by John Marini
Congress Ceases Deliberation: Notes from John Locke, The Federalist, and Carl Schmitt
An equally important function of the legislature was thought to be rational deliberation, or public discussion of policy issues, that would culminate in legislation or general public law. Harvey Mansfield Jr. has pointed to the fact that the “purpose of the Constitution is to transform the people’s will both by settling it into a determined intent (a ‘cool and deliberate sense,’ Federalist 63) and by elevating it from whim into deliberate choice. This is the work of reason, and it is ‘the reason, alone, of the public that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.’”31
Of course, a reasonable or constitutional government does not depend exclusively upon the reasonable character of the legislative body, for otherwise there would be no need of a separation of powers, let alone a Constitution. Nonetheless, it was assumed that Congress would be a deliberative body, which could “refine and enlarge the public views.” As Mansfield explains, “through elections of the people’s representatives, the legislature not only puts a distance between itself and the people’s momentary inclinations but also draws the virtue out of the people (for virtue does exist there) and sets it to work (Federalist 55, 57).”32 Congress no longer functions primarily as a deliberative body. Moreover, as a representative body, it is less effective in reconciling, in a reasonable way, particular interests in light of the general interest. The deliberative function of Congress was eroded by the attack on reason itself, which was a product, in philosophical thought, of the triumph of historicism. Public reason was no more defensible than the faculty of reason itself, against the corroding influence of Darwin and Marx, and the success of the experimental method in science, which dominated nineteenth-century thought. Edward S. Corwin long ago pointed to the effectiveness of that attack. He observed that the principal affinity between Darwinism and Marxism
becomes clear when we turn to the philosophy of instrumentalism or experimentalism and its conception of thought as planning. Such a conception simply passes by as obsolete the idea of thought as the fine fruit of a cognitive, reasoning faculty which, just because of its detachment from the daily concerns of men, is able to arrive at abstract and permanent truths.… The autonomous reason of the eighteenth-century Enlightenment, the power to see things sub specie aeternitatis, is demoted by instrumentalism to a planning device for meeting the shifting demands of an ever changing environment, and is then further reduced to the ignoble role of a tool of propagandists. The eternal verities become, first, relative truths, then half-truths, or less than half truths, even deliberate falsehoods.33
Such an attack could not but succeed in undermining the idea of a common good, which is discerned by rational deliberation.
In America, the Progressive Era critique of the Constitution was part of a systematic attempt to compromise the older concept of reasonable government by undermining the authority of constitutionalism itself. Paul Eidelberg accurately and concisely formulated the character of that attack. The Constitution, he noted:
embodies or reflects fundamental notions of what is right and reasonable. Subject that law to frequent change and the very notion of what is right and reasonable will change as frequently. So undermine respect for that law and respect for all forms of authority will crumble beside it, above all, “the authority of reason, justice and truth.”
Moreover, says Eidelberg:
as the laws will be in a constant state of flux, so too will public opinion. But this means there will be no public philosophy, no unifying sense of tradition, no venture in a common destiny, but rather a restless pursuit of private interests, a general state of anomie or alienation. Hence, with the mutability of public opinion, the very notion of a “public” will become questionable.… All opinions will come to enjoy an equal status, except the opinion which renders everything equal. This being so, public standards or the rule of law will have been replaced by subjective feelings or the rule of numbers. The passions of ever-changing majorities, or of a dominant majority, will gain ascendancy. Temporary interests, expediency, unqualified pragmatism will dominate political life. As a consequence, the powers of government (no longer restrained by the principles of a permanent law) will vastly increase, although its purposes will be as obscure as “public opinion” or as variable as the passions of popular majorities.34
In such circumstances, legislation and deliberation will cease to be the primary function of the legislature. Public government, Eidelberg implies, will soon give way to private government, or a government without public purpose or principle. Ironically, this kind of society, without public purpose or principle, now called a pluralist society—or interest-group liberalism—has become the political ideal for twentieth-century democratic social scientists. This is not the first time that the foundations of constitutional government have been threatened. Carl Schmitt witnessed the collapse of constitutionalism in the overthrow of the Weimar Republic in Germany. His thoughtful analysis of the causes of the erosion of the function of deliberation, as an essential element of constitutional government, was made in that turbulent decade of the 1920s. In his critique of the “crisis of parliamentary democracy,” Schmitt scrutinized the connection between openness and discussion, not to mention reason, as crucial elements of the function of the legislature. Schmitt likens the distinction of the legislative and executive to the difference between law and decree, or reason and will. “Only a universally applicable law,” he observed, “not a concrete order, can unite truth and justice through the balance of negotiations and public discussion.” As a result, he noted, “Bluntschli … set out as an essential characteristic of modern parliament that it should not conclude its business in committees as the old corporate assembly had done.”35
Schmitt repeatedly emphasized the fact that “openness and discussion are the two principles on which constitutional thought and parliamentarism depend.… What was to be secured through the balance guaranteed by openness and discussion was nothing less than truth and justice itself.” He asserted that the “whole complex fabric of constitutional and parliamentary thought” can be summed up in the following: “All progress, including social progress, is realized ‘through representative institutions, that is regulated liberty—through public discussion, that is, reason.”36 If public discussion no longer culminated in general—not to say reasonable—legislation, the primary function of the legislative body is not legislation or deliberation, but the representation of interests.
Indeed, the modern state itself came subsequently to be viewed as one more interest, albeit a public interest because of its comprehensive character. By the second decade of the twentieth century, Max Weber could write “that the state was sociologically just another large business and that an economic administrative system, a factory, and the state are today no longer essentially different.”37 However, as Schmitt retorted, “a political form of organization ceases to be political if it is, like the modern economy, based on private law.”38 A government which is merely a faction is without moral authority. A representative of such a government is nothing more than a public entrepreneur as opposed to a private one.
If Congress no longer legislates or deliberates as the characteristic activity of that body, what role does it play? In the wake of the flurry of legislative activity that occurred in the mid-1960s, Congress erected a centralized administrative apparatus whose task was to solve, in a technically rational way—using the methods of science and social science—the social and political problems of industrial or postindustrial society. However, if Harry McPherson, a top Johnson aide, is to be believed, the animating force behind the Great Society was not the desire to legislate reasonable public policy. Rather it had its origins in the malaise of the intellectuals and the leadership class. It was essentially driven by the private passions of troubled elites. Their guilt could be alleviated by a creative public effort on behalf of the poor and middle classes. Publ
ic policy was apparently no longer a product of reason but derived from passion. McPherson observed that:
a new philosophy of government had emerged since New Deal days. In essence it held that our problems were more of the spirit than of the flesh. People were suffering from a sense of alienation from one another, of anomie, of powerlessness. This affected the well-to-do as much as it did the poor. Middle-class women, bored and friendless in the suburban afternoons; fathers, working at “meaningless” jobs, or slumped before the television set; sons and daughters desperate for “relevance”—all were in need of community, beauty, and purpose, all were guilty because so many others were deprived while they, rich beyond their ancestors’ dreams, were depressed. What would change all this was a creative public effort; for the middle class, new parks, conservation, the removal of billboards and junk, adult education, consumer protection, better television, aid to the arts; for the poor, jobs, training, Head Start, decent housing, medical care, civil rights; for both, and for bridging the gap between them, VISTA, the Teacher Corps, the community action agencies, mass transportation, model cities.39
Such an effort required the wholesale utilization of the expertise of the modern university. Rational deliberation of the public interest, which was not beyond the ken of an ordinary legislator, was replaced by a bureaucratic rationality designed to solve in a minute way all the problems of a technological society. As James Ceaser has written, “it is undeniable that social scientists helped supply the ideas that underlay many of the Great Society programs. It was, in fact, the heyday for social science, as the ‘new professionals’ within the government who had been trained in the social sciences stepped in to help devise the new programs, borrowing freely from current theories floating around academia. The era of the policymaking state had arrived.”40
With the arrival of the policymaking state, the kind of detailed information necessary to run it was not at the disposal of the typical legislator. The knowledge of the expert became the most valuable commodity of such a government. Furthermore, as Theodore Lowi noted, such “government is almost impossible to limit. Liberalism tends to universalize the scope and responsibility of government, and science then makes the liberal argument almost unassailable.” This explains, Lowi observed, “why legislation has grown broader and broader in scope, has become more and more abstract in definition, and is more and more universal in its applicability.” Lowi concluded that “the liberal approach to government has made government a magnet and has rendered representatives powerless to say no or to establish priorities among theories and needs. If a theory points to consequences, there is an obligation to act upon it. In fact, during the last two or three decades, the legislative process has not even required that legislators be knowledgeable about what to do or how to do it. It simply accepts the theory (‘whereas …’) and indicates that there is an injury and a likely cause (‘here’s the problem …’); then it delegates to an administrative agency the responsibility for doing something about it (‘go deal with it …’).”41
In a bureaucratic state, it is not much of an exaggeration to say that the typical activity of a member of Congress is the superintendence of the details of administration. Power has been decentralized and dispersed among numerous subcommittee chairs. At the same time, personal and committee staff has grown tremendously. Party and leadership authority has only been centralized when it has been necessary to prevent presidential use of power that could undermine congressional domination of the bureaucracy.
In such areas as fiscal policy formation or budget control, not to mention impoundment of funds, presidents of either party could no longer be trusted. Nonetheless, majority control of the House continued to be of great importance to the Democratic Party. That party created the bureaucracy and learned to benefit from its existence. If deprived of majority status, the Democrats would lose the ability to organize and control the House and determine its ends. If the members’ connection with the bureaucracy were severed, incumbency would be far less important, making electoral success much more precarious. Thus, Congress has organized itself in such a way as to allow individual members the ability to control, on a day-to-day basis, the various areas of public policy legally assigned to the federal bureaucracy. As individual entrepreneurs defending particular and organized interests, members of Congress have become very adept at advancing those interests, while at the same time obscuring responsibility for the growth of the administrative state. Their skill is reflected in the stunning rate of incumbent electoral success. In nearly every election since 1960, more than 90 percent of House incumbents have been reelected. In the most recent election, the election of 1990, 98 percent of incumbents in the House of Representatives were returned to office.42
A Constitutional Legislature
When the 101st Congress convenes in January 1991, it will not serve the same general functions and reflect the same constitutional purposes and principles as the body that met two centuries ago. In the minds of the Founders, the principle tasks of the legislature were lawmaking, deliberation, and representation. Practical experience under the Articles of Confederation and in the state constitutions revealed the difficulty of legislative domination of government. Few would have denied Madison’s sagacity, even before he became a member of that first Congress, when he noted in the famous fifty-first Federalist Paper, that “in republican government, the legislative authority necessarily predominates.” However, Madison had learned from John Locke that the legislative authority can predominate without the necessity of allowing the legislative body the ability to predominate in the governing process itself. Indeed, the practical success of constitutional government may depend upon preventing the domination of government by the legislative body.
John Locke had attempted to solve this problem by balancing executive prerogative against the legislature’s claim that the law is sovereign. As Locke noted in the Second Treatise, “because the laws, that are at once, and in a short time made, have a constant and lasting force, and need a perpetual execution, or an attendance thereunto: therefore tis necessary there should be a power always in being, which should see to the execution of the laws that are made, and remain in force. And thus the legislative and executive powers come often to be separated.”43
At first, as Harvey Mansfield has reminded us, “an executive power is needed … only in a subordinate capacity for the execution of the laws passed by the legislature.” But “as Locke’s exposition of rightly constituted government proceeds, he becomes more and more doubtful that government can be directed merely by laws,” says Mansfield. He notes that “foreign affairs cannot be directed by ‘antecedent, standing, positive Laws’ and requires the use of prudence; and even domestic matters… must be left in good part to the ‘discretion’ of the executive, soon called the ‘Supream Executor.’” Hence Mansfield concludes, “we have two supreme powers, one representing law, the other representing extralegal, even illegal, discretion.”44
The success of Locke’s scheme was dependent upon a single executive, armed with prerogative—or the ability to act for the public good even if it required breaking the law—and a numerous legislature. His theory presupposed an uneasy tension between the executive, whose prerogative and claim to rule derives from necessity, and the rational authority of the rule of law, which provided the moral claim of legislative dominance. Or as Carl Schmitt later formulated this dilemma: “whether the impersonal law or the king personally is sovereign.” Schmitt insisted that “it will always be necessary to make exceptions to the general rule in concrete circumstances, and that the sovereign is whoever decides what constitutes an exception.”45 In Locke’s view, the executive was in a better position to decide what constituted an exception, but there were no formal means of reconciling disputes between the executive and the legislature. The reason for this may be quite simple: in Locke’s thought, there was not yet a place for a written Constitution. As Mansfield notes, “in Locke’s conception, the constitution goes only so far as the law ext
ends; there is no fundamental or constitutional law above the ordinary law, and the prerogative power of the executive goes as much against the constitution when necessary as against the law. It is limited only by the end for which it is entrusted by the people, which is the public good as interpreted by the people.”46
The distinction between the legislature and the executive is analogous to the distinction between reason and will. As Schmitt explained, “the crucial distinction always remains whether the law is a general rational principle or a measure, a concrete decree, an order.”47 The legislature, a numerous body, is best able to make general laws, because such a body is most capable of reasoning or deliberating about public affairs. Consequently, Montesquieu insisted that “the great advantage of representatives is their capacity of discussing public affairs. For this the people collectively are extremely unfit, which is one of the chief inconveniences of a democracy.”48 It is the great diversity of the legislative body, which makes it most fit to deliberate and to represent diverse constituencies but also makes it unfit to act, or to exercise its will, in the manner of an executive. This difference can be seen in the observation of Carl Schmitt. The “idea of law,” he noted, “has always been conceived as something intellectual, unlike the executive, which is essentially active. Legislation is deliberare, executive agere.”49