Vol. 11 No. 5 (May 2001) pp. 216-218.

CONTROLLING THE STATE: CONSTITUTIONALISM FROM ANCIENT ATHENS TO TODAY by Scott Gordon. Cambridge: Harvard University Press, 1999. 395 pp. Cloth $59.95. ISBN: 0-674-16987-5.

Reviewed by Keith E. Whittington, Department of Politics, Princeton University.

This is an unusually sweeping book. In a relatively short space, it seeks to cover the history and development of the theory and practice of constitutionalism in the West from classical Greece to modern Britain. In doing so, the author provides a reasonably concise and accessible introduction to the history of constitutional government. He also calls attention to an important but frequently undervalued facet of constitutionalism, checks and balances.

In a short introduction, Scott Gordon sets us his basic problem and clarifies the distinctive nature of his study. Gordon has no use for the "such hypothetical scenarios" as the state of nature, but he sees Hobbes and Locke as sharing an important and useful conception of the state such that "political authority derives from the people who are governed by it, and the state is a utilitarian social artifact, created by the people to enable them to enjoy the benefits of a peaceful and orderly civil society" (p. 1). For Gordon, this conception of the state puts the emphasis where it should be. Normatively, the state is above all supposed to be useful for the people. He therefore finds it to be "no mystery" and no problem that citizens have demanded and readily accepted the growth of large and active states in the modern era. Gordon's constitutionalism is concerned with controlling government, not limiting it. At the same time, he finds the modern rhetoric of democracy to be fundamentally displaced. It is, of course, important that the state be concerned with the people's welfare, and "widespread participation by the citizenry in the formation of public policy" may help point the state toward serving the interests of the people broadly. However, for Gordon the key to good government is not to be found in democracy, in part because democracy is a myth. Modern government is the government of the nation-state, not the town governments of colonial New England or the polities of ancient Greece. At most "popular rule" is really rule by a voting majority. The contemporary demand for "democracy," Gordon believes, is really the demand for constitutionalism, which in fact is another thing entirely.

"Constitutionalism" refers to the constraint of the coercive power of the government. Gordon takes sharp issue with the belief, advocated by Charles McIlwain among others, that constitutionalism consists of legal constraints. Gordon declares that there can be no legal limitation on the lawmaking power and no such thing as a "government of laws and not of men." Similarly, the "concept of the natural law merely serves to increase the power of any institution whose members are bold enough to claim exclusive authority to interpret it" (p. 13). The historical key to constitutionalism, Gordon argues, is the recognition of the fact that "power can only

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be controlled by power" (p. 15). Theories of political sovereignty must be replaced by theories of countervailing power, or "the dynamics of checks and balances" (p. 16). Some particular hierarchical institutions may be necessary for the efficient administration of policy, but the constitutional formation of public policy depends on "a network of independent but interacting entities" that may extend well beyond the formal structures of government (p. 17).

Chapter One examines the "doctrine of sovereignty" that Gordon means to reject. The chapter begins with Jean Bodin and Thomas Hobbes and their argument for the necessity of an absolute sovereign in any effective state. From there, Gordon surveys the notion of popular sovereignty noting briefly the contributions of the medieval theorist Marsilius of Padua and seventeenth century writer Johannes Althusius before considering its association with the American and French revolutions. The idea of popular sovereignty is primarily a normative concept, however, and does not satisfy Bodin's positive model of active rule. Gordon turns to British theories of parliamentary sovereignty, primarily as found in Walter Bagehot and A. V. Dicey, as an attempt to bridge the gap between the normative attraction of popular sovereignty and the positive need for a visible ruler. The chapter closes with a review of a variety of critics of the notion of sovereignty, emphasizing the concept's lack of both descriptive power and normative utility.

The next eight chapters of the book provide brief descriptions of different states embodying some form of Gordon's countervailance model of political organization. These chapters generally have three parts. The chapters usually begin with a brief historical overview of the development of the state in question. This historical synopsis is followed by a more extended description of the political system, its component parts and their operation. The chapters conclude with a theoretical rationalization of the particular political system, usually drawn from writers contemporary with state under consideration, and any particular contribution of that political system to the broader currents of Western political thought.

Chapter Two describes Athenian democracy. Gordon simply stipulates the democratic description of the Athenian political system. His interest in Athens is driven less by its democratic character than by its surprisingly complex institutional structure, which included a mass "legislative" Assembly, a smaller administrative Council, a mass jury court empowered to ostracize individuals as well as hear a variety of suits, as well as a host of civil offices. The importance of the Athenian system for Gordon lies not in its elements of participatory democracy but in its multiple mechanisms of checks and balances. In this chapter, Gordon also describes and rejects the Aristotelian notion of "mixed government." A recurring theme of the book is that the notion of mixed government misidentifies the virtue of constitutionalism. Chapter Three examines the Roman Republic and elaborates the intricate network of political institutions that grew up in the republic. Gordon calls particular attention to the writer Polybius, whom he regards as the first to clearly state the model of countervailing powers.

Chapter Four departs from the general pattern of the book by focusing on developments in medieval law and the Protestant Huguenot political theorists of the sixteenth century. In particular, this brief chapter is concerned with the significance of

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the canon and Roman law in the medieval period, the Conciliar Movement that challenged papal absolutism within Catholicism, and three French political theorists who challenged monarchical absolutism. Chapter Five returns to form in an examination of republican Venice. The fairly durable "republic" relied on a variety of overlapping and mutually checking institutions filled by the nobility. Venice was also notable in developing a secular state often in conflict with the Roman Church. Gordon argues that although "all political power resided in the noble class, . . . within that class it was institutionally dispersed, forming a complex of mutually controlling centers" (p. 165). Chapter Six considers the Dutch Republic. This chapter is particularly long on the economic, social, intellectual and political history of the Dutch Republic before it turns to describe the federated Dutch political structure.

Chapter Seven examines constitutional developments in seventeenth-century England. Most notably, Gordon details the political, military and intellectual conflict between the monarchy and the Parliament over the course of the seventeenth century, including the apparently salutary invasion by a Dutch army led by William of Orange and the subsequent coronation of William and Mary. This chapter has a particularly brisk pace and is more effective than earlier chapters in integrating political and intellectual events in describing the development of British constitutionalism and the antecedents of American constitutionalism. Chapter Eight turns to the American case. It surveys the Revolution, the adoption of the state constitutions, the creation of the U. S. Constitution, and the subsequent addition of the federal Bill of Rights and judicial review. The chapter effectively places the American case within the context of this larger history of constitutionalism. Unsurprisingly given Gordon's thesis, the chapter emphasizes constitutional checks and balances over legal guarantees and incorporates the non- governmental features of pluralism (e.g., political parties, interest groups, think tanks) into the distinctive character of American constitutionalism. Chapter Nine returns to Britain to consider relatively recent developments such as the decline of the monarchy and the House of Lords and the rise of the Cabinet and the bureaucracy. A brief epilogue downplays the importance of "democracy" in order to emphasize the importance of mechanisms of political accountability to insuring good government.

CONTROLLING THE STATE is particularly valuable for its distinctive emphasis on countervailing power as the cornerstone of constitutional governance and its broad survey of the practice and idea of constitutionalism over the course of Western history. Gordon provides an interesting and useful perspective on constitutionalism that nicely complements such classic works as Charles McIlwain's CONSTITUITONALISM: ANCIENT AND MODERN. He has crafted a synthetic historical survey drawing on a wide range of secondary sources. Individual chapters can be easily read in isolation and provide useful introductions to their subjects. There are some idiosyncratic elements in the book, especially in regard to political theory (e.g., Gordon briefly argues that Machiavelli is overrated as a political thinker because he gives inadequate attention to the organization of government; by contrast, Gasparo Contarini is regarded as the Adam Smith of political science), but Gordon's dogged practical and normative critique of the concept of sovereignty may be particularly useful for thinking about politics and constitutionalism in the twenty-first century.