Abstract
This chapter complements the treatment of natural science in the first two chapters. The American Constitution is the most successful application of the Enlightenment’s new political science, and Rousseau was deeply skeptical about its promises. Nevertheless, his Social Contract and Considerations on the Government of Poland offer considerable support for important features of America’s constitutional arrangements. At the same time, Rousseau’s analysis points to the merits of certain dissident or subdominant strains in American political thought. American students of politics should reconsider the widely held view that Rousseau is a useless or dangerous guide for us. The chapter uses an important decision of the U.S. Supreme Court to show how Rousseau’s analysis of political legitimacy can throw new light on contemporary political issues.
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Notes
- 1.
Edmund Burke , “Letter to a Member of the National Assembly” (1791), Works , 3:304–11. James Madison called Rousseau’s discussion of a plan for perpetual peace “as preposterous as it was impotent” (“Universal Peace,” 31 Jan. 1792, Papers of James Madison (Congressional Series), 14:206–09). Madison was apparently unaware that this was not Rousseau’s plan at all, but that of the Abbé de Saint Pierre. What’s more, Rousseau’s own judgment about the plan (which Madison must not have read) is quite consistent with Madison ’s. See Emile, O.C., 4:848n, Bloom, 467n; Abstract of the Plan for Perpetual Peace by Monsieur l’Abbé de Saint Pierre, O.C., 3:563–89; Judgment on the Plan for Perpetual Peace, O.C., 3:591–600. See also Federalist 43 (Madison ) (wishing, but apparently not hoping, that a confederation like that proposed for the United States “could be established for the universal peace of mankind”).
- 2.
During the founding period, John Adams railed against Rousseau in terms similar to those used by Burke, and no prominent political figure—even Jefferson—defended him. Rousseau’s works were available in America, and The New Heloise was popular. Rousseau’s political influence, however, was nil. See Paul Merrill Spurlin, Rousseau in America: 1760-1809.
- 3.
Article IV provides: “The United States shall guarantee to Every State in this Union a Republican Form of Government.” For claims that this clause forbids direct democracy, see Marci A. Hamilton, “The People: The Least Accountable Branch,” 8; Douglas H. Hsiao, “Invisible Cities: The Constitutional Status of Direct Democracy in a Democratic Republic,” 1272.
- 4.
Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912) (dismissing a challenge to a state’s adoption of initiative and referendum devices on the ground that its constitutionality under the Guarantee Clause is a political question confided by the Constitution to Congress).
- 5.
See Baker v. Carr, 369 U.S. 186, 218 (1962); New York v. United States, 505 U.S. 144, 183–85 (1992).
- 6.
See, for example, Robert G. Natelson, “A Republic, Not a Democracy? Initiative, Referendum, and the Constitution’s Guarantee Clause.”
- 7.
Jefferson to Roger C. Weightman, 24 June 1826, The Portable Thomas Jefferson , 585.
- 8.
Although the quotation above contains a reference to judgment and reason, qualities that may (or may not) be peculiar to human beings, that reference occurs only in a statement that is said to be a consequence (and maybe not the only consequence) of the definition of the right of nature . Hobbes later emphasizes that liberty, which he identifies here with natural right , means the same thing whether it is applied to rational, irrational, or inanimate beings (Leviathan, chap. 21, 161).
- 9.
See, for example, ibid., chap. 13, 98 (“such things as are necessary to commodious living”); ibid., chap. 17, 128 (“a more contented life”).
- 10.
Hobbes, De Cive, bk. 2, ¶ 12.
- 11.
See also Leviathan, chap. 13, 100 (“The Desires, and other Passions of man, are in themselves no Sin. No more are the Actions, that proceed from those Passions, till they know a Law that forbids them: which till Lawes be made they cannot know: nor can any Law be made, till they have agreed upon the Person that shall make it.”).
- 12.
See ibid., chap. 18, 135 (“[B]ecause the major part hath by consenting voices declared a Soveraigne; he that dissented must now consent with the rest; that is, be contented to avow all the actions he shall do, or else justly be destroyed by the rest.”). See also ibid., 141 (last paragraph of the chapter), where Hobbes explains why he thinks it is always advantageous to submit to an existing sovereign.
- 13.
The passage just quoted follows immediately after the definitions of the right of nature and of liberty quoted above.
- 14.
Hobbes himself recognizes this. “And the same [voluntary signs of agreement] are the Bonds, by which men are bound, and obliged: Bonds, that have their strength, not from their own Nature, (for nothing is more easily broken than a mans word,) but from Feare of some evill consequence upon the rupture” (Leviathan, chap. 14, 101).
- 15.
Compare, for example, Hobbes, De Cive, bk. 1, ¶ 12 (referring to “this natural proclivity of men, to hurt each other, which they derive from their passions”); Hobbes, Leviathan, Chap. 11, 75 (“I put for a general inclination of all mankind, a perpetuall and restlesse desire of Power after power, that ceaseth onely in Death.”) with Locke, Second Treatise ¶ 32 (referring to the “penury” of the state of nature); ¶ 123 (contending that the motive for the institution of political society is “the mutual Preservation of [men’s] Lives, Liberties, and Estates, which I call by the general Name, Property”).
- 16.
Nor does Locke base it on divine revelation. See, for example, Second Treatise, ¶ 136 (“the Law of Nature being unwritten, and so no where to be found but in the minds of Men”).
- 17.
Compare Leviathan, chap. 14, 99 (in the state of nature, “every man has a Right to every thing; even to one anothers body”).
- 18.
“Thoughts on French Affairs” (1791), Works, 4:28.
- 19.
In the Emile, Rousseau includes a passage that echoes Socrates’ description of the true or healthy city in Book II of the Republic (O.C., 4:466–67, Bloom, 192–93). This passage concludes that the mutually beneficial division of labor is “the apparent principle of all our institutions” (emphasis added), and refers the reader to the Discourse on Inequality for an exposition of the consequences. Shortly thereafter, in a seemingly offhand comment, Rousseau indicates the extent of his agreement with Hobbes: “Since among all the aversions that Nature has given us, the strongest is that of dying, it follows that everything is permitted by her to one who has no other possible means of living.” By implicitly linking his own analysis both to Plato and to Hobbes, Rousseau suggests why he can accept the most fundamental political principle of modern liberalism without abandoning what he saw as the philosophic spirit of Plato.
- 20.
At the very end of the book, Rousseau qualifies or clarifies this formulation: “[I]t is manifestly against the Law of Nature, in whatever manner one defines it, that a child command an old man, that an imbecile lead a wise man, and that a handful of people be glutted with superfluities while the famished multitude lacks necessities” (Inequality, O.C., 3:194).
- 21.
See also Poland, chap. 12, O.C., 3:1013 (“The most inviolable law of nature is the law of the stronger. There is no legislation, no constitution that can provide an exemption from this law.”).
- 22.
See Second Treatise, ¶ 32 (asserting that God commanded man to improve the world by cultivating the earth).
- 23.
See also S.C., bk. 1, chap. 9, O.C., 3:365–66 (denying that the right of first occupancy is a true right).
- 24.
Plato points indirectly to the same problem. The city in speech that Socrates constructs requires a particular high-born (gennaion) lie: that the very land on which the citizens live is their mother and nurturer, which gives them both the right and obligation to defend it against attacks (Republic 414b–e). Most translators render gennaion as “noble,” which obscures the playful sense in which Socrates alludes to the lie’s pretentiousness about the birth of the citizens.
- 25.
See Inequality, O.C., 3:173–74. See also ibid., 178 (after the spread of political society, “the Law of Nature no longer had a place except between different Societies where, under the name of Right of nations, it was tempered by a few tacit conventions in order to render commerce possible”); S.C., bk. 1, chap. 9, O.C., 3:365 (“[P]ublic possession is in fact stronger and more irrevocable [than private possession], without being more legitimate, at least with respect to foreigners.”).
- 26.
Hobbes goes so far as to present the acquisition of sovereignty by conquest as a reasonable agreement in which the conqueror offers to spare the lives of the conquered in return for submission to his rule, and the conquered reasonably agree to accept the offer (Leviathan, chap. 20, 155). Rousseau makes the obvious rebuttal: there is no good reason for anyone to think that an agreement extracted from him by force imposes binding obligations (Inequality, O.C., 3:179).
- 27.
Inequality, O.C., 3:164, 177–78. See also S.C., bk. 1, chap. 1, O.C., 3:351–52 (asserting that the social order is a right that does not come from nature, and that it provides the basis for all other rights); ibid., bk. 2, chap. 6, O.C., 3:378 (denying that there are any obligations in the state of nature).
- 28.
Without using a provocative term like “usurpation,” Adam Smith later drew essentially the same conclusion: “Civil government, so far as it instituted for the protection of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all” (Wealth of Nations, bk. 5, chap. 5, pt. 2, ¶ 12).
- 29.
In the Discourse, Rousseau emphasizes that the train of events that led the human race out of the original state of nature can only be a matter of conjecture. What he is sure about is only that human beings must originally have been little more than animals, and that they are no longer mere animals (O.C., 3:162–63). The conjectural nature of the human history that he describes in that book does not undermine its argument, and that argument is not inconsistent with this statement from the Social Contract. The limited scope of the inquiry undertaken here is signaled not only in this quotation, but also by the full title of the book from which it is drawn.
- 30.
Both the difficulty and the necessity of this tacit recognition are suggested later, when Rousseau says: “In order for a nascent people to be capable of a taste for sound maxims of politics and of following the fundamental rules of political interest (la raison d’Etat), the effect would have to become the cause, the social spirit which is to be the work of the institution would have to preside over the institution itself, and men would have to be prior to laws what they should become through the laws” (S.C., bk. 2, chap. 7, O.C., 3:383). Similarly, as Laurence D. Cooper argues in a different context, the rule of philosophers in Plato’s Republic would seem to be acceptable only to those who had already been ruled by philosophers (Eros in Plato, Rousseau, and Nietzsche , 197).
- 31.
The Social Contract contains a few passages that, read in isolation, might suggest that Rousseau believes there are natural or pre-political rights that imply natural or pre-political obligations (bk. 1, chap. 4, O.C., 3:357; chap. 7, 360; chap. 8, 364; chap. 9, 365; bk. 2, chap. 4, 373; bk. 3, chap. 10, 422–23). I believe this inference is unwarranted, and that Rousseau’s actual teaching in the Social Contract is quite consistent with the implications that I drew from the Discourse on Inequality. First, a close look at the references to natural or pre-political rights in the Social Contract shows that Rousseau never says that pre-political rights are accompanied by correlative obligations. Second, Rousseau specifically says that conventions and laws are “necessary to combine rights with duties” (ibid., bk. 2, chap. 6, 378). Third, when Rousseau specifies the content of man’s pre-political rights, he uses the Hobbesian formulation which, as we have seen, does not imply correlative duties toward other people. See ibid., bk. 1, chap. 8, 364 (referring to man’s “natural liberty and an unlimited right to everything that tempts him and that he can reach”). Thus, Rousseau’s apparent appeals to natural right , like the parallel appeals in Hobbes and Locke, are potentially misleading. All three authors, however, carefully enable the reader to avoid being misled.
- 32.
The power of this argument was also acknowledged by Locke, who declared that no political society can exist if any of its members retains any power to defy its decisions (Second Treatise, ¶ 87).
- 33.
See, for example, Leviathan, chap. 17, 128 (first paragraph); Second Treatise, ¶ 134. The disagreements between Hobbes and Locke primarily concern the means that are most apt to lead to this end.
- 34.
This renders Rousseau’s claim for tacit consent to his version of the social contract stronger than the parallel claims in Hobbes and Locke.
- 35.
For a detailed textual analysis, to which I am indebted, see Arthur M. Melzer , The Natural Goodness of Man: On the System of Rousseau’s Thought, 160–69.
- 36.
The child obviously is subject to the despotic government of the adults, but their particular wills are ordinarily tempered fairly strongly by natural affection.
- 37.
See S.C., bk. 2, chap. 12, O.C., 3:394 (“[I]n any case, a people is always the master of changing its laws, even the best ones; for if it pleases it to harm itself, who has the right to prevent it from doing so?”); bk. 1, chap. 7, 362 (denying that even the social contract itself can be obligatory on the people as a body); bk. 3, chap. 18, 436 (same).
- 38.
See, for example, ibid., bk. 3, chap. 5, 407, where Rousseau acknowledges the force of the view that the wise should rule for the benefit of the ruled, but then immediately qualifies his endorsement:
In a word, the best and most natural order is to have the wisest govern the multitude, when one is sure that they will govern for its benefit and not for their own; one must not vainly multiply devices, nor do with twenty thousand men what a hundred well chosen men can do even better. But it must be noted that here the corporate interest [of the governors] begins to guide the public force less by the rule of the general will , and that another inevitable decline elevates (enlêve) a part of the executive power above the laws.
In two somewhat different contexts, Rousseau refers to Plato’s Statesman in support of the proposition that a human being truly qualified to rule must be very rare (ibid, bk. 2, chap. 7, 381; bk. 3, chap. 7, 412). Drawing this inference from the text of the dialogue is perfectly plausible. Rousseau’s own related conclusions are also perfectly plausible: someone qualified to be a founding lawgiver must be even more rare, and seeking to approximate the rule of wisdom through the institution of monarchy involves self-deception. Rousseau may also mean for the reader to draw other inferences from the fact that he twice alludes to the Statesman. One possibility is that he ultimately shares the Eleatic Stranger’s implicit depreciation of the significance of political legitimacy, or the consent of the governed. As we will see below, Rousseau frequently indicates that even tolerably wise rulers are not and should not be passive agents of the general will .
- 39.
See ibid, bk. 2, chap. 1, 368 (“if the opposition of particular interests made the establishment of societies necessary, it is the agreement of these same interests that has made it possible”).
- 40.
See, for example, ibid., bk. 2, chap. 6, 378 (“All justice comes from God, he alone is its source; but if we knew how to receive it from so high, we would need neither government nor laws. Without doubt there is a universal justice emanating from reason alone; but in order for this justice to be accepted among us, it has to be reciprocal. Considering things in human terms, the laws of justice are vain among men for lack of natural sanctions; they merely bring benefits to the wicked and harm to the just when the one observes them with everyone without anyone observing them with him.”); Poland, chap. 12, O.C., 3:1013.
- 41.
He adds that France was undergoing something of a population boom at the time Rousseau was writing (Natural Goodness, 289).
- 42.
It is true that Rousseau believes that monarchical government is inherently inferior to republican government (S.C., bk. 3, chap. 6, O.C., 3:410). But that does not mean that he thinks republican government is always possible: “People are always disputing about the best form of Government, without recognizing that each of them is the best in certain cases, and the worst in others” (ibid., chap. 3, 403).
- 43.
Elsewhere, he acknowledges that special factors allowed the population to increase even under the extreme despotism of China (Mountain, lett. 8, O.C., 3:843n). The various exceptions that Rousseau mentions involve periods during which would-be tyrants were distracted from oppressing the people because they were fighting among themselves.
- 44.
In the Social Contract, according to Melzer , “self-preservation is the fundamental end of the state and the goal from which the terms of legitimacy are deduced” (Natural Goodness, 288). In the passage Melzer refers to, however, Rousseau says that the end or goal of the political association is “the preservation and the prosperity of its members” (S.C., bk. 3, chap. 9, O.C., 419–20, emphasis added).
- 45.
Some years after the Social Contract was published, Adam Smith reached the same conclusion: “The most decisive mark of the prosperity of any country is the increase of the number of its inhabitants” (Wealth of Nations, bk. 1, chap. 8, ¶ 23). Smith’s analysis is more detailed and economically sophisticated than Rousseau’s, but he agrees with Rousseau’s central political point: a wealthier society is not a better society if the wealth is concentrated in a few hands. “No society can surely be flourishing and happy, of which the far greater part of the members are poor and miserable” (ibid., ¶ 36).
- 46.
One important benefit of having children has traditionally been the expectation that adults will support their aged parents. This benefit has been much reduced in modern welfare states. Obvious advantages arise from making government the default caregiver of the old and disabled, but it can hardly be denied that it reduces the incentive to have children. And it remains to be seen whether entitlement systems of the modern type can be maintained indefinitely without leading to a kind of demographic suicide. For further discussion, see the analysis of Plato’s Laws and the Letter to d’ Alembert in Chapter 4.
- 47.
Francis Fukuyama , “The End of History?,” 4. Fukuyama expanded his argument in The End of History and the Last Man.
- 48.
See, for example, Samuel P. Huntington , “The Clash of Civilizations?”; Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order.
- 49.
Throughout his book, Melzer focuses heavily on Rousseau’s agreements and disagreements with Hobbes. He gives no attention to Adam Smith , who may present the most serious of all modern challenges to Rousseau’s political philosophy. An adequate analysis of that challenge would have to take full account of the many important points of agreement, as well as the disagreements, between Smith and Rousseau.
- 50.
For elaborations of this point, see S.C., bk. 1, chap. 2, O.C., 3:352; Economy, O.C., 3:241–44. Joel Schwartz points out that Rousseau’s understanding of female human nature, according to which it is even more difficult for women than for men to generalize their wills beyond their own family, points toward the advisability of limiting their direct role in public affairs (The Sexual Politics of Jean-Jacques Rousseau, 41–44). In his writings on political legitimacy, however, Rousseau refrains from drawing this conclusion because it is not implied by the principles of political right.
- 51.
See, for example, Economy, O.C., 3:260–62; Poland, chap. 4.
- 52.
For the enduring significance of this problem, one need only refer to Federalist 10 and the academic literature of our own time in the field of public choice. It is worth noting that Rousseau had already articulated Madison ’s key insight: “if there are partial societies, their number must be multiplied, and inequality among them prevented, as was done by Solon , Numa , Servius ” (S.C., bk. 2, chap. 3, O.C., 3:372). As his allusion to ancient Romans indicates, Rousseau would expect us to think for ourselves about the best way to go about multiplying factions in various circumstances, as Madison certainly did.
- 53.
See ibid., bk. 2, chap. 1, 368 (sovereignty); chap. 6, 379 (law).
- 54.
Ibid., bk. 3, chap. 4, 406.
- 55.
See also ibid., bk. 3, chap. 10, 421:
As the particular will incessantly acts against the general will , so the Government makes a constant effort against the Sovereignty. The greater this effort grows, the more the constitution is debased, and since there is no other corporate will here to balance the will of the Prince [i.e., the governors or magistrates] by resisting it, sooner or later the Prince must succeed in oppressing the Sovereign and breaking the Social treaty. This is the inherent and inevitable vice which relentlessly tends to enfeeble the body politic from its birth, just as old age and death destroy a man’s body.
- 56.
See, for example, ibid., bk. 3, chap. 5, 406–07 (periodic elections); chap. 7, 413–14 (separation of powers). See also Poland, chap. 7, O.C., 3:975–78; chap. 8, 993–94. Rousseau also advocates some of the same devices that we use to promote stability, such as supermajority voting rules for especially important decisions (S.C., bk. 4, chap. 2, O.C., 3:441).
- 57.
See S.C., bk. 2, chaps. 1–2; bk. 3, chaps. 12–15; bk. 3, chap. 18. In Rousseau and Representation, Richard Fralin identifies a number of seemingly inconsistent statements and inadequate arguments on this topic in Rousseau’s various writings. In the end, he concludes that Rousseau’s views changed over time and that Rousseau never escaped from the grip of a fundamental ambivalence about the value of direct citizen participation in the political process. For reasons that I will sketch out below, I disagree with these conclusions.
- 58.
See, for example, S.C., bk. 3, chap. 8, O.C., 3:414 (citing Montesquieu for the proposition that “[l]iberty not being the fruit of all Climates, it is not within the reach of all peoples”). In a lengthy polemic about Genevan politics written after the Social Contract was condemned by the authorities in his native city, Rousseau warned against efforts to model institutions for modern bourgeois societies directly on those adopted by ancient peoples (Mountain, lett. 9, O.C., 3:880–82). But he did not conclude that freedom has now become impossible. Instead he argued that institutional mechanisms must be adapted to the changed situation:
Not being idle as the ancient Peoples were, you [Genevans, who are always occupied with private and commercial interests] cannot ceaselessly occupy yourselves with the Government as they did: but by the very fact that you can less constantly keep watch over it, it should be instituted in such a way that it might be easier for you to see its intrigues and provide against abuses. Every public care that your interest demands should be made so much easier for you to fulfill since it is a care that costs you and that you do not make willingly. For to wish to unburden yourselves of them completely is to wish to cease being free. (ibid., 881)
- 59.
It is sometimes said that Rousseau objects to representative legislatures on the purely theoretical ground that will by its nature cannot be represented. See, for example, Fralin , Rousseau and Representation, 81–82. The very passage in which Rousseau makes an argument against the possibility of the general will ’s being alienated, however, goes on to add: “This is not to say that the commands of the chiefs may not be taken for general wills, as long as the sovereign is free to oppose them and does not do so” (S.C., bk. 2, chap. 1, O.C., 3:369–58). It is certainly true that will, unlike power, cannot be alienated, or represented in one technical sense of the term. But so long as representatives are understood as agents of the sovereign rather than as possessors of sovereignty itself, this theoretical objection to representative legislatures disappears. Although Rousseau does say that agents of the sovereign “cannot conclude anything definitively,” he later makes it clear that the real theoretical touchstone of legitimacy is consistency with the general will, not such formalities as in-person ratification (ibid., bk. 3, chap. 15, 429–30; bk. 4, chap. 2, 440–41).
- 60.
For example, S.C., bk. 1, chap. 4; bk. 3, chap. 15; see also Discourse on the Sciences and the Arts , O.C., 3:24n** (suggesting, with Montaigne , that the educational regimen of Lycurgus was “in truth monstrous in its perfection”). Rousseau’s precise argument against the legitimacy of slavery is that it would have to be based on an absurd agreement in which one party gives up everything and receives nothing in return. It is therefore a kind of mirror image of what Rousseau presents as the genuine social contract. In both cases, Rousseau’s argument is highly formalistic, with only an ambiguous connection to political practice. The argument applies, moreover, only to slavery in the narrowest sense of the term. It does not rule out indentured servitude, for example, or even forms of slavery for life that offer economic opportunities and some protections rooted in law or custom. Cf., for example, Morris Silver , “Contractual Slavery in the Roman Economy.” Rousseau’s deeper argument against slavery extends to a much wider range of relationships of dependency. The conclusion of that argument is stated most concisely in the Emile: “Not having any morality, dependence on things does not impair liberty and does not engender vices. Being disordered, dependence on men engenders them all, and by it master and slave are mutually depraved” (O.C., 4:311, Bloom, 85, footnote referring to the Social Contract omitted).
- 61.
S.C., bk. 4, chap. 3, O.C., 3:443. The only other place where Rousseau makes such a remark is when he introduces his technical discussion of the relation between the sovereign and the government (ibid., bk. 3, chap. 1, 395). Rousseau generally treats Sparta as a model when discussing the molding of genuine citizens, and Rome as a model when discussing institutions of governance.
- 62.
Rousseau expressly acknowledges this point in the Discourse on Political Economy (O.C., 3:250–51).
- 63.
For example, S.C., bk. 2, chap. 3, O.C., 3:371; bk. 2, chap. 6, 380; Poland, chap. 7, O.C., 3:978. These statements presuppose that the people really are a people, not just a collection of individuals who happen to be subject to a common ruler.
- 64.
Elsewhere, Rousseau provides a more general theoretical statement that explains why periodic popular assemblies can be important, though not absolutely indispensable:
The Legislative power consists in two inseparable things: to make the Laws and to maintain them; that is to say, to have supervision over the executive power. There is no State in the world in which the Sovereign does not have this supervision. Without that, all connection, all subordination between these two powers being missing, the latter would not depend on the other; execution would have no necessary relation to the Laws; the Law would only be a word, and this word would signify nothing. (Mountain, lett. 7, O.C., 3:826)
- 65.
“It is, therefore, one of the most important tasks of government to prevent extreme inequality of fortunes, not by taking treasures away from those who possess them, but by taking away from everyone the means of accumulating them, nor by building poorhouses, but by guaranteeing the citizens against becoming poor” (Economy, O.C., 3:258, emphasis added). See also ibid., 277–78, where Rousseau argues that luxury taxes do not require the consent of the sovereign because they are really voluntary contributions to the public fisc by people who choose to acquire things that they do not need. This sophism has a kinship with Lycurgus ’ much bigger lie about the divine origin of the laws he promulgated.
- 66.
Another example involves the creation of classes of citizens. Rousseau declares that the law can set the qualifications for membership in a particular class, but cannot nominate particular individuals for membership (S.C., bk. 2, chap. 6, O.C., 3:379). Whoever sets the qualifications will likely have a very good sense of which individuals will meet those qualifications.
- 67.
Elsewhere, Rousseau says that “the greatest talent of chiefs is in disguising their power in order to render it less odious” (Economy, O.C., 3:250).
- 68.
The manuscript was intended as a private communication to the Poles on whose behalf it was solicited. Some years later, it was put into circulation by one or more of its recipients. Rousseau, however, considered this inappropriate, and he never approved its publication.
- 69.
Rousseau’s work had no effect on events, for Poland was partitioned by her neighbors shortly before or after he submitted his manuscript. See Maurice Cranston , The Solitary Self: Jean-Jacques Rousseau in Exile and Adversity, 177.
- 70.
See Poland, chap. 7, O.C., 3:977, 978, 981, 987, 988; chap. 15, 1036.
- 71.
Rousseau makes this same point in the Letters Written from the Mountain, where he also calls England “a model of the just balance of the respective powers” (lett. 9, O.C., 3:874, 877).
- 72.
A cardinal principle of Rousseau’s approach to practical politics is to take full account of existing institutions and circumstances, and to aim at small changes that are apt to produce large effects. See, for example, Poland, chap. 1, O.C., 3:953, 955–56; chap. 7, 985; S.C., bk. 3, chap. 18, O.C., 3:435; N.H. , pt. 4, lett. 10, O.C., 2:455.
- 73.
Ultimately, Rousseau wanted to see Poland move toward a system of federalism that bears a striking resemblance to the one that was established in our Constitution. See Poland, chap. 5, O.C., 3:971.
- 74.
This proposal may have much to recommend it in nations that are very different from Poland, including our own. One might think of it as an effort to institutionalize the propagation of what Lincoln called “the political religion of the nation” (“The Perpetuation of Our Political Institutions: Address Before the Young Men’s Lyceum of Springfield, Illinois,” 27 Jan. 1838). Were we to adopt Rousseau’s suggestion, we might get better schoolteachers and better politicians.
- 75.
Rousseau goes on to explain: “The virtue of [Poland’s] Citizens, their patriotic zeal, the distinctive form that national institutions can give their souls, this is the only rampart that will always stand ready to defend her, and that no army could subdue. If you make it so that a Pole can never become a Russian, I assure you that Russia will never subjugate Poland” (Poland, chap. 3, O.C., 3:960). Later, Rousseau supplements this recommendation with more specific suggestions about national defense, the most important of which is reliance on a system of local militia rather than a professional, national army (ibid., chap. 12, 1013–14). This recommendation parallels the American preference for militia forces over standing armies at the time of our founding, especially among the Anti-Federalists .
- 76.
Somewhat inconspicuously, the Social Contract also acknowledges that there are circumstances in which the government or executive should be strengthened. See, for example, bk. 3, chap. 1, O.C., 3:396–98; bk. 3, chap. 7, 413–14.
- 77.
American readers may be especially interested to note that Rousseau proposes that the executive and legislative functions be mixed in a way that is strikingly similar to the way they are mixed in our Constitution (Poland, chap. 8, O.C., 3:993–94). If Rousseau drew his understanding of the principle of the separation of powers from Montesquieu , he did so intelligently rather than with the simple-mindedness of those who were refuted in Federalist 47.
- 78.
Rousseau suggests three different alternatives for dealing with this problem: (1) abolish the liberum veto ; (2) restrict its use to the most fundamental elements of the constitution, which by “the natural right of societies” must have been adopted by unanimous consent and which might therefore be thought to be alterable only by unanimous consent; or (3) preserve the liberum veto but require that anyone who uses it be put on trial six months later, with only two possible verdicts: death or a reward and public honors for life (Poland, chap. 9, O.C., 3:994–97). Rousseau appears to prefer the first option: “The only way to eliminate this fatal abuse is to destroy its cause entirely” (ibid., 995). The fact that he did not insist on the second option is one of many examples of his refusal to allow procedural arguments about legitimacy to become the decisive means of evaluating political institutions.
- 79.
For example, S.C., bk. 1, chap. 8, O.C., 3:362–63; bk. 2, chap. 6, 379; bk. 3, chap. 15, 429–30.
- 80.
See ibid., bk. 2, chap. 3, 372n (quoting History of Florence); bk. 2, chap. 7, 384n (quoting Discourses on Livy); bk. 3, chap. 6, 409 (calling the Prince “the book of republicans”); bk. 3, chap. 9, 420n (paraphrasing a passage from History of Florence); see also Economy, O.C., 3:247 (referring to “the satires of Machiavelli ”).
- 81.
Leo Strauss maintains that Rousseau’s own interpretation is “insufficient” (Thoughts on Machiavelli , 26). He argues instead that the superficial view of Machiavelli as “a teacher of evil” is ultimately more consistent with the deepest reading of his works. See, for example, ibid., 9–14. Rousseau would then also seem to be a teacher of evil, for he shares the Machiavellian view that “moral virtue, wished for by society and required by it, is dependent on society and therefore subject to the primary needs of society” (ibid., 294). Without pretending to match Strauss ’ understanding of Machiavelli , I can suggest that Rousseau might have considered the following assertion by Strauss “insufficient,” and perhaps unduly superficial: “The classics understood the moral-political phenomena in the light of man’s highest virtue or perfection, the life of the philosopher or the contemplative life” (ibid., 295). I am confident, however, that Rousseau would have agreed with the concluding sentences of Strauss ’ book: “It would seem that the notion of the beneficence of nature or of the primacy of the Good must be restored by being rethought through a return to the fundamental experiences from which it is derived. For while ‘philosophy must beware of wishing to be edifying,’ it is of necessity edifying” (ibid., 299). Or, to put my point a little differently, if Strauss is right that Rousseau’s interpretation of Machiavelli is “insufficient,” it may still be usefully edifying. Rousseau, moreover, also knew what Strauss himself undoubtedly recognized: rethinking the notion of the beneficence of nature or of the primacy of the Good requires a lot more than allusions to the life of the philosopher or the contemplative life.
- 82.
See, for example, S.C., bk. 2, chap. 11, O.C., 3:392–93; bk. 3, chap. 18, 435.
- 83.
The Constitution provides:
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
- 84.
Stevens repeats this quotation, or parts of it, at least six times. 514 U.S. at 783, 793, 795 (twice), 796 n12 (without quotation marks), 819. Stevens clearly regards this as his principal argument. Other than the Qualification Clauses themselves, for example, it is the only authority cited in the introductory summary at the beginning of the majority opinion. Similarly, Stevens says that the text and structure of the Constitution and the relevant historical materials about its meaning are less important than the “basic principles of our democratic system” (ibid., 806).
- 85.
Technically, the Arkansas provision only kept these long-term incumbents off the ballot, while allowing them to be reelected as write-in candidates. For purposes of my discussion, this distinction is unimportant, and for convenience I will treat the Arkansas provision as though it imposed strict term limits.
- 86.
On the rationality of the movement for term limits, see Einer Elhauge, et al., “How Term Limits Enhance the Expression of Democratic Preferences.” Rousseau advocated the adoption of term limits in Poland (Poland, chap. 7, O.C., 3:979).
- 87.
Under Powell, which I believe was correctly decided, the Constitution would not permit this.
- 88.
At the time of the Term Limits decision, twenty-one of the twenty-two states with some type of term limit provision had adopted them through a direct vote of the people.
- 89.
Article IV provides: “The United States shall guarantee to every State in this Union a Republican Form of Government.”
- 90.
“The law of yesterday does not obligate today, but tacit consent is presumed from silence, and the Sovereign is presumed to constantly confirm the laws which it does not abrogate, when it can do so” (S.C., bk. 3, chap. 11, O.C., 3:424, emphasis added).
- 91.
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof” (emphasis added).
- 92.
“To put the law above man is a problem in politics that I compare to that of squaring the circle in geometry” (Poland, chap. 1, O.C., 3:955).
- 93.
For a detailed presentation of these suggestions, see Craig S. Lerner and Nelson Lund, “Judicial Duty and the Supreme Court’s Cult of Celebrity.”
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Lund, N. (2016). Political Legitimacy, Direct Democracy, and American Politics. In: Rousseau’s Rejuvenation of Political Philosophy. Recovering Political Philosophy. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-41390-7_6
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