Responses to Critics-- Part Five: On Publian republicanism and boiling frogs

Sandy Levinson

For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).

It is finally time to conclude my response.  Let me express my thanks one final time to everyone who responded.  I found each and every one interesting and illuminating.

Steve Griffin exhibits puzzlement at my "frequent recourse to eighteenth-century republicanism as the normative standard to evaluate our present political and constitutional order."  This is certainly fair comment.  The social world underlying that republicanism is long-since dead, and we are probably better off for it inasmuch as it rested on a willingness of the lower orders to defer to their presumptive superiors (including, of course, the subordination of women to the patriarchy).  So "republicanism" really reduces to little more than a kind of "Publian" devotion to the general public interest.  The contrast term, of course, is submission to "factional" interest as defined by Madison is Federalist 10.   But the all-important begged question, set out extremely well in Robert Dahl's Preface to Democratic Theory some 60 years ago, is whether we have the theoretical resources that genuinely allow us to identify what serves the "general welfare" instead of merely "partial interests."  Almost all of us are devotees of a "hermeneutics of suspicion" that can quickly recognize any purported arguments based on general welfare as "in fact" being attempts to achieve the policy goals of one or another "special interest" or, at best, the simple reflections of an ideology that presupposes, for example, that those who live on farms really are better, as Jefferson seemed to believe, than those inhabiting cities and therefore deserve enhanced representation or other means of support.

I agree with Seve that we need a "greater awareness of the stewardship or trusteeship function of government."  But here, too, it is unclear that we--meaning professional academics--agree on what would constitute "stewardship" rather than, say, the capture of government power by technocratic bureaucrats with their/our own interests in given policy agendas and enhanced political power.  The notion of "trusteeship" is often linked with Edmund Burke, himself a participant in the same socio-political order that generated the broader notions of civic republicanism that seem all-too-elusive today as actual criteria for defining a polity.

I think that metaphors are important, and I was therefore much taken by Frank Pasquale's evocation of boiling frogs.  Kim Lane Scheppele has suggested that evocations of "emergency power" rarely involve what everyone can agree are "major" emergencies.  Instead, they involve pushing existing understandings only incrementally, but each "success" provides yet one more precedent for what turns out to be relatively unfettered executive power (or, for those who continue to believe in a "limited government of assigned powers, congressional power).  Deciding where to draw the line, as a political matter, is difficult, and too often we seem content to leave it to judges to decide, applying intellectually dubious notions of "minimum rationality" or "heightened scrutiny" that we may have to teach our students but quite likely do not really respect as intellectual constructs.

I think that metaphors are important, and I was therefore much taken by Frank Pasquale's evocation of boiling frogs.  Kim Lane Scheppele has suggested that evocations of "emergency power" rarely involve what everyone can agree are "major" emergencies, such as civil wars.  Instead, they involve pushing existing understandings only incrementally, but each "success" provides yet one more precedent for what turns out to be relatively unfettered executive power (or, for those who continue to believe in a "limited government of assigned powers," congressional power).  Deciding where to draw the line, as a political matter, is difficult, and too often we seem content to leave it to judges to decide, applying intellectually dubious notions of "minimum rationality" or "heightened scrutiny." One should be aware, incidentally, that a judicial determination that the state has in fact displayed a "compelling interest" that justifies deviation from normal understanding is itself a de facto "emergency power" declaration, subject to the same incremental expansions that ultimately result in a boiled frog. The real point is ultimately what gets normalized, so that we no longer bother to ask significant questions about actions that in a previous era might have been viewed as serious indeed.

 One reason that I continue to use what many believe to be extreme language when referring to Donald Trump is that I do not want to normalize any aspect of his egregious presidency.  I do not want to buy into the argument that one should exhibit a respect for the institutional office-holder even if one despises him as a person.  Academic readers of Balkanization are most likely to teach constitutional law, and the most immediate question is how we refer to justices and their decisions.  As academics we face particularly difficult questions as to the degree to which we ought to "import" our political views into our classrooms through the choice of what language we choose to use to refer to presumptively respected leaders.  The real point is ultimately what gets normalized, so that we no longer bother to ask significant questions about actions that in a previous era might have been viewed as serious indeed.  Notice is often taken when a Justice fails to "respectfully dissent" instead of merely registering her sometimes furious opposition to the decision of a majority.  To what degree is adopting of a scrupulous neutrality and politeness an acceptance of the fact that we are slowly but surely being boiled to death by conservative Republican justices who seem all too willing to acquiesce in the actions of Donald Trump?
Posted 10:30 AM by Sandy Levinson [link]