Winter 2008 - #2. LEX ET RATIO Madisonian Constitutionalism and the Challenge of Civic Education.

Author:by Kevin F. Ryan, Esq.

Vermont Bar Journal


Winter 2008 - #2.

LEX ET RATIO Madisonian Constitutionalism and the Challenge of Civic Education

The Vermont Bar Journal #176, Volume 34, No. 4 WINTER 2008

LEX ET RATIO Madisonian Constitutionalism and the Challenge of Civic Educationby Kevin F. Ryan, Esq.The requirements of civic education are set by the meaning of citizenship and, as Aristotle pointed out long ago, the meaning of citizenship varies depending on the nature of the political order. That means that we must be clear about what citizen we expect civic education to produce. But I believe that we are not often clear. Instead, we tend to conflate the characteristics of citizenship in two different political orders: civic republicanism and liberal democracy. And we fail to see the truly revolutionary implications of American constitutionalism in the Madisonian tradition. The challenges faced by civic education today and in the years to come can only be adequately addressed by thinking carefully-theorizing-about the social world in which we live, about the nature of constitutionalism itself, and about the features of the future world we hope to create.

The Republican Citizen and the Liberal State

Think of the standard list of challenges to civic education in our time. People are no longer actively involved in public affairs, choosing to stay home rather than take part in civic activities. People, we are told, have even ended their involvement in those secondary associations that are training grounds for public action, or at the very least serve as sites for discussion of public issues.(fn1) People, in other words, have lost their social capital, leaving the government in the hands of the few. No wonder, then, that government is distrusted and "political" has become a term of abuse. Worse, people have lost a sense of, and lost a desire to achieve, the common good; instead of the public interest, people are much more concerned with their own personal interests, their own self-expression, their own self-promotion. Individuals are preoccupied with their own individual economic concerns, leaving little time, energy, or interest for civic engagement. Finally, our societies are pervaded by severe economic inequalities, creating a situation in which a few can wield vastly more power than can the poor and, increasingly, the middle class- and those who find themselves cut out of the benefits of society sooner or later withdraw their support from that society.

Now the interesting thing about this common list of concerns is that they have their roots in a particular tradition of political thought: the republican tradition-or what I prefer to call "civic republicanism"-a tradition that itself grew out of the classical model of Aristotelian citizenship.(fn2) In this tradition, good citizens evince civic virtue: a concern for the common good rather than personal, private interest. Further, in keeping with the Aristotelian notion of the citizen as one who rules and is ruled in turn, republican citizenship calls for active participation in political affairs either directly or, in its modern Tocquevillian sense, through secondary associations in civil society. In the civic republican world there is a vibrant political. Classical republicanism, of course, often drifted (whether theoretically or in practice) into an argument for (or the reality of) aristocracy-that is, rule by those who can see the true common good, rule by an intellectual elite (often equated with a propertied elite). But elitism aside, civic republicanism grounds itself on a citizen able to place the public interest ahead of his private good, the welfare of all over the welfare of self and family. The job of civic education, then, is to create citizens of that sort, by providing people with the knowledge, skills, and most especially the orientation, to participate actively in the political realm in a wholehearted pursuit of the common good.

It is easy to see that much of what we expect of contemporary citizens, at least in this country, has its roots in this civic republican tradition. And much that we bemoan about the realities of contemporary citizenship and contemporary politics bothers us because it runs contrary to expectations driven by the civic republican model. The trouble is that the model does not capture who we are. From the beginning, civic republicanism was in tension with classical liberalism in American political thought. Many of the Founders drew their inspiration from the civic republican tradition, but many (and sometimes the same people) were attracted by Lockean liberalism. The two traditions pervaded the thought of the period, and they provided the grounds upon which Madison and others sought to fashion a new kind of politics-something they confusingly called a "republic." But over the course of American history, the tension between republicanism and liberalism has come to be resolved more and more in the direction of liberalism. By the end of the twentieth century, something more akin to a liberal democratic system had emerged, a system that by design frees people from the political and actually discourages active participation in political affairs. The "problems" or "challenges" most civic educators see as we face the future stem from the lack of fit between the civic republican ideal and the liberal democratic reality.

Liberal theory hypothesizes a world in which the citizen is liberated from politics. Building upon the theory of the good subject developed under absolutist monarchies, liberal theory retains the narrow political characteristic of those absolutist regimes. According to liberal theory, government serves as a hired contractor whose job it is to provide external and internal security and to safeguard a minimal set of rights. If government fails to do the job, fails to live up to its half of the contract, it can be fired and replaced-a view found in Locke's Second Treatise and in Jefferson's Declaration of Independence. But as long as it does its job, it is permitted to do it with little interference from the citizens who have hired it. Just as a homeowner does not crawl under the sink with the plumber, so the citizen does not meddle in the affairs of government-at least as long as the governors are doing what they were hired to do. Notice that in Lockean theory, the people do not govern when the government fails. Rather, they kick it out and hire another to govern. Government always stays with those who are hired and does not return to the people, despite what may be said of popular sovereignty. Liberal theory, curiously, manifests the suspicion of democracy found in classical political theory. Read Locke closely and you see a theorist who prefers a world in which the masses stay away from government, tending to their own affairs safe in the knowledge that the government protects their property rights.

Nothing could be further from the civic republican ideal, as Jean-Jacques Rousseau noted in regard to the British electorate, who only exercise their sovereignty at election time and then make such a bad use of it that they deserve to lose it.(fn3) Rousseau, like many civic republicans, had no use for representation because it meant the disempowering of the people, the elevation of particular interests over the general will, and the relegation of citizens to the private realm-a kind of subjection characteristic of the absolutist monarchies liberalism reputedly replaced.

It may justly be said that liberal theory entails the protection of the political from the people, albeit on terms that maintain a minimal set of rights for individuals. But most importantly, liberal theory entails the freeing up of economic man. Read Locke closely again and you see a theorist preoccupied with the liberty of individuals to pursue their economic interests as they see fit, so long as they do not violate the basic rights of others. Liberal theory seeks the liberty of homo economicus but not homo politicus. Further, the freeing up of economic man leads to the very type of economic inequality classical republicans saw as the root cause of the collapse of republics. Machiavelli, Harrington, Montesquieu, Rousseau all believed that the stability of a republic depended, at least in part, on the maintenance of rough economic equality. Liberal theory, however, is quite comfortable with economic inequality; a liberal political world privileges liberty over equality, as John Rawls has made clear. Inequality, in the liberal world, stems inevitably from the free rein given to the natural differences in the abilities, talents, and desires of individuals.

The long-term stability of liberal democracy depends upon a citizenry of a particular sort. It is a fundamentally inactive citizenry. It is a citizenry mildly, but not extensively, knowledgeable about public affairs. It is a people focused less on the duties of citizenship in the classical sense and much, much more on self-interest or narrow group interest, often defined economically. And all this within the context of a contractual relationship with government in which the state protects individual rights, particularly economic liberty, while being limited in the extent to which it can interfere with economic activity and the resultant economic inequality.


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