical senate, permitting the people to repeal unjust or unpopular laws directly. Other popular democratic measures were added as well to ensure a direct and continuous representation of society in the political domain. This goal contrasted with the attempts made by the other states to filter representation in order to make sure that it had an explicitly (elite) political status.8 All of them instituted bicameral legislatures, while some made either the executive or the judiciary more independent (with veto power), and none created a council of censors in which the people were given a voice in lawmaking. As opposed to Pennsylvania’s, these latter constitutions were based on inherited English Whig theory. For it, representation is a technique for protecting social freedom by means of a system of checks and balances. But the absence of social estates, whose freedom is supposed to be guaranteed by their political power, meant that the division of the voice of the sovereign people into two chambers, much less the executive or judicial veto, could not be justified. As a result, the question of representation was not resolved any better in the more traditional states than it had been in Pennsylvania.
The problem of representation became explicitly political when the creation of a national constitution became necessary. The states had insisted on their own interests and prerogatives even when the presence of a common enemy in war had unified them externally. The Continental Congress had no real power; George Washington appealed vainly to it for military support. The Articles of Confederation, proposed in 1777, were not ratified until 1781, shortly before the decisive battle of Yorktown. A country that had insisted so strongly on rights and legitimacy made war without any legitimate political authority. There was no hope of a mobilizing appeal along the lines of the French Revolution’s “la patrie en danger.” Once independence had been won, the Confederal Congress remained without power. Its members were representatives of their states; they were bound by an imperative mandate, which meant that they were incapable of creating a national politics. This weakness posed the question of the nature and status of political action, which became the lived experience of the third period. The political impotence of the nation was a sign of the failure of both the politics of direct democracy in Pennsylvania and the traditional representation of political society in the other states. This third period thus reflects at one and the same time the prepolitical lived experience of self-evident rights and their representative conceptualization in the autonomous societies of the states. The Old Whig primacy of freedom and the republican insistence on the realization of the commonwealth had to be unified in a constitution whose structure makes explicit the political sovereignty expressed by the Declaration of Independence that the practice of the Confederal Congress was unable to conceptualize adequately.
The new constitution of 1787 was called “federal” in order to suggest to the states that it would not rob them of their social freedoms. The debate concerning its ratification made explicit at last the theory that lay at the foundation of the entire revolutionary process. The opponents of this constitution who criticized its lack of a declaration of rights posed a serious challenge because they appealed to the inherited theoretical assumption that power is a political threat to freedom. But what did they mean by a political threat? The political cannot be conceptualized as the guarantor of prepolitical freedoms (or self-evident rights) any more than social rights can be reflected as political either immediately or through the filter of representation. Those freedoms and those rights are born with and from the political of which they are the concrete realization. That is why the proponents of the new constitution had no difficulty, after ratification, in accepting the demand for a bill of rights. The difference is that this constitutional-political protection of freedoms and rights now took the form of the first ten amendments to the Constitution rather than appearing as the prepolitical premise on which that fundamental law is based. The Constitution reflects a different lived experience of freedom and another conceptualization of the society in which that freedom is manifested. It is concerned with a freedom and rights that are directed to a future in which they can acquire and adopt new forms fitting new visions of justice. In a society without estates or orders, freedom takes the form of equal and shared political rights; the constitution founds only what Hannah Arendt wisely called “the right to have rights.” The primacy of these political rights permits an explanation of how the birth of political parties and the justification of judicial review form the culmination of the political revolution that created a unique republican democracy.
READING THE FRAMERS’ READING
This political reading of the implications of the American revolutionary experience can be developed further by an examination of the reflection on that experience produced by the authors of The Federalist Papers. This collection of essays, written to influence public opinion in favor of the ratification of the Constitution, sought to reassure those who saw the new constitution as a threat either to the freedom of the individual or to the social rights of the states. But the analysis has implications that remain actual. For example, Hamilton (in number 9) and Madison (in number 10) sought to reassure those who invoked the classical argument that an “extended republic” will necessarily fail to produce and maintain community and cohesiveness. The danger was the emergence of “factions,” which would necessarily proliferate because of the sociological diversity of a large territory. The multiplication of these factions was assumed to create the kind of anarchy that classically is the prelude to tyranny. The Federalist accepts the sociological diagnosis but rejects its political implications. Factions are to freedom what air is to fire, insists Madison. Rather than seek to suppress them in the name of a wholly unified society, The Federalist sees in them the guarantee of freedom because, in the extended republic, each will provide the counterweight to the others. This argument was taken up again by the pragmatic pluralism of liberal sociology in the 1950s. It could also be used critically by progressive political theorists who denounced the apolitical nature of a society where political parties are condemned to be only coalitions of factional interests reduced to their lowest common denominator. But these sociological interpretations neglect the constitutional structure; they reduce political institutions—as did the state constitutions outside Pennsylvania—to a simple technique invented by political science to manipulate a society incapable of political self-organization.
A second analysis in The Federalist Papers has a contemporary relevance that illustrates the difficulty that arises from the treatment of the political structure of society as if it were distinct from the social (or that of individual rights). The authors have to explain and justify the system of institutional checks and balances set up within the Constitution itself. If the three branches of government were organized only to block each other reciprocally so that society can function according to its own immanent rules, government would be stymied, politics would be impotent, and, most important, the citizen would be left to the mercies of the law of the strongest. This is exactly the presupposition of both the contemporary right and its left-wing opponents. The former criticizes the checks and balances as the root of the government’s inefficiency, wasteful spending, and inability to act decisively in the national interest; the latter see in this same institutional structure the expression of a social pluralism that prevents the state from intervening on the side of victims or less favored minorities because a weak state ensures the social dominance of wealth or capital. The Federalist takes up the problem in number 51. “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” But this is just what the sociological analysis of the role of factions in an extended republic was supposed to do. The authors now in effect recognize that the previously proposed sociological grounds are not sufficient in this explicitly political context. That is why number 51 adds that “whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or in other words, a will independent of the society itself.” But how can this argument, which says not only that checks and balances protect minority rights but also that the voice of the majority must not be blocked by minority interests, be brought into harmony with the provision for a bicameral legislature in which the Senate has precisely the function of blocking the impetuous will of the majority?
The relation of the sociological to the political analysis is made explicit in the attempt to explain the need for a senate in number 63. The relation of majority and minority presented in number 51 could have been resolved by a sociological argument suggesting that the protection of the minority permitted it to develop its own interests until it could eventually become a majority, as when commercial interests come to replace agricultural ones or those of one geographical section later dominate another section. This is not the same as a political argument, in which a minority convinces a former majority of the justice of its cause. To accomplish that goal, the minority needs to pass through the system of political representation, as number 63 explains that concept. The Senate in classical republican theory represented the aristocratic branch of society—which of course did not exist in America. Number 63 proposes instead that the Senate stands as the federal instance since the senators are named by the states, whose concerns are thus represented at the national level. This practical solution to the worries of particularly the smaller states has theoretical implications that are easily misinterpreted. All three branches of government are republican, hence they all are representative. If the Senate represents the states while the House represents the people, how is the legislative branch as a whole representative? The answer is that all the branches represent, each in its own way, the sovereign people. But this representation is not conceptualized as if society imposed an imperative mandate on its political representatives (nor in terms of the older English concept of virtual representation). The Federalist distinguishes the classical notion of representation from the modern form proposed in the Constitution: “The true distinction between these [classical governments] and the American governments, lies in the total exclusion of the people, in their collective capacity.” This at first glance shocking assertion, italicized by its author, seems to confirm the view of those who saw the new governmental proposals as antidemocratic. But a closer reading in the historical context of the political experience of the Revolution shows it to be in fact the foundation of a political democracy. The sovereign people, in its collective capacity, is everywhere and nowhere: it is everywhere, in the sense that freedom will find always find its champion in one or another of the institutions of government, but it is also nowhere, in the sense that none of these institutions can claim to be the totality of the people, to speak the truth of the people, to represent the unified will of the sovereign nation. It is in this sense that the American federal republic constituted itself as a republican democracy.
This theory of political representation permits an explanation of the process by which the minority whose rights and interests are guaranteed can hope eventually to become a new majority. The justification of a theory of sovereignty that shows it to be everywhere and nowhere is not deduced from a science of politics but results from the political experience of the Revolution. The question of sovereignty had been posed at the outset of the revolutionary process as a theory of virtual representation that explained the relation between the parts of the British Empire and the general interest of the whole. When it was clear that the contradiction between the two would be resolved in favor of the whole and that English Whig theory could not imagine a federal solution, the colonists fell back on the Old Whig stress on the primacy of freedom. The identification of sovereignty with freedom from an encroaching and corrupt governmental power served to justify the demand for independence, but its limits became apparent when the social interests expressed in the state constitutions clashed with the need to assure the unity of the nation. The catalyst for a reformulation of republican sovereignty was Shays’ Rebellion, a movement of small farmers who feared the loss of their land because of a lack of hard currency that prevented them from paying their taxes. This was the ultimate recourse of society against the state. It posed again the question of political power and its relation to society.
The Constitutional Convention that met in Philadelphia in 1787 had no explicit mandate to reformulate the institutions of government. Although the delegates did not appeal to the Revolution as the origin of their initiative, the fact that the framers insisted that their new constitution be ratified not by the existing state governments but by popular conventions specially elected for that purpose is a sign that they understood their legitimacy as depending on the political reflections of the revolutionary experience. The existing Confederal Congress had represented the nation in a way that gave the represented (i.e., the society in each of the states) power over their representative. Under its direction, society functioned, but without political foundation; left to itself, there were grounds to fear that it would descend into anarchy before becoming a tyranny.9 As Federalist 51 argued, the framers had to invent a political foundation capable of protecting society against its own worst instincts, including the temptation to abandon hard-won individual rights and political sovereignty in exchange for social order. That foundation had to represent institutionally the sovereignty that was asserted in the Declaration of Independence but left adrift in the unsteady relation of the Confederal Congress and the states; now its form had to be explicitly political. The sovereign people, everywhere and nowhere, exists in the mode of the symbolic; it is this political representation that permits society to act upon itself. The political medium established by the Constitution is neither the economy nor individual interest, and neither can it be their mediated existence in the form of social relations; democratic politics concerns rights,10 the first and foundational right being the right to have rights, which in turn can be guaranteed only by a representative republican government.
THE INSTITUTIONS OF DEMOCRACY
An interpretation of the political implications of the American Revolution has to be able to account for the two radical innovations that followed immediately in its wake: the emergence of a stable yet fiercely competitive two-party political system and the constitutional jurisprudence by which the Supreme Court successfully introduced and legitimated the idea that the Constitution is the supreme law of the land whose sway dominates over any temporary legislative majority or any activity by the executive branch. The invention and coexistence of these two institutions are the foundation of a unique political structure that I have called a republican democracy in which the primacy of the Constitution ensures the republican dimension of the polity whereas the political parties serve to maintain and invigorate democratic activity. Both these historical innovations not only depend on but contribute to the maintenance and reproduction of individual and political rights. It is tempting to try to explain these two institutional innovations retrospectively, by reference to the socioeconomic interests they serve. But while there is no reason to deny the influence of socioeconomic factors, their function and salience can be understood only on the basis of the symbolically instituted framework that is the political reflection of the Revolution.
The emergence and legitimation of political parties was unexpected and not desired by the framers.11 The classical vision of republican politics is founded on virtue, defined as the ability of the citizen to abstract from his private interests in order to devote himself to the public quest for the common good. The Puritans of New England as well as the Cavaliers of the South invoked frequently the need to defend their virtue in the struggle against the corruption of English society. They demonstrated the reality of that virtue during the first period of the Revolution, engaging in boycotts of English finery, to which they preferred homespun, and, more generally, risking their all for the sake of their rights and freedom. Once independence had been won and prosperity had returned, they began to doubt themselves. The existence of new fortunes, won sometimes by doubtful or speculative practices, contrasted with the frugal independents who joined Shays’ revolt or made democratic Pennsylvania nearly ungovernable. Although all the state constitutions had contained provisions for protecting, even for creating, virtue, the idea has no place in the constitution of 1787, nor does The Federalist Papers accord it serious consideration. Some might see in this absence a sign of the modernity of the Constitution. But the absence of explicit reference to virtue does not mean that its presence wasn’t felt; after all, even our modern world does not function as if it were a self-reproducing automaton divorced from its environment. The programs of the competing political parties may be only the rationalization of interests, but their appeal is ultimately moral—expressing a claim to just that virtue that finds no representative in the constitutional order.12 This imperative implicit in the new system suggests the reason for which a two-party politics has prevailed in the United States (as opposed to other countries, where multiple interests have resulted in multiparty systems). The virtue that underlies the claims of the competing parties is of course not real and demonstrable in the content of party platforms. It is symbolic, like the popular sovereignty that is represented in all (but not incarnated entirely in any) of the branches of government.13
It remains to explain the birth of the political parties themselves, since another implication of the politics of virtue is that society is (or ought to be) one and that it is unified around the public quest for the common good. The polity that is divided, it was assumed, is condemned. The origin of the parties is often explained by the opposition between the protocapitalist commercial and fiscal policies of Hamilton and the agrarian democracy of which Jefferson dreamed. But this account treats relations that are in fact political as if they were first of all social (and it forgets that the much-praised farmer of Jefferson was a small agrarian capitalist). There had been competing interests since the founding of the colonies; the crucial question is why those interests became political and potentially divisive. Both parties had supported the new national constitution;14 they had worked together in Washington’s government to give the new nation a content that could endure. The French Revolution brought their divergences to a head by forcing them to reflect on their visions of their own political future. Jefferson’s supporters saw the Revolution as the successor and confirmation of their own struggles and hopes; the allies of Adams feared that its anarchical course would contaminate their own American republican experiment. Harking back to older political concepts, Adams’s Federalists criticized the naive optimism that prevented the Jeffersonian Republicans from understanding the difficulty of governing a sinful and easily corrupted humanity; their hope was that the stable (mixed) institutions of England would gradually emerge in America. The Jeffersonians denounced these attitudes as aristocratic, monarchist, and antirepublican; they criticized such a vision of the future as showing no confidence in public opinion, which it sought to control rather than obey. Each of the parties of course claimed to represent the national interest that, it was assumed (correctly, because of its symbolic nature), exists above and beyond everyday politics.
A further step is needed to explain how the two parties gained their legitimacy. Treated as a system, this bipartite structure is essentially modern insofar as it accepts the fact of social division rather than decrying it as a defect to be remedied. Social division is not treated as a threat to unity, as in the classical conception of a republic. The acceptance of the idea that although the society is fundamentally divided it is nonetheless still one was possible because the Americans had gone beyond the classical conception of a republic that is founded on the reality of a res publica; they had come to understand that the unity of a modern republic is symbolic, like the sovereignty that it represents. The authors of The Federalist Papers had made this point implicitly when they moved beyond the sociological analysis of the implications of division in numbers 9 and 10 to a properly political account of division as represented by institutional checks and balances, analyzed in number 51. It could be argued either that the earlier social analysis suffices to conjure away the fears for freedom or that the political analysis suffices. If both are maintained, this could be taken to imply that the party system is needed in order to mediate among the branches of government, between the citizens and the government, and between the states and the nation, as well as to level regional differences as the parties agglomerate diverse interests. Again, this is not false, but it is still only political science, treating the parties as if they were just the expression of real social divisions. Such an account does not see the need to ask how society could conceive of itself as at once unified and also divided, with the result that opposition must be recognized as legitimate.
The modern nature of the system of political parties is explained by the way in which the Constitution articulates the symbolic nature of political sovereignty. This same symbolic nature of power explains how the Americans came to accept judicial review of legislative (and executive) actions by a nonelected branch of government as necessary to the defense of their republican democracy. Political parties exist in the same modality as do the branches of the federal government; none can claim to incarnate once and for all power, knowledge of the common good, or the definition of the law. Political parties represent interests in the same way that representation is present throughout the constitutional edifice. Their modernity is the same as the “modern” form of representation described in Federalist 63, whose arguments have to be added to the sociology of numbers 9 and 10 and the political science of number 51. The foundation of the peaceful transfer of powers during the Revolution of 1800 was the implicit recognition of the symbolic nature of the sovereign power. The same recognition explains the acceptance of judicial review, which reaffirms the basic republican political framework necessary to protect the rights that make democratic party politics possible. Only when a society recognizes that its essence is to be divided can it understand that there will always be a confrontation between different rights that claim to represent the common good and that these rights must be defended (or extended) politically as well as juridically. The birth of the party system and the practice of judicial review are bound together as part of the political reflection of the Revolution.
It remains to ask whether the political matrix that emerges from this philosophical reading of the legacy of the Revolution remains actual. It would be difficult to try to fit a long historical chain of development into a categorical framework developed to account for the relatively condensed experience of the revolutionary origin of American politics. The categories of lived experience, its conceptualization, and its political reflection have to be treated with appropriate flexibility. Still, a brief effort may prove useful. The lived experience of American history is represented by and in the Constitution, which defines concrete rules of the game but whose symbolic character also opens it to possible changes in these rules (e.g., amendments). Its conceptualized form is the party system, whose changing nature is affected not so much by immediate social conditions as by the sedimentation of the lived political experience in the society. Constitutional rules determine what can affect the party system, but their flexibility makes possible reconstitution of the system and changed relations among its components (as with campaign finance laws). At the same time, the politics of the parties is also affected by the reflection of this system represented by the process of judicial review, which can expand, contract, or simply maintain the field of political experience (as with the relation of free speech to campaign finance). Two twentieth-century examples can illustrate this relation. The New Deal expansion of the state’s role had to be imposed on a recalcitrant Court by the relation of party forces that forced it to cede after the 1936 electoral triumph of Roosevelt’s party. On the other hand, during the civil rights movement it was judicial decisions that catalyzed political action. These illustrations point to the fact that the reflected form of the political is not the conclusion or the goal of political action. The civil rights cases after all were founded on amendments to the Constitution voted after the Civil War but joining the first ten amendments to make up the Bill of Rights. The fact that this great transformation of American life depended on the first and primary political right, which is the right to have rights, suggests that American politics since the Declaration of Independence has turned around the struggle to define those rights which are “held” to be “self-evident” truths.15
A second means of verifying the historical usefulness of this political matrix is offered by the interpretation of the symbolic nature of sovereignty presented in The Federalist Papers. If the sovereign people is represented everywhere and nowhere in American political institutions and if the system of checks and balances can perform its dual function only insofar as each institution of government must attempt actually to realize in itself that representation of the sovereign people, there will necessarily be a clash among the branches and institutions of government, since each can check the pretensions of the others only by making assertive counterclaims for itself. As a result, American history can be read as a continually changing series of relations among the actors on the political stage, each of which may at one point become dominant only to overreach by treating its symbolically representative function as if it were real, not just inciting resentment from the other branches of government but discrediting itself among the very real sovereign people it claims to represent. The actors in this political dynamic are not only the three branches of government—although historians are familiar with denunciations of congressional government, or an imperial presidency, or judicial activism, which are said to have dominated at different periods of American history. Other institutions, such as political parties, can become part of the same cycle, as can the federated states and even smaller units of government that have made popular the concept of the NIMBY;16 even apparently nonpolitical agents, from business to the press, artistic institutions, or churches, become part of this dynamic that not only checks but also serves to balance. If these nonpolitical actors find themselves caught in the political game, this is yet another indication that the legacy of America’s revolutionary foundation is a political one, that of a republican democracy, despite the self-conception of her citizens and her political scientists.