Vol. 1 No. 3 (May, 1991) pp. 53-57

PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM: THE MADISONIAN FRAMEWORK AND ITS LEGACY, by Jennifer Nedelsky. Chicago: University of Chicago Press, 1990. 343 pp. Cloth $29.99.

Reviewed by Michael McCann. Department of Political Science, University of Washington.

"The first object of government," wrote James Madison in The Federalist #10, is "the protection of the different and unequal faculties of acquiring property." These well known words provide the conceptual starting point and animating theme for Jennifer Nedelsky's compelling analysis of the American constitutional legacy. To recognize Madison as a prominent contributor to the constitutional design and the prominent role of property in that design is hardly novel, of course. Yet rarely has this argument been advanced with such subtlety, rigor, and depth of insight. Even more important, I know of no other study that so compelling- ly details the significance of this legacy for ongoing debates about public policy, state institutions, and basic legal princi- ples in contemporary U.S. politics. These separate assessments highlight the two different but related concerns of the book itself. The first five chapters deal with debates during and about the founding era; the last and longest chapter connects this material to inquiries about American political institutions and ideas today. Each part will be discussed in turn.

Nedelsky's early chapters provide a rich, detailed analysis of three prominent figures at the constitutional convention -- James Madison, Gouverneur Morris, and James Wilson. Madison (Ch. 2) is portrayed, quite typically, as the moderate pragmatist committed to striking compromises among competing principles. This includes above all the difficult task of balancing the two "cardinal objects of government: the rights of persons, and the rights of property." As Nedelsky portrays it, Madison was equally committed to both, but he privileged property rights (the "first object") because they were most in jeopardy in the young American society. It is in this regard that the author rightly points to Madison's overriding fears about "the mischiefs of faction," which included above all majority tyranny over the property rights of the few. Hence the key challenge at the heart of his thought: how to protect property from the dangerous designs of the masses without directly denying them their basic political rights.

The result was a scheme for republican government that balanced property rights and political rights, but which was to be ruled by propertied elites and insulated from direct popular control. Madison's vision thus was one where the "people as a whole would be relegated to the margins of politics, but guaran- teed the freedom and security to pursue their private interests -- which was the real purpose of government." (167) Nedelsky develops this insight to illuminate various aspects of Madison's proposed institutional scheme (ambivalence about restricted suffrage, preference for representative government) as well as his specific policy positions against many redistributive and regulatory schemes (paper money,

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debtor relief) advanced in his day. In particular, she empha- sizes that Madison did not oppose all regulation, but distin- guished between those laws necessary to secure property and those laws that are "interferences" with, or violations of, property (153).

The analysis of the other thinkers that follows serves primarily to illuminate, by a host of subtle contrasts, the distinctive logic of Madison's ideas. Morris (Ch. 3) is por- trayed as an elitist unabashedly committed to protection of property rights over political rights, to a prospering market economy, and to the rule of the wealthy few. These simple commitments, however, ironically made him more aware of the class-based implications that Madison failed to recognize in his own theory. This includes especially the failure to recognize the dangers of an arrangement whereby the wealthy class could rule unchecked, thus collapsing the barriers between unequal economic power and political power. Wilson (Ch. 4) offers a distinct contrast in the other direction. If Morris reveals that Madison underestimated the dangers of rule by the few, Wilson's reflections suggest that Madison underestimated both the capacity of the many and the promises of democratic politics. Indeed, Wilson reverses the priorities explicitly endorsed by Morris and implicitly urged by Madison: civic participation by the many was the former's highest ideal, while property was a secondary end and instrumental means to the goal of republican self government.

Nedelsky demonstrates in Chapter 5 that Madison's position won out initially, and even more so over time. "His proposals did not prevail in every instance but his basic vision did." As Madison urged, the new Constitution extended political rights to the many (white males), but the institutional scheme "prevented" their dangerous exercise in a variety of familiar ways -- by extending the geographical sphere to multiply factional divi- sions; by dividing government institutions so as to neutralize majoritarian designs; by developing electoral arrangements that insulate government from direct popular control and that favor propertied men of commercial inclination; and by authorizing a federal system that limited the power of states, especially in economic matters.

Building on her earlier discussion, Nedelsky is frankly but fairly critical of the ways in which this constitutional frame- work privileges the security of property, distances government from citizen control, and reduces political participation to a secondary means for protecting private interests. Moreover, she connects this critique to other issues of contemporary scholarly concern. This includes the familiar debate about whether the Madisonian scheme is either "liberal" or "republican." Her overall view prudently assesses that Madisonian federalism represented a "new synthesis of competing ideas"(171). However, she convincingly shows that the case regarding Federalist commit- ments to republican civic virtue is often overstated, whereas the connection to liberalism is judged to be far more substantial. Nedelsky extends this position, furthermore, by arguing that the later development of judicial review worked to consolidate

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the sanctity of property rights as a liberal constraint on democratic politics. The resulting "division between law and politics not only secures the foundations of the system from majoritarian disruption," she argues, "it insulates political issues from public debate and analysis" (198-9).

There is much to be said for these arguments. First, the author's choice to focus "not on economic interest, but on the structure of ideas and institutions" (p. 2) avoids the reduction- ism of many rival progressive accounts. That is, the critical analysis focuses less on the motives of the framers than on the content of their conceptual designs for action. This surely is a sensible route for political theorizing. In addition, it renders the study highly relevant to recently renewed scholarly debates about the role of state institutions in shaping social and political interaction. Second, the treatment of the primary historical figures is careful, comprehensive, and clear. Compar- isons and contrasts are strategically deployed to serve the author's critical purposes, but the discussion is never labored or mechanical. Indeed, this reviewer found the historical analysis highly convincing and illuminating on a variety of scores that cannot be detailed here.

The analysis could have been developed further in some regards, however. For one thing, the author's contention that the framers were evasive or contradictory in specifying just what they understood by the term "property" itself is not entirely satisfying. Nedelsky no doubt is correct to emphasize that property discourses connoted a host of interrelated but shifting and inarticulate meanings. Likewise, she surely is on firm ground in linking property to notions of rights, independence, and security as well as in identifying an implicit understanding about "boundaries" that insulate people from one another and government (p. 151). Nevertheless, the analysis would have benefitted from more attention to the evolving usages of property discourse -- by legal experts, philosophers, political leaders -- in eras preceding that of the founders. Moreover, while highly sympathetic to the argument, I was bothered by the fact that the contrasting ideal of participatory democracy itself was not subjected to rigorous critical scrutiny. Some reservations about the aspiration are advanced (see pp.159-162), but the author's defense remains somewhat romantic, especially in that it does not sufficiently address how more participatory politics would require, and probably produce, quite different economic as well as political arrangements. Nevertheless, these chapters offer a rich analysis that should be of great value to scholars of U.S. history, American political thought, and constitutionalism.

The lengthy concluding chapter develops in far more origi- nal, ambitious, widely ranging, and hence controversial direc- tions. It covers an immense amount of ground that is difficult to summarize, but four interrelated themes are salient. One theme continues the earlier moral critique by arguing that the

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antidemocratic biases of the original constitutional design continue to haunt contemporary politics in ever more troubling ways. The second general theme is that changing social rela- tions, especially those initiated by the rise of the welfare state, have exposed profound paradoxes, puzzles, and problems in our inherited legacy of commitments to property. Third, the author contends that efforts to reappropriate this powerful legacy for progressive ends ("reform through redefinition") have been impeded by various conceptual and political obstacles. Finally, Nedelsky implores us to look beyond property-based ideals that celebrate autonomy in terms of boundaries between separate individuals. What is needed instead is a more democrat- ic, empowering discourse that recognizes interdependence, affirms equality among differently situated citizens, and esteems politi- cal participation.

This final chapter is powerful in its sheer weight of accumulated analyses as well as in its prudent negotiation of specific intellectual disputes. Moreover, the author's related arguments questioning "new property" legal reform strategies and urging a more egalitarian, democratic political discourse are sure to find a large sympathetic audience. Nevertheless, the overall case again is not entirely satisfying in various ways, only a few of which can be addressed here. For one thing, while the author's critique regarding the impact of property is de- tailed and clear, the alternative discourse that she urges at the end of the book is vague and impressionistic. In particular, the strategic issue of how to ground such democratic appeals in our inherited traditions is largely ignored.

A related problem concerns some incongruities in the author's framing of contemporary affairs largely in terms of the eighteenth century language excavated earlier. For example, the problem of inequality is discussed primarily in terms of "elites" and "wealth." This is fine in itself, but more complex dimen- sions of interdependent power relations and class hierarchies -- i.e., concentrated capital, multinational corporations, entangle- ments of empire -- in modern society are recognized implicitly at best, and left largely unexamined. In similar fashion, the argument that the rise of the welfare state undermined old property ideals surely is correct. However, the author says little about the fact that prior corporatization of economic organization and productive power also created dilemmas for basic liberal ideological premises. Attention to these issues would deepen the analysis of unequal power and political unaccountabil- ity in our constitutional scheme as well as expose some formida- ble obstacles to advancing the author's goal of increased citizen participation in modern society.

Finally, the author's conceptual frame not only is a bit strained by its historical roots, but it is far more attuned to the specialized legal discourses and philosophical bent of law school debates than to the rhetoric of struggle in popular politics. This is a routine and acceptable implication of most such scholarly analyses, of course. However, the author's claims that the ideas under scrutiny actually shape

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the political experience of ordinary citizens raises big ques- tions (see p. 201). Is property really a powerful "myth" still? Is it as meaningful as, and still clearly connected with, its cognates of market, autonomy, privacy, individualism, and the like? For whom is and is not this so? These are questions for which virtually no empirical evidence is marshalled to support broad assertions. Even more troubling are scattered references suggesting that the general public is more "naive" and "less careful" in its use of language about property than are law professors (256). This may be true in some regards, but the claim again is not supported by the author. Indeed, such gener- alizations fly in the face of much research about political conflicts over property relations throughout our history (involv- ing farmers, workers, the poor, racial minorities), recent sociological studies of "ordinary" citizen discourses, and the author's own professed democratic identification with the dispos- sessed. My guess is that the author does not really believe that political contests over key ideas and principles are limited primarily to elites, but more than a few passages and the overall logic of the discussion imply such a top-down, state-centered view of ideological power.

These minor criticisms should not obscure, however, my overall view that this is a very impressive and important work that deserves a wide reading. The author has provided a first rate piece of scholarship and an important contribution to contemporary debates about how to advance democracy against the grain of our dominant cultural inheritance.