Always under law?

• Author: Michelman, Frank I.
• Position: Constitutional democracy

INTRODUCTION

This essay is adapted, with some stylistic and organizational but little material change, from my Dewey Lecture entitled "Layers of Law," given at the University of Minnesota Law School on November 14, 1994.(1) In a prior work, I had argued that one cannot cleave wholeheartedly and simultaneously to both of the two ideal notions of higher law and popular sovereignty, without conceiving that the popular sovereign conducts its higher lawmaking in a normative spirit that I called jurisgenerative.(2) I began the present work with an aim of turning the previous argument around. Agreeing with the many who assign to the notion of popular sovereignty, as that notion figures in constitutional-democratic political thought, an evocative or idealizing or quasimythical status, I wanted to suggest something about this notion's function in our political thought. Although "popular sovereignty" is perhaps more often taken to express the idea that the people have the right to make the law be whatever in fact they decide, no further questions asked, I wanted to suggest that this notion's deeper signification is the expression of a wish to believe something opposite: that whoever at any time actually does lay down higher law to the country does so in a spirit of answering to some commonly and publicly perceived or commonly and publicly derivable standard of right.(3) I don't know whether the essay as it now stands delivers on the stated aim. In the final section, added after I gave the lecture, the argument takes a turn I hadn't at all anticipated when I began.

1. THE THESIS STATED

   How do we think our scheme of government is justified?

   This is not a simple question, at least not as I intend it, and I have to begin by explaining what I mean by it.

   Start with the phrase "our scheme of government." By this I mean something quite broadly defined, roughly what John Rawls seems to mean when he speaks of constitutional democracy.(4) I shall use that term, and I shall mean by it our familiar broad model of a liberal-individualist political order based on higher law, representative government, and popular sovereignty. That's not as innocuous as you might think, though, for I mean "constitutional democracy" to signify commitment in full earnest to all three of those familiar defining terms. And it may strike you, as I thus lay them down--as very likely it has struck you before--that these three commonplace terms of the constitutional-democratic confession are not self-evidently harmonious. "Higher law" seems in some way to stand against both popular sovereignty and representative government. As for the latter pair, "popular sovereignty" speaks of government not only for the people but by them, and that is not obviously the same thing as government of them by officials or representatives. Sorting out some of the relations among these regulative notions, especially those between higher law and popular sovereignty, while trying always to keep faith with each as regulative, will be a part of my business here.

   I approach this sorting out though the question I've already put: How do we think constitutional-democratic government is justified? Now, you might say right off, maybe not everyone thinks it is; so who is this "we" of whom I speak so complacently? I could give you the innocuous, the disarming response. I could say that in speaking here of "we" I just mean whoever reading this does in fact incline to the belief that constitutional democracy is probably the right (or, if you prefer, the best) broad model for a scheme of government for their society. But actually I intend something a little more contentious. I say "we" suspecting that you, reader, at least some of the time, believe in the probable rightness (or best-ness), for your society, of constitutional democracy in some recognizable form (although perhaps not exactly the form in which it's currently prescribed and practiced in your country).(5)

   So ... How do you think--how do we think--constitutional democracy is justified? In casting this in terms of "how do we think," I'm not intending to pose an issue in normative political theory. I'm not inviting answers of the form: a substantively sufficient justification of constitutional democracy is (say) the argument set forth by John Rawls in A Theory of Justice.(6) I'm intending rather to pose a question about facts of constitutional-democratic thought--about how, in fact, we think about government, bearing in mind that one fact about how we think about it could very well be this: that we think about it in ways that are themselves counterfactual--idealizing, imaginative, utopian--maybe more so than we usually notice or admit. Accordingly, the inquiry here is meant as descriptive, not prescriptive. Its form is that of exposition. It is an effort to catch hold of, to look into, habitual thoughtways and conceptualizations that enter quietly and unselfconsciously, but also perhaps problematically, into people's largely unexamined convictions that constitutional democracy is an apt broad model for schemes of political justice for a society of beings conditioned and situated as we every-daily think we are.

   I'll begin by proposing a thesis in this expositive vein (one that standing by itself may not seem very surprising) that we can call the always-under-law thesis. In order to set forth the thesis, I need to stipulate a couple of definitions. Let us, therefore, understand "constitutional essentials" (I draw the term from John Rawls) to mean legal provisions for the structure and process of government--votes and elections, allocations of powers among branches and offices, and so forth--and also for limitations upon government, for "rights and liberties of citizenship that [government is] bound to respect."(7) And let us, further, define "higher lawmaking" as any of (i) legislation of a country's scheme of constitutional essentials,(8) or (ii) legislation of standards to govern type (i) lawmaking, or (iii) legislation of standards to govern type (ii) lawmaking, or (iv) ... etc. ad inf. (So type (n) lawmaking is always "higher" than type (n-1).) Then the expositive "always-under-law thesis" is this: Constitutional-democratic thought is always taking for granted that whoever is engaged in higher lawmaking for a country (and I don't care how high up the (n)s you want to go) is, in that engagement, answering to some still higher law that is already there, in place; for every (n) there is an (n+1). Constitutional democrats take this for granted insomuch as (a) we think that only if it's so can our scheme of government be justified, and (b) we think our scheme of government is justified.

   In constitutional-democratic political thought, then, higher lawmaking is a matter of law-all-the-way-up. Despite that titillatingly paradoxical formulation, though, the always-under-law-thesis may very well be renderable in a way that makes it unsurprising. Consider a body of thought that posits a set of abstract, universal, human ("natural") rights, such that a scheme of constitutional essentials that fails to secure these is, in this body of thought, ipso facto unjustified. The always-under-law thesis can, I think, be shown to hold for this body of thought.(9) But this is a common form of constitutionalist thought. So why be surprised at the thesis?

   It is we democratic constitutionalists--we consitutional democrats--for whom the thesis is problematic. For us, while higher law may be a regulative notion, no less so is popular sovereignty. And the always-under-law thesis is paradoxical when extended, as I'm going to insist constitutional-democratic thought has to do, to the case of higher lawmaking by a sovereign people. In fact, the result of this extension is a double, a two-faced paradox: a contradiction of the sovereign character of the self-governing people combined with a contradiction of the politics-transcending character of the higher law.

   We commonly take the idea of the sovereignty of the people to imply that the collective will of the governed (somehow-or-other gauged and expressed) strictly constitutes the highest law of the state. Popular sovereignty, in other words, we commonly take to imply that the people acting to resolve their country's higher law cannot then themselves be acting under the sign of law. The people's sovereign act of higher lawmaking law must itself, as sovereign, be above and beyond all law. That, I say, is how we usually think we think about popular sovereignty. The always-under-law thesis, however, contradicts this ordinarily unreflective take on how participants in constitutional democracy think about the provenance of higher law. Part III of this essay is meant to show that constitutional democrats conceive higher lawmaking to be always under law, even when the higher lawmakers are the people themselves. At the same time, though, and correlatively, the exposition shows that, in constitutional-democratic thought, the law that even the highest politics is under is itself a politically immanent creation, not a deliverance of transcendent, transpolitical reason.

   The exposition will carry us into some familiar puzzles about who or what we have in view when speaking of a sovereign "People." Few, after all, would defend literally the proposition that the terms of government are ever actually set by an active, express, affirmative consensus of the entirety of a country's politically franchised population. One needn't dismiss popular sovereignty as a flat-out lie (and I wouldn't) in order to see that this can hardly be a term of scientific description of real-world politics. Popular sovereignty is surely in some part a mythic idea, one whose function is as much evocative or expressive as it is descriptive.

2. FROM POLITICAL JUSTIFICATION TO GOVERNMENT UNDER LAW

   1. JUSTIFICATION

      What we're trying to do here is to have a look at ourselves thinking, when what we're thinking about is how a certain something is...