Essentially Contested America

ECA is immensely delighted to introduce Rodney K. Smith to ECA’s readers. Rod’s first hand knowledge of the current crisis in Pakistan will undoubtedly assist American citizens and American legal scholars to acquire the appropriate perspective on the conflict between Pakistan’s president and its Supreme Court. Professor Smith presently serves as President at Southern Virginia University. He previously served as the Herff Chair in Excellence at the University of Memphis School of Law and as Dean of the schools of law at the University of Arkansas at Little Rock, the University of Montana, and Capital University. He also has been on the full-time law school faculty at the University of San Diego, Widener University and the University of North Dakota. President Smith received his B.A. from Western State College in Colorado, his J.D. from Brigham Young University, and his LL.M. and SJD degrees from the University of Pennsylvania. Rod has authored or co-authored four books and over twenty-five articles, primarily in the areas of constitutional law and sports law. President Smith is the consummate academic colleague bringing out the best–scholarship, teaching, and service–in everyone with whom he interacts. Whether a member of a law school faculty, a dean, or president of a university, president Smith strikes a blow for community and caring within and without the university setting. No matter how accomplished a particular scholar might be, none makes such a critical difference in the lives of so many as Rod Smith. Welcome to ECA, Rod.

ECA was launched on 20 October 2006. Below are slightly modified versions of ECA’s first two posts designed to explain its central purpose(s).

The name of this blog derives from the work of the social theorist, W.B. Gallie, and the political philosopher, John Rawls. Gallie taught us that reasoning often founders on those essentially contested concepts central to arguing for practical conclusions, but which have different senses for different people or for the same people from different perspectives. Concepts such as “truth,” justice” and even perhaps “the American Way” may be embraced by everyone. Yet, when we base social policy or any practical judgment on these concepts, consensus is beyond reach. The reason? While everyone is committed to these concepts, their meaning is systematically ambiguous or essentially contested. And so, while these concepts are fundamental to our reasoning, since their meaning is essentially contested each of us will reach different conclusions based on the same concepts. Rawls taught us that reasonable disagreement is inevitable in a pluralist democracy because obstacles to consensus known as “the burdens of judgment” render consensus almost out of the question. How should we respond to the essential contestability of concepts and the burdens of judgment? Deliberatively! Pragmatically! We need to provide reasons for our conclusions, vigilantly check and re-check these reasons, take seriously the opposing conclusions of others, and with humility try to formulate the most comprehensive perspectives possible. At that time we will either have achieved consensus, or what is so much more likely, we will have refined our conflicts so that we understand just what is at stake.

[Added November 20, 2006] ECA has posted everyday since its inaugural post on October 20, 2006. One point of clarification: America is essentially contested, but ECA will not be exclusively devoted to essentially contested concepts or the burdens of judgments. ECA will take positions on controversial subjects and welcomes comments from readers having diametrically opposed views. ECA is designed to be a forum for examining important intellectual, legal, political, and culturally controversies, not by ad hominen arguments against those who have taken a stand on these controversies, but by backing up one’s position with the best arguments available.

Just what is the meaning(s) of America. The very concept–”the meaning of America”–has always been essentially contested, and no doubt will continue to be so. We all believe in freedom and equality. But then why do we disagree so stridently about public policy? Just what does America stand for if it stands for anything at all? Are we a libertarian nation, one that valorizes liberty to the exclusion of all other competing values? Or do we regard the well-being of others as central to our own happiness? Examining these choices, and a host of similar choices, will be one of this blog’s goal. More concretely, ECA is a vehicle for looking for the meaning of America in all its nobility and yes in all its malevolence.
To speak of “the meaning of America” doesn’t involve a commitment to meanings in one’s ontology. Rather, the call to discover America’s meaning is merely a pragmatic attempt to first identify those values which have driven American history. Once identified the next task is to determine whether these values are coherent, and if they are not coherent how to make them so. If coherence is illusory the final goal is to determine which values, if any, should be rejected. In the end, we might discover that the meaning of American consists of a set of incommensurable values that serve as the premises for fundamentally different ways of life. Each generation must engage in the quest to determine the meaning of America. It’s our turn now.

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. . . . [T]this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.–Abraham Lincoln

Americans imbibe a devotion to self-government with their mothers’ milk. Each new generation inherits this love from the prior generations and each generation, in turn, is responsible for creating “a new birth of freedom.” What distinguishes our nation is this cultural–even “natural”– commitment to self-government. The consent of the governed is the sole standard of American sovereignty. I say “consent,” not “consultation.” American democracy does not–or at least should not–merely inform us of what it does; it asks for our approval and participation. Indeed, the people are the normative source of sovereignty upon which government rests. Our consent grounds this government of the people, by the people, and for the people. This is no trifling task, but what precisely does this stunning phrase mean?

First, government is created by the people, not imposed upon them from above. An Illinois backwoods boy, Abraham Lincoln, uttered this majestic sentiment, not a King, Priest, or Aristocrat. For the first time a sovereign government was made up of ordinary folks thirsting for freedom and equality. Second, these folks did not outsource the daily operations of the government. Instead, they chose from among their ranks representatives to do their bidding. Third, the raison d’etre of this government was to satisfy the interests of the same group of people from which the government derived and by which the government was operated. Neither God nor nobility were the beneficiaries of this new creature–popular government–instead the beneficiaries necessarily were the people themselves.

What is this valuable commodity “consent”? At the heart of republican democracy consent lies an axis of consent: authorization–process–termination. First, our representatives must be authorized to represent us. Winning an election or being appointed by someone who has won an election is the first step. The second phase of the axis of consent is the process through which the people communicate individually or through associations with governmental officials and through which these officials will sometimes modify or reverse their decisions. This process includes the media, lobbying, and all formal and informal means of the citizenry seeking a change in policy by the current administration. The final phase of this axis–the termination stage–holds the elected officials accountable for what they did or did not do in their current term of office. In the authorization stage, we gave these officials instructions to act in ways we approve. The termination stage determines whether we were sufficiently satisfied with how they carried out these instructions. The axis of consent is the foundation of accountability. I call the first phase “authorization-accountability,” the second phase “process-accountability,” and the third stage “termination-accountability.”

American citizenry virtually boycotts the axis of consent. Less than fifty percent of the electorate votes to authorize government. Only so-called “special interests” participate much in process of making their voices heard during the process of government. More Americans need to engage in the re-election or dismissal of public officials in the termination stage of the axis of consent. Why are Americans indifferent, even hostile, to government? After all, it is the only collective association we have. Because they are pragmatists, and government does not speak to them. Government does not encourage their active, continual participation; nor is government genuinely concerned with their problems and interests. Why do public officials betray the people’s trust? The simple reason is that enormous amounts of money are required to run political campaigns. Where can elected officials turn but to the corporate interests? Theirs is the only real game in town. They’re loaded with big bucks and love nothing better than to spend their bounty to buy politicians.

Wealth distorts the axis of consent. Money is not speech, it merely buys speech. And when elites can buy more speech than the citizenry at large, perennial distortion of what ordinary folks consider the common good arise until ordinary folks no longer consider the common good at all, or even look to politics to help implement what they want. At this juncture, American government breaks down. The privileged elites have taken over and republican democracy becomes, “a walking shadow, a poor player that struts and frets his hour on the stage and then is heard no more: it is a tale told by an idiot, full of sound and fury, signifying nothing.”

Can republican democracy be revivified? I’m sure it can, but not quickly. And time is not on our side. The obstacles appear overwhelming. American popular culture is fixated on immediate gratification. We want to speak to people whenever and wherever we choose. A myriad of images permeate our consciousness. Elemental, step-by-step attempts to understand, to integrate, to synthesize have virtually vanished. We are what we see and, if you reflect, what we see is not terribly appealing. “Reality” TV smothers us in unreality. Tattoos and body ornaments wrap not only our bodies, but also our souls. Sound, speed, and gimmicky gadgetry pervade the imagination. Everything is reduced to hype. Nothing escapes the drumbeat of those incessant attempts to get us to buy something, vote for someone, or to commit one’s body and soul to this god or that god. Republican democracy is no match for these howling sense-data. We need an anchor, some Archimedean vantage point, just to re-start our pursuit of meaning. But no such sanctuary exists or ever existed. That’s the bad news. The good news is that we are still alive, at least for now. And human life means the creation of value. Creating value is something we do; it’s not our choice; we create value whether we choose to or not. Of course, there’s no guarantee that the values we create have substance. We struggle to create and refine contingent values which will with any luck can be integrated in a democratic republic. This republic and its attendant political morality must be re-constituted every generation. Although this political morality continues to be essentially contested, it is the only political morality that matters.

When Benjamin Franklin left the constitutional convention, a citizen asked “Well, Doctor, what have we got–a Republic or a Monarchy?” Franklin turned and replied, “A Republic, if you can keep it.” We have not kept it. We betrayed this faulty, pragmatic vision of government created from within, from the people governed, not external gods or kings. However, the vision of a republican democracy is still possible. But we must clearly understand time is not on our side.

Monday, I begin my sabbatical for the spring semester. In order to devote my time to writing on judicial supremacy in a republican democracy, I will follow an established blogging protocol and post randomly, even sometimes on weekends. Nevertheless, I will try to keep up a reasonable posting schedule, and I will certainly continue to post on constitutional law and theory, important events concerning the war, American government, and, of course, anything that bears on controversies in an essentially contested America.

The first installation of this new schedule is posted below.