Stephen L. Elkin: City and Regime in the American Republic. Chicago: University of Chicago Press, 1987.
The American Founders designed a democratic and commercial republic. Cities are centers of commerce, very often arising in places where the geography favors the construction of ports, as exemplified in the original United States by Boston, New York, Philadelphia, Baltimore, and Charleston, soon to be followed by New Orleans. Cities also feature concentrations of people, and so can exhibit popular self-government, mob rule, or any of the gradations in-between. Elkin regards “the political institutions of the city” as “potentially crucial in helping to prepare the citizenry to operate the commercial republic that the founding fathers set in motion.” The relations between governments and commercial markets, the status of property and especially of modern business corporations in America’s national life, may well be studied in cities, not for the sake of narrowly ‘academic’ interest but with a view to establishing and maintaining “a political way of life” fitting the regime as a whole.
A few decades after the American founding, Alexis de Tocqueville and John Stuart Mill both “approached the study of politics in cities and towns as part of a more general inquiry into the possibility of popular government,” popular government being (then and now) a matter of sharp controversy, a regime with critics and indeed enemies. Both philosophers considered municipalities, and not only or even primarily cities, as schools for self-government, for political liberty rightly understood. To maintain a republican regime, citizens need to achieve certain habits of mind and heart that enable them to truly inhabit such institutions as legislative bodies, executive offices, and courts, to use those institutions instead of abusing or losing them. Elkin finds that his contemporaries among political scientists have narrowed the scope of their study, focusing primarily on the questions of political and economic equality in the cities and the efficiency with which cities use available resources. Whether ‘capitalist’ or Marxist, such writers tend to reduce politics to economics, “not sharing Tocqueville’s and Mill’s interest in the larger political whole.” What is “the desirable political order,” the best practicable regime, for a city in the United States? And if it is to be a miniature commercial republic, what specific features will make it a better one?
Before prescription, description. Elkin identifies seven major features of city politics. They are: electoral contests, interest groups, business owners, elected officials, bureaucracies (“central actors in city politics”), the federal and state governments, and races/ethnic groups (“pervasive and endemic features of city politics”). Given these features, and given the commercial character of cities, he grounds his study on what he calls “the division of labor between state and market,” with “market” standing in for the more general notion of civil society because “city politics is a profoundly economically oriented enterprise.” He nonetheless rejects an economics-driven interpretation, whether Marxist or ‘capitalist,’ insisting on the political character of what was indeed once called political economy. Admittedly, “in market-dominated mass democracies, concern with material well-being—its overall level and distribution—is virtually certain to be central” to political contestation. “But liberal democracies are unlikely to flourish if they rely on the view that politics is simply economics carried out in non-market settings.” Beyond Karl Marx, beyond Adam Smith (Hayek, von Mises), “Tocqueville and Mill are helpful” because they see that political institutions don’t merely foster or discourage economic prosperity; “they are also formative of the citizenry.” The structure of ruling offices provides a framework wherein citizens relate to one another, thereby developing certain habits of mind and heart that differ from one regime to another—what Elkins calls “our procedural morality.” Although “the idea of political institutions as formative is no longer a prominent theme in contemporary theorizing about politics,” it should be, inasmuch as “a certain sort of citizenry is needed if liberal democracies are to flourish,” a citizenry that sustains “a political regime that is worthy of us,” a citizenry “with a lively sense of what I shall call the commercial public interest.” The public interest amounts to more than the concatenation of private interests, in particular the interests of business owners. It is a matter of “how we stand in relation to one another” and how we exercise “political judgment.” Judgment can (or should) imply reasoning; political life affords an opportunity for citizens to deliberate together, not only an opportunity to assert themselves with vehemence, although of course that happens, too. Elkin will argue that “for us to be the commercial republic that we say we wish to be requires both substantial democratization and significant alteration in property rights.” He wants Madisonian democratic republicanism, but with more democracy.
Democracy entails sufficient civic equality among citizens to establish majority rule. In a commercial civic society, private individuals control most of the means of production; as a result, public officials “cannot command economic performance, only induce it.” This requires the establishment of “structural factors” that guide the relations between property owners and governments, including the powers each is entitled to wield, the organization of public authority, and a federal system of national government whereby each city is left with “the task of competing for private resources” with other cities. City governance changed in the decades between 1870 and 1920; “it was then that the modern municipal corporation took shape, in a protracted effort to create city governments that suited the political actors who had emerged on the stage of the industrial city”—industrialism itself being a product of nineteenth century economic development, first seen on a large scale in Manchester and other English urban centers, but rapidly imitated in the United States, especially in the North.
American cities were never “sovereign bodies,” but the idea that their governing powers are granted by state governments, that “cities are understood to be creatures of states,” was only recognized by courts in the early years of the twentieth century, thanks to the jurisprudence of John Forrest Dillon. Born in 1831 in upstate New York, Dillon first received a Doctor of Medicine degree from the University of Iowa, but then read and practiced law in the 1850s, eventually becoming a judge on the Iowa Supreme Court in the 1860s. In the following decade he served on the United States Circuit Court for the Eighth Circuit, appointed by President Grant. It was in an 1868 Iowa case, Clinton v. Cedar Rapids and the Missouri River Railroad, that he formulated “Dillon’s Rule”: “Municipal corporations owe their origin to, and derive their powers and rights wholly from, the [state] legislature,” which therefore may create, destroy, abridge, and control municipalities. He elaborated on this rule in his 1872 treatise, Municipal Corporations. Dillon thereby opposed “Cooley’s Doctrine,” enunciated by Thomas McIntyre Cooley, Justice and then Chief Justice of the Michigan Supreme Court from 1864 to 1885. In The General Principles of Constitutional Law in the United States of America (1868), Dillon wrote that “It is axiomatic that the management of purely local affairs belongs to the people concerned, not only because of being their own affairs, but because they will best understand, and be most competent to manage them. The continued and permanent existence of local government is, therefore, assumed in all the state constitutions, and is a matter of constitutional right, even when not in terms expressly provided for. It would not be competent to dispense with it by statute.” Dillon’s Rule prevailed over Cooley’s Doctrine in the 1907 Supreme Court case, Hunter v. Pittsburgh. Its logical corollary was established in Trenton v. New Jersey, decided in 1923, when the justices ruled that states could carve out areas of self-government for municipalities, at the discretion of the legislatures. The courts distinguished, in these cases, between public corporations and private corporations, the latter enjoying property rights similar to those of individual persons, who enjoy such rights, under the American regime, not only by conventional law but as a natural right endowed by the laws of nature and of nature’s God.
Elkin characterizes Dillon’s rule as “an attempt to resolve the dilemma of what to do with corporations in a liberal polity.” When northeastern North America was a set of British colonies, municipalities were understood as sitting between the state and individuals, “bodies politic” that governed individuals while protecting residents “against state power,” which might encroach upon individual liberty. Before Dillon, American jurists under the United States Constitution had already defined municipal corporations as public entities, “a counterpart” to “the private business corporation.” But where did the rights public corporations possessed come from? Did they come from “the right of association on the part of the people who composed the city”? If so, they might exercise majority tyranny, putting property rights at risk within their boundaries. Dillon determined to avert this danger by asserting the power of the state over the municipalities within it, enabling states—both legislatures and courts, although not executives—to reach into cities to prevent socialist or other illiberal encroachments on property rights. Dillon staked out three municipal powers: “those granted in express words”; “those necessarily or fairly implied in or incident to the power expressly granted”; “those essential to the accomplishments of the declared objects and purposes of the corporation—not simply convenient, but indispensable.” This makes municipalities more or less like administrative agencies of the state governments while leaving private corporations at liberty to exercise property rights, an exercise that provides them with “a substantial sphere in which their ability to shape the life of the city will be largely unrestricted and unchallenged.” For example, if a private corporation engages in heavy industry, that activity will surely exert a strong effect on a city’s residents’ way of life, with respect to employment but also noise, air quality, transportation, even the content of the education children are likely to receive.
Elkin next describes the character of city governments in the industrial cities within this legal framework. In the decades immediately following the Civil War, “industrialists and commercial entrepreneurs, saloon keepers and workers, homeowners and utility magnates, all dealt with each other through a set of political institutions that were both expensive to operate and ramshackle.” Unlike today’s cities, with their strong mayors and/or city managers, the cities of that time were governed by city councils that “were very large by contemporary standards” and often bicameral. Much of the day-to-day business was conducted by city council committees or by boards and commissions whose members were appointed by the council. Electoral politics was organized by coalitions, such as New York’s Tweed Ring, loosely aligned with the Democratic Party. Leading up to the turn of the century, the political parties took firmer control, as seen in the figure of George Washington Plunkitt, the New York State legislator who specialized in what he called “honest graft,” profiteering on real estate in ways that both enriched himself and served some sort of public good (for example buying real estate he anticipated New York City would want, then selling it at a fine profit). Private corporations navigated this complex political structure as best they could. As Elkin puts it, drily, “the difficulty from the point of view of local businessmen was that the bargains struck often had a short lifetime.” Patronage politics, graft, money doled out to the poor to ensure voting support, all combined with inefficient means of revenue collection, brought the industrialists to advocate stronger executive government, empowering mayors and professionalizing the budget process. Corporate eminences John D. Rockefeller and Andrew Carnegie also intended to prevent control of city government by political radicals who enjoyed some success appealing to the ‘proletarians’ under the magnates’ employ. Such men found allies among utilities executives, merchants, and middle-classes worried about bad morals and high taxes. Among the middle classes were professionals, appalled by governmental inefficiency, and social workers, enemies of the ward politicians who doled out ‘relief’ to the poor in exchange for votes. “The beneficiaries of the existing arrangements were no match for this whirlwind of dissatisfaction, reform proposals, and political energy.”
Results of reformists’ efforts were mixed. Mayors were indeed empowered to appoint department heads; the departments were staffed more and more by professionals instead of patronage hires. “Consolidation, centralization, and efficiency were the bywords.” Political parties strengthened their control over elections, but the new, professionalized bureaucracies sought further independence from the parties by cultivating allies within the “clientele groups” they (increasingly) ruled by serving.
Meanwhile, city governments still needed revenues, especially if they were expected to provide social services as a matter of professional obligation instead of political tradeoffs. They needed credit from the financial men, along with such state and federal aid as they could find. Absent a “national system of aid to cities” that guarantees their financial solvency, cities were very much subject to the demands of their creditors. By the post-World War II period, understanding city politics “is largely an exercise in grasping the implications of the structural factors that define (1) the powers of cities, (2) the prerogatives of asset holders, and (3) the relations between them.” City governments “have few powers of their own to stimulate economic growth”; dissatisfied corporate executives can move their business elsewhere; if business moves elsewhere, credit dries up. Thus, local business owners and city governments usually work in alignment with one another to spur the economic activity that provides revenues for the politicians to spend. But the bureaucrats, largely unconcerned with the exigencies of electoral politics, are free to take actions that “impinge on the efforts of the alliance between public officials and local businessmen to promote city growth.” Elkin wants to find a way to break the close alliance between city governments and business owners without further empowering, and perhaps even reducing, the power of the bureaucrats.
He still has more descriptive work to do, however. He centers his study of city economics on land-use patterns, inasmuch as major land-use projects enhance the reputations of the politicians who promote them. To promote private investment in cities, city officials must provide infrastructure (roads, tunnels, bridges) and amenities (parks, playgrounds); seek investment funds; offer tax incentives; avoid or reduce regulations that stifle regulations, “including zoning requirements”; improve the education system by insuring it “will produce an attractive mix of work skills”; and “help with land assembly.” Infrastructure and amenities, zoning and planning, and land assembly are all elements of land use, which Elkin regards as more important than the other elements of business-friendliness. “City officials will naturally gravitate toward an alliance with businessmen particularly land interests, and such an alliance will naturally be devoted to creating institutional arrangements that will facilitate investment in the city.” To win elections, such officials prefer to avoid “controversies over such matters as schools and police” and “stick with what concerns them most,” namely, land use and allocation of the non-bureaucratic city jobs they still control. Mayors are well positioned for both tasks as the focus of electoral attention and as the negotiators of land-use deals. For their part, landowners care about city budgets, which affect the creditworthiness of the cities, taxes, and city services.
There have been three types of “political economies” resulting from the interactions between city governments and business interests in America’s post-World War II decades: “pluralist,” “federalist,” and “entrepreneurial.” The pluralist political economy predominated in the two decades following the war, emphasizing the prosperity of downtown business districts, transportation networks, the sustenance of a middle-class population, a wide set of partners in development efforts, and the establishment of private development corporations with some public members on the boards of directors. As middle classes moved into the suburbs, however (taking advantage of those improved transportation networks to become commuters), the “federalist”—more exactly, centralist—political economy took over, with direct grants to cities increasing sixfold in the 1970s, enabling local politicians to win votes from the remaining, poorer, residents and supporting city employees, now unionized. By then, the urban poor were usually racial minorities. “If federal dollars had not been available to keep minority leaders engaged in the politics of the service bureaucracies, it is not inconceivable that they would have turned to matters closer to the heart to of the land-use interests and city politicians anxious to see a continuing stream of investment in the city.” This has empowered the bureaucracies, recipients of federal largesse, while weakening the patronage powers of the elected officials. This was the model seen in most American cities at the time Elkin wrote his book, and it remains intact in many cities today.
Dallas was the exemplary entrepreneurial city of the day. It had a city-manager system, not a mayoral system. In those systems, the bureaucracy aligns with the business interests, which regard city-manager governance as the one that “best suit[s] their concerns,” providing “government that [is] efficient, professional, and administered by experts” while reducing the power of elected officials who too often look for votes among the poor, who are no friends of private corporations. For their part, elected officials satisfy themselves with those limited powers, leaving the troublesome administrative details to the bureaucrats. In Dallas, this has been a success story, at least in terms of the economic prosperity all interested groups want. “The essential point of difference between this sort of political economy and the pluralist and federalist types is that the behavior of public officials in the entrepreneurial version is not as much shaped by the building of electoral organizations and political coalitions,” city managers being unelected. City managers behave (it might be said) rather more like public school administrators, working to ensure that elected officials are friendly and somewhat infantilized demi-citizens obedient. Not that Elkin goes that far. “Insofar as citizens play an active role in political life” in the entrepreneurial political economies, “they are drawn into politics either to speak for their neighborhood, ethnic group, or some other interests”—as demanding children, a curmudgeon would say) “or as a bureaucratic client” (an older child, home from college, returned to the nest).
Nonetheless, in all these political economies, “citizens stand in relation to one another both as potential bargainers in a set of political institutions that work to aggregate interest, and as clients of city bureaucracies.” And just as parents often favor one child over another, so city managers and bureaucracies will “consistently favor some interests and impede others,” often by adroitly setting the agenda for public discussion. “Considerable effort goes into fending off the attentions of outside politicians and businessmen,” thereby maximize freedom for executive but especially bureaucratic maneuver. Because executives and bureaucrats share an interest in promoting economic prosperity, the land-use agenda stays “heavily tilted toward the land interest of the city,” with officials ever ready to “rearrang[e] land use to promote city growth,” inasmuch as “land is capital for those who own it or manage it, a context for the day-to-day lives of the citizens who live in the city, and a source of political benefits and revenues for the officials who govern the city.” This circumstance is relatively easy to maintain because even if advocates of “popular control” push forward, preventing “the land-use alliance” from “engineer[ing] major land-use changes” “for the moment,” the alliance “is still in a position to prevent the emergence of any other conception of the use of city powers.” When economic, social, or political problems arise, the range of policy choices is accordingly narrowed and ‘the many who are poor’ largely excluded from direct political participation on behalf of themselves.
The impasse stated, Elkin recurs to Tocqueville and Mill, to the question of the regime, beyond political economy. Within the regime of democratic and commercial republicanism, “city political institutions have a specific role to play and therefore an intrinsic significance.” Cities are not sovereign, but they are regimes within the overall regime under whose governance they operate. Regimes are, among other things, ways of life. “What political way of life do we wish to form?” What is a regime?
Regimes typically lay down laws. There is an “internal morality of law,” as “citizens and lawgivers learn to organize their affairs according to law by attempting to do so,” by attempting to live according to the laws and their internal morality, what Montesquieu calls the spirit of the laws. Laws shape “the form of political activity and thus of the citizenry acting within them,” habituating them to certain ways of acting, thinking, and feeling that differentiate them from persons living under a different kind of regime. Homo Americanus was not Homo Sovieticus. In the ancient world, an Israelite was not a Canaanite, and neither was a Persian; the legal structures, the ruling institutions, and the spirit or “internal morality” of their laws differentiated them. Regimes as sets of rulers, as ruling offices or institutions, as ways of life (both in actions and in speaking), have a formative character on those living in accordance with them. And they aim at purposes, ends: “They teach the lesson of what those most visible in the society consider as valuable.”
Elkins describes the regime founded by Americans as guided by “a concern for individual rights and the promotion of a commercial society,” with popular sovereignty in the form of democratic republicanism serving those ends. He has a narrow understanding of individual rights, however, boiling them down to political liberty in Montesquieu’s sense, “a tranquility of mind arising from the opinion each has of his safety.” This formulation ignores the Declaration of Independence, which enumerates three natural rights, among others: life, liberty, and the pursuit of happiness. That is, even if one defines the pursuit of happiness as a reformulation of Locke’s right to property, Elkin has untied property rights from human nature; and if one defines happiness and its pursuit more broadly, as seen in such Founders as Washington and Jefferson, and such allies as the Marquis de Chastellux [1], he has untied it from the fuller conception of human goods and (therefore) of political ends than the Founders upheld.
Elkin correctly identifies the problem James Madison identifies in the tenth Federalist, the problem of majority tyranny. Political liberty wedded to political equality yields majority rule, which can lead to assaults on minority rights by factions (or sometimes, by minorities aiming at weakening or overturning majority rule), groups “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” In order to secure property rights, the Founders framed not only a democratic but a commercial republic, one in which a majority would own, and therefore seek to guard, property rights. Commercial civil societies produce not only widespread property ownership but diversified forms of property, each pursuing its particular interest, blocking other propertied factions from achieving dominance. And commercial civil societies also promote the virtues of commerce, including thrift and sobriety—ballast steadying popular passions. In all this, the Founders nonetheless “did not mean that public officials were to take their direction from commercial men,” who “would at a minimum be inclined to strangle competition, be inattentive to the safety of the nation, and be uninterested in finding way to mitigate the bad effects of commercial expansion.” The Founders understood that “the primary value of a commercial society was political,” seen in such a society’s disinclination to run off into endless wars for the aggrandizement of generals or the advance of a religion, both of which motives had wracked Europe for centuries. In so understanding the importance of commerce, the Founders saw that commerce itself, the minds and hearts of commercial men, could lend itself to faction, even if to a less immediately dangerous kind of faction than a disposition to make war. “Officials should not assume that impact on economic growth is the primary criterion in judging policy initiative that affect the distribution of property and wealth in the society.” While securing “private rights,” those occupying the ruling offices of democratic and commercial republics must see to it that government controls itself and also to secure the ruling authority they wield from “powerful private interests” that may arise with the intention of violating the private rights of others, thereby overturning the regime, the “commercial republic that we want.” “The commercial public interest,” the maintenance of the regime and of the principles that animate it, that give it its purpose, “is not what businessmen say it is”—the pursuit of happiness misdefined as material self-interest alone. Although in a commercial republican regime businessmen are not “a ruling class dominating the state,” as Marxist contend, neither are they “merely a particularly powerful interest group.” They are positioned to be somewhat difficult to govern, precisely because the democratic republic is democratic in the modern way, the way that has converted the many who are poor into the many who are middle-class, aspiring to ever-increasing wealth and not always hesitant to resist corporate alliances with governments.
“Can a regime dedicated to popular control work so as to respect individual liberties, promote a commercial society, and give it concrete meaning in the course of defining the commercial public interest?” Elkin carefully distinguishes the commercial public interest from commercial interests. Commercial interests incline toward cutting down competition, monopolizing markets for the sake of immediate self-interest. Commercial public interest means, first, the maintenance of commercial liberty itself, minimizing the monopolistic practices commercial men aim at, the form of libido dominandi toward which businessmen’s souls incline. How can the American regime prevent “public authority from being the tool of private interest”? While “try[ing] to avoid reducing the confidence of businessmen” by offering them such inducements to invest as tax incentives, government research money and research findings (the latter seen in the disclosure of certain aspects of computer technology, invented for military use, to businessmen), and punishing “rapacious officials.” While critics of the regime decry government efforts to “promot[e] capital,” ‘capitalists’ themselves decry “an expansive state” that constrains their activities “There is some truth in both observations.” In the American regime overall, “the decline of Congress and the rise of the administrative state” has done little to assuage either of those concerns, even though the administrative state arose precisely in order to bridle private corporations, who had, according to Progressives, New Dealers, and Great Society men, corrupted our legislative halls of fame. As it has happened, the “managerial mode” of rule wielded by public bureaucrats in private corporations may find friends among the private bureaucrats in private corporations, even as some of those public bureaucrats may irritate their private counterparts with their minute and stringent regulations.
We Americans have “largely failed to maintain the distinction between the essentially political reasons for a commercial society and how to contrive a happy environment for businessmen” because “officials lack strong incentives to think beyond business inducement.” Elkin proposes five ways of providing such incentives: lowering “the barriers to dissent”; reducing incentive for businessmen to seek “official inducements” by “reducing business concentration”; reducing “the advantages businessmen have in the collection and dispersal of political money”; “curb[ing] the tendency of officials to use whatever discretion they have to facilitate business inducement”; and to “improve officials’ grasp of the considerations that should guide their efforts to give content to the commercial public interest” and especially to the connection “between a commercial society and republican government.” On the citizens’ side of the equation, “a lively sense that inducing business performance does not exhaust the meaning of the commercial public interest” will also be needed. Only then will public officials, elected and unelected, have a strong incentive to understand and to strengthen republicanism. “Without a citizenry able to grasp that the commercial public interest is not exhausted by inducing business performance, no other reforms will work at least if those reforms are not to be worse than the disease.” As Madison asked, in what was then an indignant tone, but now strikes the ear as plaintive, “Is there no virtue among us?”
And what can cities in particular do to recover the Founders’ regime? Citizens in them will need to cultivate “a disposition to think of political choice as involving the giving of reasons” about “what is beneficial to us as a political community,” not only as a marketplace. “Arguments are to be tested, reworked, and withdrawn, not asserted as if their blinding rationality compels assent,” and not as if they were an exercise in geometry. “Politics educates judgment,” what the Greeks called phronēsis. Here, however, Elkin departs from Aristotle. In “the classical Greek conception, in which political and moral (as moderns would say) life are inextricably bound together and the broad purpose of politics is thought to be the promotion of virtue,” what is good for human beings by nature, Elkin subordinates the virtues to the regime of democratic and commercial republicanism. But more, although he invokes what contemporary scholars call “the civic republican tradition,” whose “central concern is the primary role that civic virtue must play in the workings of free government,” this too is more “demanding” than what he has in mind. He contends that “the public interest will emerge from argument born of diverse starting points,” with citizens only needing “to be disposed to believe that there is something more to public choice than combining private interests.” In order to get them to be so disposed, the political institutions “must place citizens in relation to each other as deliberators or reason givers, not, for example, as bargainers engaged in exchange” with executives and/or bureaucrats. Those institutions will therefore be legislative, primarily, not executive in either the ‘strong mayor’ or the ‘city manager’ form of government. That is, city governments would return to the institutional form, the politeia, which predominated in the American English colonies and in the decades up to the Civil War—city council government. The motives of citizens engaged in this form of city government would be concern for concrete local issues (schools, land-use patterns in the neighborhoods, “features of their work lives”) and “the deep interest that each of us has in enjoying the esteem of others.” This “desire for the esteem of others”—invoked by the young Abraham Lincoln in a campaign flyer he distributed when he first ran for the Illinois legislature—can be turned “into a disposition to act politically by the giving of reasons.”
“The danger, of course, is that the desire for esteem will mean the tyranny of a dominant opinion,” inasmuch as speakers in council will want to play to the crowd. Elkin hopes that the commercial character of the “commercial public interest” will exert some discipline upon speakers. To achieve commercial prosperity needed to win the esteem of your fellow citizens, demagoguery will only get you so far. Real-world exigencies will bridle big talk, in the long run. Elkin admits, however, that “there is no easy solution here.” A major barrier is what he calls “corrupted liberalism,” that is, liberty extended to corporations, now legally treated as if they were individual persons. Its existence, together with the existence of a substantial professional bureaucracy, makes for a confrontation of “those devoted to the defense of the business corporation and those devoted to some version of an expanded state in the service of social welfare.” Corrupt or “corporate liberalism” attempts to define the commercial public interest in terms of “the inducing of business performance”; its public-bureaucratic rival attempts to define the commercial interest, or the public interest generally, in terms of a new sort of property rights, rights to tax-supported social and economic benefits controlled by the bureaucrats. Under bureaucratic rule, “rights language will then become a rhetorical cover, directed not at justifying a sphere in which individual autonomy can flourish but aimed instead at providing a new principle of social decision in which businessmen will have no advantage, regardless of whether this is in the service of individual autonomy” (itself a specimen of corrupted language, a replacement for natural right) “or not.” The corporate-liberal justification of corporate property rights is no less rhetorical. “Whatever the [American] Founders’ intentions, property rights have already been significantly altered throughout our history.”
Against this, Elkin would institute a regime that makes “citizens more intelligent about public life, not more moral” in the private sense, strengthening “the disposition to engage in public-regarding debate and struggle” in “a marriage between liberalism and democracy, with the latter in the service of the former.” Institutionally, he recommends neighborhood assemblies “with significant powers,” citywide referenda, and city legislatures, “also with significant powers.” To avoid majority tyranny, he would structure referenda questions to offer multiple choices, not yes-no choices, in order to encourage deliberation and to make it more likely that a winning proposal really would command votes from a well-informed majority. Today’s public corporations (cities) and private corporations feature executive regimes, and this would change those regimes, revolutionize the cities, giving far more authority to the people, ‘the democracy.’ Such authority would include the power to govern land use, to “take land for specified public purposes.”
Why, Elkin asks himself, would neighborhood and citywide assemblies not “feel compelled to attract investment to their areas,” just as mayors and city managers do in the existing city regimes”? “Land interests would likely prove only too happy to oblige and seek out allies from among neighborhood residents.” That is, “what will prevent small-scale versions of what presently occurs in city politics?” Nothing would prevent it, but land-use decisions made by legislative majorities are at least more likely to bring benefits more widely distributed than decisions effected by deals between public and private corporate executives. Elkin fully understands that “regardless of their merits, the prospects of such reforms occurring are slim,” and so they have proven to be.
Undeterred, Elkin calls property “the Achilles’ heel of the American regime” because it has been redefined since the time of the Founders, redefined as a right to property held by corporate ‘persons,’ a right based on legal fiction instead of nature. However, Elkin proposes not a return to the Founders’ understanding of property as a natural right to be secured by a constitutionally limited government but as “fundamentally a public matter.” Properly understood, “property is a political concept and openly to begin its redefinition as a political act is itself an effort that cuts deeply into the core of a liberal regime.” He proposes this re-redefinition to oppose “the present form of socialized property” (socialized in the sense that it corporations are in fact civil-social units within the larger civil society) found in the large-scale business corporation.” While so proposing, he understands that the Progressive-New Deal hope that an ‘administrative state’ or public bureaucracy would serve as an adequate counterweight to the private corporate bureaucracies has weakened the democratic character of democratic republicanism. Neither does he want socialism, “state ownership of assets.” In all of this, “the most worrisome point of all is that it may be impossible to sustain the public-spiritedness necessary for a liberal regime to flourish.”
His own “political” answer is insufficient, partaking too much of the Progressivism it (sort of) seeks to confront. He cites with approval the Hannah Arendt-George Kateb “conception of a constitution”: “a constitution is not a program or policy”—true enough—but “it has no goal; it does not make an object,” but rather “is the creation of a frame of institutions for indefinite future possibilities of political action,” an act of “procedural morality.” Inasmuch as it has a goal, that goal is “to be the best of its kind.” This begs the question, What is the best? And that begs the question, What is the good? According to Elkin, “our foundational aspiration is to be a popular regime,” as “we wish to be a popular regime first and foremost, even before we wish to be a commercial rights-bearing one.” The democratic “political way of life” is rightly superior to, although not properly destructive of, the commercial way of life insofar as commerce is now oligarchically structured. But what, then, governs democracy? Having abandoned natural right defined by the laws of nature and of nature’s God, Elkin can only offer whatever comes out of political contestation. As he concedes, “the core” of his understanding of “political science as practical science” requires “an account of how the various institutional pieces” of the regime “can be made to fit.” This “must be an effort to hold fast to two principles that are not easy to reconcile: (1) that the basic organizing principles of the society must, in some form, be subject to political decision and (2) that the state must not be allowed to arrange the daily lives of individuals.” The problem is that practice, or political science, depends on theory, or political philosophy.
Note
- On Chastellux, see “Chastellux on ‘Public Happiness’ in the Ancient World” and “Chatellux on ‘Public Happiness’ in the Modern World” on this website under the category, “Philosophers” and “Chastellux in America” under the category, “American Regime.”
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