The Two American Constitutional Freedoms
08-09-2014It is hard to disagree with the claim that government is too big and too bureaucratic. Citizenship is in decline. The legitimacy of representative democratic government is experiencing a crisis around the world. These are common refrains, heard often on the left and the right. Both the Tea Party and Occupy Wall Street are evidence of the general dissatisfaction with big, unresponsive, administrative government. California is thinking of splitting itself into six states. Even the New York Times Magazine, in its cover story today, suggests that the time for the Libertarian movement may have finally arrived.
It may be, however, that the problem is less about the bigness of government than the decline and corruption of the national government itself. This is the fascinating argument made 40 years ago by Robert J. Pranger in his essay “The Decline of the American National Government.” It is worth re-familiarizing ourselves with Pranger’s reasoning:
A decline of the national government has taken place in terms of public perceptions of its civic purpose, from one of zealous umpire responsible to the community as a whole to one of ultimate preemptor where ambition may repair from local conflict to large scale warfare.
The relevant opposition is between a government as an umpire deciding when various and diverse localities may have gone too far in their individual ambitions, and government as ultimate preemptor that seeks to impose its demands and its ambitions on the country as a whole.
Pranger argues that the U.S. Constitution encompasses two different ideas of liberty that operate in tension. The first he calls the “liberty of self-fulfillment, the freedom to follow one’s ambitions.” He locates this passionate liberty in the competition and ambitions of individuals, local governments, and free associations, each of which can passionately pursue their own ambitions. Within the liberty to realize one’s own dreams and desires is also, however, the “impulse of preemption over others.” In seeking to advance oneself, one will want to attain rank and privilege; in seeking to promote a particular version of the good life, one or a community will retard the possibilities of other lifestyles. The liberty of self-fulfillment, therefore, requires a counterweight.
The second form liberty takes in the U.S. Constitution is “toleration or the liberty to deviate unimpeded by peremptory claims of others.” The innovation of Pranger’s argument is to suggest that the Constitutional space for the protection of opinion, deviation, and plurality is the creation of a strong national center. While the national government of the United States was given increased powers in regard to national issues from war to treaties, the limited nature of the government by enumerated powers distinguished the national center from local governments.
[T]he limits were designed to distinguish the national center from the more mundane—and domesticated—activities of the states. The national center would concentrate on questions of general interest to all Americans, in the process taking care to protect these functions from invasion by factional conflict as much as possible so that the widest range of diversity might be represented when those national matters needed attention.
The point is that American federalism gave one liberty—plurality, variation, and toleration—an abode in the limited government at the national center as a way of both empowering and limiting another idea of liberty, namely self-fulfillment and the pursuit of ambition. It is American federalism, Pranger argues, that is the institutional embodiment of our dual liberties.
How does federalism operate to preserve the politics of variation or toleration, with its virtue of diversity and its style of listening rather than demanding? It does so by creating a national center for the public good, where such good is not predetermined but explored in the context of a forum open to all and not closed by preemptive politics.
“The Public Good” that is housed in the “national center” of the national government is the virtue of plurality and toleration. Neither hierarchical nor fully sovereign, the national government was more like an umpire making the various localities and states play fair, all the while dedicated to the activity of listening and enabling rather than demanding and preempting.
The crisis of freedom in our times, Pranger argues, is not caused by the fact that the national government has become too big or too powerful but that it has lost a sense of its constitutional purpose. Instead of acting to preserve the common public good of diverse and plural pursuit of freedom by individuals and communities throughout the country, the national government has become a preemptive government, one that imposes its own view of the good life, right and wrong, and of how one should live on the entirety of the country.
In short, the very idea of a national government for the common good of liberty has been lost, and the national government has commenced to act more and more like a local government seeking to advance its own interests and preempt the liberties of others.
In the course of this decline of truly national functions, the redemptive nature of broad national politics has been replaced by localism writ large or, better stated, by the nationalization of local politics so that there is no longer an American community at all. Cosmopolitan tolerance has given way to universal, provincial selfishness. In a word, the contemporary eclipse of community in America may not stem as some might think, from the deterioration of closely knit localities under the corrosive influences of mass society, but from the disintegration of a national center capable of providing the base for a broad general will. Without central focus, the concept of public good quickly becomes little more than a national sum of private ambitions.
The reasons for this shift are not hard to sniff out. They are based in the human desire for security and justice. On the left, progressives were dissatisfied with the slow pace of change on issues from racial and gender equality to the protection of the environment and the breaking up of corporate trusts. On the right, security hawks worried that local governments would resist the need to make information on individuals and groups available to a burgeoning national security state. The latter half of the 20th century saw thus a bi-partisan alliance that transferred power from the localities to the national government and, as importantly, changed the very nature of national government. If previously the national government was seen as a limit on factionalism and the pursuit of ambition, it became the prized goal in the race for factional supremacy and partisan ambition.
[caption id="attachment_14022" align="aligncenter" width="514"]
(Source: Foreign Policy)[/caption]
The loss of our collective national enthusiasm for America—the decline of American exceptionalism—is, Pranger writes, a consequence of the loss of a strong and vibrant idea of the constitutional role of the national center and the idea of the nation as a protection against the dominance of parochial interests. The national government has become, quite simply, the latest battlefield for local interest. Thus,
Domestication of the national government has made it a government like all others—public and private—in the United States, a political system dominated by factious competition. Why should the nation make any special claims to allegiance or any unique contributions to personal liberty under these trends toward homogenization?
It should be noted that Pranger is not making a simple anti-government or libertarian argument. He is, on the contrary, arguing that there is an important and proper role for government, for both local and national government. Local government should pursue freedom understood as self-fulfillment. Local government should enact regulations and articulate ideas of the good life. And national government should aim to secure freedom through toleration and the constitutional enforcement of basic limits when the pursuit of individual ambition threatens to trample on basic rights of others. Far from being anti-government, Pranger is making a fundamental claim about the nature of free government as needing local and national institutions to preserve two distinct manifestations of freedom. Here is a summation of his thought:
Any attempted solution for the decline of the American national government, at this late date, must understand how fundamental is the problem. The problem involves not only the crowding of preemptory demands at the national level—a crowding that could well become even more congested—but the rapid decline of any belief in the public good that has been associated with the national government’s fall from its rightful constitutional position. In turn, this decline of belief brings with it a cynicism about the full blessings of liberty, especially about the virtues of a politics of toleration. On the other hand, one senses a notable rise of intolerance in the idea that to attain national power is only to preempt others. Wider participation is valued only as a means to obtain power, and not as a the method for achieving a free commonwealth. There is an increasing tendency to pigeon-hole groups of persons who need drastic action taken against them, virtual enemies of the public good who turn out to be, on closer inspection, hated enemies of newer coalitions of minorities.
Our present partisan debates over issues from national security spying to abortion, from gay marriage to public pensions, should remind all of us of Pranger’s description of the descent of the public good and the rise of preemptory politics.
What Pranger asks us to consider is that our decline today is actually one founded upon the loss of a foundational idea of American constitutional politics and the forgetting of the original sense of national politics. What we need, he suggests, is a return to an animating idea of America as a land of the dual freedoms of both self-fulfillment and toleration. That is a bracing thought. And it should make you want to read his longer essay, The Decline of the American National Government. It is available on JSTOR. Or email the Arendt Center for a PDF copy. It is your weekend read.
If Pranger is right, we need to rethink the foundational idea of what America means; that is precisely the charge of the upcoming Hannah Arendt Center conference, The Unmaking of Americans: Are There Still American Values Worth Fighting For? You can join the debate by registering for the conference here.
-- Roger Berkowitz
This article was cross-posted on the American Interest website.