RECONSTRUCTING THE COMMERCIAL REPUBLIC

Vol. 17 No. 2 (February, 2007) pp.113-117

RECONSTRUCTING THE COMMERCIAL REPUBLIC: CONSTITUTIONAL DESIGN AFTER MADISON, by Stephen L. Elkin. Chicago: University of Chicago Press, 2006. 416pp. Hardcover. $35.00. ISBN: 0226201341.

Reviewed by Beau Breslin, Department of Government, Skidmore College. Email: bbreslin [at] skidmore.edu.

Chief among Stephen Elkin’s many scholarly virtues is courage. Practically since he emerged as one of the most prominent and interesting constitutional theorists of the present generation, the University of Maryland scholar has seemingly been consumed with asking the types of questions so many lesser academics are uncomfortable asking. When others are content to explore what constitutes a polity, for instance, Elkin is not satisfied with such a one-dimensional approach. For him, the central question is not what observations we can make about constitutional government or what institution is principally responsible for the interpretation of the constitutional text. Rather, he is focused on the deeper, and exponentially more controversial, questions: what constitutes a good polity? What changes are necessary for a just and flourishing political community to exist? How might we achieve the constitutional aspirations we constantly tell ourselves we embrace? Make no mistake, Elkin is perfectly capable of describing the structures and institutions that make up the American constitutional scheme – the one-dimensional stuff. Even still, his greatest contribution to the study of constitutional thought comes from his courageous, and often successful, attempts to explore the normative dimensions of political authority.

RECONSTRUCTING THE COMMERCIAL REPUBLIC is his latest act of courage. It is also his best work to date. Indeed, the volume represents Elkin’s most comprehensive analysis of the current state of America’s commercial republic, a republic, he laments, that is at best misfiring and at worst altogether broken. Elkin cites a number of reasons for believing that the American republic is malfunctioning; chief among them is the fact that current political practice in the United States seems to permit – encourage, even – the type of self-interest that so often conceals the more important public or collective interest. Of course, this is an all-too familiar charge. We have heard it before. Yet what makes Elkin’s work so distinct is that he believes the answer to our twenty-first century problems lies first in pursuing an altogether different line of inquiry. Let’s start at the beginning, he seems to be saying, and ask the right questions, ones that probe at the very heart of the American experiment in republican government. Consider his strategy, articulated very early in the book. He writes, “To make real progress in understanding the American political order, we need, if not a new political science, at least a reworked one where efforts at explanation and evaluation are tied to the question of good political regimes and how they may be secured and maintained” (p.3). How to do that? [*114] Construct new theories of political constitution, he says, or more accurately, theories of “republican political-economic constitution” (p.4), that in essence confront the foundational issues of modern constitutional design.

And that is precisely what Elkin does. It is a bit misleading to suggest that Elkin wrestles with various theories of political constitution; it is probably more accurate to say that he briefly spars with a few theories and then proceeds to construct a single, albeit richly textured, theory of his own. To be sure, the world he envisions is impressive in its complexity. The simple fact that Elkin sees the constitutional and political landscape as including critical social and commercial pillars, for example, renders his exploration of the American republic more elaborate than standard political science fare. Elkin tries to juggle political, constitutional, economic, historic, and social factors, all in an attempt to comment both on the development of the American polity to this point and its prospects for the future. A general overview of the book reveals that it is part analytical, part critical, part speculative, and, perhaps most noteworthy, part prescriptive.

Elkin is quick to credit the Founders – and particularly the principal architect of the American Constitution, James Madison – with constructing a political scheme that when first conceived had the potential to produce a reasonably just or good constitutional regime (a term carefully chosen by Elkin for its comprehensiveness). He is equally quick to insist that what they came up with has serious flaws, however, and fixing those problems is what should occupy our collective energies. For Elkin, the blueprint for a good constitutional polity was born in Madisonian thought, but it no longer resides exclusively there (the subtitle to the book accurately describes Elkin’s point: “Constitutional Design After Madison”). Instead, what the citizens of the American regime should do is remain faithful to the general principles of Madisonian constitutionalism while simultaneously reflecting on what ideas or schemes no longer deliver on the text’s original promises.

Elkin gets right to the point in Chapter 2, “The Madisonian Commercial Republic.” He begins by portraying Madison’s complex constitutional ideas in subtle and original ways. Madison was not enamored of any one particular constitutional idea, and thus those who insist that the American Founder was a proponent of one perspective are missing the nuances of Madison’s constitutional design. For example, Elkin informs us that Madison understood that a working polity would include tenets of both “civic republican thought” and “liberal political theory.” “The effort to join these two required that Madison think widely and deeply about the essential problems of popular self-government” (p.21). Moreover, the Virginian was not an unwavering defender of the propertied at the expense of lower classes. Indeed, the point is that much of Madison’s strategy was to find reasonable ways to combine divergent forces. His plan to manage faction or his plan to promote deliberation, Elkin says, are characteristic of Madison’s use of tension as an instrument of constitutional [*115] design. They both derive from Madison’s republican spirit, claims Elkin: Madison “was neither a pluralist in the modern sense nor an advocate of simple majority rule” (p.36).

Together, Elkin tells us, these forces amount to a pretty sophisticated constitutional design, one whose central theme is a steadfast commitment to the principle of “limited self-rule.” Still, there are flaws to Madison’s system, and Elkin tackles them in Chapter 3. According to Elkin, Madison’s constitutional vision has permitted the rise of certain interests (and certain classes of citizens) that lack “public-spiritedness.” Here, the author is not referring to those citizens who constantly pledge their allegiance to the republic or celebrate the Fourth of July with a little extra vigor. What we need, and what Madison’s design does not particularly foster, are citizens who are capable of significantly broadening their interests to account for public rather than private needs. As an example, Elkin notes that Madison’s constitutional design has not encouraged contemporary business leaders “to formulate their interests in a manner attractive to the mass of citizens” (p.62). Consequently, the relationship between business and the state – a relationship that Elkin believes is critical to the realization of a just political order – is carried on with low (or no) public visibility. Elkin provides other illustrations to reinforce the point that the Madisonian system is imperfect.

Leaving the focused discussion of Madison behind, Elkin then sets out to construct his own vision for a more just political regime. It all centers on the reconceptualization of institutional practices to help maximize awareness of the public interest. In Chapter 4 he efficiently picks apart the theoretical scaffolding of several alternative constitutional and political visions that he insists will not deliver a good polity for the United States, including ones that rely on legal formalism and the simple aggregation of majoritarian interests. In Chapter 5, he describes the importance of capturing the public interest for a thriving commercial republic, while in Chapters 6 and 7 he sketches the “features of a constitutional politics” that will serve that public interest (p.148). In Chapter 8 he wrestles with the issue of social class and self-interest, insisting that a good polity will broaden the interests of the upper class while expanding the role of the middle class in expressing the all important public good. These chapters build nicely upon each other, culminating in a fascinating glimpse of what America’s constitutional regime could be. They are then capped by a concluding chapter in which Elkin identifies the various prescriptions needed to usher in the type of commercial republic he envisions.

To this point I have purposefully avoided any obvious criticism because I want to project the impression that Elkin’s volume deserves a central place in any library on constitutional thought. It does, but that is not to say the book is without flaws. In fact, a fair critique of RECONSTRUCTING THE COMMERCIAL REPUBLIC will likely resemble Elkin’s overall critique of Madison’s constitutional framework: like Madison’s design, this book is a [*116] sophisticated and impressive piece of work, but it is not unblemished. Elkin’s occasional repetitiveness, for example, surprised me. Another observation (not a flaw per se) is that the author’s normative voice is, at times, strikingly similar to the voices of others. When he describes the role of government institutions in the interpretation of the text – including the peculiar notion of judicial supremacy – he sounds a lot like George Thomas, whose understanding of the American constitutional design would admit that no institution is paramount in the interpretation and promotion of constitutional governance. Later, when he defends a political system that fosters a robust attachment to deliberation in action (both among citizens and in the institutions of government), Benjamin Barber’s work comes to mind. In Chapter 7, Elkin argues for a commercial republic that rests on participation at the local level. Although he goes so far as to disavow any ties to communitarianism, he sounds a good deal like the localist strain of that philosophical tradition. Finally, the overall tone of the normative approach smacks of William F. Harris’ plea that a proper citizenry ought constantly to reflect, and ultimately ratify, its evolving constitutional order.

A more substantive curiosity surfaces in Chapter 9. This portion of the book represents Elkin’s attempt to remind the reader of the practical reality of contemporary constitutional government. Too often, he says, the most popular theories attempting to describe constitutional systems (theories like Rawls’) fail because they “evade or – more dramatically – escape from politics” (p.251). They do not confront political realities on the ground. For Elkin, “constitutional theory is a theory of constitutional politics” (p.252; emphasis added). I think most would agree; after all, it can be inferred that it was the indeterminacy of politics that has so deeply influenced – both for the better and the worse – America’s constitutional development to this historical moment. In a way, by suggesting that we take politics seriously, Elkin is acknowledging that any plan to establish the good polity is subject to derailment. The obvious question, therefore, is why should we take his strategy too seriously? If any reordered system is subject to political forces that cannot yet be seen, it seems at least possible that even the very best design has the potential to fail. As Benjamin Franklin said in his famous final speech before the delegates to the Constitutional Convention, “For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected?” We could ask the same question of Elkin’s imaginary polity.

These concerns are quite minor when compared to the magisterial quality of Elkin’s overall constitutional exploration. The principal achievement of this book lies in his mostly successful attempt to scrutinize the American constitutional landscape from so many different angles, and then to offer one possibility for that regime to flourish. Whether that imagined polity might [*117] come to fruition matters little: indeed, the soul of Elkin’s curiosity is not only what is but also what could and ought to be. In a sense, then, Elkin is the intellectual equivalent of a constitutional founder: the practice of imagining better worlds is what sustains him. In his words, “We are not in the midst of founding a new regime, although we may be in the midst of refounding it” (p.211). If that is so, RECONSTRUCTING THE COMMERCIAL REPUBLIC should prove an invaluable resource.

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