9 Political Libertarianism Jacob T. Levy part 1 Benjamin Constant, the great classical liberal theorist and constitutionalist, under- stood the problem. In “The Liberty of the Ancients Compared With That of the 1 Moderns,” his defense and celebration of the modern liberty of pluralism and the private sphere, he warned that the very richness of our modern private lives would lead moderns to neglect what was vital in the liberty of the ancients. Wrapped up in our private lives, we would find democratic politics too burdensome and time- consuming; anxious to protect what is ours, we would find elections too unpredict- able. And so we – by which he meant, especially, the commercial and propertied middle classes – will easily be tempted by the Bonapartist offer: I will take the trouble of governing off your hands and protect you from unpredictable political give and take. Constant was sure that such offers are made in bad faith, and that they would represent a bad exchange even if they were not; they end with even our private modern liberty being at the mercy of strongmen and dictators. But this wouldn’t make us immune to the temptation. He worried, in short, that liberals would not be committed enough democrats to make good constitutionalists. And this would ultimately mean that we are not good enough liberals. For all the transformations of modernity, the regime of religious liberty and free speech, commercial liberty and free trade, and the rule of general law with protection against arbitrary punishment could never be taken for granted. It could always be politically undone. While at first glance Constant’s essay seems to turn on progress driven by grand historical change – the rise of commerce, the Reformation, the abolition of slavery – in an important way it’s an argument about the fundamental status of politics. All our modern goods are vulnerable to bad politics, and they are 1 Benjamin Constant, “The Liberty of the Ancients Compared with That of the Moderns,” in Biancamaria Fontana, ed. and trans., Political Writings (1989)[1819]. Downloaded from https://www.cambridge.org/core. McGill University 153Libraries, on 06 Sep 2018 at 20:45:33, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108242226.011 154 Jacob T. Levy only secure if we secure them with better politics. And it is of course to this task that he devoted the final decades of his life, both as a key liberal parliamentarian and as a 2 public theorist publishing his Cours de politique constitutionnelle – a course on constitutional politics, aimed at teaching the French citizenry how to practice it. (That the phrase “constitutional politics” sounds as surprising to us today as it does is a good synecdoche for the problems this paper will examine.) While Constant was sometimes (and not very happily) involved in constitution-writing, his constitutional- ism was not ultimately about getting a founding text just right. It was about something more public and more ongoing than that. A classical liberal constitutionalism that is capable of withstanding the populist, authoritarian, and nationalist threats of our day must find a way to overcome Constant’schallenge.Itmustbeabletocometotermswithdemocracy,andmust offer a constitutional politics. It must resist the temptation he described: to so prioritize our modern liberty, our freedom of religion and freedom of commerce, that we disdain the time-consuming business of political democracy and try to find shortcuts. I think that the modern classical liberal renaissance that began in the mid-twentieth century has often neglected politics, and that it can no longer afford to do so. The lack of a properly political libertarianism has in some respects left advocates of the liberal order poorly equipped to defend it in light of rising threats, and in other respects has entangled them directly with those threats themselves. In calling for a political libertarianism I mean a few different, though overlapping, things. The most familiar one to many readers is also probably the least important: 3 an analogy to the political liberalism advocated by John Rawls. Rawls’ liberalism is, in his terms, political not metaphysical; it is not grounded in a particular compre- hensive theory of the human good, like Millian or Kantian autonomy, and it is supposed to be compatible with a wide range of such theories, including religious ones. I certainly think the turn to political liberalism was right, and is applicable to classical liberalism as well. But, notwithstanding some occasional arguments about culturally “thick” libertarianism that would exceed the bounds of the Rawlsian “political,” I think “political not metaphysical” is not especially controversial in 4 classical liberal thought, and I take it for granted rather than examining it further. 2 Posthumously collected as Benjamin Constant, Cours de politique constitutionnelle (1861), 3 John Rawls, Political Liberalism (1993). 4 For more on the relationship between Rawlsian political liberalism and classical liberalism, see Gaus, The Order of Public Reason and The Tyranny of the Ideal. While he does not put it quite this way, Gaus reconstructs political liberalism to show the importance of liberal institutions that can be endorsed by those who espouse a wide range of ultimate visions of justice – a range of visions of the political ideal. In so doing he pushes Rawlsian political liberalism toward the kind of politicalness associated with Waldron and political realism, which will be discussed subsequently. Downloaded from https://www.cambridge.org/core. McGill University Libraries, on 06 Sep 2018 at 20:45:33, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108242226.011 Political Libertarianism 155 But the deflationary ambition of Rawlsian political liberalism only goes so far. Rawls insists on the importance of widespread endorsement of liberalism as a “freestanding political doctrine,” and maintains that the stability of a constitutional order is not secure if it rests on merely strategic action that generates a modus vivendi. Religious liberty might begin in the standoff among religious groups none of which are powerful enough to stamp out the others, but it must eventually be endorsed as a political value in its own right. Without meaning to import the whole Rawlsian apparatus, I do think that this much must be true of a political libertarianism. It should be a thin doctrine about political and legal institutions, not a comprehensive account of the good life; but it should still be a doctrine and it cannot do without affirmation by adherents. Although I am much more sympathetic 5 to modus vivendi theorizing (and political practice) than Rawls or Rawlsians, I ultimately agree that we cannot simply back into a liberal order through clever balancing of interests or institutional standoffs. There is no constitutional design so clever, no multiplication of veto points so elaborate, that the liberal order can be formally guaranteed. There need to be some actual liberals involved. A second sense of “political” is the ordinary, everyday sense of the word. Liberal- ism is a set of ideas and principles, but they are ideas and principles about what is to be done in politics. I have elsewhere referred to liberalism, conservatism, and 6 socialism as “party ideas.” In the era of modern politics anticipated by British parliamentarism in the eighteenth century and fully inaugurated by the American founding and the French Revolution, what David Hume characterized as “parties of 7 principle” have been crucial institutional participants, making representative dem- ocracy in large states possible and coherent, allowing some measure of political accountability, and extending governmental time horizons beyond the career of one or another ambitious person. I will discuss below the centrality of both parties and representative democracy to a revitalized liberal constitutionalism in Section 3 of this chapter. But for now, I will offer a slogan to parallel “political not metaphysical.” This second sense is “political not contractarian.” As against the recurring fantasy of being done with political work, of a great supermajoritarian once-and-for-all victory or a hypothetical and imputed unanimity, I suggest that we need a firm liberal embrace of electoral democracy that includes the willingness to work for temporary plurality victories and that understands the legitimacy of temporary plurality losses. This leads directly to the most important sense of “political” for current purposes: that used by Jeremy Waldron in his call for “political political theory,” and by Bernard Williams in his recommendation of “realism in political theory” that treats 5 See discussion in Jacob T. Levy, “Contextualism, Constitutionalism, and Modus Vivendi approaches,” in Cultural Pluralism and Political Theory, Anthony Laden and David Owen, eds. (2007) 6 Jacob T. Levy, Rationalism, Pluralism, and Freedom 10 (2015). 7 David Hume, “Of Parties in General,” in Eugene F. Miller, ed., Essays Moral, Political, Literary (1987). Downloaded from https://www.cambridge.org/core. McGill University Libraries, on 06 Sep 2018 at 20:45:33, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108242226.011 156 Jacob T. Levy political conditions and norms as irreducible to moral conditions and norms: political not juridical, political not moral-philosophical. Waldron argues that a political political theory must rest on the sense of understanding that we exist amidst people who disagree with us, and we must share institutional space with them, not wish them away. Theories of justice and rights derived philosophically, especially when they are theorized in a way that demands they be constitutionalized and 8 imposed judicially, fail to be properly political. Waldron’s recent work in this direction aligns him closely with an important development in political theory in the past decade or so: the turn to, in a specialized sense, “realism” associated 9 especially with Williams and William Galston.