Popular Government

...Scornful of utopian idealists, Elkin writes as a realist...

...Although he does not put it so bluntly, this is the logic of Elkin’s theory of deliberative lawmaking...

...Principal elements of the Madisonian regime include: rule of law defined as lawmaking through reasoned deliberation by a public body, commercial society based on private property, civil society consisting of private voluntary associations, public-spirited citizens, and political institutions resting on a foundation of self-interest “harnessed to a conception of justice consistent with the one held by the powerful social strata...

...In Elkin’s theory, this is true only in an indirect and qualified sense...

...The middle class, Elkin asserts, will “sense that it is only public government— government open to scrutiny, where reasoning carries the day—that can serve their interests...

...In contrast to the legalistic modern idea of a written constitution, regime theory comprises institutions of polity, economy, and society altogether, signifying a political whole of interrelated parts having a distinct ethos...

...Elkin believes that the middle class, when mobilized by deliberative lawmakers and party leaders, is capable of political action in the public interest...

...In contrast, commercial pursuits are private and self-regarding, hence unsuited for public lawmaking...

...Under the rule of deliberative lawmaking, that which serves the public interest presents itself as “constitutional”—if the notion of constitutionality remains valid—or at least politically right...

...In this case, the point would be that the New Deal is over, its accomplishments duly recognized and its errors in the process of rectification within the framework of orthodox American constitutionalism...

...The “right kind of politics” prompts lawmakers to act in a “reflexive fashion” to legislate in the public interest...

...In the name of practical reason, one might say, the conclusion follows that “the substance of the public interest is institutional...

...Elkin underscores the “reflexive” character of the public interest...

...The intelligence of wellcalibrated and discerning republican class politics can lead controllers of productive assets to transcend narrow self-interest...

...At the same time, the public interest is “subjective,” in the sense that opinions about its content will differ...

...It is the actual distribution of power in the community, rooted in a pattern of class rule and a conception of justice that legitimates the manner of political rule...

...His admiration and respect for the achievement of Madison and the Founders is clear...

...Deliberative lawmaking is “reflexive” in the sense that it “consists in looking in an expansive, regime-encompassing way at itself...

...For all its insight and learning, however, Reconstructing the Commercial Republic has a kind of abstract quality...

...Elkin comments: “A well-designed constitutional politics means that the public interest is regularly served...

...The means of enlightenment, among other things, is redistribution of capital through reforms such as onetime “life” income grants...

...The key to understanding the public interest is reliance on deliberative practical reason...

...Commerce cannot be eliminated, but it can be made to serve the public interest...

...by Herman Belz In this erudite, amiable, and provocative work, the political theorist Stephen Elkin presents a political rather than a juridical conception of American constitutionalism...

...The interest of the middle class will lead it to resist serious attack on property interests while opposing massive economic inequality and rejecting the claim that full employment at reasonable wages for all is neither possible nor desirable...

...The public interest is “substantive,” and its “concrete meaning” can only be decided “in the context of actual efforts at lawmaking...

...It is concerned with serving moral and political values in the world, not with analyzing theories of law, morality, and economics in the manner of contemporary scholarship...

...Elkin gives insufficient consideration to the cultural and moral transformation that has occurred under the shaping effect of the New Deal regulatory/welfare state and its liberal progeny that claim “mainstream” moral recognition...

...Factional in nature, it is “a corruption of the public sphere by private interest...

...But the massive economic inequality caused by modern capitalism requires a different kind of remedy: namely, the moral enlightenment of private property interests by practical-reasoning deliberative lawmakers...

...Although not yet a crisis, Elkin advises: “The present historical juncture may be the last time that Americans really do aspire to be a commercial republic...

...In political terms, the republican problem is “how to get the propertied to serve in a government that would not be an exercise in class rule, while at the same time getting the propertyless to accept a regime that was not constructed with the express intent of alleviating their distress...

...Referring to American society, Elkin observes: “The bourgeois state contains inner contradictions and that is what it is all about...

...And since the public interest consists of creating and securing constitutive republican institutions, serving the public interest, in turn, means that such a politics would be strengthened...

...At present, the market and private ownership work against republican government...

...The public interest is not something to be categorially or specifically identified in terms of public goods or “transpolitical standards” deductively applied...

...Elkin the realist views economic self-interest as a regrettable necessity, a “medicine” to be taken “in a largely undiluted form...

...According to Elkin, Madison envisioned a new kind of politics that would prevent factional rule and secure the public interest through the exercise of strong, active, and limited government...

...The natural tendency for a commercial people “to see politics as an extension of economics,” Elkin explains, must be overcome and corrected...

...Constitutional thinking for a republican regime, therefore, is “an exercise in practical political reason, the purpose of which is to secure an institutional design for the exercise of that reason...

...There is a self-constituting sense of existential “becoming” in these observations that is remote from the philosophical foundations of the Founders...

...In Elkin’s commercial republican constitution, aspiration to fulfill the public interest is the highest moral desideratum...

...Instead he adopts the Aristotelian concept of regime as his central organizing principle...

...In Holman Jenkins’s apt observation, the more successful the stock market is in cultivating strong businesses, the more we’re told the whole system is rotten and in need of reform...

...Herman Belz is professor of history at the University of Maryland...

...But such disagreement, Elkin notes, has no bearing on whether the determination of the public interest is correct...

...Interest-group politics depends upon “bargaining,” not “reasoning,” as in public-interest politics: “The invasion by an aggregative politics of deliberative lawmaking is a danger to republican government...

...He also cautions that a political regime “cannot tolerate just any sort of contradiction, or at least unlimited contradiction...

...Challenging the doctrine of judicial supremacy over constitutional meaning, Elkin advances “a theory of republican political constitution” based on the idea of deliberative lawmaking in the public interest...

...Institutions are always important, but the wisdom or good judgment of practical reason cannot be codified in fixed rules, much less systematized in a reflexive, cybernetic feedback mechanism...

...In order to be included in publicinterest deliberation, therefore, the property interests of large-scale productive asset controllers must be broadened...

...It rests on “good arguments” and “good reasons” and is informed by “public-regarding motives...

...It is Elkin’s political sensibility, expressed in almost elegiac reference to the New Deal as the epitome of public-interest politics, that might be questioned...

...He envisions “a secure and confident” middle class acting “as a kind of pivot moving between coalitions with asset controllers and with the have littles [sic]” of American society...

...Moreover, the scholarship in this book is richly informed by close attention to the classic texts in Western political philosophy, including the writings of Machiavelli and Leo Strauss...

...Practical reason thus becomes, in effect, a kind of constitutional law...

...Elkin departs from the conventional juridical focus of constitutional scholarship based on the text of the Constitution...

...In America, the commercial part of the regime exists in tension with the republican part...

...Their inattention to the public interest is probably less a matter of intention than of ignorance, and “may be curable...

...Given the superiority of deliberative reasoning to interest-bargaining, republican aspiration can be more fully realized by treating private property as a public interest...

...The more public-spirited the citizenry becomes, the more political demands there are for control of private property rights...

...In Elkin’s view, things are not well with the American republic...

...Deliberative reason is practical...

...In thinking about good political practice, he advises, “we must look at actual citizens with their history, virtues and vices, and institutional inheritance...

...Given “the sort of beings we are,” he states, “here are the conditions that must obtain if we are to have the politics we wish for...

...It cannot be forgotten that economic self-interest is a necessary feature of a commercial republic...

...Elkin describes his position as one of “radical conservatism...

...In the form of interest-group politics, however, as “a natural by-product of the workings of private-property-based markets,” economic self-interest is unacceptable in deliberative lawmaking...

...but once we more widely distribute wealth,” Elkin asserts, “the wonders of compound interest and all other wealth-magnifying devices of an enterprise-based market system start to work in favor of republican government...

...A translation of the Greek word politeia, regime refers to the political order as a whole...

...Regime analysis has modern theorists, including James Madison...

...There is a kind of critical historical reason, neither theoretical nor practical in a strict sense, that helps to frame constitutional problems by disclosing deeper truths...

...The public interest depends on deliberative lawmaking, which involves the exercise of practical reasoning...

...Modestly, he admits there is no simple way “to provide empirical backing” for the constitutional design he proposes...

...One of Elkin’s key points is that, in modern republicanism, practical reason appears in an institutional form rather than in the prudence and moral excellence of the statesman, as in classical political philosophy...

...The essential difficulty in actualizing the commercial republican regime, Elkin emphasizes, is posed by the “inevitable division between the propertied and the propertyless...

...Elkin states: “At the center of the regime would be a deliberative core capable of practical reasoning about the concrete meaning of the public interest...

...Sources of discontent include unequal distribution of income and wealth, decline in civic spirit and political participation, and middle class uneasiness caused by economic insecurity, cultural conflict, and the weakening of families...

...Definition of the meaning of the public interest poses the deepest intellectual conundrum...

...Although not historically disembodied like John Rawls’s A Theory of Justice, Elkin’s account of contemporary government and politics might not be entirely recognizable to many observers...

...Because of their importance in creating the material prosperity that is a fundamental requirement in modern society, private property rights and economic liberty would appear to serve the public interest...

...It is not obvious that middle-class mores, as presented here, are accurately represented in the class-based politics of the Democratic party, led by rich and well-educated “populists,” and to which Elkin looks as the instrument of fully realized commercial republican aspiration...

...Institutional manifestations of republican decline are seen in judicial policy intervention, legislative preoccupation with interest-group bargaining, and executive government by administrative lawmaking...

...And the basis on which reforms can be actualized— the second fundamental point in Elkin’s theory—is republican class politics centered on the ruling element in the regime, the middle class...