Boston University School of Law
Jack Balkin’s The Cycles of Constitutional Time aims, among other things, to preserve and promote what Jack regards as “democracy and republicanism,” understood as “a joint enterprise by citizens and their representatives to pursue and promote the public good.” My question is whether and how this normative project is possible in a world full of perceptions of social, political, and moral phenomena akin to the white dress/blue dress internet controversy of 2015. Even if Madison had the better of Montesquieu in 1788 (and that is questionable), the United States has grown dramatically since the founding era, in a patchwork, and often violent, fashion that paid little attention to preconditions for republican governance. The kind of basic homogeneity that Montesquieu thought was essential for republicanism – and here we are talking about agreement on things as basic as the nature and purpose of law and the meaning of “the public good” – is absent from the contemporary United States, and there is no good reason to think that anything on the horizon can take its place. As a result, the very concept of “the United States” is dubious, as is any project founded on that idea. Perhaps the one way to salvage such a project would be a massive reduction in the size and scope of government, so that the consequences of battles over essentially contested concepts such as justice and law are not apocalyptic. Put another way: The kind of republican cooperation and trust that Jack desires is probably possible only if the stakes of cooperation and trust are very low. Thus, there may be an additional element for successful republicanism that escaped even Montesquieu’s keen attention: a government of carefully defined and sharply limited powers.
Gary S. Lawson,
What is "United" About the United States?
Boston University Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1163
Working paper available on SSRN