6

The New Left Attack on Constitutionalism

Every state has a constitution — a body of principles, institutions, laws, and customs that forms the framework of government — but not every state is a constitutional state. The latter is distinguished by a commitment to constitutionalism, which in essence is the idea that political life ought to be carried on according to procedures and rules that paradoxically are in some degree placed beyond politics: procedures in other words that are fundamental. Nothing so positive as a written constitution, but rather the belief that the law as the embodiment of a society's most important values is powerful, characterizes government under the rule of law.

Apprehension about the future of constitutional government in the United States has increased in recent years. Political assassination, urban riots, the resort to civil disobedience by groups as disparate as striking postal workers and university students, the idea that politics is important enough to be the object of secret intelligence operations — all of this is evidence of a crisis in which the very legitimacy of public authority is called into question. In the long run, however, perhaps even more unsettling than these turbulent events is the intellectual and ideological challenge to constitutionalism that they have produced.

This challenge appears most significantly, I believe, not in the revelations of former White House aides, alarming as these are, but rather in the crisis literature of political science which has attempted to explain the upheaval of the past several years and offer a new theory of politics. The most obvious feature of this literature is its critique of pluralism. Interest-group liberalism, the antipluralists emphatically conclude, is the dead end, not the vital center, of American democracy. Dissatisfaction with liberal pluralism is not new, however, and in the recent literature it does not provide the special animus of the attack on the liberal state. Rather impatience with constitutionalism, which runs pretty deep amid the consciousness raising and political involvement of our time, forms the essential theme of the attack on pluralism.

The fundamental charge against pluralism is that it is not real democracy, but rather a system of special privilege by which the rich and powerful protect their interests at the expense of the people. American politics, the antipluralists insist, simply does not work the way it is supposed to in theory. It is fatuous, they say, to think that a vast number of competing and roughly equal groups interact freely in the political decision-making structure. On the contrary, a few corporate giants control the political system. An even more damning indictment of pluralism is that it excludes many groups from the political process entirely. Blacks, the poor, students, women, and sundry minorities are all seen as relegated to a condition of noncitizenship outside the political arena.¹

If it is suggested that American politics is actually responsive to demands from nonelite groups, the antipluralist answer is that the system may work after a fashion, but the workings are all trivial and irrelevant. The root of the trouble is said to be the biased context in which interest-group politics operates. The political process may be open, the media relatively accessible, freedom of speech and of the press secure. All this is beside the point, however, for what is really important, say the critics, is "the other face of power," that is, the class bias of pluralist politics which prevents issues of real concern to the community from being brought into the political arena. The groups which control the system ignore problems such as urban blight, public transportation, worker alienation, and environmental destruction. What officials do not do, the argument runs — the nondecisions they make — are more important than the decisions they make about insignificant matters.²

From here it is but a short distance to the doctrine of repressive tolerance. Because the political system is managed in the interests of dominant economic groups, Herbert Marcuse argues, there is an objective contradiction between the political structure and the theory of pluralist toleration. In practice equality of tolerance becomes abstract and spurious, an instrument of coordination and control rather than a means of effecting change. Benjamin R. Barber holds that when toleration is examined in the context of liberalism, with its assumption of a utilitarian and individualistic ethic, it is revealed as negligence of the public interest. The attitude which this kind of criticism encourages will be recognized by anyone who has been on a college campus the past five years. Student radicals take part in an election, work hard for a candidate, and then if the candidate loses decry the system for failing once again. In a gloss on this attitude, Barber states that the contemporary crisis is rooted in skepticism about the ability of the system to serve the interests of fixed minorities, who cannot or will not be assimilated into it. The procedures of democratic pluralism become in this view mere legitimizing rituals and the right of dissent an instrument of oppression. Barber concludes ominously: "The politics which concerns itself with the good life,... which aims at virtue rather than at mechanistic freedom, may not find much room for, or be particularly interested in, tolerance."³

As Barber's statement suggests, the critique of pluralism goes beyond an accounting of the specific failures of the liberal state in America. What is being challenged is the very idea of constitutionalism itself. This is most apparent in the antipluralists' preoccupation with political action.

Constitutionalism, they contend, even in its original eighteenth-century formulation, was flawed by its failure to contain a concept of political action. Beguiled by the idea of applying science to politics, the founders of constitutionalism sought to control human behavior by devising rules and procedures for the conduct of government that would eliminate the need for political leadership and citizen participation. Placing their faith in institutions rather than men, they provided no space for political action and designed a mechanistic system which depersonalized, trivialized, and fragmentized political life. Antipluralists charge further that constitutionalism comprehends and protects mere private economic interests. It thus denies the vision of politics as an educational and salvational activity, and the possibility of defining and achieving a true public purpose. In liberal society a "nondirective constitutionalism" aimed at containing competing interests is substituted for authentic political community.⁴

Those who think of politics as the art of achieving the possible and see in the constitutional system broad scope for political action may wonder about the criteria used to reach these negative conclusions. And indeed skepticism is warranted, for the antipluralists' critique of constitutionalism depends heavily upon a conception of political action drawn more from philosophy than from ordinary language and experience.

Following Hannah Arendt, critics of pluralism hold that political action refers to acts which are novel, consequential, purposive, irreversible, and indeterminate. All else, including the routine and often predictable responses which characterize a stable constitutional regime, are defined — and dismissed — as behavior. Perhaps not every antipluralist critic would subscribe to precisely this formulation of the issue, but the demands for relevant action and meaningful change heard so often these days come pretty close to capturing the more technical definition. A corollary notion taken also from Arendt is the idea of public space. As used by the antipluralists, public space refers to opportunities in which men can appear to others and disclose themselves in speech and action. This seems familiar enough, and we readily think of the range of legally protected liberties under the first and fourteenth amendments. But if speech and action and petitioning of the government avail nothing in the way of boundless, novel, unanticipated, and indeterminate results — nothing that meets the criteria of political action — then there is evidently no true public space or genuine political freedom.⁵

If constitutionalism is seen as defective in its original conception, it is criticized all the more in its present-day reality for suppressing authentic politics. This emerges most clearly in the attack on the "process theory" of democracy. Classical democratic thought, the critics argue, posited broad popular participation in politics in pursuit of the common good. In the Cold War era, however, pluralists revised the classical theory by concluding that democracy consisted in procedures and practices which assured a stable political system characterized by low popular participation. Liberal democracy became in essence a process distinguished by voter apathy and elite manipulation.⁶

Although the antipluralists do not quite say that procedure is unimportant, they believe it has too often been honored at the expense of higher values. John Schaar thus decries "the liberal fear of politics and the inability to see that the politics of a free people both depend upon and promise more than a machinery of offices, procedures, statutes, and programs." After students shut down many universities in 1970, Schaar and Sheldon S. Wolin explained that a major factor in the domestic crisis was Americans' unduly narrow conception of politics as bargaining, compromise, and electoral contests. The "rules of the game are many and confining," the Berkeley professors commented, and "hence small novelties look like major violations." In similar fashion Wilson Carey McWilliams has suggested that any solution to the contemporary political crisis must involve an abandonment of our fascination for a government of mechanical contrivances designed to avoid conflict, if not to eliminate politics altogether.⁷

Impatient, if not scornful of procedure, antipluralists regard politics as a matter of commitment and values and substantive results. Pluralism in contrast is seen as excessively concerned with stability and efficiency and, therefore, as essentially antipolitical. Christian Bay epitomizes the antipluralist animus in condemning what he calls the liberal myth that American society is democratic and that only by working within the constitutional system can a more just society be created. The most urgent contemporary need, says Bay, is to destroy this myth.⁸

Certainly the critics of liberal pluralism have done their demythologizing best. It remains to ask, however, what they would have in its place and how their reform ideas stand in relation to constitutionalism.

In the recent crisis literature three tendencies can be discerned on the question, what is to be done? One looks to civil disobedience as a source of political renewal, a second contemplates the democratization of economic organizations, and a third urges a new theory of politics based upon a revival of citizenship.

Although practitioners of civil disobedience may see it as a way of bringing down the system, scholarly interpreters contend on the contrary that it can make the political system work better. Civil disobedience, they reason, can become a new form of representation with the potential to revitalize democratic citizenship. Those who engage in civil disobedience are seen as a legitimate opposition whose political actions may enlighten the government and, by informing it of its misuse of power, actually enhance the rule of law. Tyranny being the exclusion of the public from the political, reasons Wilson Carey McWilliams, we are perilously near that condition now. Yet a way out is provided by civil disobedience, which by enabling citizens to gain access to the public can be a means of constitutional reform. Hannah Arendt views civil disobedients as organized minorities expressing their disagreement with the majority. Placing recent protesters in the tradition of voluntary associations, Arendt's novel argument envisions formal recognition of a lobbyist, group representation role for civil-disobedient minorities.⁹

The hostility that people feel toward a nameless bureaucracy may lead in the future to further spasms of civil disobedience. It is hard to take seriously, however, the suggestion that "disciplined civil disobedience is possibly a creative way to ask citizens of the state if they are satisfied with other aspects of the delegational model that has served well but which may not have produced the most equitable and efficient allocation of power and resources to deal with emergent disaffection and unmet needs in the national polity."¹⁰ If civil-disobedient groups do somehow become "constitutionalized" they will be part of the pluralist political structure, a curious and disappointing conclusion, it would seem, from the radical point of view. Should civil disobedience increase, however, and produce a body of concerned participating magistrates as McWilliams urges,¹¹ the result will more likely be an expedient people's justice than constitutional government as we have known it historically.

A second reformist theme of the antipluralists concerns the enforcing of accountability and responsibility in the economic power structure. It has become a commonplace to observe that corporations wield political power and make policies no different in substance and effect from those of public officials. What is needed is to broaden the definition of the political to include these nominally private but actually public institutions.

One way of constitutionalizing corporations is through judicial and administrative regulation. Because this would mean more of the same sort of centralized national regulation that has seemed so ineffectual in the past, however, antipluralists take a dim view of it. They argue instead for "participatory democracy." This is surely one of the more imprecise terms of contemporary political discourse, but in the present context it means control of corporations by those who work in and are affected by them. The system of self-management that exists in Yugoslavia is taken as model. Workers would form the board of directors or governing council of a business or industry, or in larger enterprises elect delegates to a council. The point is not to redistribute property, but rather to encourage democratic participation at the place of work in order to reduce people's sense of powerlessness and contribute to their self-development. Industrial democracy would make workers citizens of the enterprise rather than corporate subjects. And by enabling them to see the relationship between public and private spheres it would in turn make them better citizens of the state.¹²

A politically engaged citizenry, the ultimate objective of both civil disobedience strategy and participatory economic democracy, lies at the very center of the third tendency in antipluralist reformism, the quest of a new theory of politics. The immediate purpose of this quest is a regeneration of citizenship and the creation of opportunities for genuine political action. But for this to take place a new way of thinking about politics is required. And this means rejecting as the proper method of political science the point of view known as behavioralism, defined generally as empirical, positivistic, value-free description of the existing political system.

The trouble with behavioralism, the antipluralists argue, is that it takes what is for what ought to be: professing to be morally neutral and rigorously objective, it turns out to be normative after all. What is more, this unacknowledged normative influence is exerted in support of pluralist constitutionalism. The techniques of behavioral political science, the antipluralists observe, can be most effectively applied to organized, predictable, routine processes. As constitutionalism produces exactly this kind of political and social phenomenon, it encourages behavioralist studies, which in turn reinforce the constitutional order. According to its critics, behavioralism perpetuates faith in the utilitarian, technical rationality characteristic of liberal constitutionalism.¹³

Antipluralists propose a new political theory that will not be restrained, as behavioralism is said to be, by facts selected as functional prerequisites of the existing order. On the contrary, political theory must recognize the facts of the real world that do not accord with the received liberal wisdom, and thus open itself to new possibilities. Rejecting the ideal of an objective social science, antipluralists contend that factual knowledge about what is or has been should not dominate political education, as it usually has. Sheldon Wolin states that the knowledge characteristic of the new theory of politics is suggestive and illuminative, rather than explicit and determinative. Instead of accepting the assumptions of the established system, the new political theory will acknowledge as all-important the context in which events occur and will show respect for the people who engage in political action.¹⁴

Taking the argument several steps farther, Henry S. Kariel calls for a social science that instead of reconciling us to our fate will expand political reality. In Kariel's view the new political theory must provide metaphors, models, languages, forms, and conceptual frameworks that will make it possible to identify the contours and meaning of political life lying below the surface of society. Sharing the sense of failure that many political scientists felt at their inability to predict the upheavals of the sixties and early seventies, the antipluralists are warning us to grasp and make sense of this new reality. The social scientist, says Kariel, must interpret the actions of previously suppressed persons in such a way as to bring them into — and thus expand — the political present. Sheldon S. Wolin similarly declares that with the world seemingly coming apart, a theoretical imagination is needed which will admit new facts and restate new possibilities.¹⁵

Wolin's appeal has not gone unanswered. Indeed the antipluralist theoretical imagination has been exceedingly active in trying to discern the political meaning of recent events. With a kind of apocalyptic zeal it projects the vision of a dynamic politics of commitment in which participating citizens find a new ground of being and realize their true humanity and potential as individuals. The apathy and indifference of pluralism are not only condemned on moral grounds, they are stood on their heads and transformed into a throbbing political activism. Full participation — "nothing less than a society all of whose members are active participants in an interminable process — and who will not mind such activity," says Kariel — is the goal. The key to attaining it lies in enlarging the public space within which true political action can take place. Outsiders, the underclass, apolitical men and women who desire to speak and act in public and gain recognition, are to be brought into the political arena. To overcome people's feelings of alienation and powerlessness, the distance between them and government must be reduced, the height of government scaled down, the veil of secrecy about government lifted. A public life of common involvements will be the result.¹⁶

Empirical as we are, we think of public space in concrete terms and wonder which new modes and forms and jurisdictional arrangements will implement this vision. In their reaction against positivistic social science, however, the antipluralists incline toward a symbolic view of the problem of public space. Robert J. Pranger writes that the boundaries of the political arena may be territorial and organizational, but also spiritual and intellectual. Pranger finds inspiration in Hannah Arendt's description of the ancient polis as "the organization of the people as it arises out of acting and speaking together," its true space lying "between people living together for this purpose, no matter where they happen to be." The political space, time, distance, and choice in which citizenship consists are thus more a matter of psychological perception than objective reality. In an age when alienation is assumed to be a mass phenomenon this is perhaps to be expected. It is striking nevertheless to learn that the picture of the French resistance during World War II — as a "republic of silence" without formal institutions or leaders, in which political actions were taken with a sense of common involvement and responsibility for the freedom of others — is taken as a model of participatory politics completely irrespective of its empirical or historical accuracy.¹⁷

Citizenship in the new political theory, instead of being an empty catalogue of subjects' rights, becomes an opportunity for creative political action. Citizens acting in true community define themselves as human beings, gain knowledge of themselves and others, and discover that which unites them as brothers. Participation in decision making becomes an ennobling and educational venture which overcomes the separation between man and citizen, unites personal and social forces, and eliminates the dichotomy between public and private.¹⁸ In the upper reaches of the new political consciousness, Sheldon Wolin and John Schaar tell us, "knowledge, personal identity, and public commitment are part of the same quest." Benjamin R. Barber offers a new word — "philopoly" — to describe the love of politics for its own sake that will characterize true democratic participation. Equally optimistic, Henry S. Kariel urges that the pleasures and rewards of political discourse and deliberation be extended to everyone rather than kept by the elite for themselves. Politics, Kariel suggests, ought to be regarded "as a form of play, as characteristically a performing art" which becomes a manifestation of human freedom and "the determination to ... create publicly meaningful structures of being...." The outer limits of the new political universe seem to be reached in Herbert Reid's definition of politics as "the tendency of men in general to resist, whatever the means, the severing of meaningful self-world relationships...."¹⁹

In view of the quasi-religious character of the appeal, one might ask by what signs a second coming of authentic citizenship and true democracy would be known. Although the antipluralists profess an attitude of openness toward the future rather than an ability to predict it, they have at times assessed contemporary affairs in the light of the new political theory and indicated what the new politics might look like in the real world.

Despite their impatience with pluralist politics, some antipluralists regard voting as a possibly significant form of political action. The catch is that there must be a real choice, which according to one writer means following the candidates into office and affecting their policy decisions, and voting should be perceived as a manifestation of man's desire to appear in public and display his freedom.²⁰ These are large qualifications which, together with an awareness that an activated silent majority might well be "unprogressive" in outlook, lead the critics of pluralism to take only a reluctant interest in the usual forms of liberal politics. Organizing projects — in urban slums, on college campuses, and in factories — are a more likely expression of the new politics. Such efforts reflect the current interest in decentralization, with its assumption that the consensus-forming methods of small-group interaction can be applied to political and social problems. A few years ago attempts to incorporate "maximum feasible participation" in the federal government's war on poverty seemed to embody this approach. Yet none of these undertakings has seriously challenged the structure of pluralist politics.²¹

The events which have given antipluralists the clearest vision of a new politics, leading Wolin and Schaar to think that "perhaps even the birth of the American as a political man" was imminent, were the student strikes, ghetto riots, and general upheaval of the late 1960s. These developments, so disturbing to most people, were regarded with hope and expectation by the critics of liberal pluralism. Thus Henry S. Kariel suggested that what seemed to be violent and irrational actions were really controlled efforts to break with present actualities and create a new reality. Though threatening to middle-class sensibilities, they were rational actions which ought not to have been dismissed as "dysfunctional" to the system. Describing the youth of the 1960s, Wolin and Schaar recorded "a rich variety of truly political actions [which] showed a genuine concern for public things, thereby reversing the long trend toward privatization." In particular young people "argued, sang, marched, organized, sat in, milled around, walked out, and disrupted.²²

Even brighter promise appeared in the swiftly explosive reaction to the U.S. incursion into Cambodia in May 1970. Thousands of students who would have nothing to do with politics as usual engaged in the spontaneous and unpredictable political action that unfolded on the nation's campuses. According to Wolin and Schaar, this was a new politics, impatient with routine and contemptuous of compromise. Kinetic, pulsating, and shaped toward experiencing a climactic moment, it gathers energy and when confronted with abstract rules spills over into overt, unpremeditated, and collective violence. This violence, however, say these interpreters of the New Left, is to be understood as a protest against the pedestrian politics and stale rhetoric of liberalism. Assaulting the police is "a way of asserting that there is a human reality to the world, that the world is not all plastic and steel." Wilson Carey McWilliams reasons similarly that the politics of involvement demanded by the present crisis necessarily brings with it a kind of violence. It is the kind of violence, McWilliams writes, "that best enables a man to find himself, his friends, and a standard of legitimacy."²³

McWilliams is not talking about violence in the usual sense of physical assault, and I do not wish to imply that he and like-minded critics are advocating a brass-knuckles approach to political action. But one does wonder what they are driving at, and what the implications and effect of their analysis might be. These are not easy questions to answer, in part because the new political theory seems to disdain, not just politics as usual, but critical rational thinking as usual.

Wolin says that political life is elusive, and meaningful statements about it must be allusive and intimative. The new theory he advocates would deal in "tacit political knowledge" rather than "methodistic truths." Pranger goes further in declaring that there may be differences between the demands of theory construction and simple description of empirical facts. He suggests that a "suspension of the empirical" is involved in the formulation of the new political theory. When in the face of widespread social disorder Kariel advises the social scientist to "publicly ponder and implicitly exalt the sheer appearance of political life — the inexplicable fact that it is present at all" — suspension of the empirical seems to have become abandonment of common sense. Indeed an apocalyptic note, not dominant perhaps but distinctive nonetheless, enters the antipluralist crisis literature. It can be seen, for example, in Aristide Zolberg's speculation about "moments of madness" when the wall between the instrumental and the expressive collapses. "Is it farfetched," he asks, "to believe that those imbued with extraordinary sensibility provoke moments of exaltation, when the meek can more easily enter the kingdom?"²⁴

It may be, as anthropologist Stanley Diamond argues, that the rule of law is a symptom of the disorder of customary institutions and the decline of a civilization.²⁵ Believing that the second coming of true democracy, community, and participation would obviate the whole rule structure of the modern liberal state, the antipluralists seem to share this view. Until our political salvation is assured, however, we are justified in asking what the implications of the new politics and the new political theory are for constitutionalism.

Although the question usually is of interest to liberals and conservatives, some radical antipluralists, despite intense criticism of the liberal state, profess concern for constitutionalism. Theorists of civil disobedience and economic democracy seek ways of legitimizing new forms of dissent and constitutionalizing the great aggregates of economic power. A few theorists of the new politics say their purpose is to revise constitutionalism to provide greater scope for political action, diminishing the height of government but not removing the restraints upon it. In fighting for their causes, moreover, radicals will rely on constitutional rules for protection. Some caution further against rejecting bourgeois liberal constitutional ideals simply because they have often been a cloak for oppression, and express concern for constitutional processes within the radical movement, lest violence and brutality obliterate peaceful procedures. This is evidence that the attack on the pluralist system does not necessarily mean repudiation of the idea of constitutionalism.²⁶

Nevertheless, the new political theory of the antipluralists contradicts the fundamental ideas of constitutionalism. Those critics who profess to revise the theory of constitutionalism are mistaken, I believe, in their understanding of its essential meaning. To them — and inferentially to the antipluralists in general — constitutionalism means, or ought to mean, the people as constituent power, the source of authority and ground of law. It means further the people creating political power by forming a social compact and exercising that power in governing themselves. The ancient notion of popular sovereignty, dating from the founding of the republic, epitomizes this conception of constitutionalism.

Its root idea is politicism, the belief, that is, that political will and the force of personality, knowledge of the good and the will to realize it in acts of wisdom, are more important for good government — and more decisive in determining the course of events — than any institutional framework or procedural arrangements. Governments are like clocks, runs the old aphorism, and go from the motion men give them, not from anything in themselves. This politicist argument has always had considerable appeal. When it is applied to the people has a whole, and they are invested with the power of political action — especially as the antipluralists would define political action — it acquires even greater force, if indeed it does not become irresistible.

But while flexibility, discretion, personal character, and freedom of political action — the elements of politicism — have had a place in the constitutional tradition, they have not formed the essence of it. In essence constitutionalism has meant adherence to certain formal procedures embodying and promoting the fundamental values of liberty, equality, and justice; to ways of conducting politics and managing public affairs which preserve a space immune to or beyond politics. In other words, while the people have been the constituent power, their power to govern — popular sovereignty — has been limited by their own constitutional creation. At its inception in the eighteenth century American constitutionalism was marked by an extraordinarily democratic basis, and the people as constituent power was the most startling of the revolutionary ideas.²⁷ Yet the idea that a constitution was superior to and controlling of the political power of government, even when the people themselves exercised that power either through established institutions or outside them, was also part of revolutionary constitutionalism.

In the history of Western political thought this idea of fundamental law was as remarkable an innovation as the notion of the people as constituent power. In the long run it became the truly distinctive feature of American constitutionalism. The Constitution was conceived of as a means of conducting politics, but it did not consist in a mere declaration of purposes or a set of exhortations, as the French constitution of 1791 did. It was on the contrary explicitly declared to be law, the supreme law of the land along with treaties of the United States and acts of Congress made in pursuance of it. Ordinary law, as between private persons, was to be used to regulate the acts of government and the energies and passions of politics. And this political law maintaining the structure of the body public and protecting individual liberty against encroachment by the government, a paradoxical and contradictory thing according to the best learning of the day, was to be enforced by ordinary courts of justice. It was altogether a curious amalgam which, in conjunction with the division of power between national and state governments known as federalism, effectively destroyed sovereignty as it was then known. And it meant too that popular sovereignty must be stillborn, must be placed under constitutional restraints as well.

It is the age-old politicist drive to be free of procedural restraints which informs the antipluralist appeal for a new politics. Expressing this appeal in modern terms of commitment, transcendence, and self-fulfillment, the critics resurrect the classic democratic ideal of an engaged citizenry exercising political and legal sovereignty and standing above institutions. But no better than anyone else are the antipluralists able to explain how fundamental fairness can obtain in a system of government in which all is politicized.

The essence of the political is discretion, discrimination, expediency, adjustment of conflicting claims on a pragmatic basis. The essence of the legal is general and prospective rules that result in regular and predictable procedure. A constitution must of course generate power as well as channel it. It must comprehend both the political and legal dimension. And in a strict sense we cannot say that one is more important than the other; both are essential. Yet while we can be certain that political energies and passions and conflicts will continue to manifest themselves, with the insistence and power seemingly of natural forces, the experience of the twentieth century tells us that the existence of a stable and just system for restraining these forces cannot be taken for granted. The opposite of constitutionalism — arbitrary and coercive government which denies political liberty and free public criticism — must be guarded against. And this means keeping in mind, to use the language of social science, a contrast-model.

From the 1930s to the 1950s totalitarian regimes in Europe provided a vivid contrast-model which led intellectuals in the United States to reconsider their own constitutional tradition. Instead of dismissing the rule of law as a conservative fiction and a device for maintaining the status quo, as many had done, they came to see it as a valid distinction between systems of government. A revival of interest in constitutionalism occurred which made it a principal theme in modern liberalism.²⁸

The antipluralists have reacted against liberal constitutionalism as though it were entirely ideological — a reflection of the false consciousness of its adherents — and lacking any basis in historical reality. They deny the validity of the totalitarian contrast-model on the ground that it fosters complacency and, by failing to emphasize problems, forecloses the possibility of change.²⁹ Yet it is difficult to ignore recent history — right down to the latest interdiction of free speech and academic inquiry by student radicals — and hard not to be apprehensive about a political theory that exalts popular participation and political action to the extent that the new politics does. It may seem entirely clear to the heralds of the new citizenship that the mass participation of modern technological society is completely different from the true democratic participation they envision, but a skeptical view of this distinction seems warranted How realistic is it to think that men and women will engage in politics for the sheer love of it, apart from practical purposes? Benjamin R. Barber states that "a new era of philopoly might help to make life for man in the post-historical epoch livable."³⁰ It would be more accurate to say that only after history ends — in the world to come — will people play at politics for the love of the thing itself, as some antipluralists believe.

If the present crisis is rooted in an erosion of community which has released proliferating forces of conflict, calling into question the authority of government and politicizing all manner of social processes and relationships, the solution lies not in further encouragement of politicist tendencies but in their being brought into a more stable equilibrium with the essential ideas and procedures of constitutionalism This will not be accomplished by stern admonitions from high officials to respect law and order, especially now in the light of the Watergate revelations Whether the crisis can be surmounted according to prescriptions offered meanwhile by political scientists in the liberal constitutional tradition may also be doubted These solutions range from Lowi's juridical democracy, to Friednch's call for inspirational democratic leadership, to Tugwell's new model constitution Appealing as these suggestions are, they seem to assume against the evidence that someone somewhere has the knowledge and power to set things right.³¹

The crux of the matter is the tendency and habit of ordinary citizens to regard political institutions and procedures as legitimate In the United States legitimate authority derives in large part from the direct link with the eighteenth-century Framers' act of foundation and the consensual basis on which it rested. This basis has been seriously challenged, but how far the disintegration of community has gone is not clear Probably it has not gone as far as the dramatic events of a few years ago seemed to indicate The structure of assumptions, beliefs, and practices in which constitutionalism consists may be more solidly based than it appears in the crisis literature Nevertheless, the antipluralists' insistence on ever greater political participation and action reflects and represents a challenge to constitutionalism that is not merely academic.³² If the liberal constitutional order collapses, the critics of pluralism might consider, it is not at all likely that a left-wing movement dedicated to participatory democracy will take its place.

Notes

Research for this article was supported by a grant from the American Bar Foundation for research in constitutional and legal history.

1 Peter Bachrach, ed., Political Elites in a Democracy (New York, 1971), pp. 4-11, Michael Parenti, "Power and Pluralism: A View from the Bottom," Journal of Politics, XXII (August, 1970), pp. 501-30, and "The Possibilities for Political Change," Politics and Society I (November, 1970), pp. 79-90, C. George Benello and Dimitrios Roussopoulos, eds., The Case for Participatory Democracy Some Prospects for a Radical Society (New York, 1971), pp. 4-5, Christian Bay, "Hayek's Liberalism: The Constitution of Perpetual Privilege," The Political Science Reviewer, I (Fall, 1971), pp. 93-124, Duane Lockard, The Perverted Priorities of American Politics (New York, 1971), 18, pp. 314-15.

2 David M. Ricci, Community Power and Democratic Theory: The Logic of Political Analysis (New York, 1971), pp. 62-63, William E. Connolly, ed., The Bias of Pluralism (New York, 1969), pp. 13-17, Peter Bachrach and Morton Baratz, "Decisions and Non-Decisions An Analytic Framework," American Political Science Review LVII (December, 1963), pp. 632-42.

3 Herbert Marcuse, "Repressive Tolerance," in Bachrach, ed., Political Elites in a Democracy, 138-69, Benjamin R. Barber, Superman and Common Men Freedom, Anarchy, and the Revolution (New York, 1971), pp. 94-96, 101-02.

4 Kirk Thompson, "Constitutional Theory and Political Action," Journal of Politics XXXI (August, 1969), pp. 655-81, Sheldon S. Wolin, Politics and Vision Continuity and Innovation in Western Political Thought (Boston, 1960), pp. 388-92, 433-34, Darryl Baskin, American Pluralist Democracy A Critique (New York, 1971), pp. 59-73, 96-98, 175-76.

5 Thompson, "Constitutional Theory and Political Action," pp. 657-61, Hannah Arendt, The Human Condition (Chicago, 1958), pp. 175-247, Robert J. Pranger, Action, Symbolism and Order: The Existential Dimensions of Politics in Modern Citizenship (Nashville, 1968), 10, pp. 100-02.

6 Graeme Duncan and Steven Lukes, "The New Democracy," Political Studies, XI (June, 1963), pp. 156-77, Lane Davis, "The Cost of Realism Contemporary Statements of Democracy," Western Political Quarterly, XVII (March, 1964), pp. 37-46, Jack L. Walker, "A Critique of the Elitist Theory of Democracy," American Political Science Review, LX (June, 1966), pp. 285-94, David M. Ricci, "Democracy Attenuated Schumpeter, the Process Theory, and American Democratic Thought," Journal of Politics XXXII (May, 1970), pp. 239-67.

7 John H. Schaar, book review, American Political Science Review LXIV (December, 1970), p. 1259, Sheldon S. Wolin and John H. Schaar, "Is a New Politics Possible?" New York Review of Books, XV (September 3, 1970), p. 3, Wilson Carey McWilliams, "On Violence and Legitimacy," Yale Law Journal, LXXIX (March, 1970), p. 645.

8 Christian Bay, "Politics and Pseudopolitics A Critical Evaluation of Some Behavioral Literature," American Political Science Review, LIX (March, 1965), pp. 39-51, and "Foundations of the Liberal Make-Believe Some Implications of Contract Theory Versus Freedom Theory," Inquiry, XIV (Autumn, 1971), pp. 213-37.

9 Paul F. Power, "On Civil Disobedience in Recent American Democratic Thought," American Political Science Review, LXIV (March, 1970), pp. 35-47, and "Civil Disobedience as Functional Opposition," Journal of Politics, XXXIV (February, 1972), pp. 37-55, Wilson Carey McWilliams, "Civil Disobedience and Contemporary Constitutionalism The American Case," Comparative Politics, I (January, 1969), pp. 211-27, Hannah Arendt, "Reflections Civil Disobedience," New Yorker (September 12, 1970), pp. 78-105.

10 Power, "On Civil Disobedience in Recent American Democratic Thought," p. 47.

11 McWilliams, "Civil Disobedience and Contemporary Constitutionalism," p. 222.

12 Peter Bachrach, The Theory of Democratic Elitism: A Critique (Boston, 1967), pp. 72-104, Carole Pateman, Participation and Democratic Theory (Cambridge, 1970), passim, Kenneth A Megill, The New Democratic Theory (New York, 1970, pp. 89-120 Robert A Dahl, not otherwise an antipluralist, has endorsed this approach in "Power to the Workers?" New York Review of Books, XV (November 19, 1970), pp. 20-24 See also "The New Corporatism," the entire issue of the January 1974 Review of Politics, to be published with some additions as a book in the spring of 1974 by the University of Notre Dame Press.

13 Shelton S. Wolin, "Political Theory as a Vocation," APSR, LXIII (December, 1969), pp. 1062-82, Herbert Reid, "Contemporary American Political Science," Midwest Journal of Political Science, XVI (August, 1972), p. 365, Ricci, Community Power and Democratic Theory, pp. 62-63, 211, Bay, "Politics and Pseudopolitics", Charles A McCoy and John Playford, eds., Apolitical Parties A Critique of Behavioralism (New York, 1967).

14 Wolin, "Political Theory as a Vocation," pp. 1070-71.

15 Henry S. Kariel, Open Systems Arenas for Political Action (Itasca, Ill., 1969), p. 7, Kariel, "Expanding the Political Present," APSR, LXIII (September, 1969), pp. 774-75, "Terminal Cases," The Political Science Reviewer, I (Fall, 1971), pp. 84-85, Wolin, "Political Theory as a Vocation," p. 1081.

16 Kariel, Open Systems, p. 73, and "Terminal Cases," pp. 85-91, Pranger, Action, Symbolism, and Order, pp. 6, 29, and The Eclipse of Citizenship Power and Participation in Contemporary Politics (New York, 1968), pp. 68-72.

17 Barber, Superman and Common Men, p. 109, Pranger, Action, Symbolism, and Order, p. 6, and Eclipse of Citizenship, p. 97.

18 Ibid., p. 89, Pranger, Action, Symbolism, and Order, p. 107, Darryl Baskin, "American Pluralism Theory, Practice, and Ideology," Journal of Politics, XXXII (Fall, 1970), pp. 71-95, and American Pluralist Democracy, pp. 173-74, David Kettler, "The Politics of Social Change The Relevance of Democratic Approaches," in Connolly, ed., The Bias of Pluralism, pp. 213-49, Connolly, "Liberalism under Pressure," Polity, II (Spring, 1970), pp. 365-66, Wolin and Schaar, "Is a New Politics Possible?" p. 4.

19 Ibid., p. 10, Barber, Superman and Common Men, pp. 96, 122, Kariel, "Expanding the Political Present," p. 773, Reid, "Contemporary American Political Science," p. 365.

20 Pranger, Eclipse of Citizenship, p. 71, Kariel, "Expanding the Political Present," p. 774.

21 Pranger, Eclipse of Citizenship, p. 92, Kariel, "Expanding the Political Present," p. 774, Dorothy Buckton James, "The Limits of Liberal Reform," Politics and Society, II (Spring, 1972), pp. 309-22.

22 Kariel, "Expanding the Political Present," p. 771, Wolin and Schaar, "Where We Are Now," New York Review of Books, XIV (May 7, 1970), p. 3.

23 Wolin and Schaar, "Is a New Politics Possible?" p. 4, McWilliams, "On Violence and Legitimacy," pp. 645-46.

24 Wolin, "Political Theory as a Vocation," p. 1070, Pranger, Action, Symbolism, and Order, p. 105, Kariel, "Expanding the Political Present," p. 774, Aristide R. Zolberg, "Moments of Madness," Politics and Society, II (Winter, 1972), pp. 183-207.

25 Stanley Diamond, "The Rule of Law versus the Order of Custom," Social Research, XXXVIII (Spring, 1971), pp. 42-72.

26 Thompson, "Constitutional Theory and Political Action", Pranger, Eclipse of Citizenship, pp. 68-72, Barrington Moore, Jr., Reflections on the Causes of Human Misery and Upon Certain Proposals to Eliminate Them (Boston, 1972), pp. 112-14, Kettler, "The Politics of Social Change", Wolin and Schaar, "Is a New Politics Possible?" p. 4.

27 R. R. Palmer, The Age of the Democratic Revolution: A Political History of Europe and America 1760-1800 (2 vols , Princeton, 1959-64), I, pp. 213-35.

28 Herman Belz, "Changing Conceptions of Constitutionalism in the Era of World War Two and the Cold War," Journal of American History, LIX (December, 1972), pp. 640-69.

29 Lockard, Perverted Priorities of American Politics, p. 18, Connolly, ed., The Bias of Pluralism, p. 23, Duncan and Lukes, "The New Democracy," pp. 174-77 The intellectual discrediting of the idea of totalitarianism is described in Robert Burrowes, "Totalitarianism The Revised Standard Version," World Politics, XXI (January, 1969), pp. 272-94, and Herbert J. Spiro and Benjamin R. Barber, "Counter-Ideological Uses of 'Totalitarianism,'" Politics and Society, I (November, 1970), pp. 3-22.

30 Barber, Superman and Common Men, p. 122.

31 Theodore J. Lowi, The End of Liberalism Ideology, Policy, and the Crisis of Public Authority (New York, 1969), pp. 287-314, Carl J. Friednch, "Bureaucracy Faces Anarchy," Canadian Public Administration, XIII (Fall, 1970), pp. 219-31, Rexford G. Tugwell, "Constitution for a United Republics of America," The Center Magazine, III (September/October, 1970), pp. 24-45, Robert Y. Fluno, "The Floundering Leviathan Pluralism in an Age of Ungovernability," Western Political Quarterly, XXIV (September, 1971), pp. 563.

32 How literally unacademic the challenge is can be seen in a sympathetic critic's observation that to achieve true community advocates of the new political theory will not undertake empirical research, but rather will become actively involved in social movements, teach "skills of criticism to large numbers of people," and engage in "philosophical investigations into the structure of openness, integrity, and self-knowledge." Michael A Weinstein, "The Inclusive Polity New Directions in Political Theory," Polity, V (Spring, 1973), p. 372.

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