Red, White, and Blue: A Critical Analysis of Constitutional Law by Mark Tushnet (original) (raw)

Further beyond the Republican Revival: Toward Radical Republicanism

The Yale Law Journal, 1988

The contemporary revival of civic republicanism, 1 with its focus on citizenship, political equality, and deliberative decisionmaking, is surely a good thing. Intellectually, it promises escape from the dead end in which pluralist constitutional theory finds itself.' Politically, it moves toward fulfilling the deepest human impulses that underlie liberalism.' Nonetheless, I want to suggest that we must go far beyond the current revival if we are serious about achieving republican aims. Most fundamentally, we must design and carry out programs of genuine participatory democracy in the multifold spheres of human activity. Toward this end, we must dispute the autonomy of conventionally "private" spheres, and confront the connection between economic and political equality-lest our theorizing be wholly arid and fantastical. Most radically-at least for legal scholars-we must abandon our obsession with courts and work toward the decentralization and democratization, not only of "ordinary" politics, but of constitutional discourse and decisionmaking itself. I will discuss the first points only briefly: though essential parts of the civic republican agenda, they also are more familiar than the last. Let me begin by reviewing why citizen participation in a "deliberative democracy" 4 is desirable and-to anticipate my main point-why judicial exclusivity in constitutional matters is not. 5 One reason, and a central theme in the tradition of civic republicanism since the Athenian polis, is that participation in the public sphere realizes an important aspect of human nature and creates the foundation for a genuine community.' Alt Dean and Richard E. Lang Professor, Stanford Law School. 1. Although the term "civic republicanism" is redundant, conversations with colleagues and students suggest the need to distinguish republican thought from the ideology of the party of Ronald Reagan. I borrow the adjective from the Renaissance strain of republicanism known as "civic humanism."

The Civic Republican Response to “Liberalism and its Critics”

Journal of Political Science Education , 2019

Political theory instructors are often familiar with the syllabus themed “Liberalism and its Critics.” Liberalism, however, is often narrowly and teleologically defined as the progressive expansion of human freedom. Further, counter or alternative narratives leave students as mere critics without constructive insight into the balance of individualism and cosmopolitanism. With these problematic approaches in mind, this article offers a civic republican viewpoint to supplement the limited approaches in “Liberalism and its Critics.” The course proposed by the authors reframes common methodology to include civic republicanism as a parallel and sympathetic intellectual development to liberalism, at times intertwined, and at others anticipating and supplementing its deficiencies. This article first shows the deficiencies of the inadequate narrative/counter-narrative approach and highlights why civic republicanism presents a novel approach to teaching theory. The authors then provide a possible course description with specific learning outcomes, a recommended course structure with suggested readings, and some concluding considerations on implementing such a course.

Republicanism, Liberalism, and the Law

The Sacred Fire of Liberty, 1998

REPUBLICANISM, LIBERALISM, AND THE LAW a mixed and balanced government comprising (5) a deliberative senate, (6) an elected executive, and (7) a popular assembly or representative lower house in the legislature. 6 This system secures "liberty," a word that entered Western political vocabulary to describe the status of citizens protected by republican institutions. 7 Republican liberty signifies government in pursut of the common good, where no citizen is subjected to the unfettered will of another! The central meaning of republican government since Cicero has been legislation for the "respublica" or common good of the people.' Popular sovereignty follows because the people or 'populus" itself constitutes the fairest judge of public welfareunfettered magistrates and factions will pursue their own interests instead.'° The rule of law constrains the people and magistrates from favoring private interests in specific litigation." The elected "senate" or upper chamber in the legislature, serving for long terms, moderates the swings of popular emotions.' 2 The public assembly controls the usurpations of the senate, and vice versa." 3 So the mixed republican structure of government balances magistrates against the senate and people (or their representatives) to preserve the liberty of the whole. 14 If any single faction, including the majority of the people, should seize power, liberty would be lost, the common good forgotten, and the republic gone, until balance is restored."

Liberal Republicanism and the Role of Civil Society

This paper argues that political liberalism is best placed to accommodate the insights of the civic republican tradition in political theory. Political liberalism is described and its compatibility with certain interpretations of republicanism demonstrated. It is explained why the republican liberal values active citizenship in the context of civil society and the overall theory is defended from the charge that it is an unstable compromise. It is argued that civil society is an essential precondition of liberal democracy.