A Constitutional Perspective on Power and Our Populist Moment

The conversation between Conor and the PM has got me thinking about Hobbes and power and how to make sense of its abuses at UC-Davis and in Oakland some weeks ago.

It seems to me that the architectural design of our regime itself speaks to the point, and the gradual loss of commitment to that design explains both the popular movements of our time and the institutional responses to them.

The PM says that we are more dangerous in uniform than out of it, and he's surely right that "absolute power corrupts absolutely." The whole theory of Madison's republicanism can be said to be based on precisely this recognition of human fallibility when it comes to wielding the power of the regime. The technological means for a Third Reich or a Hiroshima were not yet imaginable to the American framers, and they would not have been able to conceive of the devastating power office holders now employ. But even before we invented the power to kill en masse, they held power to be a problem, trusting the executive especially a good deal less than Hobbes trusts his sovereign.

Set deep in the foundations of the American psyche, John Winthrop and his Puritan followers emphasized our imperfect and imperfectable knowledge, our inability to completely master and govern ourselves, our needs, our lacks, our intellectual and moral insufficiencies. Ours, they taught, is a broken world of sin - not due to malevolence or willful evils, but the opposite - our myopia and incomprehensions would frustrate even and especially our attempts to do good.

Niebuhr makes the point in The Irony of American History that Puritanism reached its final expression not in American religious life, but in the forms of American government. We usually think of America as a secular place, where there is a “separation of church and state.” But Niebuhr understood that America’s Lockean institutions were themselves informed by a religious world-view. According to the American Constitution, nodes of power are to be separated and opposed to one another. They are to be separated at the national level by creating institutional incentives and shared responsibilities that would force the executive, judicial and legislative branches to govern each other, and the most powerful among these, the legislative, the framers divided further into two chambers. The framers start from the assumption that men are motivated by “interest,” which is to say that every person to occupy constitutional office will be fallen and broken and will be moved by pride to expand their own dominion. The offices must be made to “check and balance” each other because we can't fully "check and balance" ourselves. Lockean institutions are designed to accommodate Calvinist selves.

As fractious and divided as the nation was during the ratification debates, the psychological centrality of interest was almost universally assumed to be true. On this point, the Anti-Federalists departed from the Federalists only in harboring hope that interest could governed by our better angels if political power were even more widely dispersed, more truly federal, local, and even democratic. They aspired more to the ancient model of democratic alternation and were wary of representation and the rule of trustees. For the Anti-Federalists, local government allowed for more opportunities for civic participation, and participating in government was the great school of citizenship, where men learned to rule and be ruled in turn.

Federalism itself is the second way in which the American framers were wary of political power. It was to be not only shared among the branches of national government, but federalized, decentralized, shared laterally amongst states and the national government. Much has recently been made of the alternative voice in American political thought -- emphasizing the polyphony of American political thought -- and rightly so. It's true enough that the Federalists sought more centralized power than the Anti-Federalists, but both were wise enough to see that centralized power could be a threat.

Ours was designed as a regime of institutions inspired by Locke, by Montesquieu, infused with a religious sensibility, all of which amounted to a rejection of the Hobbesian optimism about the sovereign. Conor is right about that. Axiom number one for Hobbes is that without an arbiter that is empowered to restrain each party, the parties will always be potentially at war, or in Conor's memorable phrase, violent conflict will always be "a lurking logical possibility." Because there is no arbiter to restrain the sovereign were he to feel threatened by the commonwealth or its members, the sovereign stands in relation to the commonwealth as the frightened, neurotic individuals stood in relation to each other before the commonwealth was instituted. The American insight is to restrain and frustrate centralized power because, frankly, the framers did not trust that it can be responsibly used.

Although Americans tend not to think in these terms any longer, they do feel that something is not quite right. So it is that a populist movement from the right, decrying government centralization in Washington (at the expense of the states) and in the White House (at the expense of the Congress and Courts) is matched by a populist movement from the left, decrying the financial centralization in a few banks. The Tea Partiers and the Occupiers, though divided on a range of social issues, both carry the flag of decentralization. The disproportionate use of force levied against the Occupiers at UC-Davis and in Oakland and elsewhere is precisely the kind of force our regime was designed to restrain.

This leads me to conclude that the moment is ripe for a mature reconsideration of and renewal to our commitment to the Constitution. In my view, the uses of power and populism we see around us neither warrant a progressive wish to transcend the Constitution, nor do they warrant the the bizarre necromancy of some of the Constitution's biggest fans. In recognizing that the same centralization of power our regime is dedicated to dispersing is the source of popular protest and the institutional response to that protest, we should be moved to recognize the Constitution's lasting wisdom.

- A Citizen of Rochester -