The Problems of Founding

It was President's Day today, and given my obsessions with both civic life and holidays, it's probably not surprising that I find myself a little disappointed. No parades, only crummy furniture sales. Well, you can't have everything. But perhaps I can honor the day by putting down some thoughts which emerged in the context of a productive discussion in my human rights seminar a few weeks ago. (Yes, it's lecture time, but bear with me; Washington and Lincoln show up in the end.)

We were discussing notions of individual and group rights, and how defending the rights of the former can involving infringing upon the reigning conceptions of the latter. But where does that leave the group out from which the rights-bearing individual emerged in the first place? (The specific context of the discussion was Iraq, and whether one can coherently speak of fighting against some portion of the population of a state in the name of providing "rights" to another, in some ways indistinguishable portion of the population.) With a little bit of guidance from Rousseau, we gradually came to talking about the political problem of beginnings. Figuring out how to legitimately initiate a political project is a central, perhaps the central, preoccupation of political theorists, and takes us far beyond Iraq; it haunts Locke's theory of property rights, is echoed in the fears of ancient Roman republican thinkers, and animates the argument in Plato's Republic, the touchstone of all philosophical literature in the West. The crux is always the same: as Juvenal (and then Alan Moore) put it, Quis custodiet ipsos custodes? Who watches the watchmen? Or, more relevantly, who makes the rules for the rule-makers?

Ruling and rule-making wouldn't be much of an issue if we didn't connect legitimacy to the existence of a people capable of determining such for themselves. This isn't a democratic point; the idea of a government being legitimate, of truly serving or reflecting or at the very least merely belonging to, a particular people long predates the idea that such a people could directly or indirectly govern themselves. (Bernard Yack associates the emergence of this kind of pre-political sensibility to the modern democratic era, but the distinct notion of a people forming a specific, bounded body is much older than that.) To ignore the fact of peoples when talking about legitimacy, peoples who exist in particular places and thus can be distinguished from peoples in other places....that reduces "legitimacy" to a question of who or what has the brute power to draw a line and make everyone on one side of it submit to his sword or her gun. It's not politics, not even Hobbesian politics, because there's no polity, no incipient city or group or commonwealth to which matters of rule-making could be posed. Looking at the question this way, of course, suggests that "politics" remained the exception rather than the rule in too many places around the globe for many millennia, and remains the exception throughout much of the world today. I think that's right; "people-making" (or imagining, or articulating, depending on whether you prefer a more or less constructivist or essentialist approach to the question of peoplehood) precedes politics; the emergence of some sort of common, bounded consciousness--whether conceived on the part of the people as a whole demos (which would lead to some kind of popular sovereignty) or as a "public thing," a res publica, comprehended and tended to by some small, relatively elite group (a classical republic, in other words)--is a prerequisite to legitimate politics; outside of which, as Aristotle said, there are only monsters and gods.

Hence, we have to begin with a people. But how does that "beginning" begin? If we could convince ourselves (or reconvince ourselves, depending on how you read the last several centuries of intellectual history) that any given people definitely shared some common quality--a moral sense, a human nature, a basic rationality--that lent itself to political theorizing, then we could postulate a legitimate founding at the moment when this quality is put into play or addressed. In short, the social contract: whether driven by an empirically demonstrable fear of others (Hobbes) or a personal desire to secure our property (Locke) or by the force of Enlightenment itself (Kant), we could all agree to constitute a government in accordance with the requirements of that commonality which we all share. Of course, we won't all like all of the results all of the time, but having come together on common ground, we can call the resulting grouping "legitimate," since no one was left out.

The reason Rousseau is the most important of all modern political thinkers is that he forces us to deal with the history of inequality, unevenness, and dependency that characterizes the development of civilization, with its unavoidable consequence of always leaving someone out. Even if one accepts the existence of some universal quality shared equally by all those who potentially enter into the contract, there remains the problem that the prior constitution of "those who enter into the contract"--the act of people-making itself--was no doubt a bloody and exploitive affair, involving the imposition of unequal conventions on a natural world. Even basic rules of order are subject to this challenge. The principle of majority rule? Was that decided upon unanimously at some point, Rousseau pointedly asks, or was it also a forced decision which followed hard upon the emergence of decided unequal (in power, position, and wealth) majorities and minorities? I frequently quote in class one scholar's assessment of Rousseau as the "prophet of history who despaired of history," and his refusal to allow any "universal" characteristic of the world to excuse us from a consideration of how our groups and peoples historically got to be what and where they are puts his critique of social contract thinking front and central in this debate. It can be gotten around, of course (there was Locke's famous suggestion that the original, and very unequal, distribution of property rights could be considered legitimate as long as one acknowledged that there was "enough and as good" property left around afterwards), but not easily, and not without leaving tensions and fissures in any founded group that could explode it all apart at some later date. Rousseau's alternative was to abandon any hope for a universal quality or capability entirely, and content ourselves with contracting on the basis of some general act of will--a general will, that is. But wouldn't the content of that general will be suspect, being--as it must be--the product of local history as well? It would be, except that Rousseau does not believe the content of the contract arises from within the people. It comes from outside, from the legislator.

In all likelihood, if you've read this far you already know how this all adds up: Rousseau's quasi-divine lawgiver comes down from the mountain like Moses, hands over a law that fits the cultural requirements of the existing people and which they can therefore embrace in an act of general, perfectly equal willing, then departs (just as Moses couldn't enter the promised land). That last part is important: if the legislator sticks around, he or she becomes a part of the now founded people, bringing whatever particularity may or may not have lain behind the legislator's articulation of the law along with him or her, and thus compromising the general, unanimous willing. (The people will think: hey, that sneaky Moses, he left the best part of Israel for himself!) It's a wonderful myth of founding, but can we take it seriously? Of course not. And yet....employing Rousseau's analysis throws into sharp relief some of the contentious matters which face any political beginning. In Iraq today--its boundaries and inhabitants themselves a haphazardly drawn and ahistorical, post-colonial creation--there are Shiites and Sunni and Kurds, each with their own ugly histories and resentments. What kind of education in politics (or science or philosophy) will be sufficient for these groups to perceive in one another a common element upon which they can declare themselves all "Iraqis" and thus commonly obligated to whatever government emerges from "Iraqi" elections and receives consent under an "Iraqi" constitution? As I suggested in another blog entry a while ago, a much larger one that I think we or anyone else is capable of delivering in the short term, I'm afraid. So what's the alternative? How about President George W. Bush, legislator? Smashing the existing social structure, eliminating the history of oppression, American forces swoop in, grant a new law to the acclaim of the people, and then depart! Make sense? Well, no, not even on Rousseau's own terms: the people of Iraq are probably too poor, too divided, too numerous, and definitely too devastated, at least if the requirements listed in Rousseau's Social Contract are to be believed, for any lawgiver to play midwife to a constitutional order that doesn't have all sorts of bloody fingerprints all over it. (And then, of course, there's the fact that it is by no means clear that the "presence" of Bush the legislator will evaporate once the founding work is done.) So no, Rousseau's arguments do not provide a justification for American forces to credit themselves with creating the conditions for a legitimate founding in Iraq. But Rousseau's thought does force us to acknowledge both the rarity and necessity of such conditions, and puts other foundings which American lawgivers oversaw in a different, usefully comparative light. (Japan under Douglas Macarthur, for example.)

And so, this being President's Day, one's thoughts turn to George Washington, Abraham Lincoln, how they might fit into this model, and to a reflection upon how frequently we Americans hopefully talk about discerning "founding fathers" in whatever country we examine (or invade). Rousseau would likely have had as little respect for America's founding as he would for the one being attempted in Iraq today: the 13 American states had a population of over 2.5 million by the 1780s, stretched from the North Atlantic to the Gulf of Mexico, and had been built upon a century and a half of economic expansion, regional suspicion, and slavery. And yet....there's Washington, the noble planter, called to war by the Continental Congress. He fights, he wins, he retires. Then he is called to service by the Constitutional Convention, after which follows eight difficult years in power, after which he hands over the reins and steps back into private life (unlike, it must be said, Cromwell and Napoleon and practically every other military man turned ruler in human history). He was like some sort of Roman myth come to life--and it is a myth, of course. Historians can and have long since given life and shades of gray and context and self-consciousness to all these hagiographic stories about Washington. But all that good history (and if you're going to read about the historical Washington, do read James Thomas Flexner's biography of the man: 4 volumes, and every page a treasure) still can't undermine the basic fact: here is a man who from a very early age imbibed the ideology of republicanism, loved its more popular literary incarnations (like in the play Cato), and devoted himself to living its virtues and enacting its formal conceits. And the result was a man whose public identity so completely fulfilled the people's trust that he could....well, be a lawgiver. Take charge, take office, lay down the strategy, lay down the basic rules and expectations, and then depart, confident that all else would follow as it should. Which it did, more or less. He was not a philosopher, but he understood that in order to make lasting a people who had cut themselves off from their own source of identity, and had only words and deeds and local histories (but not a national one) to support their necessary self-conceptions, great dignity and care needed to be employed to cut for us a path. We were already here, but in an important way, he founded us; we would, very likely, have been lost without him, split apart into mini-states subject to constant replays of Shay's Rebellion. Would that every people could be blessed with a man like him.

Of course, there were nonetheless plenty of tensions in what Washington, riding upon and in some sense embodying the work and inspiration and sacrifice of so many others, enacted for all Americans, slavery being the most prominent. Our feelings about Lincoln are more passionate than those about Washington, and hence more divided; the "new birth of freedom" which we associate (correctly in general, though far from accurately in particular details) with Lincoln and the Civil War utterly burned away whatever tensions Washington's founding pulled us through, and left with a host of other, deeper scars. As I think the very best book about Lincoln's achievement, Garry Wills's Lincoln at Gettysburg, makes clear, Lincoln's re-founding was more romantic and aspirational than the one which had taken place 80-odd years previously; Lincoln himself, as is well known, had little desire to see a fully and freely multiracial society emerge in the United States, but he did proposed that the content of that group of people called Americans be something altogether distinct from race or locality. That last one grates on more than a few philosophical conservatives: a people without a place, indeed! Equality (or any other principle) arises from placed habits and history; it cannot be realized through some top-down intellectual intervention, even one backed up by force of arms, no matter how persuasive Jefferson may have such seem. Maybe Lincoln himself didn't believe that either (though I think he did; Jefferson's language was like scripture to Lincoln). But in any case Lincoln, the true father of America's civic religion, freed our attachment to such ideals from the republican, institutional embodiment they'd previously enjoyed in America--he out Rousseau-ed Rousseau, if you will, not so much drawing a general will out from the people as pointing us toward one: a people oriented towards the future, finding themselves in a "proposition." And then he was killed, leaving us alone, re-founded, and with the profound sense that anything which fails Lincoln's prophetic call cannot be called legitimate at all.

Sounds nice, doesn't it? Founding a people through acts of republican or romantic will alone, so long as the appropriate legislator can be found to make it all legitimately general. I don't particularly believe it; unlike David Brooks and all the other American exceptionalists out there, I don't think this country gets a uniquely Rousseauian pass towards legitimacy and away from history. Language still matters, culture still matters, and no amount of forward-thinking aspiration can clear one's politics of those. (Herder was more right than Rousseau.) That doesn't mean I'm a Lincoln-basher, much less a Washington one (on the contrary, I've a painting of the latter on my office wall that I've kept for years). It just means that, also like Rousseau (who was a wonderfully, frustratingly double-minded thinker), I believe politics will probably never escape history, no matter how excellent or willful the founding which gives the polity it's start. Tragedy rules all free states. But in the meantime, I'd rather be forced to recognize these hard historical realities, and the rare (and dangerous) ways to elide them, then to accept a doctrine of simple universals which will result in me being thrown for a loop every time (probably daily, like clockwork) it's revealed that a people need more than just a rational process to consent to. Maybe there's a Washington waiting somewhere in the backstreets of Baghdad; we should all hope there is, because President Bush, I'm afraid, is unlikely to play Moses. Of course, even if there does turn out to be such a person (or persons), and even if an Iraq with Rousseauian legitimacy can be founded out of the midst of conflict, that would still just be the first step. But first steps are worth holidays, at least.