Blind Spots

In a new and fascinating paper, Jeremy Waldron asks why it is that Sir Isaiah Berlin, in his work on the Enlightenment, paid no attention to “one of the most important achievements of the European enlightenment” ― what prof. Waldron calls “Enlightenment constitutionalism.” The paper is a reflection not only on Berlin and the constitutional ideas of the late-17th – 18th century which he failed to pay attention to, but also, inevitably if only implicitly, on constitutionalism more broadly. It is also an occasion for us reflect on prof. Waldron’s own work.

Prof. Waldron defines Enlightenment constitutionalism as

a body of thought that emerged in the 18th century, but originated in England in the later decades of the 17th century, about forms of government and the structuring of the institutions of government to promote the common good, secure liberty, restrain monarchs, uphold the rule of law, and to make the attempt to establish popular government— representative, if not direct democracy—safe and practicable for a large modern republic. (3)

The thinkers he associates with it range from John Locke in England, to Montesquieu, Rousseau, and Siyès in France, to Jefferson, Madison, and Hamilton, in the United States, as well as others, including Kant (4). Enlightenment constitutionalism’s signal achievements, prof. Waldron says, were the republican constitutions of the United States and of revolutionary France. Berlin, says prof. Waldron, took no notice of this body of thought, even though he did write ― very critically ― about the Enlightenment, including some of the work of these same thinkers. Yet the “theme,” on which they all dwelt,

of structural intricacy and design of a constitution … has a massive bearing on the plausibility of Berlin’s well-known and destructive claim that the Enlightenment aspiration to remake society has been a philosophically misbegotten source of totalitarian hubris and terror. (7)

Prof. Waldron argues that although Enlightenment constitutionalism saw constitutional design a scientific endeavour, requiring a

deliberate disaggregation — in thought first and then insistently in practice — of government into separate organizations understood functionally. (11)

Its theorists and practitioners were well aware, he points out, of the weakness of human nature, and of the conflicting values and interests that people bring to the political arena. Far from trying, as Berlin accused them of doing, to fit the “crooked timber of humanity” into some ready-made mould, they looked for ways in which these weaknesses and conflicts could be checked, balanced, and ideally even made to serve the public good. Although, as prof. Waldron notes, “all this is presented as a project of deliberate design” (17), this design was not ― in his view ― the arrogant sort that purports to submit everything to a single-minded overarching vision:

 for the Americans, constitutional design though deliberate was understood to be untidy and pluralistic, setting out to house rather than reconcile the pursuit of competing and incommensurable values (19),

and the French shared this humble conception.

Prof. Waldron also observes that, in addition to its concern with the structure of government and the empowerment of citizens (and their representatives), Enlightenment constitutionalism was preoccupied with individual liberty and limits on the power of government. Yet strangely, for all his concern with liberty, Berlin paid no attention to that either. He was apparently not interested in “the institutional mechanisms that might secure the modicum of liberty he thought was ethically required for each person” (22), nor did he have anything intelligent to say about the relationship between the protection of liberty and democracy.

As for the reasons for blind sport of Berlin’s, prof. Waldron suggests that the least unflattering one is, in addition to his general “lack of interest in law and legal structures” (27), that Berlin’s “conception of the theory of politics, of political philosophy … was far more ethical in its character than political” (28). Berlin, in other words, cared much more about an individual’s relationship to the community than about the ways in which the community organizes itself.

This is, as I said in the beginning (unnecessarily so, since it is true of everything prof. Waldron writes) fascinating stuff. I do, however, have some misgivings about it. One question is whether it is quite fair to associate the theoretical project of Enlightenment constitutionalism as well as its practical incarnation in America, which were indeed concerned with checking, balancing, and dividing power, with the French revolutionary constitution-making, which spectacularly failed to do so, not least precisely because it failed to learn the lesson of Enlightenment constitutionalism. As Lord Acton put it in his brilliant Lectures on the French Revolution (available here for e-readers),

[t]he errors that ruined their enterprise may be reduced to one. Having put the nation in the place of the Crown, they invested it with the same unlicensed power, raising no security and no remedy against oppression from below, assuming, or believing, that a government truly representing the people could do no wrong. They acted as if authority, duly constituted, requires no check, and as if no barriers are needed against the nation. (199)

I also wonder whether the theorists and practitioners of Enlightenment constitutionalism were really as modest as prof. Waldron insists they were. (As an aside, I wonder whether this passage in prof. Waldron’s article is an attempt to rebut not only Berlin, but also Hayek, the great critic of design and immodesty.) Certainly the framers of the U.S. Constitution could be smug, as Alexander Hamilton was in The Federalist no. 68, where he wrote that “if the manner of [the election of the President] not be perfect, it is at least excellent.” Ironically, and perhaps revealingly, this “excellent” scheme of indirect rather than popular election was entirely undone by the development of a political morality more democratic than what the framers were comfortable with ― within just a few decades.

These are just quibbles. The broader point I would like to venture is that prof. Waldron’s take on Enlightenment constitutionalism might be vulnerable to a critique similar to the one he levels at Berlin: that his personal understanding of his subject leads him to miss something really important about. Arguably, the most important innovations of Enlightenment constitutionalism are federalism and judicial review of legislation. Separation of powers and bicameralism, after all, already existed, in 17th century England. Yet prof. Waldron’s tribute to Enlightenment constitutionalism says very little about either. He barely mentions “the complex relation of state to federal arrangements” (11) and

the question that exercised Madison and both his friends and opponents in the American ratification process—about what good “parchment barriers” could do, and whether the frontiers of freedom were better secured by the structural principles of a constitution than  by a dedicated bill of rights (22).

John Marshall, rightly or wrongly, gets no mention in his list of Enlightenment constitutionalists. To avoid extending this already long post too much, suffice it to say that these are important legacies of Enlightenment constitutionalism ― and, if Lord Acton is right, perhaps also the differences between the constitutional experiment which succeeded, that of the United States, and the one that failed, that of France ― and that a discussion of the subject which does not mention them seems incomplete. But, of course, prof. Waldron has always been more interested in how democratic power ought to be structured than in how it ought to be limited. This is his vision of constitutional theory ― and, much like Berlin’s vision of political theory, it results in a lack of interest in some of the crucial aspects of the phenomenon he studies.

Of course, to say that a scholar has a blind spot is a compliment more than a criticism. Most of us have “seeing spots” ― we only notice a few things here and there. Geniuses like Berlin and Waldron see almost everything, and it is against this impressive background that the blind spots are noticeable.

UPDATE: A made an idiotic typo in the post’s title, which I have now rectified.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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