I. The Myth: Neutrality
Justice, proponents of the liberal order argue, is to be found in dispassionate adjudication. A republic — which America is, by its foundation — must not be governed by men, but by laws. This means agents of the government, serving in their various capacities, should see rights, not people. Justice, if it is to be fair, must be egalitarian. It must, in effect, operate from behind a Rawlsian veil of ignorance. Legislators should not craft laws that favor one faction or another but should worry about how their actions affect the free exercise of rights: something all citizens hold in exactly the same manner. In a similar manner, judges should not consider the transgressors who come before them but their transgressions. They are not condemning people, but specific actions: actions which are to be judges without reference to extenuating circumstances, such as a person’s race, gender or economic status. When government actors use this lens — a lens of impartial neutrality towards all citizens — to consider the impact of their actions, all citizens benefit equally, at least on a philosophical level. This egalitarianism advances the kind of fairness thinkers like John Rawls named an integral element of justice.
But the abstract and exacting objectivity required by this approach to government hinges upon the ability of men whose decisions give energy and direction to government organs to divorce their interests from their actions. And this is impossible.
Champions of limited government uphold the social contract because of the security it provides. Natural man — who lives free of any authority external to his own conscience — is atomistic (if one accepts social contract theory’s presumed hedonism at face value). He alone determines the ends towards which his labors should be directed. Any compact he forms with his neighbor is entirely volitional: he has power to set the terms of an agreement to his liking, or to walk away. But when man enters a commonwealth, he loses the ability to define his own good. “Good” becomes bound up in the collective he has helped form. And though, as a constituent member of the greater whole, his interests are represented, he loses the ability to define good and bad for himself. As Locke describes in The Second Treatise on Government, man has “has given a right to the common-wealth to employ his force, for the execution of the judgments of the common-wealth, whenever he shall be called to it; which indeed are his own judgments, they being made by himself or his representative.”
But any government that assumes as its primary duty the attainment of the good of its people cannot be a neutral actor; it most proactively work to define and seek good. And this requires government, which is to say it requires those officials who embody government’s authority, have discretionary powers.
Social contract theory makes of government an interest aggregator. The social contract charges legislators with representing the interests of those who have agrees (at least in theory) to exchange some of their autonomy for the security that comes with establishing an authority whose primary task is to check the aggression of one actor against another. This renders impossible the idea that legislators be neutral observers who merely safeguard rights. By function, government cannot be neutral. And giving such discretionary power to authority creates the dangerous possibility that politicians will use their role as interest aggregators to mask a more nefarious end: that, in the name of their constituents, they will pursue their own ends, thus corrupting their purpose.
If government cannot be neutral, it must be designed in such a way that the discretionary power necessarily given to those in authority can be channeled. This idea undergirds the political institutions designed by James Madison, whose system of checks and balances is designed to pit interest against interest in a manner that renders consensus difficult. Absent consensus, government cannot act, which lessens drastically the chance motivated actors can appropriate its purpose. But if government is to be viewed in light of the way its members behave, speaking in terms of absolutes becomes more difficult. Rules need to be made that take context into account: the behaviors and powers appropriate to a Senator are not necessarily appropriate to a member of the executive cabinet. The scope of their powers, a function of the roles delegated them by the Constitution, differs. And this is to say nothing of what is appropriate at lower levels of power, where smaller, more involved constituencies create a more personal relationship between governed and governor.
Pretending government can function as a neutral arbiter of society allows self-interested politicians to dress up their ambitions as the will of the people and pervert the just ends of government, which involve securing rights. Justice, if it is to be found, demands acknowledgement of the fact that people cannot be separated from their interests. Design of political institutions must reflect this: it must acknowledge that there is a certain inevitability to the fact that men, given discretion, will act to preserve their selves. Government’s best chance at creating an egalitarian political framework is to enact checks and balances that stand as a bulwark against the perversion of power: to create institutions that pits man against man in such a way that self-interested actions are harnessed for the purposes of the public good. This Madison does in crafting the Constitution. But he is building upon ideas set forth by Aristotle.
II. The Parallels of Politics and Friendship
A. Equality As Proportionality
In The Nicomachean Ethics, Aristotle sets forth a model of justice that likens the dynamics of political power to the dynamics of personal relationships. Justice, he says, is to be found in proportionality. Friendship, like politics is contextual: it arises between different people and for different reasons. The love of a father to a son is different than that which exists between brothers. This means each party “neither gets the same from the other, nor ought to seek it; but when children render to parents what they ought to render to those who brought them into the world, and parents render what they should to their children, the friendship of such persons shall be abiding and excellent.”(VIII.8.1158b18–20) In one sense, there is mathematical inequality in certain relationships. For example, a father, because he is the progenitor of his son, will always be the greater contributor to the relationship. But, in another sense, there is a natural equality to a relationship where each performs the function to which he is suited. It is not the job of a son to act as a father; it is his job to perform the function of a son, and to do it well. In this, Aristotle, says, there is justice: “for when the love is in proportion to the merit of the parties, then in a sense arises equality, which is certainly held to be characteristic of friendship.” (VIII.8.1158b27–29)
This translates to the political role: each actor performs a different function. The job of a constituent is different than that of a representative. It is the duty of a constituent to truly represent his interests and the duty of a politicians to faithfully represent those interests. There will always be inequality, for the legislator’s role is dependent upon the action of his constituents. Aristotelian equality is not about parity. It is in the idea that each actor serves his function meritoriously. So long as each faithfully discharges his role, there is equality in relationships that contain a power imbalance. This, obviously, is a departure from the Rawlsian idea of justice being found in equality. Rawls’ concept of the veil of ignorance involves absolute parity. His thought experiment is based on a basic ignorance of one’s being: the individual must examine themselves preborn, unaware of their gender, their race, the economic situation into which they will be born. They would, rationally dictates, fashion a world wherein the laws benefit no one class of people over another, for they would not wish to find themselves on the wrong end of such oppression. Rawls’ conception of justice as fairness is one that stems from the state of nature as depicted through social contract theory. No one who drafts the compact that creates society knows the position in which he will end up, giving him motive to draft laws that are fair to all. This, he writes,
“ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstance. Since all are similarly situated and no one is able to design principles to favor his particular condition, the principles of justice are the result of a fair agreement or bargain. For given the circumstances of the original position, the symmetry of everyone’s relation to each other, this initial situation is fair between individuals as moral persons, that is, as rational beings with their own ends and capable, I shall assume, of a sense of justice.”
But this line of reasoning is limited by the same fatal flaw as is social contract theory: conditions change. The initial position is rendered obsolete by the choices made in subsequent generations of life, just as the social contract is rendered obsolete by the fact that subsequent generations who live in the society generated by the original compact do not have the same ability to assent to it as did their forebears. Rawls’ concept of justice is appropriate to a politics that is limited to securing rights. Rights are held in the same way by all individuals, even if they are exercised differently. The government’s position towards rights should be one where justice is concerned with fairness: with a government that operates in a state of ignorance as to exactly who holds the rights concerns. Whether the individual whose rights have been transgressed is rich or poor, gay or straight, male or female, is irrelevant in a court of law.
But government does more than adjudicate rights transgressions. The social contract itself charges government with understanding and securing the general will of the populace. This requires government exercise discretion — determining whose interests are most exigent and most deserving of the help of public policy — and take a proactive role in society. It cannot operate under a veil of ignorance in this instance; its actions must take into account the particulars of the lives of its constituents. It behaves much more like Aristotle’s conception of justice, wherein equality is found in proportionality, in the idea that each actor performs the role with which he is charged admirably. Aristotle’s conception of justice is better suited to rectifying the natural differences of societal actors than is the social contract theory of justice concerned with foundational equality. The entire point of the social contract is to move society forward, to progress man into a better state, which frees man from the fears of the natural world. But it fails to provide any moral or philosophic concepts that help to govern the new state in which man finds himself.
B. Politics As Destiny
Aristotelian epistemology departs from social contract theory in that it does not recognize civil man as a fundamentally different creature than natural man. For social contract theorists, entrance into civil society changes man’s constitution. This is, in part, a result of the radical change in the existential conditions with which man finds himself faced. The demands of nature are vastly different than those of a burgeoning social state. Natural man lives in a state of constant trepidation. He does not know from where the next threat to his being will come, but because he lives in a space where there is no authority to check the aggression of others, he knows it will come. His mind is preoccupied with the need to insulate himself, to the best of his abilities, from threats towards his continued existence. This retards his ability to advance and locks humanity into a state of relative stasis: power dynamics may change as the weak and the strong do constant battle with each other, but the underlying conditions of the state of nature remain the same. But the introduction of government removes the pall of fear from mean and allows society to progress. With a central body of authority providing oversight functions over the citizens who live under its influence, man has some basic assurance of his security. The introduction of civic society alters the fabric of reality, bringing organization and stability into his life and allowing him to focus on tasks other than his day-to-day survival. Thus, civil man is different from natural man. But Rousseau and Hobbes go a step further. They render natural man inert: unaware of anything beyond that which is right before his eyes. Moral ideas and aspirations to better himself are imparted onto man by society, the laws and codes of which are like a paternalistic guiding hand. Natural man is not capable of self-betterment. Society gives him the tools to better himself.
Aristotle, however, does not admit this distinction. He believes man is a political animal by nature. The city — which he names the apex of civic society by virtue of the fact that it is a self-sufficient organism — is not something alien to man. It is not a state that must be imposed upon him. It is preternatural: it exists even in a state of nature. It is the natural end towards which man he endeavors; the actions he takes in a pre-civic state are catalyzed by a desire to bring the city into being. For, as Aristotle writes in The Politics, “the whole must of necessity be prior to the part; for if the whole [body] is destroyed there will not be a foot or hand, unless in the sense that the term is similar (as when one speaks of a hand made of stone), but the thing itself will be defective.” (I.2.1253a20–22) The city is therefore innate to the state of nature and, seemingly paradoxically, prior even to the individual. As it is the end around which the individual’s efforts are motivated, the end has sway in the physical world even before it comes into physical being.
Aristotle says the individual desires the civic life because self-sufficiency is to be found only at the level of the city. There are lower level partnerships that arise out of a desire to fulfill certain needs: man and women are drawn together for the purpose of procreation; individuals are drawn together into households to fulfill daily needs; households are drawn into villages to fulfill non-daily needs. But the city alone is self-sufficient. It comes into being for the sake of living, but “exists for the sake of living well.” (I.2.1252b28) Self-sufficiency, according to Aristotelian teleology, is the ultimate end, for it implies a final end — not an end that is merely a means to attaining a greater end — and something that is chosen for itself, which means it is chosen for its virtue. The city is such a thing, for it allows those who live within it to live well. And happiness is among the greatest ends. Aristotle’s city is, in one respect, like the civic state that emerges from the social contract: it comes into being for one reason, and, once it is created, exists for another. The civic state emerges from a space dominated by individuals and small groups. It coalesces the interests of all the citizens under its influence into a collective entity: the general will. Though it is founded for the purposes of preserving individual liberty, the civic state becomes a proponent of collective interests. Aristotle’s city also adopts a new purpose. It is a final end; the city is self-sufficient. Once it comes into being, the motives that led to its creation are rendered moot. So, though the city is founded for the sake of living — for the sake of convenience and the security of citizens — once those goals are achieved, it looks to other pursuits: not just life, but the good life.
There is a fine distinction to be made between the city and the communities that make it up. The city comes into being for the sake of the advantage of all; this is the point of partnership: the formation of a community that works for the advantage of all. But this does not mean that those who fall under the influence of a political community lose their autonomy. Lesser-order communities still exist and work towards the good of their members, but this is a lesser-order good than that which the city works towards; this good is not final, complete or all-encompassing. Yet, context is an integral part of Aristotelian virtue ethics. To do good, one must name a desired outcome (the end), then deliberately and voluntarily choose an action or specific set of actions (the means) that seem likely to bring about that outcome. This is not only a positive choice of one option, but a simultaneous rejection of all inferior options. Doing good also requires that one apply reason. Virtue is not something that can be struck upon at random chance. It requires having a passion for seeking good, a passion exercised at the right time, towards the right objects and people, with the right motive and sought in the right way (II.6). Context, clearly, matters.
This means there is no one-size-fit-all approach to political rule that is correct. Action is largely interaction: it is one element exerting an influence upon another; how disparate elements integrate affects the greater whole. For example, the relationship between a husband and wife is different than that which exists between a father and son. Though the man in each of these relationships is the same: “the virtue and function of each of these [relationships] is different, so are the reasons for which they love; the love and the friendship are therefore different also.” (VIII.8.1158b17–19) The natural disparities in the relationships that humans form — which drive them to love and to interact in different ways — are to be reflected in political rule, for the city, though it is one, serves different functions, just as do individuals.
Friendship, Aristotle contends, much like the state, depends on community. Both politics and friendship depend on things that are held in common. But different sorts of friendship arise for different reasons; these reasons determine the end towards which friendship is oriented and influence the actions taken as part of that relationship. And these correspond to different kinds of political rule. The rule between a father and a son is monarchical because the father cares exclusively for his children. The relationship between a husband and wife resembles, according to Aristotle, an aristocracy because the man rules in matters fitting to him and hands to his wife control of matters that fit her skill set. Brothers, because they are equal except in age, have a timocratic relationship, a kind of democratic system based on a property qualification. Democracy is found in masterless dwellings. (VIII.10)
Justice, says Aristotle, is to be found to the same degree as friendship in each of these relationships. Justice and friendship are alike because each endeavors to serve the good that is common to those involved in the relationship in question.
Aristotle does not pretend government can be made a neutral arbiter of the general will, a term that is septic and deceiving. In attempting to represent all, government looks to the median citizen and ends up inventing an archetype: someone who stands for what is held in common by all. This ends up representing few to no actual human beings. One may create a framework built upon neutral principles; but these will be enacted by human beings, who can no more separate their feelings from their actions than they can cease to breathe. To pretend government officials can act like perfect automatons, perfectly objective and without personal prejudice, is absurd. And to do so creates a dangerously inaccurate political lexicon. By imbuing government officials with this degree of objectivity, it places them over and above normal human beings, well given to weakness and failure. Social contract theory in particular exaggerates the negative of humanity in emphasizing the misdeeds its advocates believe typify daily life in the pre-civic state. Grafting neutrality onto human beings in government, who are as fallible as those in government, sets two precedents that bode ill for individual freedom. By dressing up what very well be subjective action, which pursues a personal agenda, as objective action, social contract theory puts government action up on a pedestal: it makes it an untouchable standard in society. At the same time, it breeds into individuals assumptions of wrongdoing, and suggests morality comes only with the oversight of government. The benefit of the doubt is given to the action taken by government taken to rein in the “excesses” of private actors. Couple this with the objectivity qualified officials, with better knowledge of political decisions than the average citizen, are presumed to possess and individual freedom becomes very much a function of the state’s definition of it.
III. Madisonian Institutions: Harnessing Interest for the Public Good
Enter James Madison, who created government institutions designed to channel the ambitions of men in such a way that they could not be used to further personal designs but instead were yoked to the public interest. Indeed, interest is the very foundation of public policy. Republicanism, to Madison’s thinking, is defined by the delegation of government powers to a few, elected by the many. Representatives “refine and enlarge the public views by passing them through the medium of a chosen body of citizens,” effectively giving self-interested individuals a platform to express their desires on a much broader platform than they could ever hope to achieve with their singular voice. (Federalist 10) Republicanism expands the scope of the individual. The representatives is a symbolic representative of private individuals; their actions are guided by the interests of their constituents. Private individuals, then, are able to exert a pull over public policy. The representative system works so the “private interest of every individual may be a sentinel over the public rights.” (Federalist 51)
But interests do not disappear simply because an individual is elevated to an office of elected power. Elected representatives are, first and foremost, human beings, who, even if principled, are subject to temptation. Politics is about choice, which means public officials, takes with representing the interests of their citizens must determine which interests are deserving of immediate support through policy. According to Madison: “the choice must always be made, if not of the lesser evil, at least of the greater, not the perfect, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused.” (Federalist 41) This discretion is to be carefully applied: “in all cases where power is to be conferred, the point first to be decided is whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment.” (Federalist 41)
But acknowledging that human weakness can lead to elected officials perverting political power requires creating institutional safeguards on politicians’ discretionary powers. It is not enough to simply seek out qualified individuals for elected office and hope their virtue will be enough to sustain them. According to Madison, “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” (Federalist 51) Effectively, this means the interest of individuals needs to be tied to the just execution of powers: the personal ambitions of politicians are to be encouraged, so long as it leads to a behavior that produces public policy designed to protect the rights of the citizenry. This means making personal interest subservient to the faithful discharge of political power. Madison does not attempt to divorce personal motives from political power, but to bend them in such a way that they are allied with serving the public interest.
There are several ways in which Madison utilizes this strategy. The most obvious is the division of powers into three separate and coequal branches. These are not coequal in terms of the division of labor — the Congress is charged with a greater share of federal power than is the executive — but they are coequal in the sense that neither is supreme over the other. The executive is not able to dictate to the Congress how it should discharge its duty. Or, at least, it is not able to compel Congress to obey its opinions. By giving different and distinct duties to the respective branches of government, Madison sets the interest of politicians — bound up with maintaining their position of power — at cross-purposes. In so doing, he makes even self-interested political actors a check upon government power. Members of the legislature, he argues, will jealously guard their power against the incursions of the executive or judicial branches. As they are subject to the censure of the public, they will also be limited in their actions. Rationally, their welfare is bound up in their position. Their paycheck and their power depend upon their ability to retain their position. It is in their interest to faithfully represent their constituents, lest this group, motivated by their respective interests, remove them from power.
Here Aristotle’s idea that the dynamics of friendship resonate with the dynamics of political power is put into practice. Interest is the variable at play here. The individual serves private interest in a different way than do politicians. Citizens are responsible for accurately relaying their interests to elected officials so that public policy justly reflects their desires. If they fail to do so, if they are lazy in discharging this duty or inaccurate, they pervert public policy, making it reflective of a state that does not accurately reflect reality. Politicians are also responsible for representing their interests, but they must do so in a way that also represents the interests of their constituents. When both serve their role, there is justice in this relationship, even though it is based on proportional egalitarianism, not parity-based egalitarianism. There is a decided power differential, a disparity in authority, but so long as each member of the relationship faithfully discharges their respective duties, the outcome of their action will be just. This assessment is made with reference to the end product, not the process, which a concern with parity-driven egalitarian justice demands.
The downfall of Aristotelian and Madisonian thinking is that it requires an accurate discernment of human nature. Madison’s institutions operate only so long as Madison’s opinions about human motivations hold true. But Madison’s understanding of human nature is deeply flawed. This is evident in the disparities between Madison’s theoretical construction of political behavior laid out in The Federalist Papers and the reality of history. Madison believes any threat to the erosion of the separated powers comes from the legislature, whose members he says have ample motive to jealously guard their powers. History, however, is a story of executive usurpations, of the legislature willingly passing laws that cede its powers to the executive branch. The implications of this will be discussed in the next chapter.