Recently, the prominent political and legal theorist, Dr. Michael Sandel, visited my campus to give a lecture, and this has prompted me to revisit one of his most famous works, Democracy’s Discontent. In this book, one of Sandel’s main arguments is that the courts’ interpretation of the Constitution both reflects and has helped facilitate our transformation from a society based on self-governance and republican principles to one of liberal individualism in which self-governance is effectively impossible. The first part of Sandel’s work is devoted to uncovering the jurisprudence of what he calls “the procedural republic.” Sandel uses this term to describe the allegedly value-neutral legal framework demanded by liberal political philosophy, which sees citizens as free and independent selves who must be allowed to choose their own ends or values. In the first half of his book, Sandel thus traces jurisprudential developments in America over the last two centuries that have increasingly embodied this idea. For Sandel, the neutral state represents an impoverished public sphere, one which he would prefer to see devoted to deliberation about the common good. The argument I would like to put forward is at once sympathetic to but critical of Sandel’s analysis. I believe his diagnosis of our jurisprudence as catering to an ethos of individualism and legal neutrality is sound. Yet, I see his “communitarian” corrective as insufficiently committed to principles of federalism and subsidiarity. To support this argument, I will briefly sketch the fundamentals of his analysis of the procedural republic but then identify elements that prohibit him from embracing a jurisprudence that empowers state and local communities.
Sandel begins with the familiar observation that two competing conceptions of liberty have been in tension since the early American republic, one republican and one liberal. Liberty within the republican tradition, which traces back to the Ancients, entails sharing in self-government and requires deliberating with fellow citizens about the common good. To do so, citizens must have a knowledge of public affairs, a sense of belonging, and a moral attachment to others in the community. Thus, certain civic virtues are seen as necessary for self-rule, and politics entails cultivating these essential qualities of character. Liberty in the liberal tradition, by contrast, is seen as an absence of restraint for the free-choosing individual. Liberal thinkers as diverse as Locke, Kant, Mill, and Rawls have, accordingly, emphasized toleration and respect for individual rights. Eschewing the cultivation of virtue, this tradition has instead embraced government neutrality toward moral and religious views so as not to impose any particular conception of the good life on its citizens. On this view, the political and legal framework ought to be a set of neutral procedures that ensures the freedom to choose one’s own ends.
For Sandel, two prominent theories have come to justify the procedural republic. Kantian Liberalism, represented by John Rawls in A Theory of Justice, claims that the just regime will allow individuals to choose their own ends in order to respect their inherent dignity as human beings. Drawing a distinction between the “right” and the “good,” i.e. between a framework of rights and liberties, on the one hand, and the particular ideas of the good life that may be chosen within that framework, on the other, Kantian Liberals see justice as a matter of respecting the capacity to choose one’s own ends. In other words, the just regime will provide a neutral framework of rights that establishes a mere procedural justice, leaving the good life undefined. However, Sandel objects, this priority of the right over the good assumes a self that is prior to all ends he pursues, whereas many obligations are not freely chosen but born into, such as duties to God, family, city, or nation. In short, there is no free-choosing self who exists prior to all his values, but a society of encumbered selves whose inherited obligations are mistakenly banished from the public sphere in the name of choosing what cannot be chosen. The second justification for the procedural republic Sandel terms Minimalist Liberalism. Here, such preexisting obligations are acknowledged, but the moral diversity of modern society is used to justify the demand that we bracket or keep private all such moral claims that may be controversial. The case for state neutrality is now based on a pragmatic concern for political agreement, and Minimalist Liberalism aims for a public sphere that is “political, not metaphysical.” In short, we agree not to impose conceptions of the good on each other out of practical necessity. But, Sandel objects, there is no guarantee that political agreement is always so compelling as to defeat the private moral interests of citizens. In the case of abortion, for example, the claim that we bracket our morals and let individuals choose for themselves requires those who believe abortion is murder to sacrifice moral concerns for political consensus. Similarly, he notes, in the Lincoln-Douglas debates, Stephen Douglas had essentially made the argument that moral concerns about slavery be bracketed, i.e. left up to states to decide, in the name of political consensus. But the value of pragmatic agreement did not outweigh the moral evil of slavery for many, including Lincoln. Sandel further notes that instances where we do claim to have bracketed moral concerns actually rely on a tacit moral approval of the act in question.
Despite such flaws, the philosophy of the procedural republic has come to dominate our public life and, Sandel argues, it finds its clearest expression in our constitutional law. The Supreme Court has come to preside over the priority of the right in two senses: first, the Court defines the rights of the individual who must not be prohibited from choosing his ends by majorities who would impose their conception of the good on him, and second, the Court identifies rights in a way that seeks to avoid any particular conception of the good life. In the early republic, this was not the case, as the Supreme Court rarely exercised judicial review, much less based on individual rights. In Barron v. Baltimore (1833), the Court refused to invalidate a Maryland law using 5thAmendment property rights, due to the belief that the Bill of Rights could not restrict state laws. From then on, rights enforcement did not figure in the invalidation of any piece of legislation until the Missouri Compromise was struck down in the Dred Scott decision of 1857. But even after the Civil War and the passage of the 14thAmendment, which was aimed at bolstering the rights of citizens vis-à-vis their state governments, the Court’s role as rights enforcer was slow to emerge. The first hints came in the Slaughterhouse Cases (1873). Here, the Court refused to invalidate a Louisiana law that created a monopoly for butchers on the grounds that it violated the liberty of those put out of business by the creation of the monopoly. However, Justice Fields, writing in dissent, claimed that the 14thAmendment was aimed at protecting citizens against rights deprivations by their states, and that it should “give practical effect to the declaration of 1776 of inalienable rights.” The Court’s role as enforcer of rights clearly emerged in a subsequent case, Allgeyer v. Louisiana (1897) and set the controversial precedent of the Court acting as rights monitor. Over the next four decades, Sandel laments, the Court invalidated over two hundred state and federal laws in the name of the right to property and the liberty of contract of the individual allegedly found in the 14thAmendment. Known widely as the Lochner Era, for a case by the same name, this period of judicial policing of rights established for Sandel “the first sustained constitutional expression of the priority of the right over the good,” in that rights could be seen as acting as trumps against majorities that would interfere with the free individual attempting to order his life as he saw fit.
It may appear as if the Court’s presiding over the priority of the right then came to an end in 1937, when it reversed course in West Coast Hotel vs. Parish, by rejecting the fundamental right to property and finally ratifying the New Deal. However, the priority of the right had merely been appropriated by Progressivism from its laissez-faire roots. The priority the right was now used to justify judicial deference to majorities, instead of judicial review. Increasingly, Sandel argues, one began to see intimations of state neutrality in the opinions of Progressive jurists, such as Oliver Wendell Holmes. Deference to democratic majorities was thus justified based on an aversion to reading the Constitution as embracing a particular social philosophy, such as laissez-faire. Meanwhile, social welfare policies were perceived as empowering individuals with the material means by which they could order their lives as they saw fit. Laissez-faire, according to Progressives, had merely sanctioned the unequal status of citizens in the economy, whereas redistributive policies would provide the means by which all individuals on an equal basis could choose their own ends. Moreover, despite this deferential posture, Progressivism even found a way to justify a new form of judicial review. Justice Harlan Stone, in his influential footnote in US vs. Carolene Products (1938), outlined certain occasions on which rights could still be protected under the 14thAmendment. Here, Stone grounds future rights protection in the neutral procedures of the democratic process, which, he claimed, it was the role of the judiciary to enforce. Where “discrete and insular minorities” are targeted by legislation, or access to the democratic process has been blocked to such minorities, laws would now be suspect. For Sandel, the significance is the justification being employed – the Court now becomes the enforcer of civil rights, not for substantive moral purposes, but in the name of the procedural Constitution, one that provides a neutral framework by which all individuals may choose their own ends.
I find Sandel’s diagnosis of the procedural republic compelling. But the real problem with Sandel’s analysis emerges when one looks to his concluding chapter for insights into how to restore the republican project. Here, Sandel says all of the right things about reinvigorating a republican ethos. With regard to the formation of civic virtues, Sandel looks to Tocqueville for inspiration and explicitly rejects the republican project of Rousseau. For, in the former, he admires the gentler formation of character through persuasion and habituation, while he rejects the harsher, more coercive civic education of the latter. Moreover, Tocqueville’s is a republicanism that embraces the differentiated and clamorous character of local institutions, while Rousseau’s general will aims at too much uniformity and unanimity among citizens. Sandel thus extols the virtues of localism and “the politics of neighborhood,” while suggesting “unrealized possibilities implicit in American federalism.” For, he explains, in a line worthy of Robert Nisbet, “[Federalism] suggests that self-government works best when sovereignty is dispersed and citizenship formed across multiple sites of civic engagement. This aspect of federalism informs the pluralist version of republican politics.” There is, in the end, only one glaring problem with this concluding chapter: Where is the jurisprudence? In other words, Sandel spends the entire first half of his work depicting our constitutional law as the “clearest expression” of the procedural republic. Yet, he refuses, in this “solution” section to devote one sentence to addressing needed reforms to our jurisprudence. It would appear, in light of everything else Sandel does say in this section, that what would be needed is a refusal on the part of the federal judiciary to continue to preside over the priority of the right and, in particular, to cultivate an attitude of respect and deference to the outcomes of self-governance among state and local authorities. We are logically led to this conclusion, but nowhere does Sandel spell out the implications of his critique of our constitutional law.
What is to account for this conspicuous lacuna in Sandel’s analysis? Why not tease out the implications of his theory of localist republicanism for the analysis of constitutional law with which he began his argument? My sense is that Sandel cannot live with a jurisprudence that favors a politics of federalism and subsidiarity because this, to him, resembles too much the “bracketing” of moral controversies for which he was critical of Minimalist Liberalism. For Sandel, the desire to remove moral controversies from the public forum in order to defer their diverse resolution to lower-level decision-makers seems to be a symptom of the liberal aspiration to state neutrality. Consequently, Sandel is caught in a Catch-22. On the one hand, he believes that his commitment to keeping morality in the public forum requires refusing to bracket moral issues, as Stephen Douglas had attempted to do. On the other hand, his conclusion clearly embraces a localist republicanism that would seem to require bracketing, in the form of devolution. In the end, Sandel appears to come down on the side of refusing to bracket such controversies, and I believe this is why he will not spell out the implications of a jurisprudence of federalism. The problem, viewed in the light of his critique of the procedural republic, is that Sandel would view a jurisprudence of federalism as bracketing, i.e. as akin to the pragmatic and amoral public philosophy of Minimalist Liberalism.
However, what Sandel fails to grasp is that in the name of a genuinely localist republicanism, some bracketing is necessary. Moreover, the case for devolving such moral issues need not always or merely be made on the grounds of avoiding moral imposition on controversial issues. The case for bracketing issues at the national level and resolving them through local governance may in fact be made based on a concern for morality itself – on the grounds that moral choosing, i.e. the exercise of what Aristotle would call practical reason, must always take place in the particularity of our concrete existence in small communities. Sandel would likely reply – as he does in the case of Minimalist Liberalism – that for every such instance of bracketing, we are in fact relying on a tacit moral approval at the higher level where the issue has been set aside. However, to see all such setting aside of issues for local resolution in terms of their having been tacitly judged at a higher level of bracketing, i.e. the national level, is to establish the ontological priority of a national community or public sphere over all local communities or public spheres. On this view, all such controversial examples are seen from the vantage point of the abstract moral reasoner whose judgment is exercised at the national level, i.e. from no particular community. Understood in this way, the moral reasoner is theoretically imagined as existing apart from his own situatedness and sits in judgment of decisions that emerge at the local level, which are conceived as blinded by their own narrow or parochial situatedness, in need of approval from the clarity of moral perspective that can only come from above. In the light of such assumptions, we should not be surprised when such theories seem reluctant to spell out the implications of a truly localist republicanism. With friends of federalism and subsidiarity such as Michael Sandel, one might indeed wonder who needs enemies.