Posted on September 25, 2008

Populism & Anti-Populism: A False Dilemma?

I’m reading “Here, the People Rule: A Constitutional Populist Manifesto” by Harvard law professor Richard D. Parker.

Parker’s a collectivist, a communitarian, a fan of the people and majority rule, and he just can’t abide by what he sees as the anti-populist elitism of constitutional law. By holding the Constitution up as something “above” normal law — i.e., common law, statutory law, etc. — we are effectively removing it from the purview of the masses. We, as legal scholars, lawmakers, and judges — as members of the legal elite — don’t trust the heart of the American system to the unwashed folks who make up the bulk of the electorate.

In Parker’s world there are those who support the people and those who don’t. There are those who are for majority rule and those who want a vanguard of intellectuals deciding policy. These are the only two available choices: collectivism and authoritarianism.

But the Constitution is not about what the people can or cannot do. Instead, it’s mean to limit the power of government. And here is where Parker shows his fundamental misunderstanding of what it means to let the people rule. When “the people” make a decision, when they enact a policy, they, via government, must then back it up with force. What good is a law if it can’t be enforced, after all? So how, in any meaningful sense, can we morally invest a majority with the monopoly of force over the minority? Placing limits on the power of government is not a sneer directed at the will of the common man. Instead, it’s a recognition that every man — common or elite — can be both oppressor and oppressed. Limiting the power of government minimizes how much time anyone can spend in either of these categories.

The people can do great harm, just as they can do great good. To reject collectivism is merely to recognize the possibility of the former and grant the individual the dignity of control over his own life. Parker would make us all slaves to the whims of fleeting public opinion. But this does not mean, as he mistakenly argues, that we’re left only with the option of running to a board of all powerful elites. Instead, the Constitution can support a libertarian perspective, where everyone remains free to choose how he lives his own life — provided he affords those around him the same luxury.