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Republican Moments: the Role of Direct Popular Power in the American Constitutional Order

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Republican Moments: the Role of Direct Popular Power in the American Constitutional Order University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 139 DECEMBER 1990 No. 2 ARTICLES REPUBLICAN MOMENTS: THE ROLE OF DIRECT POPULAR POWER IN THE AMERICAN CONSTITUTIONAL ORDER James Gray Popet INTRODUCTION .................................. 289 I. POPULAR VS. ELITIST REPUBLICANISM ON DIRECT POPULAR PARTICIPATION ............................... 295 A. Background: The Republican Revival ............. 296 t Associate Professor of Law, Rutgers University School of Law, Newark, New Jersey. A.B. 1974,J.D. 1983 Harvard University. Earlier versions of this paper were presented to the Boston University Legal History Group and the Rutgers Law Faculty Colloquium. The final product benefitted greatly from critical comments by Akhil Reed Amar, C. Edwin Baker, CathieJo Martin, Eric Neisser, Richard Davies Parker, and John M. Payne. I am especially indebted to Vicki Been, Richard Revesz, and Aviam Soifer, who provided detailed critiques on short notice. James C.N. Paul gave guidance and encouragement throughout. Able research assistance was provided by Lisa Buckley, John Cioffi, Angela DiLeo, Nancy Gage, Sandra Levy, Mary Uva, Rosalind Westlake, and David Zuckerbrot. The S.I. Newhouse Research Fund supplied much-needed financial support. (287) 288 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 139:287 B. Direct PopularParticipation and the Problem of Size .... 297 C. The Elitist Solution .......................... 299 D. Back to Square One .......................... 301 E. A PopularRepublican Dilemma .................... 302 II. REPUBLICAN MOMENTS .......................... 304 A. Ackerman's ConstitutionalMoments ................ 304 B. Public Purpose and Creedal Passion ................ 306 C. Republican Moments ......................... 310 D. PopularRepublican Pathologies? ................... 313 III. REPUBLICAN MOMENTS AS A PARTIAL ANTIDOTE TO INTEREST GROUP POLITICS .............................. 315 A. From Narrow Self-Interest to Public Virtue ............ 315 B. Breaking the Interest Group Logjam ................ 318 C. Equalizationfrom Below ......................... 320 D. Republican Moments and the Threat of Totalitarianism . 322 IV. REPUBLICAN MOMENTS AND THE CONSTITUTION ........ 324 A. Republican Moments in the Political Thought and Practice of the Founding Generation ...................... 325 B. Revolutionary Origins of the Right of Assembly ........ 330 C. Peaceable Assembly as a Form of Popular Sovereignty .... 336 D. Peaceable Assembly During the Confederation Period .... 337 E. The Constitution and the Reestablishment of Politics-as- Normal .................................. 340 F. Republican Moments and the Bill of Rights ........... 341 V. DIRECT POPULAR POWER AND THE FIRST AMENDMENT .... 345 A. The First Amendment Value of Direct PopularPower .... 345 B. The Value of Direct Popular Power Embodied in Current Doctrine: The ConstitutionalRight to Boycott ........ 347 1. Background: ClaiborneHardware and SCTLA .... 347 2. The Right to Boycott as a Popular Republican Supplement to Representative Politics ...... 349 3. An Expansive Reading of the Right ........... 352 VI. REPUBLICAN STATUTES ......................... 356 A. Statutory Construction ........................ 358 B. Administrative Implementation .................... 364 CONCLUSION .................................... 366 1990] REPUBLICAN MOMENTS Those who profess tofavorfreedom and yet deprecateagitation, are people who want crops without plowing up the ground, they want rain without thunder and lightning. 1 -Frederick Douglass Even [political turbulence] is productive of good. It prevents the degeneracy of government and nourishes a general attention to the public affairs. I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical. 2 -Thomas Jefferson It is, in fact, at such moments of collective ferment that are born the great ideals upon which civilizations rest. The periods of creation or renewal occur when [people]for various reasons are led into a closer relationship with each other, when reunions and assemblies are most frequent, relationshipsbetter maintainedand the exchange of ideas most active.... Once the criticalmoment has passed, the social life relaxes, intellectualand emotional intercourse is subdued, and individuals fall back to their ordinary level. -Emile Durkheim3 INTRODUCTION The image of thunder storms seems out of place in constitution- al discourse. We are accustomed to the more solid metaphors of governmental machinery or the "body politic." If, as John Adams envisaged, government is a "complicated piece of machinery, the nice and exact adjustment of whose springs, wheels, and weights" is poorly understood by the people, 4 then a stormy popular upheaval could only upset the adjustment. Surely no self-respecting physician of the body politic would willingly expose it to the turbulent winds of popular rebellion. The mechanical and biological metaphors reflect a tendency to view the constitutional order as a stable system, and the mission of 1 P. FONER, FREDERICK DOUGLASS 11 (1964) (quoting Frederick Douglass). 2 Letter from Thomas Jefferson to James Madison (Jan. 30, 1787), in 11 THE PAPERS OF THOMAS JEFFERSON 92, 93 (J. Boyd ed. 1955) [hereinafter JEFFERSON PAPERS]. 3 E. DURKHEIM, SOCIOLOGY AND PHILOSOPHY 91-92 (1965). 4 Letter from John Adams to ThomasJefferson (May 19, 1821), in 10 THE WORKS OFJOHN ADAMS 398 (C. Adams ed. 1856). 290 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 139:287 constitutional law as promoting the smooth functioning of that system. For the past several decades, this tendency toward systems- thinking has taken the form of liberal or interest group pluralism. At first, liberal pluralism embodied a happy convergence of descriptive and prescriptive visions. Not only were American politics characterized by interest group bargaining, but that was the best possible state of affairs. As Madison had predicted, a polity divided into numerous competing interest groups would not give rise to a single dominating faction. 5 All groups would be able to press their concerns and make alliances, thereby ensuring that their interests received fair consideration. 6 It followed that the legisla- tive products of this fair process should be broadly construed to achieve their purposes, 7 and that the power of judicial review need 8 only be exercised to correct occasional malfunctions. In the short decade since John Ely and Jesse Choper "per- fect[ed]" this view, 9 interest group bargaining has fallen so low in scholarly esteem that it can now be called a "disease" in the pages of a law journal.' 0 Although the system still has its defenders, it is no exaggeration to say that contemporary legal scholarship is "haunted by the idea that. statutes are nothing more than deals 11 between contending interest groups." 5 See THE FEDERALIST No. 10, at 83 (J. Madison) (C. Rossiter ed. 1961). 6 Initially, it was enough that pluralism would serve as a defense against totalitarianism. See D. RODGERS, CONTESTED TRUTHS: KEYWORDS IN AMERICAN POLITICS SINCE INDEPENDENCE 209 (1987). Claims of fairness and efficiency were added later. See, e.g., D. TRUMAN, THE GOVERNMENTAL PROCESS: POLITICAL INTERESTS AND PUBLIC OPINION 51.0-15 (1951) (contending that citizens' overlapping membership in interest groups provides a "balance wheel" in the system, and that pluralist politics are characterized by "widespread, frequent recognition of and conformity to the claims of ... unorganized interests"). 7 See H. HART & A. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAw 1156-57 (tentative ed. 1958). On the influence of interest group pluralism on Hart & Sacks and the Legal Process school, see Eskridge, Politics Without Romance: Implications of Public Choice Theo7yfor Statutoty Inteipretation,74 VA. L. REV. 275, 281-83 (1988); Minda, Interest Groups, PoliticalFreedom, and Antitrust: A Modern Reassessment of the Noerr-Pennington Doctrine, 41 HASTINGS L.J. 905, 940-41 (1990). 8 SeeJ. CHOPER, JUDICIAL REViEw AND THE NATIONAL POLITICAL PROCESS (1980); J. ELY, DEMOCRACY AND DISTRusT (1980). 9 See Parker, The Pastof ConstitutionalTheory-And Its Future, 42 OHIO ST. L.J. 223, 223 (1981) (analyzingJ. CHOPER, supra note 8;J. ELY, supra note 8). 10 See Epstein, Modern Republicanism-Or the Flight From Substance, 97 YALE L.J. 1633, 1641 (1988). For an early and influential diagnosis of the disease, see E. SCHATTSCHNEIDER, THE SEMI-SOVEREIGN PEOPLE (1960). 11 Farber & Frickey, The Jurisprudenceof Public Choice, 65 TEX. L. REV. 873, 925 (1987). 1990] REPUBLICAN MOMENTS While the pluralist prescription has thus been seriously undermined, its descriptive vision is more firmly entrenched than ever. The highly influential economic (or "public choice") theory of legislation depicts the polity as a political marketplace dominated by special interest groups.' 2 For most citizens, the benefits of political participation do not exceed the costs. 13 Hence, it would be "irrational" for them to engage in political action. 14 With most of the citizenry thus relegated to the sidelines, the field is left open for the few groups that are able, because of advantages like compactness and wealth, to overcome the problem of organizational 1 5 costs. For those who are not impressed with the economic diagnosis, there is always the problem of size. The proponents of the "republican revival," for example, are not especially concerned about the purported irrationality of collective
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