Saturday, July 24, 2021

Two Book Notes: The Gun, the Pen, and the Sword and The Public's Law

Mark Tushnet

Two excellent and important books on public law elicit the following mostly methodological comments. Linda Colley’s widely and well-reviewed The Gun, the Ship, and the Pen tells two slightly different stories. One is about the spread of the idea of constitutionalism from roughly 1700 to the early twentieth century. This is the story about “the ship” and “the pen” – the technologies that helped the idea diffuse.


The other, the story about “the gun,” is about the adoption of constitutions themselves. Here Colley offers a historian’s version of an argument familiar to students of constitutions who are political scientists and economists. (I associate the argument with Douglass North, Roger Myerson, Barry Weingast, and Stephen Holmes.) Rulers with ambitious military programs have to pay for them. They do so by raising taxes, which requires either force or voluntary compliance, or borrowing money. Why should people agree to pay taxes or lend money to an absolute monarch? Because they expect to be repaid either in economic growth or money. Yet, if the monarch is truly absolute why should they be confident that they’ll enjoy those benefits? Absolute monarchs limit their power – through a constitution – to provide assurances that the money they get will indeed be repaid. Absolute monarchy becomes constitutional monarchy. (Weingast and his colleagues have developed an argument that constitutions that “work” – lead to repayment – are self-enforcing. I think that that argument works only with some assumptions about how people read constitutions, but that’s not worth going into here.)


The methodological comment: Colley identifies two “mechanisms” for adopting a constitution. One is “the gun” argument – why monarchs come up with constitutions to limit their own power. The other is implicit but obvious: the mechanism by which the constitution is adopted is the unilateral imposition of the constitution by the absolute ruler. With the rise of democracy that mechanism is irrelevant. Perhaps because I’ve been writing a short piece about the politics of modern constitution-making, I find that Colley doesn’t illuminate contemporary issues about constitutional adoption. And, I think it’s significant in this connect that the U.S. Constitutional Convention plays a quite small role in her narrative.


Blake Emerson’s The Public’s Law is a different sort of history, this one about the origins of Progressive ideas about and the institutions of the U.S. administrative state. Emerson locates those origins in Hegel’s account of the ideal state. This is, to say the least, a heterodox view. And I’m not sure that Emerson pulls it off – or, more precisely, I think the resources of academic intellectual history need to be supplemented to pull it off.


Emerson first offers an argument about Hegel’s concept of the state and then argues that five thinkers who historians associate with Progressivism knew Hegel’s work and in some rough sense knew that Hegel had made something like Emerson’s interpretation of Hegel’s thought. They modified “Hegel”’s ideas (the scare quotes are there for a reason I’ll get to) to make it compatible with their own ideas about democratic self-governance. Those ideas then worked their way into the institutions of the U.S. administrative state.


Emerson’s methodological stance is a bit unclear. Sometimes he uses words like

“compatible with” the ideas he has developed to describe components of the administrative state, or treats the association of the ideas and those components as a rational “reconstruction,” a way of seeing how we can understand the administrative state. This is basically an exercise in normative political theory using the resources provided by past intellectuals, and as such is interesting in itself.


Sometimes Emerson seems to offer an account of actual historical developments, writing as if he believes that the political actors who constructed the administrative state knew of and were influenced by the Hegel-inspired modifications he identifies. And there is some, but in my view, quite thin evidence of that. And having read a fair amount of the literature by legal academics and politicians who were the proximate sources of the administrative state, I remain skeptical about claims of direct influence.


That’s not to say that Emerson’s historical account is inaccurate, only that it has to be, so to speak, reconstructed to connect high-level political theory – Hegel – to on-the-ground institutional development. Here’s how I think the reconstruction should go (and it’s not incompatible with Emerson’s story). Hegel was a systematic political theorist; the Progressive thinkers Emerson describes were not, with the exception of John Dewey and, to some degree, Mary Follett). Those thinkers picked up ideas from their not-too-systematic reading of Hegel and adapted them for their own purposes. Levi-Strauss’s idea of bricolage is helpful here, and my earlier use of scare-quotes is an attempt to signal that Hegel’s actual works were less important than their (perhaps almost fictionalized) thoughts about what Hegel said.


These adapted ideas were themselves “in the air” for the legal academics and politicians to pick up and use for their own purposes. They might decorate their articles and speeches with references to Hegel (though Emerson does not show that they often did so) or, more commonly, throw in phrases similar to those found in Hegel’s work to give their actions a fancy intellectual foundation. The ideas, though, were not actually doing the foundational work. (In earlier work I used the term “informal political theory” to describe an early and crude version of this argument.)


As with Colley, then, I’m interested in Emerson’s implicit and explicit accounts of the mechanisms linking ideas and the institutions of public law. Both books of course deserve careful attention by public law scholars.



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