On Constitutions

As we follow the decomposition of (small “r”) republican institutions around the globe, we often forget how fragile these institutions inevitably are. Who, after all, willingly relinquishes their private wealth?  Or who willingly submits to laws, regulations, institutions, and political bodies over which they do not enjoy direct control?

The answer to these questions, is, of course, republicans (again small “r”). Under the conviction that we are all better off submitting to laws, regulations, institutions and political bodies specifically and deliberately protected from private wealth, republicans — in the Americas, in France, in the Caribbean, England, and eventually throughout the world — willingly bound themselves and their wealth to shared constitutions.

I am thinking about constitutions today because constitutions rest upon nothing but the legitimacy they are granted by those who submit to them. Absent this legitimacy, constitutions are not worth the paper they are printed on. It was therefore with no small amount of dread that I  read first Stanford University political theorist Francis Fukuyama’s article (1989) and then his book (1992) End of History seeking to shift the ground for constitutionality away from Hobbesian mutual constraint and towards right-wing Hegelian legal theory. Not that Mr Fukuyama’s thesis was terribly original; it was not. But only that in its earlier articulations — by Nazi legal scholar Carl Schmitt; by his student Leo Strauss; and by eccentric anti-communist Hegelian Alexandre Kojève — it failed to land a punch. Now, finally, in 1989, with the communist world emptying into the dustbin of history, the story told by Schmitt, Strauss, and Kojève could be updated, cleansed, and made respectable. The fact that this story was deeply anti-republican troubled no one in 1989. Indeed, as of 1968, the Republican Party itself was on record as anti-republican. It no longer believed in res publica, “the wealth we hold in common.”

Here is Mr Fukuyama:

 This Hegelian understanding of the meaning of contemporary liberal democracy differs in a significant way from the Anglo-Saxon understanding that was the theoretical basis of liberalism in countries like Britain and the United States. In that tradition, the prideful quest for recognition was to be subordinated to enlightened self-interest — desire combined with reason — and particularly the desire for self-preservation of the body. While Hobbes, Locke, and the American Founding Fathers like Jefferson and Madison believed that rights to a large extent existed as a means of preserving a private sphere where men can enrich themselves and satisfy the desiring parts of their souls, Hegel saw rights as ends in themselves, because what truly satisfies human beings is not so much material prosperity as recognition of their status and dignity. With the American and French revolutions, Hegel asserted that history comes to an end because the longing that had driven the historical process-the struggle for recognition — has now been satisfied in a society characterized by universal and reciprocal recognition. No other arrangement of human social institutions is better able to satisfy this longing, and hence no further progressive historical change is possible (F Fukuyama, End of History 1992:xviii).

To his credit, Mr Fukuyama admits here openly what most members of the Republican leadership either don’t know or do not care to mention: that contemporary Republican ideology is anti-republican. It is fundamentally opposed to what “Hobbes, Locke, and the American Founding Fathers like Jefferson and Madison believed.” Mr Fukuyama is seeding a different ideological ground; a post-republican ground for a quite different constitutional future.

[Disclosure: Mr Fukuyama grew up in the University of Chicago’s shadow. His father received his doctorate from Chicago in the 1950s. While there, the young Fukuyama fell under the spell of Leo Strauss, student of Carl Schmitt; which influenced his decision to pursue his bachelors at Cornell under Strauss votary Allan Bloom.

[Further disclosure: Mr Strauss and Mr Kojève joined a fierce political philosophical battle over the status of politics, published as an appendix to Strauss’ On Tyranny (Chicago ). Mr Fukuyama’s End of History finds him adopting Mr Kojève’s Hegel to promote a post-republican narrative not unlike Mr Strauss’ or Mr Schmitt’s.

[Final disclosure: I studied Carl Schmitt, Leo Strauss, and Francis Fukuyama as a graduate student at the University of Chicago. I have a horse in the race.]

Where Mr Fukuyama reduces classical republicanism to pecuniary self-interest, I would invite readers to more carefully explore both the published record — in the Federalist Papers — and the published, but more voluminous, record of the US Constitutional Convention in Elliot’s Debates and Farrand’s Records (Journals of the Continental Congress). Here one does find much evidence for a pecuniary self-interest among the framers. Yet, one also finds a genuine republican spirit, a spirit eager to constrain and limit private wealth for the sake of the wealth we hold in common. Here, following Aristotle, the framers deliberately and explicitly excluded anti-Federalists and anti-Republicans from the Convention precisely because they favored the Lockean philosophy grounded in private property and private labor. This was because, already in the fourth century BCE, Aristotle recognized that stable public institutions needed to limit access from private self-interest. When in 1989 Mr Fukuyama shifted the discussion to Hegel’s philosophy of the slave-master relationship, to self-respect, pride, and recognition, he also shifted the ground from the public agora to the private household.

This change of venue was precisely that against which Aristotle had argued in the opening pages of his Politics. But — and this is significant — it was also the change in venue against which Hegel had argued in his discussion of civil society in his Philosophy of Right (1820). A political economy organized around private self-interest, in Hegel’s view, destroys itself and its concept.

Which brings us back to the essential fragility of constitutions. We are, all of us, deeply invested in our own self-preservation. Our natural state is private, not public. Thomas Hobbes said it best when he declared in De Cive (1642) that our natural state is a bellum omnium contra omnes, a war of all against all. It takes something unnatural, unusual, extraordinary for us to propose to make our private wealth public, to create what was once known as a commonwealth. This does not happen naturally. It is forced, coerced, constrained, limiting.

And it is precisely this constraint against which Mr Fukuyama inveighs in his End of History. It is a diatribe against republicanism, against res publica. And, it is an appeal to revert to our natural state.

Our natural state is not a state with constitutions. It is absent laws, regulations, and institutions. It lacks an agora, a public square.

I am not blaming Mr Fukuyama. He simply reflects his times. His mind is the mind of his age. There is nothing specially notable, one way or the other, about what he wrote; he wrote it well, but what he wrote is unnotable. Constitutions appear when communities recognize their shared interest, their public interest; when they recognize that their private wealth needs to be made public. These are very rare, exceptional moments. They are never pure and undistorted.

What is unique about our own moment is that the party called “republican,” which feeds upon and feeds the merely common longing for self-interest, is the most anti-republican party in US history. There is nothing noble, nothing notable, nothing distinguishing or distinguished in it. It is the essence of what Hannah Arendt meant by “banal.” It is that to which all of us, unattended, revert.

Thus my sense of dread. There is nothing here to legitimate. There is nothing here to defend. There is no constitution.

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