The arbitrariness of Cass Sunstein's approach to constitutional interpretation weakens his critique of originalism.
Constitutionalism is in crisis—obviously in Europe, more arguably in America. High on the list of intellectual breakthroughs that might help us sort through our contemporary confusions is Georg Friedrich Wilhelm Hegel’s Philosophy of Right—to my mind, the best book ever written on the subject.
Argh! Barf! Say what?
I get it. In Hegel’s system, the constitution (Verfassung) is closely associated with “the State.” In the Philosophy of Right, the constitution is virtually synonymous with “the internal law of the state” (das innere Staatsrecht.) In other words, it is tied to the State as “the march of God in the world.” All that, plus the abstruse metaphysics, makes us cringe. And Hegel’s institutional prescription—“Let’s hear it for constitutional monarchy”— is unlikely to dispel the discomfort. You don’t have to subscribe to any of that, though, to learn a great deal from Hegel—in particular, his critique of liberalism.
The Critique of Liberalism
The crucial point is Hegel’s insistence that political liberalism (Hobbes, Locke, Kant, and, with some qualifications, Rousseau) confuses civil society with the State. Again, that makes us nervous; but the distinction has a very large kernel of good sense. The principle of liberal constitutionalism, Hegel says, is “endless subjectivity,” or what we call “individualism.” A liberal constitution is a contract among individuals, who consent to limits on their autonomy insofar, and only insofar, as they are consistent with individualist principles. (Think Locke’s Second Treatise.) To state Hegel’s central objection at phenomenological level: you can’t run a free country on that basis. At a deeper level: unchecked individualism is not all that constitutional government is about. The correct understanding of a “constitution,” Hegel says, is “the determination of rights, that is, of liberties in general, and their realization.” [“Unter Verfassung muss die Bestimmung der Rechte, das ist der Freiheiten ueberhaupt, und die Verwirklichung derselben verstanden werden.”] The first half—rights, liberties—captures the liberal baseline, which you can’t and don’t want to surrender. The second part captures liberal constitutionalism’s missing element: the realization of freedom, or the State.
Why is the conflation of society and state so fateful? Why isn’t the liberal framework of contract, rights, and liberties enough?
Hegel proffers several arguments. He says that contractual constitutionalism has no theory of public goods beyond the pooling of internal and external defense costs. It is all about preventing externalities—but what about providing street lighting? This is a trenchant objection to Locke and Kant. In fairness to liberalism, though, it has been answered: Buchanan’s and Tullock’s Calculus of Consent contains a compelling theory of public goods on Lockean premises.
More powerfully, Hegel says that Locke can’t explain heroism and sacrifice in defense of a liberal constitution. If self-preservation is the point of the exercise, it seems stupid to volunteer to die for it. That argument is correct and, so far as I know, unanswered.
Hegel’s most potent argument, though, is that liberalism’s civil society is a bourgeois society. Subjectivity (individualism) means division and alienation: mine versus yours, producers versus consumers, rich versus poor. No one can or should want to suppress that dynamic: there is too much freedom in it. Moreover, division is often mediated through exchange and reciprocity; that, too, is a piece of freedom. However, the dynamic produces a class society and a proletariat (Poebel, in Hegel’s terminology) that can’t recognize the benefits of reciprocity and contract and, in the end, becomes entirely alienated from the common enterprise.
The Marxist riff on Hegel’s thought is that liberal societies would inevitably produce increased alienation and collapse under their internal contradictions. That theory is obviously crazy. But the original thought from which it was derived remains highly salient.
Anyone from the Yale law faculty to the local Tea Party can follow Locke’s abstract individualism and crank up a constitution to suit his or her taste. The hard constitutional question, though, isn’t about abstract rights but lived, real freedom; not constitutional design but stability. And those things have to come from something outside, or on top of, the logic of subjectivity.
Libertarians don’t get that. Conservatives do, in a way. They all defend some set of institutions that can, or should, serve as sources of social stability, an inspiring public life, and a constitutional regime in which people can recognize themselves: the family, religion, patriotism, civic associations, and so on. With very few exceptions, though, conservatives proffer this stuff as a Lockean asterisk: let’s not get carried away with individualism. Hegel smelled the fusty air that hangs over the conservative argument, and he knew where it comes from: the failure to acknowledge that it is in the nature of individualism—“subjectivity”—to get carried away.
Take one example (very important in Hegel’s thought): the family. It enables individuals to get beyond the logic of rights and to recognize themselves in an institution—a kind of mini-state, though closer to nature than the state itself. That is a source of real freedom and stability, and you want to be mindful and protective of it. However, against the family stands liberalism’s question: why can’t I marry my dachshund, so long as he or she or it consents to the exclusive mutual use of our respective sexual organs? The Supreme Court has no answer, because it operates in a liberal society that can’t think of one. To rely on the family is to live on borrowed capital.
So what is the remedy? Hegel calls it Polizei—not the police (that is part of civil society) but administration. He had enormous hopes in rational administration and a professional civil service corps, not just as an embodiment of the State—an institution that can credibly mediate social conflict—but as the backbone of a stable and socially and constitutionally stabilizing middle class. In addition, Hegel favored an embryonic welfare state and poor relief—voluntary if possible, through public transfer payments if needed. He advocated this not because the poor might otherwise revolt but because everyone, including the poor, must be able to recognize themselves in the common enterprise. Freedom must be real.
What’s Wrong With Hegel?
It takes a deranged form of libertarian dogmatism to read Hegel’s critique of liberalism as a harbinger of collectivism. (For example, if his embrace of a modest welfare state makes him a collectivist, then so is Friedrich Hayek.) More likely, it’s the other way around: the bloated bureaucracies and transfer states of modern democracies suggest that Hegel missed something important.
What he got was one part of individualism’s corrosive nature: give me my rights. What he missed, to my mind, was the other half. Once you say (with Hobbes and Locke) that self-preservation is the end of society, it becomes hard to explain why protection should extend only to a sudden and violent death. If government is so good at curbing that existential fear, have it take care of all the others—hunger, poor health, a lack of leisure: let’s have a Second Bill of Rights. Signed, FDR. Huzzah, Cass Sunstein.
No modern democracy wants to be a Lockean Notstaat, as Hegel called it. They all stake their legitimacy and stability on a large public sector and on redistribution. (Most modern constitutions state these objectives explicitly; in the United States, they are effectively enshrined in the New Deal Constitution.) But the State hasn’t checked individualism. It has become wedded to it in a public ethos that is proletarian and endlessly subjective at the same time: give me my pension, give me my benefits. There is nothing liberating or edifying about this ethos.
We’re about to find out that the State that rests on that ethos isn’t stable, either.
“What can no longer be comprehended is no more,” the young Hegel wrote about the crumbling German Empire. A distinguished German philosopher (Hermann Luebbe) recently proposed a variation: “What has never been comprehended cannot come into being.” What prompted Luebbe’s clever inversion is the European Union, a Holy Roman Empire in reverse: it tries to drag itself into the future without ever having comprehended itself. The EU’s initial constitutional point was to keep the Huns at our feet and off our throats; now, it transpires that you cannot have a European project that is not, in the end, a German project. And the substance of that project, the entrenchment of Germany’s social model on a European scale, isn’t going so well, either. The European State is not the march of freedom; it is a bloodless bureaucratic nightmare, a corpse. Blosse Existenz, as Hegel might have said and in fact did say.
In the United States, things are playing out differently. Hegel’s constitutionalism insists (1) that constitutional stability hangs on a social-economic substructure and (2) that a liberal economy—capitalism—means a class society that demands some form of public redress. We tend to resist both those propositions, for some good reasons. Even so, the Hegelian dynamics are plainly at play. We have built a very large public sector, a massive transfer state, and a nominally private sector that is largely dependent on government. Those arrangements are the backbone of America’s economy and social structure to a far greater extent than Herr Professor Doctor Hegel ever imagined. They have become unsustainable. Any attempt to render them sustainable would have to start with a candid acknowledgment of the problem. As John DiIulio has shown in a bracing National Affairs piece, we are nowhere near that point.
Of course, no one thinks that the formal United States Constitution will stand or fall with the transfer state. Unmistakably, however, the living and breathing Constitution has inherited and absorbed the ethos of proletarian subjectivity. Its dynamic, Yale scholar Jack Balkin has argued, is driven by social movements that move “off the wall” propositions “on the wall” (e.g., a constitutional right to abortion). And the Constitution appears to permit, except perhaps for its “individual mandate” wrinkle, a tellingly named Patient Protection Act that embodies the spirit not of socialism but of a bourgeois entitlement mentality that no longer recognizes its own corruption: make greedy insurers recognize my right to health insurance, and keep government off my Medicare (I earned it). A Constitution that deserves its name presupposes a residual awareness that some things must forever remain off the wall. It also presupposes an awareness of the difference between the things you actually earned and the things government says you earned. Put differently, a Constitution requires some sense of limits. That sense has eroded because the spirit of subjectivity rebels against it.
Hegelian thought isn’t going to aid in a recovery. But it is a terrific way to recognize the problem.