UNCONSTITUTIONAL SUPREMACY

 

[This blog is amid a series of postings that aims to share with the reader a history of the nation – albeit highly summary in nature – from the perspective of a dialectic struggle.  That is the struggle between a cultural perspective that emphasizes more communal and cooperative ideals of federalism and the individualistic perspective of the natural rights construct.

The general argument this blog has made is that federalism enjoyed the dominant cultural position in the US until World War II, and after a short transition, the natural rights view has been dominant.  Whether one perspective is dominant or the other; whichever it is, that fact has a profound impact on the teaching of civics in American classrooms.]

 

This blog in its last posting might have been a bit unclear on one point and it needs some clarification.  It suggested that a current problem relating to the nation’s federal system is that it, the nation, has veered from its supportive values and beliefs that have sustained that system. 

A recurring claim this blog has argued is that federalism no longer serves as this nation’s dominant construct; that instead, the natural rights view has ascended to that position.  How that happened is complex and this and the next posting will attempt to explain one aspect of that development by sharing the thoughts of a natural rights advocate. 

By opting for a natural rights dominance, the nation has chosen a more individualistic view – as opposed to a local, communal perspective.  It is this more communal view that one associates with federalist values and beliefs.  Yet in the last posting, the blog argues that the nation might be presently suffering from not being centralized enough, what federalists might welcome, to the point it is ignoring the wishes of its majority. 

So, what is it; is the nation radically divided at the individual level, a la a natural rights view, or does it lack sufficient centralization to be able to respect its majoritarian wishes?  Or stated more academically, is the nation abandoning its compounded democratic qualities or is it undermining its majoritarian qualities that one associates with a simple democratic approach?  Or can it be both?

The reader can decide, but here is one interpretation based on the thoughts of Hendrik Hartog.[1]  His concern is over the consciousness Americans share regarding their rights and he makes the case that a natural rights view, historically, has been compromised by various concerns. 

One of those concerns regards the common good; that is, how do people enamored with their individualism deal with the challenges of maintaining the common interest?  After all, irrespective of their individualism, they are not immune to the consequences of adverse developments or conditions that negatively affect their communities, their states, or their nation. 

          Hartog writes,

 

A history of constitutional rights consciousness needs to begin by confronting the immense symbolic power of an emancipatory vision of natural rights. … [During that history] people read into constitutional texts and drew from diverse and contradictory sources, including English common law, liberalism, Enlightenment philosophy, post-Reformation theology, and the medieval peasant’s vision of self-ownership and freedom. … [Yet that] vision of autonomy incorporated an ideal of community.  Autonomous, rights-bearing individuals would live in groups and collectives and participate in public life.  Their “happiness,” as Thomas Jefferson knew, required community.  They would know themselves, as individuals and as citizens, through capacity to construct intentional and voluntary forms of solidarity.[2]

 

To this blogger, this description could not be more federal in its message without using the term federalism or employing federal language.  Hartog begins with a natural rights bias and ends up with a federal conclusion. 

In his way, he explains how an individualistically thinking people could harbor a political culture supporting a federation (a communal arrangement) yet holding unto the view of one being autonomous within that communal life.  But this more communal stance finds itself being repeatedly challenged by the autonomous self-image to which Americans ascribed.  So, bottom line, Hartog’s argument agrees with this blog – the nation was more federal in its past – and provides a reason for a less communal society today.

At a societal level, one detects a dialectic struggle regarding this tension as it reflects its growth to the point that the communal side eventually succumbed to the individualist side.  Through the years of the nation’s history, that struggle would make itself known through the outward debate between those claiming individual autonomy versus those defending the public good. 

Hartog describes this national, internal debate opting for the language of personal rights (a form of property rights) allegedly being constrained by those who activate the image or concept of the sovereignty of the people – as opposed to the individual – as in “We, the People,” a collective ideal.  Historically, it was the former – the personal rights view or position – being in dominance and recurringly being challenged by various versions of a collective interest that to some degree is recognized by the US Constitution.  

This blogger agrees with this conclusion but takes issue with the underlying reasoning Hartog offers (a topic for another posting).  But the historical path he offers in how this struggle unfolded seems sufficiently accurate as a partial explanation.  That is, the tension had been experienced or made conscionable as various groups strove to establish their rights as is the case with women’s rights, African Americans’ civil rights, immigrant rights, and even the rights of youth. 

Hartog uses the image of these various compromised – in terms of rights – groups lodging their complaints against the privileged group – collectively being the white, male, dominant group.  The term “against” is key since under this natural rights’ reasoning, the attainment of rights by some meant the diminution of rights for others. 

Given the politics this environment produced, such a rights’ claim by some compromised group, e.g., women, needs to be sufficiently justified before any consideration is given to it by those in power.  Therefore, as part of the rationale of such moves, the contending party would cite some common good notion to further legitimize their claims.  That is, they repeatedly held that their deprivation of rights offended some constitutional value or belief and, in moral and practical terms, caused the nation some costs and should be rectified.

This account by Hartog reveals an important aspect of this process that sheds light on the concern with which this posting began; does this recurring process help one make sense of how federalism can be offset by decentralizing the nation’s politics and, in turn, de-democratizing its political processes? 

Here, Hartog offers an insightful generalization that not only helps one see how this contradiction can be explained, but also a reason why federalism lost its dominance after a long battle with natural rights thinking.  But before sharing his accounting of this process, one needs to appreciate a core conception of rights. 

That is, the advancement of one party’s rights is accomplished by the diminution of someone else’s rights – there is a fixed level of rights (given the contextual realities of a given time).  So, for example, advancement of women’s rights is at the expense of men’s rights.  Practically, that means as women exert a right to vote, that diminishes the right of men to control the politics of the polity.  But when it comes to individualists (those “freedom loving,” formerly dominant white males), as currently is the case, taking on the role of a compromised victim, some contradictions become apparent.

Hartog observes,

 

When presented as claims [by compromised groups] to negate rights [of the dominant class], rights readily become a focus for group organization and identity.  As possessive individualists, rights holders may lack collective identities, but to uproot common opponents they must join together.[3]

 

Hence, currently, the minority – that white, Anglo based supremacist male group – is fueled with fear of losing or having lost its privileged position, i.e., it sees the current political landscape as having taken away its “God-given” standing. 

While being individualistic, these self-defined “oppressed” people have to first recognize that they, at an individual level, can no longer protect or advance their rights or interests.  To regain their old position of privilege, they must swallow their bias for autonomy and recognize their need for solidarity with other similarly “deprived victims.” 

Hence, the collectivity of these natural rights – individualists – “oppressed” people cannot maintain the individualism they so cherish in defending their privilege or be able to recapture it.  They must form and belong to collectives to have any chance of regaining their lost or losing privilege and, as such, have to compromise or even abandon their autonomy.

This has further consequences for this newly self-defined group of victims and the next posting will describe what they are.  It makes the connection about how this development affects the current political landscape and produces the seemingly incongruent conditions this posting cited at its beginning.

Again, Hartog offers, back in 1987, a cogent argument about how this new minority has developed this sense of victimhood and how, in turn, it is running interference in the system being able to allot the majority its favored policies.  As such, this current conflict over rights – and how they are perceived – further undermines the federal values and beliefs upon which this federal system depends.

P.S.:  The next posting promises to be a good deal shorter!

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[1] Hendrick Hartog, “A History of Rights Consciousness,” in Major Problems in American Constitutional History, Volume II:  From 1870 to the Present, edited by Kermit L. Hall (Lexington, MA:  D. C. Heath and Company, 1992), 2-14.  Hartog originally had this this article published in 1987.

[2] Ibid., 3-4.

[3] Ibid., 7.

SOCIAL QUALITY OR TERRITORY

 

[This blog is in the midst of a series of postings that aims to share with the reader a history of the nation – albeit highly summary in nature – from the perspective of a dialectic struggle.  That is the struggle between a cultural perspective that emphasizes more communal and cooperative ideals of federalism and the individualistic perspective of the natural rights construct.

The general argument this blog has made is that federalism enjoyed the dominant cultural position in the US until World War II, and after a short transition, the natural rights view has been dominant.  Whether one perspective is dominant or the other; whichever it is, that fact has a profound impact on the teaching of civics in American classrooms.]

 

Spurred by the introduction of the New Nationalism of Theodore Roosevelt, the nation considered whether it wanted to leave its more local, communal approach of governance – its federalism – or take on a more national and centralized approach.  The latter is known as a Jacobinism-style model of governance.  This blog, in the last posting, reviewed and compared two levels of centralization, Jacobinism and consociationalism. 

That is, Jacobinism is a highly centralized model, and consociationalism, a less centralized and, consequently, a less democratic model.  This posting will move in the non-centralized direction and compare consociationalism and federalism, an even less centralized and democratic model.  Daniel Elazar provides the needed explanation of these models as he reports on the work of Arend Lijphart.[1] 

First, in this other comparison, one points out that both consociationalism and federalism are types of non-majoritarian forms of governance.  Lijphart calls the more centralized form, the Jacobin-style, the Westminster system.  He calls both consociationalism and federalism by the descriptive term, “compound majoritarianism.”  This is in line with the designation James Madison promotes in Federalist Paper, No. 51.

Elazar writes,

 

… Madison presents the compound republic as the best republican remedy for republican diseases, in contrast with the simple republic … [In what he proposes] majority rule is not rejected, but majorities are compounded either from distinct territories (territorial democracy [read federalist arrangements]) or concurrent groups (consociationalism), [which are] not counted through simple addition.[2]

 

That is, one can compound this notion of majority in various ways.  So, a key distinction is that consociationalism divides the populous in aterritorial ways whereas federalism relies on territorial divisions. 

Examples of consociationalism-style are, as mentioned in the previous posting, the Netherlands (with its “three pillars”), but also Austria (with its grand coalition) and Israel (with its camps and parties).  The reader is invited to look up these references to glean their distinguishing structural makeups, but here, this blogger continues this posting’s definitional explanation.

          For the sake of that explanation, one should note that what is highlighted by such compounded systems is how they characterize the majority.  As opposed to just counting noses, they outline a system, where to be successful in getting policy enacted, one needs to build coalitions.  In turn, the type of coalition depends on the structural character of the system in which one is operating.

That is, how one goes about forming a coalition will depend on the type of compounded arrangement in which he/she is functioning.  What those strategies should be is a topic for another venue, but the point here is that these compounded settings call for wider consensus of support to enable them to successfully achieve policy either in the derived laws or the actual implementation of those laws.

          The timing of this posting could not be more apropos as the nation is witnessing the difficulty that Democrats in Congress are facing.  That is, in the two initiatives President Biden has proposed (voting legislation and the “Build Back Better” legislation), he and supportive Democrats have been unable to pass them into law.  This is the case even though polling indicates that those bills, substantively, have overwhelming support among the American public.  And in this, to the extent that majoritarian proposals go wanting, it reveals a potential problem for Americans.

          In line with this development, a lot of what is in the news lately has been about how democracy in America is under attack.  The attack on the Capitol in Washington is just a visible reflection that things are a bit shaky.  Many are questioning whether the basic assumptions most Americans make concerning the health of their governmental system and its democratic quality still hold.

          Observed through this “compounded” lens, what might be a basic underlying malfunction – one Elazar alludes to – is whether the federalist nature of the system relies too much on its structural composition and not enough on the federal values and beliefs that provide the rationale for their existence. 

Many governmental arrangements around the world and in history have set up those structures, but are basically centered, simple majoritarian systems and do not promulgate or utilize federal values.  But perhaps that is not the problem in the US today.  To be federal is not just a matter of being sufficiently decentralized, but of not being centralized enough. 

That is why defenders of federalism do not use the term, decentralized, but instead use the term, non-centralized, to describe their dispersion of power.  And in that, has the American system drifted toward becoming too un-centralized or too indifferent to majority wishes?  The need is for the right balance between a respect for minority interests and the desires of the majority.

          Unlike consociationalism, which is based more on a social system and relies on its culturally based institutions – religion, ethnicity, and other social groupings – federalism relies on a set of principles.  Elazar lists Lijphart’s federalist principles:

 

1.    A written constitution which specifies the division of power and guarantees in both the central and regional governments that their allotted powers cannot be taken away;

2.    A bicameral legislature in which one chamber represents the people at large and the other the component units of the federation;

3.    Over representation of the smaller component units in the federal chamber of the bicameral legislature [is provided];

4.    The right of the component units to be involved in the process of amending the federal constitution but to change their own constitutions unilaterally; [and]

5.    Decentralized government, that is, the regional government’s share of powers in a federation are relatively large compared to that of regional governments in unitary states [as in the case of France].[3]

 

What this blog has hinted at is in terms of principle #3; with the filibuster and other provisions, perhaps the balance is too much in favor of non-central, overall minority rights.  And the minority being favored in the US today is that element made up of conservative factions or what some might call their reactionary desire to reestablish a white population-centered polity.  In that polity, racial and other ethnic minorities are “kept in their place.” 

While this is debatable, one can see that the debate needs to be held or one can expect that current anti-democratic developments will continue to grow and threaten what has been America’s style of democratic rule.  After all, ask the typical American what type of system America has and he/she is apt to say it’s a democracy.

          In any event, this posting will end with one more Elazar quote,

 

Nevertheless, both [with consociationalism-style and federalist arrangements] the political wisdom that popular government is not only not enhanced by simple majoritarianism but is often defeated by it because civil society in a democracy is both complex and pluralistic and both its complexities and its pluralism must be properly accommodated.[4]

 

While the narrative this blog is sharing has progressed to the first years of the twentieth century (with a review of the Progressive movement), one can see those debates – in this case over how federal the US system should be – have not been settled or resolved.  The debates – sometimes in the open and loudly expressed, a la the January 6 attack on the Capitol, and other times subtle and below the surface – continue; the dialectic beat beats on.

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[1] Daniel J. Elazar, Exploring Federalism (Tuscaloosa, AL:  The University of Alabama Press, 1987).

[2] Ibid., 19.

[3] Ibid., 22-23.  Whereas with consociationalism, they have two primary characteristics, grand coalitions and segmental autonomy, and two lesser characteristics, proportionality and veto power among minorities.  

[4] Ibid., 26.