American Constitutional Fantasies: Escape from Difference Through Escape from Government

One of the delights of comparative legal work is coming to understand the way that different legal traditions offer quite different answers to the same questions. Perhaps an even greater joy is discovering that not only do different legal traditions have different answers, they also find quite different questions to be central and pressing. This conference, at which Americans and Europeans meet, is organized around the question, “Back to Government? The Pluralistic Deficit in Decisionmaking Processes and Before the Courts.” In Europe, where this conference has been organized and is occurring, this question has powerful resonance. Some have the sense that in Europe, both within the Member States and the European Union (EU) itself, some degree of power has shifted from government to governance. For the Americans, I should perhaps explain that government in this formulation refers to the formal channels of governmental institutions; governance has a somewhat more vague and contested meaning, but it generally refers to legal and political mechanisms that people have developed to advance their interests and values outside of the formal channels of government–such as lobbying and privatization. In Europe, this field of governance is conceived as a tertium quid, in neither the government nor the private sphere. People have looked to governance to protect their interests when the government seems to be seized by a small group of powerful interests. Governance, however, suffers from its own accountability problems, and so the conference organizers wonder whether it is time to go back to government. In fact, Europeans may approach this question from a particular historical perspective: we have tried so hard to understand and develop the field of governance, these Europeans may think, but it has not worked, so is it at last time to ponder the possibility of rehabilitating government?In the United States, this question does not have anything like the same resonance; in fact, it might be argued that the question has no resonance at all because it presupposes a set of categories and issues quite different from those that currently dominate the American legal and political horizons. To speak of going back to government implies that we were once there and are now returning, perhaps going home or to an old friend or familiar territory. In fact, some of the organizers of this conference have suggested that sometimes they feel nostalgic for government. But for Americans the title might better be “Still Getting To Government,” because we never really got there in the first place. Many, perhaps most, Americans tend to imagine government as an artificial creation with shallow roots and doubtful legitimacy, so they want to protect themselves from its reach. These days, we Americans hear very little about the good that government can do, and we hear a great deal about how we might roll it back. In Europe, people divide the world tripartite into government, governance, and citizens, with complicated and contested relations between the three; but in America, people divide the world simply between the public and the private, with a pronounced preference for the latter over the former. Indeed, in this view, the line between the public and the private must be kept quite sharp, without the confusing “governance” category, so as to keep the government within bounds, away from the private sphere. The closest analogue that we might have to governance is civil society, but again we imagine that concept as private persons voluntarily associated to check and control government, not as some intermediate element. In short, then, we can imagine that a fairly typical American, when asked to think about going “Back to Government,” might observe: “Back to Government? We were never really there! And thank God!”

To understand why Americans have such a different reaction to the question posed by this conference, we must examine certain foundational legal ideas and stories; these are legal myths, if you will, in the sense of being fundamental conceptual structures that explain the world, not of being fictions or superstitions (though some may find them to be so). Before I offer my thesis in a more rigorous way, some qualifications and explanations are appropriate. Some people prefer legal work that dwells only on the concrete and close-to-the-ground: data that you can count and code provisions that you can cite. My own view is that a country’s legal system, taken in the main, grows from its foundational myths. To understand the differences between different legal systems, therefore, one must understand the differences between these myths. If we do not engage in this kind of comparative analysis, we will never come to understand the other, the path not taken, and the possibilities that may still be available. Inevitably, however, mythic analysis has a certain gauziness when compared to the parsing of codes. My discussion will necessarily be general; not all Americans adhere to the myths that I will describe, and even the adherents differ in their zeal; and in a compass as short as this essay, I will be able to offer only a few illustrative examples. Nonetheless, I feel that most Americans will recognize instantly the mythic landscape that I will map; and in the very same landscape, most Europeans may feel like strangers wandering in a strange land. And that difference speaks volumes.

To help explore these diverging perceptions, let me first elaborate the thesis on which this conference has been based by its European organizers, and then I will suggest some of the difficulties in trying to understand that thesis in an American context. Here is the thesis of the conference as I understand it. Many in Europe are unhappy with the EU because they think it insufficiently pluralist; that is, it underrepresents the interests of certain groups. So, for that matter, do the national governments of Europe. So Europe is suffering from a broad pluralistic deficit in government. As a result, some citizens have developed new mechanisms to protect and advance their interests. In the language of the conference description, these devices do not “imitate” the “traditional forms of participation.” Instead, they have looked outside the formal legal framework for “alternative or additional channels shaped according to a different rationale, namely privileging the functional rather than political representation of their interests.” Some of these devices involve finding ways to influence government decisionmaking outside the formal process–such as lobbying and the like. Other mechanisms involve attempts to bypass the legislative process altogether, such as privatization and “soft” law. The goal of these devices is to remedy the pluralistic deficit in government by finding routes outside government’s formal structure. The problem with these devices, however, is that they are unaccountable to the general public, so we must wonder whether it is time to go “Back to Government.” Perhaps there is a way to take what is best about these devices–their ability to raise voices that have been under-consulted–and then incorporate them into a structure of government that is broadly accountable to all. The conference organizers hope that the American experience might shed some light on this possibility for two reasons. First, American constitutionalism has pluralism built into its very physiognomy. Second, the U.S. Supreme Court is notably willing to give the Constitution a flexible and evolutionary interpretation, so that the justices might find a way to incorporate these new devices into the structure of governance–taking them “Back to Government.” In this view, Europe might be able to learn something from the United States about the challenge of combining pluralist governance with accountable government.

My response to this thesis is threefold. First, I accept as given the conference’s description of the situation in Europe; my goal here is not to try to explain Europe to Europeans but to reflect on European questions from an American perspective. Second, I agree that American constitutional governance has a degree of pluralism built into its physiognomy. Private power in America has rarely been broadly distributed; in that sense, the private sphere suffers from a pluralistic deficit. In response, American government has often extended its reach to correct these private power inequalities. Third, at a mythic level, the drive to go outside government in America grows largely out of a desire to deny governmental pluralism, not to remedy a pluralistic deficit in government, which has after all been more pluralist than the market or similar private ordering mechanisms. Although the road to government has offered a chance at real power-sharing, Americans have always been reluctant to move down that road, because they fear its destination. Instead, they like to imagine that there is a social realm outside of or beyond government in which we are all the same, at least in the ways that matter. In this sphere, because we share an identity of interest, we do not need to worry about pluralist power-sharing or even the messiness of politics. Few Americans want to eliminate government, but most want to escape it to the extent possible into this realm beyond government, which they imagine as more natural. In this view, if we get off the road to government, we can escape difference, so that we will not need government after all. As a result, I fear that the American experience has little to offer Europe. If we were to bring American extra-governmental devices “Back to Government,” they would not remedy the pluralistic deficit in government, because they represent a desire to escape pluralism, not celebrate it.