Liberty, Prudence, Imperfection, and Law

“Finding the Roots of the Old Republic,” By Bruce Frohnen

Carlo Cattaneo

One of the more interesting academic schools to arise out of the 1970s was that of “civic republicanism.” The movement has long since devolved into yet another gloss on social democracy, with “civic virtue” being used as a code word for “telling other people what to do.” But at its beginning figures like Quentin Skinner and J. G. A. Pocock did a service in reemphasizing the European roots of the American republic and the nonliberal roots of liberty and constitutional government more generally. Properly understood, the “republican turn” in studies of American constitutional origins served three important purposes: demonstrating that constitutionalism is not irredeemably connected to modern liberal democracy; pointing us toward more helpful sources of knowledge concerning the roots of our political tradition; and allowing us to rediscover important thinkers and historical examples showing the nature, limits, and requirements of constitutionalism.

Pocock in particular took the “civic humanist” model of politics in an odd and unprofitable direction with his Machiavellian Moment. In that book Pocock sought to place the American Revolution within the context of a kind of patriotic language of politics that prioritized civil, public virtue above all else, including of course the pursuit of private and local goods. In particular, by placing the early modern “teacher of evil” Machiavelli prominently within this school of thought, Pocock mischaracterized republican politics in the Italian city-states and overstated concern with national politics among the framers of the American Constitution. Pocock’s mode of political discourse led more logically toward the French than the American revolution, more toward French revolutionary politics than toward the limited constitutionalism of the United States.

Nevertheless, the emphasis on early modern and, more importantly, medieval and ancient thinkers that characterized much of civic republican scholarship points to an important truth about the Western and especially the American political tradition: ours was not a “new nation” because of its commitment to republican forms, in which the people govern themselves. Instead, the United States was “new” in its determination to combine the thick, organic politics of local self-government with the protections that could be provided only by a kind of empire. In the United States the “empire” was to be a republican one dependent on the people and their states for its very existence. It was further to be bound down by a constitutional order that granted it only specific, limited, and enumerated powers. Added to these limitations were the auxiliary precautions of institutional checks and balances intended to prevent the concentration of power in any single branch of government.

Skinner largely shares Pocock’s views on Machiavelli—a mistaken perspective worthy of extensive discussion on its own. But Skinner’s long, distinguished career also has included extensive inquiry into the varied meanings of liberty and popular sovereignty that question the centrality of modern liberalism’s dichotomy between public and private spheres. Skinner’s work helped make it possible for noncivic humanists like Donald Lutz, Barry Alan Shain, and a host of other thinkers to trace the genuine roots of the American republic in British Calvinist thought and practice. It also dovetailed well with the constitutional work of Harold J. Berman and Brian Tierney insofar as it gained a wider hearing for investigations into the medieval roots of modern rights. Its conception of civic virtue, while too narrowly political in its application to modern forms in particular, nonetheless allowed for a more nuanced understanding of the relationship between “private” associations and right conduct in public life.

Contemporary theory is dominated more than ever by self-indulgent word games and the politics of resentment. That said, there now is a critical mass of information and theory available for a reconceptualization of the Western tradition. The information has to do with older models of constitutionalism, from ancient constitutions to medieval lawsuits, coronation oaths, charters, and city-state constitutions, to early modern documents like English church covenants. The theory is available in translations of Johannes Althusius, Marsilius of Padua, Francisco de Vitoria, and others who wrote about the nature of the person and his proper relationship to the public order. The reconceptualization would de-emphasize the role of a few abstract modern thinkers in establishing modern liberalism as the precursor of secular humanism and social democracy. The progressive interpretation of history has painted our past as a mere prologue to a modern politics of normative agnosticism, substantive equality, and groups’ pursuit of victim status. But the evidence is now abundant and plain that modern trends are far from inevitable. In fact, they represent a sad, unnecessary break and even betrayal of the tradition that produced constitutionalism and popular self-government under law.

Of particular importance in this reconceptualization is avoidance of the central mistake of civic humanism, namely, the belief that the politics of city-states can be writ large, creating national “communities” ruled by fundamentally political mores applied equally to all individuals. Ancient, medieval, and early modern cities were capable of maintaining constitutional order and, in some modern instances, liberty among the people because they were small. Cultural homogeneity and common foes allowed for self-government under law. Modern times, and in particular the modern nation-state, make the task of establishing popular self-government under law more difficult.

Althusius, perhaps the most important overlooked figure of the early modern era, explained man’s social nature and the need for more distant political associations to build on and mediate among, rather than eliminating, more local associations. His Politica in particular is essential reading for understanding the nature of free government. But Althusius’ German theory and focus, important as it is for understanding later Calvinist thinkers (including the Puritan settlers) is not the only important one available. We are fortunate, then, that scholars like Filippo Sabetti have traced the origins of constitutionalism to the practice of Italian city-states—not as mere ideology but in practice. Sabetti has shown the concrete origins of constitutional practice (and even resistance) in Sicilian political charters; his work also builds on a nuanced understanding of the constitutional forms of republics like that in Florence, where “sovereignty” in the modern sense did not exist because no single person or group could reasonably be said to have the authority to rule in any absolute sense. His work on the problems of modern Italy includes a nuanced understanding of the relationship between virtue and politics, and between locality and nation. He even has edited a collection of writings of the important nineteenth-century Italian thinker Carlo Cattaneo, along with writing a critical discussion of his work. Cattaneo could be termed a kind of “strange liberal” along the lines of Alexis de Tocqueville. But the point is precisely that “strange” liberalism is more in keeping with constitutionalism than is its more mainstream form.

This can and should be an exciting time for the study of constitutionalism. The thinkers and contemporary scholars I have mentioned are hardly household names. But they offer scholars and interested lay readers the opportunity to gain insight into the nature, purpose, and limits of our constitutional order. May more of us seek them out and learn from them.

 

Bruce P. Frohnen is Professor of Law at the Ohio Northern University Pettit College of Law.

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