Constitutionalism and Coercion

IntroductionGovernment is not very popular these days. In the United States, and to a significant extent elsewhere, trust in government appears to be extraordinarily low. And the degree of distrust of government is matched by, and arguably caused by, distrust of the governors-the officials who collectively constitute the government. On a daily basis, we hear and read about officials who take bribes, provide jobs for their relatives, grant sinecures to their friends, favor their donors, and put reelection and political ambition above the needs and interests of their constituents. Indeed, although experience is often thought to be a valuable job credential, it is not so in politics, where extensive political or public ser vice experience seems far more often to be an electoral liability than a political asset.In this environment, James Madison's memorable wor ds in The Federalist No. 51- "If men were angels, no government would be necessar y" -resonate perhaps even more than when Madison wrote them.1 Especially in recent years, this Madisonian idea has informed a great deal of American constitutional thinking.2 Constitutions exist to keep bad governors from doing bad things, it seems commonly to be assumed, and thus constitutions serve principally to protect the public and the public interest from the actions of officials that are far too rarely inspired by a genuine commitment to the public interest. Three decades ago, for example, Cass Sunstein argued that a proper understanding of the U.S. Constitution-in significant part Madison's Constitution-would recognize the central importance of guarding against the "naked preferences" of the populace and its representatives.3 As a consequence, he argued, it is necessary to entrench principles of constitutional interpretation that would expose and diminish the importance of preferences devoted to the private interests of factions and officials, rather than to the genuine public interest.4Sunstein's views embody a common view of constitutionalism as a way of keeping incompetent, misguided, corrupt, ignorant, or otherwise bad officials from doing bad things.5 And certainly there is much in American constitutional thought and histor y to support such a view.6 The Constitution has kept racist officials from effectuating racist policies;7 it has prevented rogue law enforcement officials from railroading innocent suspects;8 it has prevented officials from clinging to outmoded and (morally and empirically) mistaken gender stereotypes;9 and it has prevented presidents from using the powers of the office to punish political enemies and attempt to cover up the evidence of their misdeeds.10 And this is only the tip of the iceberg.This vision of constitutionalism-the constitution of distrust-is focused on officials who do or might act badly. "Badly" is a loose term, but it encompasses the officials who act for reasons of self-interest rather than public interest; who are corrupt in a more direct sense; who use their offices to pursue obviously immoral practices; who seek to increase their power and disable those who might threaten it; who use their official power to embody racist and other blatantly discriminatory policies; and who in various other ways fit Madison's characterization. Such officials may not always be "devils," but nor are they "angels" in Madison's sense. The constitution of distrust is thus a constitution aimed principally at preventing such people from pursuing the foregoing agendas. The constitution of distrust is a constitution designed to keep bad people from doing bad things.There is, however, an alternative vision of constitutionalism and of the function of constitutions in most modern democracies, a vision that views constitutionalism as imposing second-order constraints on the first-order policy decisions made by reasonable, well-meaning officials. This alternative vision and the constitution of distrust are not necessarily mutually exclusive. …