A Fundamental Argument for Limited Government
Those of us who are citizens of liberal democratic regimes do not refer to those who govern as “rulers.” It is our boast that we rule ourselves. We prefer to speak of those who govern as public servants, but the extraordinary prestige and trappings attached to public office, in just about all times, and in just about all places, signal an underlying fact that discomfits our democratic and egalitarian sensibilities: Even in liberal democratic regimes, high-level public officials are rulers. They make rules, enforce them, and resolve disputes about their meaning and applicability. To a very large extent, at the end of the day, what they say goes.
Of course, our rulers rule not by dint of sheer power, the way the Mafia might do in a territory it controls. They are rulers who are subject to constitutional rules—rules they do not themselves make and cannot easily or purely on their own initiative revise or repeal. They rule in limited ways, and ordinarily for limited terms. They rule by virtue of democratic processes by which they came to hold office. They can be removed or significantly disempowered at the next election if the people are not happy with them. Still, they rule.
My point is not to hoot at the idea that those holding governmental offices and controlling the levers of governmental power are servants. I want to defend the idea that rulers truly can be servants, but they are servants in a special sense. They are people who serve us by ruling well. If they rule badly, through incompetence, corruption, or tyranny, they serve us poorly—indeed, they disserve us.
What does it mean for the ruler to truly be a servant? What does it mean for him to rule well? It means making and executing decisions for the sake of the common good. Such decisions will necessarily be compatible with the requirements of justice and at the same time embody justice. The common good is not an abstraction or Platonic form hovering somewhere beyond the concrete well-being—the flourishing—of the flesh-and-blood persons constituting the community. It is the well-being of those persons and of the families and other associations of persons—Burke’s “little platoons” of civil society—of which they are members.
The common good requires that there be rulers and that they actually rule. Members of societies face a range, sometimes a vast range, of complex problems that cannot, as a practical matter, be addressed and resolved by unanimity. Institutions will have to be created and maintained, and persons will need to be installed in the offices of these institutions, to make the choices that must be made and to do the things that need to be done, for the sake of protecting public health, safety, and morals; upholding the rights and dignity of individuals, families, and nongovernmental entities of various descriptions; and advancing the overall common good.
The moral justification for the rulers’ ruling is service to the good of all, the common good—in other words, the basis of the right to rule is the duty to serve. And the realities that constitute the content of service are the various elements of the common good.
I don’t know how to improve on the definition of the common good proposed by John Finnis in his magisterial book Natural Law and Natural Rights. The common good, he says, is to be understood as “a set of conditions which enables the members of a community to attain for themselves reasonable objectives, or to realize reasonably for themselves the value(s), for the sake of which they have reason to collaborate with each other (positively and/or negatively) in a community.”
Every community—from the basic community of a family, to a church or other community of religious faith, to a mutual aid society or other civic association, to a business firm—will have a common good. The common good of some communities is fundamentally an intrinsic good rather than an instrumental good. That is true, for example, of the community of the family. Although families serve many valuable, and some indispensable, instrumental purposes, the point of the family is not exhausted by these purposes, nor do they define what the family is. The most fundamental point of being a member of the family is, simply, being a member of the family—enjoying the intrinsic benefit of being part of that distinctive network of mutual obligation, care, love, and support. The same is true, in Christian and Jewish thought, at least, of the common good of the community of faith.
Now, what about the common good of the political community—the common good served by good rulers (and to which citizens also have responsibilities)? There is, in what Isaiah Berlin referred to as the “central tradition of Western thought” about morality, a powerful current of belief that the common good of political society is an intrinsic good. This seems clearly to have been the view of Aristotle, and many self-identified Thomists are firmly convinced that it was the view of Aristotle’s greatest interpreter and expositor, St. Thomas Aquinas.
Finnis, however, argues that the common good of political society, though (to quote Aristotle) “great and godlike” in its range and importance, is nevertheless fundamentally an instrumental, not an intrinsic, good. Its instrumental nature, he says, entails limitations on the legitimate scope of governmental authority—limitations that, though not in every case easily articulable in the language of rights, are requirements of justice. Although I have a difference, at the margins, with him on the question of just what the limits are (and, in particular, whether they exclude in principle moral paternalism), I agree that the common good of political society is fundamentally an instrumental good and that this entails moral limits on justified governmental power.
The way we have come to think of these limits is in terms of what is usually called the doctrine of subsidiarity. Eighty years ago, Pope Pius XI, in the encyclical letter Quadragesimo Anno, explained the basic idea: “Just as it is wrong to withdraw from the individual and commit to a group what private initiative and effort can accomplish,” he wrote, “so too it is wrong . . . for a larger and higher association to arrogate to itself functions which can be performed efficiently by smaller and lower associations. This is a fixed, unchanged, and most weighty principle of moral philosophy. . . . Of its very nature the true aim of all social activity should be to help members of a social body, and never to destroy or absorb.”
This principle of justice and the common good reflects a particular understanding of the nature and content of human flourishing. Flourishing consists in doing things, not just in getting things, or having desirable or pleasant experiences, or having things done for you. The good, as Aristotle taught, consists in activity. Human goods are realized by acting—one participates in them—thus enriching one’s life and even ennobling oneself as one exercises and fulfills one’s natural human capacities (for example, one’s capacities for friendship, knowledge, and critical aesthetic appreciation).
And so the common good is, as Finnis remarked, best conceived as a set of conditions for enabling members of a community to attain for themselves reasonable objectives or to realize reasonably for themselves the value(s) for the sake of which they have reason to collaborate with each other in a community. It is, in this sense, facilitative. It enables people to do things the doing of which advances their all-around or integral flourishing.
Properly understood, then, the common good requires, as a matter of justice, limited government—government that respects the needs and rights of people to pursue objectives and realize goods for themselves. Governments should do things for people (as opposed to letting them do things for themselves) only where individuals and non-governmental institutions of civil society cannot do them, or cannot reasonably be expected to do them for themselves. Finnis used the word “enable,” and it is the right word here: The government’s legitimate concern is with the establishment and maintenance of the conditions under which members of the community are enabled to pursue the projects and goals by and through which they participate in the goods constitutive of their flourishing.
This facilitative conception of the common good does not require a doctrinaire libertarianism either in the domain of political economy or social morality, but it clearly excludes corporatist and socialist policies that, to recall those words from Pius XI, “withdraw from the individual and commit to the community at large what private enterprise and industry can accomplish” or that remove from the family or religious or civic association and commit to government what can be accomplished by non-governmental collaborative effort. A conception of the common good that is serious about the principle of subsidiarity will respect private property and take care to maintain a reasonably free system of economic exchange—that is to say, a market economy. Comprehensive or even widespread state ownership of the means of production is plainly incompatible with subsidiarity’s concerns and objectives, as is anything resembling a command economy.
It is critical to the effective limitation of governmental power that there be substantial nongovernmental centers of power in society. This would be true even if the record of socialist states were benign when it came to respect for civil liberties and political freedom—which, on the whole, it certainly is not. And it would be true even if, again contrary to the historical record, private property and the market system were not necessary as checks against the excessive concentration and abuse of power in the hands of public officials. The diffusion of power benefits society as a whole, not only in encouraging general prosperity but in protecting liberty, opportunity, and security.
This goes well beyond economics. Nongovernmental institutions of civil society—those families, churches, and other little platoons—perform better than government ever conceivably could the most essential functions of health, education, and welfare and play the primary role in transmitting to each new generation the virtues without which free societies cannot survive: basic honesty, integrity, self-restraint, concern for others and respect for their dignity and rights, civic-mindedness, and the like. These structures of nongovernmental authority can play their role only when government is limited”for unlimited government usurps their authority and destroys their autonomy, usually recruiting or commandeering them into being state functionary organs. Where they are playing their proper role, they help to create conditions in which the ideal of limited government is much more likely to be realized and preserved, and its benefits enjoyed by the people.
Iwill return to the role of these institutions of civil society, but now let me shift to the question of constitutional structural constraints on the powers of government. Historically, political theorists have focused on the need for such constraints as the most obvious and important way to ensure that governmental power remains limited and that rulers serve the people and do not become tyrants. As important as constitutional structural constraints are, I would warn against placing too great an emphasis on them at the expense of ignoring the other essential features.
The Constitution of the United States is famous for its “Madisonian system” of structural constraints on powers of the central government. More than two hundred years of experience with the system give us a pretty good perspective on both its strengths and its limitations. The major structural constraints are: (1) the doctrine of the federal government as a government of delegated and enumerated, and therefore limited, powers; (2) the dual sovereignty of the federal government and the states—with the states functioning as governments of general jurisdiction exercising generalized police powers (a kind of plenary authority), limited under the national constitution only by specific prohibitions or by grants of power to the general government, in a federal union; (3) the separation of legislative, executive, and judicial powers within the national government, creating “checks and balances” that limit the power of any one branch, and, it is hoped, improve the quality of government by making the legislative and policy-making processes slower, more challenging, and more deliberative; and (4) the practice (nowhere expressly authorized in the text of the Constitution, but lay that aside for now) of constitutional judicial review by the federal courts.
I often ask my students at the beginning of my undergraduate course on civil liberties how the framers of the Constitution of the United States sought to preserve liberty and prevent tyranny. It is, alas, a testament to the poor quality of civic education in the United States that almost none of the students can answer the question correctly. Nor, I suspect, could the editors of the New York Times, or other opinion-shaping elites. The typical answer goes this way:
Well, Professor, I can tell you how the framers of the Constitution sought to protect liberty and prevent tyranny. They attached to the Constitution a Bill of Rights to protect the individual and minorities against the tyranny of the majority; and they vested the power to enforce those rights in the hands of judges who serve for life, are not subject to election or recall, cannot be removed from office except on impeachment for serious misconduct, and are therefore able to protect people’s rights without fear of political retaliation.
This is about as wrong as you can get, but it is widely believed, and not just by university students. None of the American founders, even among those who favored judicial review and regarded it as implicit in the Constitution, believed that it was the central, or even a significant, constraint upon the power of the national government. Nor did they believe that the enforcement of the Bill of Rights’ guarantees by courts would be an important way of protecting liberty.
The federalists—in the original sense of those who supported the proposed Constitution—generally opposed the addition of a Bill of Rights because they feared it would actually undermine what they regarded as the main structural constraints protecting freedom and preventing tyranny, namely: (1) the conception and public understanding of the federal government, not as a government of general jurisdiction, but as a government of delegated and enumerated powers; and (2) the division of powers between the national government and the states in a system of dual sovereignty. When political necessity forced the federalists to yield to demands for a Bill of Rights (in the form of the first eight amendments to the Constitution), they took care to add two more amendments—the ninth and tenth—designed to reinforce the delegated powers doctrine and the principles of federalism that they feared would be obscured or weakened by the inclusion of a Bill of Rights.
As for the way judicial review has functioned as a structural constraint in American history, suffice it to say that the federal courts, and the Supreme Court in particular, have had their glory moments, such as in the racial desegregation case of Brown v. Board of Education in 1954, but they have also handed down decision after decision—from Plessy v. Ferguson in 1896, which facilitated the expansion of segregation, to Roe v. Wade in 1973, which legalized abortion throughout the United States—in which they have plainly overstepped the bounds of their own authority and, without any warrant in the text, logic, structure, or original understanding of the Constitution, imposed their personal moral and political opinions on the entire nation under the pretext of enforcing constitutional guarantees. These usurpations are, quite apart from whatever one’s views happen to be on segregation and abortion, a stain on the courts and a disgrace to the constitutional system, bringing it into disrepute and undermining its basic democratic principles.
Moreover, since the 1930s, the courts have done very little indeed by way of exercising the power of judicial review to support the other constitutional structural constraints on the exercise of central governmental power. A very small number of isolated decisions have struck down this or that specific piece of federal legislation as exceeding the delegated powers of the national government or encroaching upon the reserved powers of the states, but that is about it.
Most recently, and spectacularly, the Supreme Court upheld what seemed to me and many others an obvious case of constitutional overreaching by the national government—President Obama’s signature Patient Protection and Affordable Care Act. The government defended the mandate as a legitimate exercise of the expressly delegated power to regulate commerce among the states. The trouble, of course, is that the mandate does not regulate commerce at all; it forces people into commerce—a particular kind of commerce—on pain of a financial penalty.
Of course, it shouldn’t have come to a decision by the courts at all. Congress itself, and the president, should have recognized and honored the fact that the Constitution does not empower the national government to impose a mandate on the people to purchase products, including health-care coverage. One of the problems with judicial review in general is that its practice tends to encourage the belief among legislators (and, worse still, among citizens more broadly) that the constitutionality of proposed legislation is not the concern of the people’s elected representatives; if a proposed piece of legislation is unconstitutional, they say, then it is up to the courts to strike it down. But this is a travesty. For structural constraints to accomplish what they are meant to accomplish, for them to constrain the power of government as they are meant to do, the question of the constitutionality of legislation in light of those constraints is everybody’s business—judges exercising judicial review, yes, but also legislators, executives, and the people themselves.
And that brings me to the critical, yet oddly neglected, subject of political culture. A few years ago, the eminent legal and political philosopher Jeremy Waldron, in his Sir John Graham Lecture, read his fellow New Zealanders the riot act about what he condemned as the abysmal quality of their nation’s parliamentary debate. The bulk of his lecture was devoted to an analysis and critique of a range of factors leading to the impoverishment of legislative deliberation, warranting the stinging title he assigned to his lecture: “Parliamentary Recklessness.” Its penultimate section, entitled “Parliamentary Debate,” offers a thoroughly gloomy appraisal. But instead of ending there, offering no grounds for hope, he concludes with a section entitled “The Quality of Public Debate,” in which he points to the possibility that the deficiencies of parliamentary debate may be at least partially compensated for by a higher quality of public debate, and even hints that a higher quality of public debate could prompt the reforms necessary at least to begin restoring the integrity of parliamentary debate.
But he warns that things could also go the other way. The corruption of parliamentary debate could “infect the political culture at large.” Parliament, he said, could become “a place where the governing party thinks it has won a great victory when debate is closed down and measures are pushed through under urgency; and the social and political forum generally becomes a place where the greatest victory is drowning out your opponent with the noise that you can bring to bear. And then the premium is on name-calling, on who can bawl the loudest, who can most readily trivialise an opponent’s position, who can succeed in embarrassing or shaming or if need be blackmailing into silence anyone who holds a different view.”
So, in a sense, it is up to the people to decide whether they will rise above the corruption that has demeaned parliamentary politics, or permit it to “infect the political culture at large.” But “the people” are not some undifferentiated mass; they are people , you and me, individuals. Considered as isolated actors, there is not a lot that individuals can do to affect the political culture, but individuals can cooperate for greater effectiveness in prosecuting an agenda of conservation or reform, and they can create associations and institutions that are capable of making a difference—pressure groups, think tanks, even “tea parties.”
A critical element of any discussion of the quality of democratic deliberation and decision making that amounts to anything more than hot air will be the indispensable role of nongovernmental institutions—those little platoons, yet again—in sustaining a culture in which political institutions do what they are established to do, do it well, and don’t do what they are not authorized to do. And so we must be mindful that bad behavior on the part of political institutions—which means bad behavior on the part of the people who exercise power as holders of public offices—can weaken, enervate, and even corrupt the institutions of civil society, rendering them for all intents and purposes impotent to resist the bad behavior and useless to the cause of political reform.
My point is that this is true more generally. Constitutional structural constraints are important, but they will be effective only where they are effectually supported by the political culture. The people need to understand them and value them, and value them enough to resist usurpations by their rulers, even when the unconstitutional government programs offer immediate gratification or the relief of urgent problems. This, in turn, requires certain virtues—strengths of character—among the people.
But these virtues do not just fall down on people from the heavens. They have to be transmitted through the generations and nurtured by each generation. Madison said that “only a well-educated people can be permanently a free people.” And that is true. It points to the fact that even the best constitutional structures, even the strongest structural constraints on governmental power, aren’t worth the paper they are printed on if people do not understand them, value them, and have the will to resist the blandishments of those offering something tempting in return for giving them up or letting violations of them occur without swift and certain political retaliation.
The Constitution of the United States was famously defended by Madison in Federalist Paper Number 51 as “supplying, by opposite and rival interests, the defect of better motives.” He made this point immediately after observing that the first task of government is to control the governed, and the second is to control itself. He allowed that “a dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions”—hence the constitutional structural constraints, among other things. But even in this formulation they do not stand alone; indeed, they are presented as secondary. What is also necessary, and, indeed, primary, is a healthy and vibrant political culture—“a dependence on the people” to keep the rulers in line.
That brings us back to the role and importance of virtue. John Adams understood as well as anyone the general theory of the Constitution. He was the ablest scholar and political theorist of the founding generation. He certainly got the point about “supplying the defect of better motives,” yet he also understood that the health of political culture was an indispensable element of the success of the constitutional enterprise—an enterprise of ensuring that the rulers stay within the bounds of their legitimate authority and indeed be servants of the common good, servants of the people they rule.
Adams remarked that “our Constitution was made only for a moral and religious people” and “is wholly inadequate to the government of any other.” Why? Because a people lacking in virtue could be counted on to trade liberty for protection, for financial or personal security, for comfort, for being looked after, for being taken care of, for having their problems solved quickly. And there will always be people occupying or standing for public office who will be happy to offer the deal—an expansion of their power in return for what they can offer by virtue of that expansion.
So the question, then, is how to form people fitted out with the virtues making them worthy of freedom and capable of preserving constitutionally limited government, even in the face of strong temptations that inevitably come to compromise it away. Here we see the central political role and significance, I believe, of the most basic institutions of civil society: the family, the religious community, voluntary associations (such as the Boy Scouts) that are devoted to the inculcation of knowledge and virtue, private (often religiously based) educational institutions, and others in the business of transmitting essential virtues.
As we are frequently and rightly reminded by Mary Ann Glendon, these are mediating institutions that provide a buffer between the individual and the power of the central state. It is ultimately the autonomy, integrity, and general flourishing of these institutions that will determine the fate of limited constitutional government. And this is not only because of their primary and indispensable role in transmitting virtues; it is also because their performance of the functions of health, education, and welfare is the only real alternative to the removal of these functions to “larger and higher associations,” that is, to government.
When government expands to play the primary role in performing these functions, the ideal of limited government is soon lost, no matter the formal structural constraints of the Constitution. And the corresponding weakening of the status and authority of these institutions damages their ability to perform all of their functions, including their moral and pedagogical ones. With that, they surely lose their capacity to influence for good the political culture that, at the end of the day, is the whole shooting match when it comes to whether the ruler can truly be a servant.