THE UNFORTUNATE REVIVAL OF CIVIC REPUBLICANISM STEVEN G. GEYt TABLE OF CONTENTS I. THE BASIC CONCEPTS OF MODERN CIVIC REPUBLICANISM . 804 A. Civic Virtue ................................ 806 B. The Organic Community ....................... 811 1. Identifying the Relevant Community .......... 814 2. The Nature of Participation in the Organic Community ........................... 819 3. Enforcing the Organic Community's Decisions 820 C. The Social Construction of the Individual ........... 822 II. DIALOGUE AND CONSENSUS: INTEGRATING THE SOCIALLY CONSTRUCTED INDIVIDUAL INTO THE ORGANIC COMMUNITY ................................. 833 A. Dialogue and Consensus: The Theory ............. 834 B. Dialogue and Consensus: The Practice ............ 841 1. The Problem of Distorted Dialogue and Tainted Consensus ............................ 843 2. Environmental Imperfections and Civic Republican Politics ...................... 847 III. THE COMMUNITY AND ITS DISCONTENTS: CIVIC REPUBLICANS AND CIVIL LIBERTIES .................. 854 A. The Latent Majoritarianismof Civic Republican Politics 858 B. A Brief Example of the Republican Approach to Civil Liberties: Alternative Sexual Expression and Conduct 865 1. Justifications for the Political Correction of Improper Attitudes ..................... 870 2. Civic Republican Censorship and the Perspective of Political Winners and Losers ............. 872 IV. CIVIC REPUBLICANISM AND THE LOSERS' PRINCIPLES IN DEMOCRATIC THEORY ........................ 879 A. The Principleof Radical Skepticism ............... 882 B. The Impermanence of Power and the Inevitability of Conflict ................................. 888 C. Individual Autonomy ........................ 894 CONCLUSION .................................... 897 t Associate Professor of Law, Florida State University. B.A., 1978, Eckerd College; J.D., 1982 Columbia University. (801) 802 UNIVERSITY OFPENNSYLVANIA LAW REVIEW [Vol. 141:801 During the last decade, constitutional theory has been radically altered by the infusion of ideas loosely grouped under the title "civic republicanism." Recent attention to these ideas initially surfaced during the sixties and seventies in the works of legal historians who argued that the founders of the American constitu- tional scheme were influenced as much by republican ideas as by traditional Lockean liberal theory.' In the last decade, civic republican theory has become the primary concern of several prominent constitutional scholars. Nationally known scholars such as Frank Michelman, Cass Sunstein, and Mark Tushnet have written 2 extensively of their desire for a more "republican" Constitution. This article examines several different aspects of the civic republican phenomenon. The first aspect involves the constitution- al politics of civic republicanism. In particular, why are politically left-of-center constitutional scholars attracted to civic republicanism? Putting the matter differently, is civic republican theory truly congenial to the goals and aspirations of constitutional theorists who locate themselves on the left side of the political spectrum? The most obvious answer to these questions is that the political left shares with civic republican theory a theoretical focus on the See, e.g., JOYCE APPLEBY, CAPITALISM AND A NEW SOCIAL ORDER: THE REPUBLICAN VISION OF THE 1790s, at 17 (1984) (arguing that "[a]lthough classical republicanism offered the possibility of establishing an enduring republic where men might enjoy the liberty of civic participation, the theory itself was grounded in an historical realism that cautioned against having too high hopes, given the fickle, power-lusting nature of men"); BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 23 (1967) (noting that a '[s]tudy of the sources of the colonists' thought as expressed in the informal as well as the formal documents... reveals ... a massive, seemingly random eclecticism"); J.G.A. POCOCK, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLICAN TRADITION 506 (1975) (noting that "[i]t is now possible to explore the history of American consciousness in search of what manifestations of the problems of the republican perspective may be found there"); GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-87, at 467 (1969) (discussing the influences of republican ideals on public desire for general reform). 2 See e.g., MARK TUSHNET, RED, WHITE, AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW 10 (1988) (noting that "[t]he republican tradition, though quite different from liberalism in its origins and intentions, offered solutions to the related problems of potential legislative tyranny, potential paralysis, and potential judicial tyranny"); Frank I. Michelman, Law's Republic, 97 YALE LJ. 1493, 1495 (1988) (advocating republican constitutionalism, which "involves the ongoing revision of the normative histories that make political communities sources of contestable value and self-direction for their members"); Cass R. Sunstein, Beyond the RepublicanRevival, 97 YALE LJ. 1539, 1576-89 (1988) (describing the impact of republicanism upon several modern public law controversies and suggesting that an understanding of republican- ism requires a reformation of legal rules). 1993] CIVIC REPUBLICANISM community rather than the individual. Both civic republicans and members of the political left view the collective exercise of power more favorably than their political and theoretical adversaries. Under this view, both civic republicans and members of the political left view government as the necessary agent for cultivating positive social values and developing a "good" society. Classical liberal theory and members of the political right, on the other hand, view government as at best an unfortunate necessity. This explanation of the natural attraction between the left and civic republicanism has one major problem: the left's traditional support for civil liberties is incompatible in certain respects with civic republican theory. This is the second aspect of the civic republican phenomenon addressed in this article. The essence of the problem is this: if collective political decisions are favored-and if the government is the logical agent to implement the "good" society-then there is no reason for the government not to extend its power to make collective determinations into those areas traditionally protected as fundamental individual liberties. This has been a common reaction to republican theory, and several republi- can theorists have attempted to respond by reintroducing elements of liberalism or "practical reason "' into their civic republican theories. The first two sections of the article discuss the fundamentals of civic republican theory and the mechanisms it provides for making and enforcing political decisions. The third section of the article addresses the problem of individual liberty and the republican response. My conclusion is that the communitarian and collectivist premises of civic republican theory logically require the theory's adherents to abandon many traditional protections of civil liberties. Indeed, it is also my conclusion that despite recent civic republican overtures to the modern liberal sensibility, most civic republicans actively desire the collectivization of civil liberties. The final section of the article addresses the central theme underlying all discussions of civic republican theory: the relation- ship between collectivism and individualism in the American constitutional structure. This section will relate civic republican 3 See Sunstein, supra note 2, at 1566-71 (arguing in favor of "liberal republican- ism"). 4 See Frank I. Michelman, The Supreme Court 1985 Term-Foreword: Traces of Self- Government, 100 HARV. L. REV. 4, 17-18 (1986); Cass R. Sunstein, Interest Groups in American PublicLaw, 38 STAN. L. REV. 29, 31 (1985). 804 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141:801 theory to a broader understanding of modern democratic theory. Both modern civic republican theory and traditional liberal theory purport to be subsets of democratic theory. In other words, they are both methods of effectuating the core democratic ideal that a particular society's citizens be permitted to govern themselves. A corollary of this basic principle of self-determination is that no group of citizens can take command of the government forever. In other words, any valid democratic theory must recognize that governmental change is inevitable, and democratic governments should therefore be structured in a way that permits the inevitable change to occur. I argue in the final section that modern civic republicans are insufficiently sensitive to the democratic mandate of constant change and flux. I believe that this flaw in modern civic republican- ism is attributable to the fact that modern civic republicans view the world from the perspective of political winners. Thus, they do not sufficiently take account of what I call "losers' principles," some form of which every proper democratic theory must incorporate. The final section includes a discussion of three losers' principles that seem incompatible with the most prominent modern versions of civic republicanism. I conclude that by rejecting these "losers' principles," civic republicanism ceases to be a truly democratic theory. I also argue that to the extent modern civic republicanism permits collective political power to override these losers' principles, the theory also becomes an essentially conservative doctrine-a notable irony given