AuthorKundmueller, Michelle M.

I am very happy and honored to be here. I am particularly humbled to be flanked by scholars of such eminence. And I'm really looking forward to today's talks, because today is one more instance of the grand American tradition of talking about what it means for the people to engage in good self-government. This tradition, if I may call it that, is not the exclusive province of lawyers. But as law students, as lawyers, and as judges we have a special place in this conversation. Insofar as law has a role to play in any government (and within a republican government especially), I think that we have both the opportunity and the duty to apply our intellectual capacity to the relationship between law and good self-government.

I wouldn't normally start a talk this way, with an affirmation of the importance of the event that we are all attending. But such an affirmation seemed more than normally relevant in light of this week's news about the war in Ukraine. (1) Earlier this week, as I was writing about Anti-Federalists and populists, I kept stopping my work to check BBC News. Alternating between American political thought, on the one hand, and Ukraine's struggle to maintain independence, on the other, I was repeatedly forced to confront the fact that that there are aspects of self-government that I typically take for granted. Watching current events unfold alongside preparing these remarks reinvigorated my commitment to my scholarship and to trying to understand and speak to others about the role of law in democratic government. The news reminded me, in a most visceral way, that self-rule is a precious thing.

Today's topic is the relationship between the thought of the Anti-Federalists and populism. I propose to answer two questions. First, can we identify common ground between Anti-Federalists and populists? Second, does their common ground justify characterizing the Anti-Federalists as the philosophical ancestors of populists? I conclude that there is significant common ground: both favor a more direct form of democracy controlled by the common citizen and therefore both harbor deep suspicions of elites and complex institutions. Yet we cannot fairly categorize the Anti-Federalists as proto-populists: their advocacy for more direct government and the prominence of the will of the people was premised on beliefs about the function of a political community's size that populists do not share. Indeed, I suspect that the Anti-Federalists, who rejected outright the idea of one national government for even the original thirteen states, might have been more critical of populism than they were of the Federalists themselves.

By and large, both Anti-Federalists and populists favor a more direct form of democracy. (2) They don't necessarily favor direct democracy in the sense that it requires that all citizens get together and vote directly on all laws, but they favor a more direct form of democracy than is set forth in the Constitution (or, in the case of today's populists, in the Constitution as it is currently implemented). (3)

Both Anti-Federalists and contemporary populists want a more direct role for the common citizen and for the middle class; they harbor deep suspicions of elites, who they understand as experts--or those who might be seen (by some, not by Anti-Federalists or populists) as having a better capacity to rule. (4) It's not necessarily just about preventing the rule of wealthy elites; it's also--perhaps even more strongly--about preventing the rule of those who claim to have either a special expertise or heightened moral capacity for rule. (5)

They also are both suspicious of complex institutions. (6) I think something that oftentimes gets overlooked in discussions about institutional complexity is the role of complex laws. Anti-Federalists and populists embrace the idea that laws--as well as institutions--ought to be simple and understandable by everybody. (7) I'm guessing that, whatever stage you're at in law school right now, you're beginning to see that simplicity might not be one of the advantages of our system.

Nonetheless, I don't think that we can fairly categorize the Anti-Federalists as a variety of proto-populist. Their advocacy for simple institutions, direct government, and the preeminence of the will of the common citizen was premised on beliefs about the function of a political community's size that populism doesn't share. (8) So at the end of the day, I suspect that the Anti-Federalists might actually be more critical of populism than they were of the Federalists. And by the end of my talk, I hope I will have explained why.

Of course, American populism varies over time, and it varies around the globe. (9) So, before proceeding to distinguish the Anti-Federalists from the populists, I'll take just a moment to clarify the facets of populism that I am focusing on and mean to refer to when I say "populist" or "populism." I thought that for today's purpose the best thing to do was to try to sketch populism as broadly as I can, so that we can focus on some of its aspects that are relevant to today's political movements. So what's my extremely simplified version of populism? Well, it has two elements or, if you will, a two-prong test: (1) direct rule (2) by the citizenry. (10)

Let me first start with the simpler of these two prongs: "by the citizenry." The key quality of "the citizenry" in this test is that those who legislate and execute the government cannot be limited to the subset of the people who are either experts or any other kind of elites. (11) There are two reasons for this. First, populists believe that those individuals who aren't of the people are more corruptible, perhaps because they're more morally suspect because of their elite status or because of some intrinsic worth of the common citizen. (12) The second reason, I believe, is less controversial: they believe that elites--like the common citizen-will rule in their own interests. (13) According to this logic, common-citizen rule is better because it is in the interest of the common citizen, and elite rule is worse because it will favor the elites and not the common citizen and hence not the common good. (14)

Then, there is the direct rule prong of the populism test that I have devised for today. I will use the federal constitution's avoidance of direct rule by way of comparison. I think we all know that our national government is designed, in a sense, to check the will of the people, because sometimes 51% of the people can be incredibly imprudent or even horrifically unjust. The complexity of our government structure is designed to maintain the will of the citizenry--but only ultimately. Along the way to implementation--or to complete and final implementation--the will of the citizenry is moderated through institutions that delay, that require negotiation among factions, and that bolster the rule of law when it is in tension with the will of the citizenry. By contrast, populism does not seek to delay or moderate implementation of the popular will, and to the extent that it may sometimes bolster the rule of law it does so less vigorously than the Federalists wished to see this done. The emphasis of populism is on weeding out corruption--which it defines as anything contrary to the will of the common citizen--and getting things done thoroughly and quickly. You might say that populism's methods employ simplification, speed, and--if need be-- overcoming or eradicating procedural and legal barriers (such as the Constitution) to government action.

So do the Anti-Federalists agree with this platform of a more direct rule, a rule by the common citizen? I think they do, at least by and large. Their fears and warnings about the Constitution include warnings of elite rule--whether the claim to elite rule is based on wealth, expertise, or claims about the inadequacy of the common citizen. (15) The Anti-Federalists warned about the potential for corrupt rule (16) that they associated with both rule by elites and with complex government. And they insist that the government must follow the will of the majority--the will of that 51%--which they...

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