Constitutionalism and Reciprocity

Fred Baumann is Professor of Political Science at Kenyon College. His areas of expertise are humanism, fraternity and political reciprocity. He has taught at Kenyon College since 1980.

If all the talk about polarization in American politics needed an exclamation point, it got one on January 6, 2021.  And of course, the rehash has been polarized as well.  The Left asserts that we are faced with an unprecedented neo-Fascist threat that may require constant policing and even silencing of the enemy, and the Right, if it does not simply minimize what happened, points indignantly to the extended riots and arson in American cities in the summer of 2020. They charge the Left with supporting the rioters in speech and deed.  The Left blames the Right for destroying the democratic consensus about accepting elections; the Right, pointing to 2000, 2004 and 2016  says “you started it” and, of course, the Left indignantly denies it.  The one thing both sides implicitly agree on is that the legitimacy of even the most fundamental democratic procedures, like the peaceful transfer of power after an election, is in big trouble.  They are both right. 

The reasons for this breakdown are, as one might expect, complex and the phenomenon over-determined.  Technological, economic, social, educational, forces all interdependent and, alas, largely reinforcing, have created an avalanche in which the old structures in its path break apart.  Michael Lind ,Yuval Levin, Robert Putnam and others have done fine work in describing the collapse of communities, their replacement with the false, toxic and seemingly universal community of Twitter ragers, the merging of elites, the outsize power of a few social media barons, the weakening of family ties, increasing social stratification,  and the cultural division between urban and rural, coastal and fly-over.   And there are plenty of voices of varying degrees of seriousness urging remedies on us for our increasingly obvious plight.

Here I want to argue that there is one cause, whose very recognition would be at least a step in the right direction.   It is obvious enough that when things break down, whether in a family, a society or between societies, every offense, as perceived by one party, leads—barring external hindrances such as fear of the power of the other side—to escalating reactions, or at least ones that will be perceived in turn, as escalating.  Law begins as a check on the reciprocality of feud morality.  An eye for an eye is a humane teaching (relatively), since it means “no more than an eye for an eye.”  Reciprocal escalation is the rule of war, whether or not war has reached its full manifestation in armed conflict.  We are currently in such a situation.  Without it, without the sense among a large part of the country that it was being constantly buried and swindled, Donald Trump would never have been nominated, much less elected.  His presidency advertised itself as an exercise in getting even.  So it should surprise no one that along with the calls for unity among the Democrats we can hear the calls for “justice,” and more getting even.

The Code of Hammurabi is a primitive effort at laying down the law but it obviously depends on having a central ruler who can make the code stick.  It is a recipe for Leviathan, not for free people who have to make their own laws.  Free people are, as Madison rightly knew, factional.  They are not Marx’s utopian “species beings” who want nothing but the common good.  Their versions of the common good heavily coincide with their ideas of their private good.  Hence feud morality reappears and is often incorporated in laws that only one side accepts as just.  If only absolute power can limit perpetual civil war then the choice is grim.  The Madisonian “pluralist” solution is a partial answer, but it depends on a couple of preconditions.  Above all, the great, divisive issues of morality and religion have somehow to be anesthetized, finessed, avoided.  The American Civil War showed what happens when you can’t.  Second, factions have to be multiplied.  But when the big moral issues arise, factions tend to shrink into two big ones.  A more fundamental fix is needed.  The authors of The Federalist knew that and they also knew they depended on it.  Their version of it was Lockean rights theory, which limited conflict by the mutual recognition of equal rights to citizens, however imperfect (and in the case of slavery, fatally imperfect) its application was.  

No one will have failed to notice that rights theory today has been under severe attack. The very phrase “social justice,” a cause which is now seen as an unobjectionable goal by respectable American thought,  is a proof of that.  Rights provide political justice and leave society, in large part, though not wholly, to work out its problem within the boundaries of free, rights-bearing individuals and the groups they form.  The call for “social justice” is a critique of the adequacy of rights through a demonstration of the unjust results that they produce in the private sector.  One doesn’t have to go as far as an Ibram X. Kendi or the 1619 Project in depicting the liberal American regime as nothing more than a mask for exploitation and oppression of racial minorities, to see that social justice is hostile to the American regime as originally constituted.  For that, Herbert Croly will do just as well.  The problem is that, whatever liberalism’s defects in providing social equality (assuming that social equality is a legitimate goal), it does something else, something very important, namely limiting the tendency to civil war and feud morality.  It does so by assuring citizens that there are limits to what political conflict can both attain and subject them to.  It lowers the stakes of political conflict, and thus limits worst-case thinking which always justifies preemption and in turn provokes worst-case thinking on the other side.  The confidence that “I got my rights” makes it easier to live with the claims of others to the same rights.

The reader could now reasonably (but need not) fear yet another descent into the old and too-bloody and muddy battlefield of liberals and progressives.  However, there is another place to look that shows the issue in its clearest, simplest form and suggests what I think would be a helpful starting point.  I realized how useful it could be some years ago, when, in teaching Federalist 10 and 51 to my section of freshmen, I got some striking questions from them, questions that made me realize that something big had happened in America, something I never had expected.  

I had always thought that, unlike Europeans, Americans had a naive belief that the law should be the same for everyone and that what goes around should come around.  Where the Europeans, especially the educated, I had met, tended to see democratic politics as a game where one had to jump through hoops and climb obstacles to achieve one’s substantive ends, Americans seemed to have in their DNA a belief in the legitimacy of the basic rules, however differently they might apply in different cases.  

That year, I got the following questions:  1) how come religious people have the right to make religious arguments in public?  Haven’t we got separation of church and state?  (A nascent Rawlsian, apparently). 2) How come the Klan has rights to free speech and assembly?  Aren’t they bad?  And the best one of all:  3) The Federalist says that the chief purpose of government is justice.  But with all those checks and balances, how can there be justice?  Those questions brought home to me that my students, and therefore the upper middle class world they came from, had reverted to a much older, more primitive, understanding of politics.  It was for them an arena in which the good people (them) had to force the bad people to be good.  It wasn’t that they had accepted Marx’s critique of liberalism (that was coming in the next semester) but that no one had taught them the purpose of the liberal constitution they had grown up under.  From that year on I have made sure to teach my freshmen the beginning of the second book of Aristotle’s Politics.

The question Aristotle raises is how unified a political order should be.  He thus points to the basic political problem, namely that human beings are both communal and individual, unlike wholly communal beings, like bees, ants, termites and “species being.” Aristotle uses the ideal regime of Plato’s Republic, in which everyone does exactly what they should and the philosopher-king tells them what that is, as his whipping boy.  That’s not a real regime, he says, but only the description of a single individual in the guise of a political order (which, of course, is exactly what Plato’s Socrates said it was).  There is a tension, Aristotle observes, between sameness and difference in a political order.  People have to be the same in the sense that they are all citizens and loyal to the country and its regime, but account has to be taken for their differences as well.  What does this, he says, is “reciprocity” or “reciprocal justice.”  He is very vague about it and refers you to a parallel discussion in his Ethics,  (Book V, chapter 5) which at first sight seems to be,  disappointingly, about setting prices in a market.  

Still, one gets an idea of what he means.  Reciprocal justice turns out to involve rules that seem generally fair to people, that cut differences some slack but still maintain sameness where it matters. Reciprocity comes in with the mutual agreement to accept a compromise between the claims of individual and community, between difference and sameness, and equality and inequality.  At once, the sameness of the Procrustean, totalitarian ideal, where everyone has to be the same size and have the same opinions, anarchy or the domination of one part over all the others, are checked.  It’s a compromise, a clear-eyed one, which knows that without it, and without consent to it, one ends up with pure power struggle and feud morality.  It responds to the excited Marx and Foucault-reading sophomore’s discovery that “it’s all power, man!” with the sober observation that, “it doesn’t have to be only that, if you will agree reciprocally to limit power to some extent so that others will limit their power over you to some extent.” One example is private property (a blatant offense to true equality and sameness), which Aristotle defends, against the idealistic communism of the best regime in the Republic.  He is willing to set limits to it, but he is also willing to allow differences.  Without reciprocal justice, Aristotle says, men don’t think they are free. 

If this sounds something like the social contract, it is. However different modern liberalism is from the world of the Aristotlean polis, they have something very important in common, in their response to the Procrustean power-mongers and simplifiers, whether intellectual, political or overtly military and violent, and that is the agreement to moderate, but not to obliterate, differences of wealth, honor, power and the like. 

A good example of how things work when reciprocity in the form of liberal rights theory is rejected on “neo-Marxist” grounds lies before us in the current debates about “structural racism.”  It shows clearly how the attempt to go beyond the reciprocal limitations built into liberal rights theory and the constitutional arrangements that enforce them, while it may start small, ends up by escalating into an all-or-nothing conflict between sharply defined groups.

It began small, with the classic progressive hope that a little bit of tinkering would make things work more efficiently than just sticking to the equal rights model.  The tinkering was called “affirmative action.”  While Aristotlean reciprocity remains vague and thus flexible,  the liberal version is clear and rigid.  That meant that justifications had to be given for violating, even benignly, the principles that had so long been fought for and just then triumphantly vindicated in the Civil Rights Act of 1964.  The halfway house justifications (this won’t be for long, as Justice Blackmun reassured us) gave way to Rawlsian redefinitions of rights as entitlements (Ronald Dworkin) and then, inevitably, to a full-throated “neo-Marxist” attack on right theory and the replacement of “equality” with equity,” most notably in President Biden’s inaugural address (cf. Andrew Sullivan’s commentary).  Equity, like every other utopian goal, can only be achieved by threatening the interests and the sense of justice of at least half the population of the country.  Hence it is a recipe for warfare.  Frederick Douglass was perhaps very wise in urging Americans to hold on to the teachings of the Declaration of Independence as the “ringbolt” of their liberties.

The current movement that calls itself “anti-racism,” (one well-represented by the bestselling books of Robin DeAngelo and Ibram X. Kendi)  is Neo-Marxist in replacing Marx’s class binary with race.   The fundamental argument of that movement is, that despite the granting of equal rights to Blacks, and even despite affirmative action, which discriminated in favor of minorities and women, the fact that by various indices blacks and whites do not enjoy equal advantages, means that American society is essentially characterized by a racial binary.  The 1619 Project of the New York Times that at least originally argued that the American Revolution’s chief cause was the desire to preserve slavery is a good example.  Race serves this argument in the way class served Marx’s.  It follows from it that to be anti-racist one must be profoundly racialist.  Whites are stigmatized as the bad guys, and BIPOCs are the good guys.  To be as good as they can be, whites must agree with the theory and the practices that follow from it.  The clearest example of those practices is Ibram X Kendi’s proposal of a Department of Anti-Racism that would do whatever is necessary to equalize results by race.  As he has also written, the cure for past discrimination is present discrimination and the cure for present discrimination is future discrimination.  I am not the first to remark on the tyrannical implications of that proposal. But to object to it on any grounds is, according to the theory, to prove oneself a racist.   Whoever is not actively anti-racist is perforce racist.  This is not a fringe position but one that dominates academia, as many examples can attest.  That this is, in its racialism, also racist towards whites is pretty obvious if one accepts as an identifying sign of racism the reduction of someone’s identity to their race, and not the content of their characters.  That its is also racist towards blacks is perhaps less evident, though it came through plainly to a Black writer like John McWhorter, who, in describing Robin DeAngelo’s best-selling White Fragility a “a racist tract,”  objects to the infantilization of Blacks as victims, as people without agency. This argument goes so far as to characterize the old civil rights position not simply as wrong but as racist (since of course intentions don’t matter in war, just which side you are on.). Hence, the title of Eduardo Bonilla-Silva’s Colorblind Racism (a book in its 5th edition now, at least).  

Whatever may be said about the justice of social justice as a political teaching, however, it had the utterly predictable result of destroying those protections of individuals that our version of Aristotlean reciprocity afforded.  Preference again would depend on your race or sex, or rather, and critically, on what those in power thought you, as a member of your group, deserved.  That in turn meant that having that power became the necessary, self-protective goal of political engagement. Under this old/new understanding, the common good can no longer be approximated by the Madisonian interplay of private goods in conflict, but is whatever those in power say it is. So politics is once more reduced to a mere power struggle, enhanced by the increasing hatreds of the sides for each other.  

The current debate about race offers perhaps the clearest example of the evils of forgetting about reciprocity as the basis of what we call constitutional government.  But the observer of the current scene can easily find many others.  It is one among many ironies that this return to the most primitive and pre-political struggle of clans, parades itself today as the height of theoretical sophistication, and that it is so popular in universities, which themselves cannot exist under the rules that Ring Lardner once pithily summed up as “‘Shut up!’ he explained.”  

Reciprocity is inevitable whether in war or peace.  It was Aristotle’s insight that the reciprocity of war could be reciprocally opposed, by creating political reciprocity as help free people live in peace with each other.  That reciprocity gives up the goal of perfect justice is what avoids the extreme of injustice and affords as much justice as possible among people who don’t wholly agree on what it is.  It is a feature, not a bug. Thus, the moment we recognize that Aristotle was right, and that self-government requires a limitation of the pursuit of substantive justice for the sake of the very possibility of self-government, we will have taken a step towards restoring our government’s health.  

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