What’s Wrong with Democratic Theory?

What’s Wrong with Democratic Theory?

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Flexibility needs to be distinguished from arbitrariness. For government to remain flexible without becoming arbitrary, according to James Madison, the Constitution must permit and encourage discretionary political pushback rather than laying down strict legal prohibitions or restraints. To explore this theme, I propose to look at seventeenth- and eighteenth-century theories about democracy and the separation of powers. My working premise is that classical liberals advocated the separation of powers as a remedy to a number of perceived pathologies in republican government. But exactly what pathologies did they have in mind? Diagnosis dictates remedy. Therefore, by taking the remedy proposed by liberal constitutionalists as our starting point, we can walk back the cat and reconstruct, from their proposed cure (the separation of powers), the disorders they considered most likely to afflict representative democracy, or what they called “a government wholly elective” (Federalist Papers, #66). I will be taking most of my examples from the Framers of the American Constitution and the seventeenth- and eighteenth-century writers on whom they drew. Either by force of habit or in a rhetorical attempt to mollify Anti-Federalist forces, the authors of the Federalist Papers continued to cite Montesquieu's claim: “Lorsque, dans la même personne ou dans le même corps de magistrature, la puissance législative est réunie à la puissance exécutrice, il n'y a point de liberté; parce qu'on peut craindre que le même monarque ou le même sénat ne fasse des lois tyranniques pour les executer tyranniquement”. As a result, commentators regularly assume that the primary purpose of the separation of powers was to prevent the tyrannical oppression and violation of private rights that Montesquieu, and those who invoked him to oppose the Framers' centralizing plan, feared most. This is highly unlikely, however, because the principal threat to which the Framers were responding in 1787 was not tyranny but the contrary, namely, “an unequivocal experience of the inefficacy of the subsisting federal government” under the Articles of Confederation. Specifically, the new Constitution was designed to allow the fragile American republics, recently broken away from British control, to pool their efforts and coordinate their collective defence, not to mention their joint seizure of western lands, in a dangerously hostile international environment. The driving impulse behind the proposed Constitution, including its scheme for separating powers, was to create a more, not a less powerful central government. In more recent times, it should be said, the seventeenth- and eighteenth-century doctrine of the separation of powers has been criticized unsparingly from a variety of perspectives. Adam Przeworski, for instance, has written that the rise of political majorities, able to dominate the legislative and executive branches simultaneously, has made the doctrine “anachronistic” to the point that it “just makes no sense”. American progressives, by contrast, have attacked the separation of powers for the contrary reason, not because it is unworkable but because, “with its elaborate barriers to the exercise of effective governmental power”, it works too well, introducing so many veto points into the system that political paralysis and therefore status-quo or anti-reform biases are inevitable. Such criticisms were never raised at the time of the American Founding. Instead, Madison argued, paraphrasing Montesquieu, that “ambition must be made to counteract ambition''. But the main emphasis throughout the Federalist Papers is not on the way the separation of powers promises to limit, obstruct, check, arrest, impede, shackle, hinder, or brake potentially cruel and repressive power. Indeed, Alexander Hamilton repeatedly urged his readers never to “forget how much good may be prevented, and how much ill may be produced, by the power of hindering that which is necessary from being done”. The Framers' relatively attenuated concern for hindering tyranny, which seemed to them a remote threat at the time, helps explain why the Anti-Federalists opposed the Constitution they drafted and accused it of containing (what else?) the seeds of tyranny. But if the American Framers did not intend the separation of powers primarily as a barrier against the threat of tyranny and the violation of private liberty, what was its purpose from their perspective? They advocated the separation of powers as an obstacle against a different form of arbitrary rule, namely, the abuse of public office for personal advantage which, while leaving personal liberties largely undisturbed, would fatally erode public liberty and thereby destroy republican government at its root. More specifically, they designed the separation of powers to discourage and obstruct favouritism, self-dealing, rent-seeking, concealment of incompetence, corruption, and collusion among elected officials against the public interest. Such betrayals of the public trust by elected officials may be so hard to eradicate precisely because they are not monstrously tyrannical. They entail no shocking violation of private rights and thus give rise only to weak and erratic movements for reform. To preserve republican government, therefore, elections must be supplemented by the separation of powers. Hamilton nicely summarizes the threat that the Framers had in mind when he asserts that “cabal, intrigue, and corruption” are the “most deadly adversaries of republican government”. These, more than tyranny, were the fatal adversaries that the separation of powers was originally designed to defeat or at least to keep at bay. The inescapable vulnerability of republican government to such potentially fatal disorders is what led classical liberals to agree with Montesquieu that “all would be lost”, even in a wholly elective government, if the entire range of governmental powers was controlled by a compact group of individuals. Whatever critics say about the separation of powers itself, no one could possibly contend that this grim diagnosis itself no longer makes sense today or that subsequent advances in democratic constitutionalism have made the classical liberal alarm at “cabal, intrigue, and corruption” of merely antiquarian concern.

Source Publication

Modernity—Unity in Diversity? Essays in Honor of Helge Høibraaten

Source Editors/Authors

Kjartan Koch Mikalsen, Erling Skjei, Audun Øfsti

Publication Date

2016

What’s Wrong with Democratic Theory?

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