Holmes: Precommitment and the paradox of democracy

Holmes. 1995. Precommitment and the paradox of democracy. In Passions and Constraints, pp134-77. Chicago: University of Chicago Press.

THE HANDOUT MADE BY SOMEONE ELSE: (my notes follow)

Holmes, Stephen (1995). "Precommitment and the Paradox of Democracy."

In Passions and Constraint. Chicago: University of Chicago Press. 134-77.

Stephen Holmes addresses the problem of constitutional precommitment, wherein the forefathers (founding generation) established a document embodying fundamental laws; these fundamental laws bind successor generations to pre-established rules and procedures. Moreover, this precommitment privileges constitutionally-enshrined laws over the majoritarian principles that ordinarily govern lawmaking within the legislature. The Constitution therefore can be viewed as circumscribing or preventing democracy (negative constitutionalism) or as reinforcing and protecting democracy (positive constitutionalism). Holmes argues for the latter viewpoint, asserting that succeeding generations' acceptance of the Constitution as an inherited document safeguards the procedures of democratic deliberation.

Part One: A History of Political Thought

Constitutional precommitment addresses the classic philosophical problem of binding promises: unlike a morally- and legally-acceptable two-party promise [mutual binding], constitutions (1) bind the initiators [binding oneself] and (2) bind future generations [binding without consent]. The problem with binding oneself is the lack of ability to enforce it: what you promise yourself you can easily fail to deliver.

• Thomas Paine & Thomas Jefferson: precommitment inhibits the progress of modern science and learning; no fundamental laws are above repeal; current citizenry's omnipotence should triumph over inherited legal frameworks  nothing will prevent democratic peoples from abrogating their own fundamental laws
• Hume's paradox: David Hume described the impossible situation wherein acceptance of the liberal compact among the initial covenanters also means the possible (or inevitable) rejection of the compact by successor generations
• Pufendorf and Locke sidestep Hume's paradox: the liberal compact becomes a bequest to future generations, and through the principle of tacit consent, successors inherit both the positive aspects (rights, benefits, liberties) and the negative aspects (debts, burdens) of the compact. Tacit consent is the only logical way to consent, although most philosophers agree that the law should represent the will of the living. However, since generations never work in waves (such as every 20 years people die out and a whole new set takes over) we cannot conceivably hold conventions to "accept" or "decline" the constitution. The remedy, of course, is a well-crafted constitution.
• James Madison: the constitution actually expands political possibilities by promoting "firm and energetic" government; the difficult process required to amend the constitution (1) protects frivolous and populist resolutions to divided government and therefore encourages democratic bargaining and (2) releases succeeding generations from the burden of institution-building and therefore allows successor generations to govern purposively
• Stephen Holmes: people tie their own hands, but also release themselves from burdens; Constitution further protects all future generations by binding these citizens to the majoritarian principles that underpin democratic decision-making

Part Two: In Defense of Constitutional Precommitment

Positive constitutionalism asserts that fundamental laws protect freedoms. The Constitution achieves this objective by the separation of powers (which enhance capacity by disentangling jurisdiction, promoting cooperation, encouraging specialization, and remaining flexible to shifts in public thought). The separation of powers consequently allows for effective, deliberate, and consistent government.

• Holmes offers the First Amendment as the proof that constitutional limitations enhance liberty. The Constitution guards against uncritical action by promoting public discussion ; the Constitution nurtures a political opposition that subjects majority decisions to outside scrutiny, making government both intelligent and intelligible. The Constitution can be viewed as "an attempt to pre-program open-mindedness and self-criticism into American political life"--a systematic procedure of political learning and political revision. Holmes makes the point that the minority, even if defeated, can make as much noise as it wishes. Although a significant nuisance, the vehement voice of the minority can act as a vehicle to spread political truth as well as act as a correction tool for the majority.
• The Constitution can be viewed as a form of self-incapacitation where it cements the Union and creates a framework where the nation has a will. Furthermore, the Constitution (and constitutionalism in general) should be considered the equipment necessary to react to unknown contingencies. This equipment, then, needs to be versatile and able to bend. However, this process was made difficult (series of super majorities) and slow. The high--yet still achievable--barriers to amendment help temper any sudden changes.
• The Constitution therefore allows the majority of people to hold and to manifest a multi-purposive will, which forestalls the self-destruction of democracy by successor generations.

MY NOTES:

• Constitutions tie the hands of the majority, preventing it from taking actions it might like to take because a minority has a veto. Democracy, however, says the will of the people should reign supreme. Is "constitutional democracy," then, an oxymoron?
• Furthermore, it violates the republican spirit to allow a father's decisions to bind his sons (Hume). How, then, can our ancestors have bargained away some of our democratic rights? Paine: This violates natural justice. Jefferson: One generation has no more right to rule the next as it has to rule another country. Using actuarial tables, Jefferson determined that half of those over 21 at any given time would be dead in 18 years 8 months. Therefore, governments should not be able to take on debts lasting more than 20 years, and plebiscites should be held every twenty to thirty years to determine the form of government. No laws or institutional arrangements can automatically perpetuate beyond twenty or thirty years. This is especially true because knowledge constantly grows, and we may know in the future something we do not know now, so we should not be bound by our past.
• But without doing great justice to these arguments, and those of Locke, Mill, and Kant, we can make a strong argument FOR precommitment--especially when we bear in mind the root of Jefferson's and Paine's arguments, namely, that the sovereign is always above the law, because the sovereign can change the law (Aquinas). To be clear, nobody argued that one person could not bind himself to another. The arguments involved situtations where (1) one person (or generation) might unilaterally bind another and (2) one person tried to bind himself in perpetuity (pg 146). Most agreed that the first could not happen, and with the second, many also argued that it could not happen; if a man binds himself, he can loose himself. If a constitution is a promise a people makes to itself, then it can loose itself. The problem here: an assumption that the nation can act as an individual.
• Like the arguments against constitutionalism, those in favor of it predated the Constitution--and were often advanced by the same people. Pufendorf argued that a king could inherit his predecessor's debts, because if he inherits his credits (the throne) through his own choice, then he must accept the debts that come with it. Locke argued for "tacit consent": if a son chooses to inherit his father's estate, then he has tacitly consented to the institutional structure which provided those property rights and makes inheritance possible. In fact, Locke extended this to say that the government's legitimacy depends on property rights, because then everyone would have property and would, by accepting inheritances, legitimate the government. From theology came the notion that God can bind himself: if he is capable of anything, then he is capable of binding himself. From this came the idea that sovereigns can do the same, if for no other reason then to increase their own power. For example, kings who uphold their commitment to consult parliament before levying a tax increase their power to get revenue (pg 152). In sum: past arguments had addressed the two tricky commitment situations above: (1) one generation can bind the next if the next one accepts the restrictions in order to get some benefit, and (2) one man can bind himself as an effective use of his agency.
• Madison's argument in favor of constitutionalism: see Federalist 49 especially, where Madison argues against Jefferson's idea of calling the people together regularly to tweak the constitution. He argues that a fixed set of laws actually helps stabilize democracy. If the people did assemble a convention to adjust to constitution, it would be run by self-selected elites--the very ones the constitution was designed to limit. Thus, rather than waste time arguing over rules every 20 years, citizens could profit more by working within the existing rules for their cause. At the same time, the Constitution contains mechanisms for change, when necessary, giving it a balance of flexibility and rigidity. Even debt can be passed on: for example, the next generation will reap the benefits of a repelled enemy, so it may be rightly expected to help pay off the debts. Granted, the unborn had no chance to agree to this bargain, but foreclosing the opportunity to act in this way prevents the very profitable gains to be had by intergenerational cooperation. Furthermore, when future generations have the ability to amend and repeal the constitution, they can be assumed to accept the present Constitution if they do not exercise these rights.
• The paradox of democracy: we want to make decisions about the future responsibly, but we want to deny that past decisionmakers can assume any responsibility for us. We wish to bind the future, but don't want to be bound by the past (158).

[SKIP 162-175]

• You cannot voluntarily agree to give up your right to voluntarily agree. You cannot sell yourself into slavery, since you would be using your liberty to give up your liberty. Thus, preserving voluntarism requires minimal limits on voluntarism: a restriction against surrendering voluntarism. In this manner, precommitment to a constitution is simply a way that a society preserves voluntarism; it prevents itself from, at some future day, electing to dispense with certain liberties. The majority must limit its own powers (e.g. with a bill of rights and supermajorities for amending the constitution) in order to preserve its own powers.