Vol. 14 No. 9 (September 2004), pp.723-727
THE COMMUNITARIAN CONSTITUTION, by Beau Breslin. Baltimore, MD: The Johns Hopkins University Press, 2004. 288pp. Cloth $48.00. ISBN: 0-8018-7782-2.
Reviewed by Joyce A. Baugh, Department of Political Science, Central Michigan University. Email: firstname.lastname@example.org
In his preface to THE COMMUNITARIAN CONSTITUTION, Beau Breslin recounts the story of President Abraham Lincoln’s suspension of the writ of habeas corpus during the Civil War. Lincoln justified his decision on the grounds of protecting the nation during a time of great crisis, despite the fact that the Constitution grants the power to suspend the writ of habeas corpus to Congress and not to the president. Breslin cites Lincoln’s decision as an early example of the conflict between constitutionalism and communitarianism, the general theme of this book. Lincoln, according to Breslin, acted as a communitarian might, by emphasizing the well-being of the community – preserving the union – even though it meant violating the Constitution. Lincoln’s action illustrates the author’s primary thesis, “that the beliefs shared by most American communitarians are largely incompatible with the basic tenets of modern constitutionalism, and that the rules governing constitutionalism clearly dictate that the community’s wishes, however powerfully expressed, must remain subordinate to the text itself” (pp.xi-xii). In the pages that follow, Breslin constructs a careful, thoughtful, and compelling analysis of this central thesis.
Chapter 1: The Introduction traces the conflict between constitutionalism and communitarianism in the United States back to the debate between the Federalists and the Anti-Federalists at the nation’s founding. While both groups agreed that the Articles of Confederation was not a sufficient document for governing the new nation, they had different visions of what the governing structure should be. The Anti-Federalists generally were committed to “small-scale republicanism” and the principle of civic virtue. In their view, strong local governments were preferable to the centralized national government proposed in the new constitution. Moreover, they asserted that the governing structure should identify and promote common values so that citizens will act for the good of the community rather than in their own self-interests. In Anti-Federalist thought, local government was seen as the key “intermediate institution” in the quest for private virtue and public good. Similarly, Anti-Federalists saw religious faith as critical to promoting moral stability within the community, whereas the new constitutional text left this important concern to individual citizens. In this introduction, Breslin also identifies similarities and differences between Anti-Federalist perspectives and those of modern American [*724] communitarianism, briefly discusses communitarian criticisms of liberalism, identifies the various strains of communitarian thought, and sets out his goals for the remaining chapters.
Chapters 2 and 3 make up Part I: Toward a Vision of Communitarian Politics. Chapter 2, focusing in more detail on the communitarian critique of liberalism, draws on the writings of a number of communitarian theorists, including Michael Walzer, Alasdair MacIntyre, Charles Taylor, Michael Sandel, Kenneth Grasso, Amitai Etzioni, Mary Ann Glendon, and Benjamin Barber. In discussing their work, the author helpfully identifies and explains three different strains of communitarian thought: theoretical, conservative, and prescriptive. Theoretical communitarianism’s criticism of liberalism is based on disagreements regarding “questions about the self, and questions about the structure of the overall polity” (p.34). These communitarians see personal identity as shaped by the community, while liberals emphasize individual freedom and autonomy as the critical factor. They also complain that because liberalism does not permit the state to infringe on the freedom of its citizens, liberal theory does not foster a true sense of community or concern for the common good. Conservative communitarians stress the positive role to be played by society’s “intermediate political and social institutions,” including schools, churches and synagogues, civic clubs, and unions. According to Breslin, this group of communitarians is most similar to the Anti-Federalists. Prescriptive communitarians call for addressing three “political developments” to solve the societal problems they believe to be the result of liberalism: 1) excessive emphasis on individual rights and liberties, 2) a significant decrease in popular participation in public affairs, and 3) the abandonment of important public institutions—i.e., the family and public schools’ decreased emphasis on civic education.
The goal of Chapter 3 is to imagine how a society would look “if it is governed by contemporary communitarian institutions and values” (p.78). Drawing upon the work of “communitarian sympathizers” and the Platform of the Responsive Communitarian Movement, Breslin identifies and describes several principles that communitarians of all stripes seem to share: community as the primary moral and political value, the need for solidarity, identification and definition of “collective social goals” and “shared understandings,” and most importantly, the community’s common “conception of the good.” Laying out a governing structure based on these principles, he first notes that communitarians generally advocate a system of participatory democracy (or what he terms “communitarian republicanism”) in which decisions are made by democratic consensus rather than majority rule. Second, institutions must be strengthened so that “within the communitarian political universe, all organizations, cultural habits, and individuals understand and share a single conception of the good life” (p.99). Third, the state establishes a moral code, that is, it promotes certain ways of life and discourages others, based on the community’s deliberation and consensus. Finally, the community’s theory of justice stems from common understandings and the public’s collective will. [*725]
In Chapters 4 and 5 of Part II, Breslin moves toward answering his ultimate question – whether communitarianism is compatible with constitutionalism. Chapter 4 focuses on the basic tenets of classic and modern constitutionalism, with the United States as the foremost example of the latter. The principle of objectivity characterizes modern constitutionalism—i.e., “the idea that the polity’s constitution is the one object that is acknowledged as authoritative by the overwhelming majority of subjects both in and out of the political arena” (p.124). An objective constitution has three features: externality, discernibility, and self-imposed limits on governmental authority. By externality, Breslin means that a constitution and the government mechanisms that it creates must be separate from each other. Discernibility refers to the need for all of the constitution’s rules, values, and procedures to be clearly understandable to both the people and the leaders of the polity. Modern constitutionalism also requires that the sovereign place restraints on itself to control political power and to guard against tyranny.
Breslin then is able to examine communitarianism in relation to the principles of externality, discernibility, and self-conscious limits on the sovereign. He concludes that it fails the externality test because it requires fundamental principles to be derived through community deliberation. Consequently, there is no way to separate a communitarian constitution from its governing institutions. The communitarian constitution lacks discernibility as well. Given that the “collective will” of the people is paramount, collective will is always subject to change as the community’s values change. American communitarianism fails the third test as well. “[T]he constitutionalist insistence that limits must be self-imposed by the sovereign is troublesome for the communitarian advocate. If certain substantive conceptions of the good are antecedently outlawed by the constitutional text, then the first principle of communitarianism – that the people collectively and through mutual cooperation determine their shared fate – can never be realized” (p.135).
Breslin expands his discussion of the third characteristic of an objective constitution in Chapter 5, “Communitarian Democracy: In Tension with Constitutional Theory.” Here he examines the “self-conscious restraint of political power” in the context of constitutionalist and communitarian views about the role of democracy. The constitutionalist, concerned that too much democracy can lead to majority tyranny, calls for “institutional checks” to prevent such an abuse of power. Not so for the communitarian. Breslin writes, “Because of the value communitarians place on the images of democracy, consensus, discussion, and deliberation – values that most American communitarian practitioners would admit are primary – the tension between constitutionalism and democracy becomes all the more acute. Communitarians are essentially and thoroughly democrats; while constitutionalists, although not antidemocrats, are not exclusively or even principally democratic” (p.171).
Up to this point, the author’s primary focus is on liberal constitutionalism. Chapter 6, the final chapter in Part II, [*726] examines two alternative models of constitutional government – those of Israel and the German Republic – to illustrate further the incompatibility of communitarianism with modern constitutionalism. He describes the Israeli model as “non-liberal constitutionalism” and the German model as “semi-liberal” or one characterized by “mixed constitutionalism.” Neither of these regimes has a modern constitution – the Israeli model because it has none of the three principles of objectivity that modern constitutionalism requires, and the German Republic, though somewhat reflective of externality and discernibility, lacks self-conscious restraints on the sovereign. Describing both models in detail, he concludes that Israel is in fact a communitarian state, and while the German constitutional structure does have communitarian principles at its core, its additional concern for protecting individual freedoms makes it a mixed system. Breslin says that the German model is closest to what American communitarians have in mind as their ideal way for reconstructing the American constitutional system, but this also poses a problem. “Modern American communitarians (particularly the prescriptive breed) seem to want to bond liberal propositions with community-centered maxims in much the same way that the German Basic Law has done. Rights must be tempered by responsibilities, they argue, while community must be viewed alongside the individual as coequal partners in America’s quest for ‘a more perfect union.’ But such a proposition may signal the undoing of any contemporary American movement that thinks of itself as purely communitarian” (p.206).
In the concluding chapter, Breslin asserts that principles of communitarianism are gaining popularity with public officials in the United States as they work to solve a range of problems that some argue stem from liberalism’s obsession with protecting individual rights. He points to the Clinton Administration’s AmeriCorps program and the Bush Administration’s faith-based initiatives as illustrations of communitarianism practiced at the national level. Former New York mayor Rudolph Giuliani’s call for greater local control of crime and law enforcement is cited as an example of a local community embracing communitarian principles. Similarly, Breslin notes the efforts of some educators to shift control of the curriculum from the national and state levels to local communities.
Breslin equates the Bush Administration’s actions to restrict civil liberties after the September 11 terrorist attacks with President Lincoln’s suspension of habeas corpus during the Civil War. “Indeed, the famous questions Lincoln posed when justifying his suspension of habeas corpus – ‘Are all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated? Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?’ – could just as easily be attributed to President Bush” (p.215)
This book is well-researched, well-written, and well-argued. I do have a few criticisms, however. While providing a critique of Federalism and Anti-Federalism was certainly not Breslin’s purpose, in discussing the [*727] Anti-Federalists’ commitment to “small-scale republicanism,” civic virtue, and the common good, it would have seemed appropriate to recognize that these principles did not include all inhabitants of the community. In many communities, enslaved African-Americans, women, and white men who did not own property were not included in decision making. In addition, Breslin asserts that more local officials currently are taking a communitarian approach by calling for less federal control of their activities, but one could argue that this is tempered by the fact that they still actively seek substantial financial resources from the national government for their work.
Noting that since September 11, President Bush often points to intermediate institutions such as religion, the family, neighborhoods, schools, and civic organizations as providing solutions to America’s problems, the author claims that “[t]he president has reshaped his political image: he now exhibits the principal characteristics of a communitarian” (p.215). This claim seems largely overstated. If one of the main principles of communitarianism is substantial popular participation in governing decisions, consensus building, transparency, and the like, many of the Bush Administration’s actions on both foreign and domestic policy fall far short of the communitarian ideal.
These few criticisms aside, THE COMMUNITARIAN CONSTITUTION makes a significant contribution to the literature on constitutional theory. Breslin’s careful discussion of the similarities and differences among the various strains of communitarian thought provides a thorough introduction for those who are only vaguely familiar with communitarianism and its challenge to liberalism. More importantly, he takes the liberalism-communitarianism debate further in examining this ultimate question: Is American communitarianism compatible with modern constitutional government? He makes a compelling argument that the answer is no. While his analysis likely will not settle this question, he has certainly provided an excellent basis for more provocative scholarly exchanges.
Copyright 2004 by the author, Joyce A. Baugh.