Populism and Progressivism as Constitutional Categories-- Part III

Originally published in 104 Yale L.J. 1935 (1995).
Copyright 1995 by Jack M. Balkin. All Rights Reserved.

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Populism and Progressivism as Constitutional Categories-- Part III


J. M. Balkin**





What is most interesting about Sunstein's reforms, in fact, is not so much their specific content as the striking contrast between their relative modesty and the strong distrust of consumer choice and viewer preferences expressed in this book. Sunstein's theoretical bark is much worse than his practical bite. One reason for this discrepancy is that Sunstein is not only a gifted theoretician but also a person of impeccably sound judgment. He is temperamentally (one might even say constitutionally) incapable of being unreasonable for very long. He is therefore unwilling to carry any of the principles he espouses to their logical, if potentially absurd, conclusions. Moreover, the fact that he is unwilling to do this should be understood less as a sign of his lack of consistency than of pragmatic good sense triumphing over academic excess.

Nevertheless, Sunstein's saber rattling against the evils of consumer sovereignty reveals something much deeper and, I think, more important about his general views concerning the First Amendment. It reveals the cultural underside of his "Madisonian" conception. Sunstein's attack on consumer sovereignty reflects his distrust of and disappointment with American mass culture and the popular tastes reflected in that culture. Underlying Sunstein's discussion of broadcast policy is a division between high and low culture -- with the former seen as essential to the repair of the system of democratic deliberation and the latter identified with mass culture and particularly with the culture of television.

This pejorative view of mass culture is implicit in Sunstein's repeated call for more "high-quality" programming,(153) a term that is importantly and systematically ambiguous. It appears to refer both to programs that deal with public issues and programs that appeal to the norms of "high culture" -- for example, "serious" drama (as opposed to made-for-TV movies) and BBC-style documentaries.(154) Conversely, what it most decidedly does not refer to are the hallmarks of television mass culture -- situation comedies, tabloid journalism, Beverly Hills 90210, MTV -- in short, all that is generally referred to as "trash television," regardless of its high technical quality or considerable production cost.

The systematic conflation of public-affairs programming with programming appealing to the mores of "high culture" under the rubric of "high-quality" programming is central to the cultural mindset of this book. Sunstein's conception of "high-quality" is naturally opposed to the existing tastes and preferences of the masses. This is clear in Sunstein's dismissal of current viewer preferences as due to limited opportunities and lack of education.(155) Moreover, as Sunstein points out, it is not accidental that "high-quality" programming is disproportionately watched by the well educated.(156)

Finally, and most important, Sunstein's conception involves an opposition between high culture and low culture in which the virtues of democratic deliberation are associated with the former and opposed to the latter. The mass audience, seduced by the temptations of the culture of television, is diverted away from high cultural "public-affairs programming" necessary to the health of democracy. Thus, we see the following set of conceptual oppositions: High-quality programming is to low-quality programming as democratic deliberation is to consumer sovereignty, as high culture is to popular culture, and as enlightened preferences are to popular preferences. Sunstein's worry about the decline of public discourse parallels his worry about the rise of mass culture; unchecked and uncontrolled, mass culture may become the enemy of democratic deliberation and "Madisonian" values.

Nevertheless, it would be completely wrong to conclude from this that Sunstein is intolerant of popular culture. Indeed, precisely the opposite is true. Sunstein views popular culture precisely as an object of toleration, as a thing that must be tolerated even though it is of relatively little political value, endured even though it distracts people from the business of government. It is precisely this attitude of toleration that allows him to view popular culture as peripheral to democratic culture rather than central to it, as a vulgar sideshow rather than the main event, as an intermittent nuisance that occasionally interferes with the processes of democratic deliberation but that is generally irrelevant to it. Popular culture is something people turn to when they are not engaged in serious discussions about public issues. It is a diversion from democratic deliberation, and dangerous precisely because it is so diverting. At the same time, because popular culture occasionally does interfere with democratic deliberation, it must be opposed and counteracted, shaped and managed in order to produce the conditions for true democracy.

Sunstein's dissatisfaction with popular preferences and his distrust of popular culture lead naturally to the charge that he is elitist.(157) But this revelation should hardly seem shocking or surprising once we recognize Sunstein as the intellectual heir of good-government progressivism. The pre-World War I progressives were elitists too; they were sure in their convictions that expertise could improve the processes of government and that rational discussion would lead to an enlightened consensus that would promote social progress in the interests of all.(158) Their faith in elite judgment distinguished them from the previous generation of populist reformers.

There are in fact deep and abiding connections between progressivism and elitism. Progressivism sets for itself the tasks of setting the government's house in order and improving the culture of democracy. It views itself as working in the interest of a public good discernable through educated and enlightened reason. As such, progressivism is the natural home for intellectual elites, who (like everyone else) tend to measure the world by their own standards. Conversely (and unsurprisingly), intellectual elites are valued doubly by progressivism: first because they possess the necessary information and expertise to formulate wise public policy, but second because they are viewed by other progressives as the best educated and most committed to the values of rational inquiry and deliberation. Thus, progressivism inevitably recasts the norms of democratic deliberation in the image of elite values and elite preoccupations, and inevitably judges the quality of popular participation by elite standards of education and taste. Popular culture, with its shallowness, rudeness, and lack of intellectual seriousness, is almost always seen as a fall away from these standards. Hence bettering or counteracting that cultural deficit in the interests of democracy inevitably becomes part of the progressive agenda.

Conversely, because progressivism places such faith in the formation of consensus through good-faith cooperation and rational inquiry, it has difficulty acknowledging that some problems -- in particular problems of race, nationality, and class -- "may be rooted in values and interests whose differences cannot rationally be bridged even with the best of intentions."(159) When such consensus fails to form, or when it forms contrary to elite understandings, progressivism naturally tends to identify the causes as parochial self-interest and uneducated passion. As a result, progressivism is always destined to see itself as the perpetual victim of ingratitude for all of its pains by a populace that continually fails to recognize progressivism's reasoned efforts on its behalf.

From this standpoint, civic republicanism is merely the latest episode in the progressive crusade to improve American democracy in the face of the woeful political culture the American public has created. Scot Powe has remarked that Sunstein's broadcasting policy demonstrates that he does not want better programming, but "better people."(160) Sunstein, I think, would not necessarily disagree. The whole point of the "Madisonian" system is to improve democracy not by kowtowing to popular preferences but by opposing and reshaping them. Sunstein's political theory is unabashedly perfectionist, both for the political regime and for the people who live in it. If perfecting democracy requires people to match their viewing habits to those better educated, then this is the appropriate model for them to aspire to. If Woodrow Wilson hoped to make the world safe for democracy, Sunstein hopes to make the American citizenry safe for democracy as well.

For these reasons, the bare accusation that Sunstein is elitist does not further the discussion very much. Sunstein is hardly unaware that he will be accused of elitism. The real question is whether, in his words, he is being "unacceptably elitist."(161) Moreover, he offers what I think is an entirely logical response to such criticisms: It is perfectly justifiable to be an elitist if your values really are the better ones. And Sunstein has no doubt that the preferences of the affluent and well educated are objectively better: If such people will "disproportionately enjoy high-quality broadcasting," it is "precisely because they have been educated to do so."(162) "[H]igh-quality education," Sunstein argues, "is not something to be disparaged. It has a point."(163) Moreover, people who lack these better preferences need to be educated so that they will come to have them; the mass media should be part of a comprehensive system of public education designed to serve these ends.(164) Sunstein concludes that "[m]any people who are not college graduates should benefit a great deal from" high-quality broadcasting.(165) "Indeed, they may receive disproportionately high benefits."(166)

Moreover, it will do no good to respond to these claims by trotting out familiar assertions about the subjectivity of all values and preferences. Sunstein is quite prepared to defend the view that some preferences are better than others. The only question is which ones really are better. But of course, that is precisely the sort of discussion he would like to invite. He wants us to ask ourselves what values citizens should have and whether it is not the duty of the state to instill those values so as to make better citizens. I think he is right to ask these questions.




The deeper difficulties in Sunstein's position can only be addressed once we recognize that Sunstein's critique of mass culture and viewer preferences is really a form of ideological critique. Sunstein claims that citizens' values and preferences are distorted. This distortion is due either to lack of information, heuristic biases caused by social position, attempts to reduce cognitive dissonance, or mistaken conceptions of true interest.(167) These claims are quite consistent with a familiar conception of ideology -- distortions in beliefs or preferences that cause individuals to act contrary to their interests.(168)

This conception of ideology turns crucially on the notion of beliefs and actions that deviate from an objective interest -- for example, the class interest of an oppressed group such as the urban proletariat. This objective interest exists apart from the private and subjective interests of members of the oppressed group. Indeed, short-term and parochial interests of individual members of the proletariat may cause them to fail to recognize their common interest as class members. Therefore, in some versions of Marxist theory, it is necessary for a revolutionary vanguard to instill the appropriate revolutionary consciousness in the members of the class.(169) Sunstein's civic republicanism also assumes that citizens have an objective interest -- an interest in democratic deliberation and democratic government -- that exists apart from their private interests as citizens, and it is the duty of government and law to instill them with appropriate preferences so that they will pursue this objective interest.(170)

All ideological analysis involves an analyst who offers a critique and an analysand who is the object of criticism. Here Sunstein plays the role of the analyst critiquing the preferences of ordinary citizens. The basic problem for all ideological analysis is that it is reflexive: The analyst identifies defects in the analysand's thought due to her interest and social position, yet the analyst herself is also subject to cognitive deficiencies and cognitive biases due to her own interest and social position.(171) These defects and biases may color her understandings about whether and to what degree the analysand's thought is inadequate or distorted. Hence, the position of the analyst and analysand is symmetrical, or to put it another way, every analyst can be an analysand to someone else.

Successful ideological analysis must also put the analyst's own ways of thinking into question. This requirement follows because we must assume that the thought of all human beings is partly adequate and partly inadequate to the understanding of social conditions, and that each person's way of looking at the world partly grasps what is just even if it partly furthers injustice. No person has a complete monopoly on truth, but none has a complete monopoly on falsehood either. If so, the analyst may not explain all disagreements between herself and the analysand as due solely to the analysand's defective beliefs, preferences, and structures of thought. She must consider the possibility that her own analysis of the situation is due to the limitations and partiality inherent in her own thought.

To this end, the analyst must consider what truths might be contained in the analysand's way of looking at the world. She need not accept the analysand's perspective completely and uncritically, but she must entertain the possibility that the truth is partly, even if only slightly, on the analysand's side and that the analysand has something to teach her about social conditions generally, or, at the very least, the social conditions that the analysand faces. If the analyst does not do this, she cannot tell whether her pejorative judgment about the analysand's thought is due to limitations in the analysand's thought or to limitations in her own.(172)

Through the process of understanding why the analysand thinks as she does, the analyst can begin to see (albeit always to a limited extent) how her own situation affects her understanding of social conditions and questions of justice. Thus, the analyst must use the analysand's thought as a partial check upon her own.(173) There is no guarantee that this process will be foolproof, and it contains many risks of its own.(174) Nevertheless, it is a more mature form of analysis than a unidirectional model that does not inquire into the analyst's status and locates all distortion in the thought of the analysand. The unidirectional approach assumes that if we disagree with an Other it is because we have something to teach her; it does not consider the possibility that the Other may also have something to teach us.

The deeper problem with Sunstein's critique of popular preferences and mass culture is not that it is elitist, but that it is unidirectional. It locates the source of difference in the mind of the Other, and it explains this discrepancy in terms of cognitive defects, narrow self-interest, and vulgar self-gratification. In so doing, it fails to consider the possibility that the progressive academic might possess a limited vision, a narrowness of mind, or a parochial sensibility. The unidirectional approach allows defects and passions to be projected from the mind of the analyst onto the hapless object of her objections.

Because Sunstein's critique of consumer sovereignty is, at bottom, a form of ideological analysis, he too must take on the burden of self-reflexive inquiry. He must consider what features of his own situation -- as a legal and political theorist who earns a living writing and teaching about constitutional law and public policy issues in a university setting -- potentially skew his understanding. He must try to use popular culture as a partial check on his own position.(175)

A nonreflexive approach to ideology sees ordinary citizens as suffering from a pathology, a defect that needs to be cured through the analyst's expertise. The relationship between the academic and the citizenry is that of a wise doctor diagnosing a sick patient. By contrast, a reflexive approach understands the relationship between the analyst and analysand as a disagreement about what is good, a disagreement that may be due to misunderstandings and ideological blinders on both sides. The first sees the analysand as an object of rectification, while the second sees the analysand as a subject engaged in a virtual dialogue with the analyst, who demands that the analyst try to see things from her point of view. The first is an attempt merely to bring enlightenment to others; the second is an attempt to bring enlightenment to one's self.

Unfortunately, Sunstein attempts to sidestep these issues by asserting that "Madisonian goals are not mere preferences."(176) Because they are not mere preferences, they are not subject to attack as merely Sunstein's personal desires for a good society. Nor can they be said to be the result of lack of education and cognitive deficiency. But this resolves the matter too quickly. Sunstein is surely right that a demand for justice or democracy is not a mere preference. Yet it does not follow that an analyst's concrete articulation of what justice or democracy requires is beyond ideological scrutiny. Our view of what these ideals require in particular cases may be due in part to the limitations and situation of our own thought. Hence, even if all persons express fealty to justice or democratic self-government, our own particular interpretation of what justice and democracy require may be partly the result of our own situation and interests. Although justice and democracy are not "mere preferences," we cannot avoid ideological scrutiny of our interpretations of these norms by claiming that they are democracy and justice simpliciter.

I think, in fact, that there are important connections between the kind of ideological analysis I advocate here and the ideals of dialogue normally venerated in dialogic and deliberative political theories. What these theories honor in theory, the reflexive approach tries to honor in practice. Thus, my criticism of Sunstein is not that he is wrong to value deliberation and dialogue, but that he does not do sufficient justice to his own dialogic commitments. In his encounter with popular culture, he should not be in the position of a policy expert dictating to the masses the content of their appropriate preferences. Rather, he, and I, and all constitutional theorists, should be engaged with popular will and popular culture, open to the possibility that the varied perspectives of ordinary citizens might influence our views just as we hope to influence theirs.




In particular, an encounter with popular culture might tend to counteract the tendency, common to certain academics, politicos, and even a few self-styled revolutionaries, to overstress the importance of politics to the life of ordinary citizens. We might even coin a new word to describe this phenomenon: Let us call it politico-centrism. If ethnocentrism is the world seen through the eyes of a cultural chauvinist, politico-centrism is the world seen through the eyes of a political junkie.

What makes it difficult to understand politico-centrism as an ideological position -- especially for teachers of law and political theory -- is that politics, broadly defined, is central to the human condition, for we do and must live in a world with other people. Politico-centrism merely fails to grasp that specific articulations of the value and importance of politics are parochial, and leave out significant portions of the complicated world of human activity and human values. Politico-centrism is like the famous cartoon depiction of the New Yorker's view of the world, where the cosmos appears to shrink drastically west of the Hudson River; it resembles the confusion of the genuine importance of New York with the particular importance given to it by the New Yorker.

It is hardly surprising that persons who deal with law and politics every day might come to believe that public affairs have or should have a disproportionate importance to every person's thoughts and activities. The lifestyles of legal and political theorists in the academy are particularly suited to produce this sort of judgment. Academics have comparatively large amounts of leisure time (which I define as time they need not devote to the minimum requirements of their jobs). Moreover, they tend to spend the time they do have thinking, writing, and discussing books and ideas, many of which include public issues.

Most ordinary citizens, by contrast, do not have the same leisure to pursue in depth the relative benefits of managed care versus single-payer health plans. They may be interested in politics, but they are also interested in eking out a living wage and taking care of their children. For example, viewed from the perspective of the many American women who work outside the home and yet still have primary responsibility for childcare, devotion to public affairs must take a back seat to the harsher realities of life. For them a "Madisonian" system, which insists that all citizens devote "broad and deep attention to public issues,"(177) must seem the sort of pipe dream invented by people who do not have to work for a living.(178)

Unfortunately, Sunstein gives little more than lip service to these concerns. "No political regime," he explains, "can or should insist that citizens be thinking about politics all, most, or even much of the time; people have many other things to do."(179) Yet he continues by suggesting that lack of interest is often a result of cognitive defect and ideological delusion.(180) Sunstein well recognizes that people's socioeconomic status and situation in life may contribute to what he regards as insufficient concern with current policy debates. However, he does not view their situation as producing a perspective with its own claims to validity, but rather as the source of cognitive disability and false belief. "We know enough," Sunstein explains, "to know that lack of interest is often a result of inadequate education, perceived powerlessness, unsatisfactory alternatives, or a belief that things cannot really be changed."(181) Even so, one must also inquire into the status of "We" who knows these things about the great unwashed.

Similarly, Sunstein acknowledges that "[b]usy people cannot be expected or required to devote all or most of their time to public issues."(182) (Presumably the slackers have no such excuse.) "One of the advantages of a representative system -- not to mention one with a large bureaucracy -- is that it allows the citizenry to devote its attention to subjects other than politics."(183) But the very way of framing the issue begs the question. It implies that people might be allowed to divert attention from their primary concern -- which is politics -- to secondary concerns (like raising children) and the pursuit of mere preferences (like eating). It does not sufficiently engage with the possibility that politics might simply and justifiably play only a very small part in many people's lives.

Indeed, a subject largely left undiscussed in the book is exactly how much effort people would have to make for Sunstein's vision of democracy to be realized. Sunstein insists that "it is hardly unrealistic to assess a system of free expression by examining whether it generates broad and deep attention to public issues, and whether it brings about public exposure to an appropriate diversity of view. These are not utopian goals."(184) But of course that is precisely the question -- is "deep attention" to public issues by all citizens a utopian goal and can government "bring[] about" their "exposure to an appropriate diversity of view" in ways that do not violate their liberties or are not unduly paternalistic? The discrepancy between the ideal and the real is a recurring problem for Sunstein's project because he seems to want a very high degree of public involvement and familiarity with current affairs without forcing anyone to watch or read anything against her will.

Complicated issues like health care or trade policy may demand considerable information and attention to detail to be discussed intelligently and effectively. This poses a considerable difficulty. If Sunstein really wants the vast majority of adult Americans to be well acquainted with the available policy options and the relevant pros and cons, he will better approach an ideal of democratic deliberation, but his theory looks increasingly unrealistic, and his goals, in his own words, "utopian." On the other hand, if all he is saying is that people should know in a rough sort of way the kinds of issues currently before the Congress, such a goal might be attainable, but under Sunstein's own criteria it hardly constitutes a well-functioning democratic system.

One escapes this dilemma if one sees the legislature and not the people as the true arena of democratic deliberation. The legislature would do the sort of in-depth analysis necessary to choose wise policy, while the citizenry would simply point in a very broad way the direction they wished to travel. Some of Sunstein's prior work suggests this division of labor, and it is consistent with his Madisonian predilection for limited democracy, as opposed to limited government.(185) Yet Sunstein makes clear in this book that he expects the citizenry as well as the legislature to be well informed. After all, if citizens are not engaged in informed democratic deliberation, they will tend to send the wrong signals and elect the wrong individuals to the legislature.

Sunstein is surely not wrong to hope that the citizenry can become better informed about public issues; government can and should take steps to give ordinary people better opportunities to learn about public affairs and become involved in public life. Many of Sunstein's suggested reforms (as opposed to his rhetoric) should be unobjectionable from a populist standpoint. Yet populism also demands recognition that citizens may have good reasons to neglect politics. This inattention may reflect the comparative urgency of the demands of everyday life, or a belief that government adequately albeit imperfectly serves their interests. However, it may also reflect the growing judgment that government is the seat of corruption, privilege, cronyism, and injustice. At some point, this indignation will surface in popular political action, and when it occurs, it must be given its due. From a populist perspective, an alternation between periods of relative inattention and episodes of popular uprising is not a pathological but a normal feature of democratic life. It symbolizes the people's simultaneous recognition that they ultimately rule and that their government is usually in the hands of people who systematically forget this fact. The model of populist democracy is not prolonged dialogue but periodic revolution.(186)

This alternation between inattention and outrage looks quite different and very disturbing from the perspective of progressivism. Citizen activism is supposed to be continuous and sustained rather than concentrated in brief moments of outrage, just as sustained rational deliberation is to be preferred to sporadic outbursts and expostulations. Some progressives may seek revolutionary changes in society, but in its preference for sustained democratic deliberation, progressivism is decidedly antirevolutionary.

Faced with recurrent political apathy, progressivism has traditionally decried civic sloth and preached the gospel of public participation. Yet precisely at those moments when the citizenry is most eager and engaged, progressives are rarely pleased with the results. An energized populace is, unfortunately, empowered by popular sentiment and popular passion. Progressivism tends to be suspicious of such energy, thinking it usually badly informed and misdirected by clever manipulation.(187) Thus progressivism finds itself continually hoping for an active citizenry, but perpetually in fear that it will get what it wishes for.

We have seen this schizophrenia before. It is the simultaneous trust of the democratic process in the abstract coupled with a distrust of the same process when goaded and controlled by ordinary citizens. Populism's vision of normal politics is progressivism's nightmare -- a citizenry that sporadically takes power into its own hands without adequate preparation and sufficient education in proper values. Yet from populism's standpoint the progressive dream is hardly heavenly -- for it is premised on disdain and disrespect for popular will and civic energy. It is a participation with only idealized participants, a democratic culture without a demos.




Populism, like politics, makes strange bedfellows. I have argued that the importance of populism rests not only in its distinctive conception of democracy, but in its lessons about the social construction of judgments -- the sort of critique often associated with postmodern philosophy. It may seem strange to connect populism and postmodernism, that most arcane of academic perspectives. But this incongruity is more apparent than real. A populist constitutionalism demands that academics become more self-conscious about their status as members of a subculture whose elite values tend to shape and occasionally distort their perspectives. It asks that they become more aware about the culturally bound nature of the activity called constitutional theory. It entreats them to consider the possible value in popular culture. Finally, it requires them to acknowledge that distinctions between a more valuable high culture and a less valuable low culture have become increasingly problematic in our age. All of these are familiar postmodernist themes.(188) The fact that I might turn to postmodernism to articulate them is simply further evidence of the particular place from which I stand and the particular cultural tools available to me given this position.

Constitutional theorists have something to learn from populism, even if at the end of the day they must cast a skeptical eye on its excesses. Yet this encounter may help theorists recognize the excesses of positions that seem most natural to them. Just as critical race theory and feminism ask whites and males to recognize and surrender their privileges as whites and males, so too populism asks elites to recognize and surrender their privileges as members of these distinctive subcultures. In particular, populism requires professors of constitutional law to forgo their privileges as academics. For those of us who are trained to respect the meritocratic values of the academy, this may be no small task, and our resistance to it should not be underestimated. In any case, the goal of a populist constitutionalism is neither anti-intellectualism nor academic self-loathing. It is rather a richer and fuller understanding of the self and its place in the larger political community. All critical theory seeks enlightenment, and enlightenment, like charity, begins at home, with an examination of the self and its precommitments. Through this process all of us may hope to understand better what our commitment to democracy -- rule by the people -- truly means.




153. SUNSTEIN, supra note 1, at 82, 84-85, 88-91.

154. It also refers to programming that provides appropriate educational values for children. See id. at 84-85.

155. Id. at 19-21.

156. Id. at 91.

157. Id. at 90-92 (discussing charges of elitism).

158. Rabban, supra note 28, at 11-14.

159. Id. at 14.

160. Conversation with Scot Powe, Professor of Law and Government, University of Texas, in Austin, Tex. (Dec. 15, 1993).

161. SUNSTEIN, supra note 1, at 91.

162. Id.

163. Id.

164. Id. After this suggestion, Sunstein adds the perfunctory disclaimer that "there is nothing elitist about that." Id. But of course, the idea that the masses should be educated to conform to the preferences of elites because they are better preferences is the very essence of elitism. The question is whether it is unacceptably or improperly elitist to educate people so that they have better preferences, and Sunstein's answer to that question is clear.

165. Id.

166. Id.

167. Jon Elster's work makes clear the connections between traditional conceptions of ideology and claims about the distortion of preferences. In fact, Elster argues that one can explain most ideological phenomena through social psychological mechanisms that distort either beliefs or preferences. See JON ELSTER, MAKING SENSE OF MARX 18-22, 465-68, 476-93 (1985); ELSTER, SOUR GRAPES, supra note 123, at 141-66.

168. See MICHELE BARRETT, THE POLITICS OF TRUTH: FROM MARX TO FOUCAULT 4 (1991) (identifying classical conception of ideology as mystification that serves interests of some class). Beliefs can serve the interests of one's own class, or they can serve the interests of another class. The notion that one's beliefs are serving interests contrary to one's own is often summed up in the illusive term "false consciousness," a term, interestingly, that Marx himself never used. Id. at 5.

169. See, e.g., Vladmir I. Lenin, What Is To Be Done?, in LENIN ANTHOLOGY 50 (Robert C. Tucker ed., 1975).

170. The common public interest in democratic deliberation, in turn, allows them to pursue and define their common interests as citizens. One should distinguish the public interest in democratic deliberation from the specific content of what kinds of policies are in the public interest. The latter are not defined prior to deliberation in Sunstein's system, but grow out of the process of democratic deliberation.

171. This problem, first clearly identified by Karl Mannheim, leads to the predicament called "Mannheim's Paradox": Ideological analysis is always produced by a subject who in turn is subject to the same ideological scrutiny she performs on others. KARL MANNHElM, IDEOLOGY AND UTOPIA 76-77 (Louis Wirth & Edward Shils trans., new ed. 1991) (1936). The phrase "Mannheim's Paradox" was coined by Clifford Geertz. See CLIFFORD GEERTZ, Ideology as a Cultural System, in THE INTERPRETATION OF CULTURES 193, 194 (1973).

172. We might compare this requirement of ideological analysis to the requirement of understanding a text we disagree with. As Gadamer points out, if we do not attempt to understand a text's claims to truth, we will not know whether we disagree with it because the text lacks coherence or because we have not really understood it. HANS-GEORG GADAMER, TRUTH AND METHOD 261-63 (Garrett Barden & John Cumming trans., Crossroad Paperback 1982) (2d ed. 1965).

173. More generally, we must rely on other people for help in ideological analysis. Sometimes this help comes in the form of disagreement with and criticism from others.

174. On some of these risks, see Balkin, supra note 22, at 159-66.

175. Since I am also engaged in ideological critique, the same injunction applies to me as well. Sunstein and I share a considerable amount in common in terms of background and current social position -- for example, we are both white, middle-class, straight, Jewish law professors who attended Harvard Law School in the late 1970's and currently teach at elite institutions. Of course, this does not excuse me from the attempt to see why Sunstein's defense of elite values has some merit. Nevertheless, precisely because of the similarity in our backgrounds, he does not have to try very hard to convince me.

176. SUNSTEIN, supra note 1, at 91.

177. Id. at 20-21.

178. In its classical conception, civic republicanism also demanded considerable devotion to political affairs from the class of citizens who were heads of households. Yet these citizens possessed leisure time precisely because they were supported by an army of women, servants, and artisans. See Hendrik Hartog, Imposing Constitutional Traditions, 29 WM. & MARY L. REV. 75 (1987); Linda R. Kerber, Making Republicanism Useful, 97 YALE L.J. 1663, 1668-71 (1988). Sunstein offers us a kinder, gentler, civic republicanism that retains its public spiritedness while jettisoning its inegalitarian features. Yet the question remains whether this political theory can be divorced from the political economy that originally supported it. In terms of access to leisure time, the similarities between the otherwise dissimilar classical head of household and the contemporary academic are particularly striking and may tend to explain academic belief in the feasibility of the republican conception of civic duty.

179. SUNSTEIN, supra note 1, at 21.

180. Id.

181. Id.

182. Id. at 22.

183. Id.

184. Id.

185. See Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29 (1985).

186. One can find this idea in the words of the Declaration of Independence itself: "Governments are instituted . . . [to secure the people's right to life, liberty, and the pursuit of happiness, and] whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government. . . ." THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

There is an interesting analogy between this conception of populism as involving a sort of "punctuated equilibrium" and Bruce Ackerman's idea of a division between normal politics and constitutional politics. See BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 133-40, 230-65 (1991). The comparison is not exact, for these moments of popular uprising are not all moments of constitutional change. Rather, many (if not most) of them occur during what Ackerman would call "normal politics." Nor can all of these uprisings be classified as "failed constitutional moments." Nevertheless, Ackerman's theory recognizes, as mine does, the importance of the interaction between popular and elite discourse in American democracy. Recently Ackerman has come to emphasize this uncertain and intermittent relationship as a key mechanism in his theory of "dualist democracy." See Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799 (1995).

187. PARKER, supra note 23, at 82-93 (discussing distrust of popular energy by legal academy and other intellectual elites).

188. On postmodern views of culture, see STEVEN CONNOR, POSTMODERNIST CULTURE: AN INTRODUCTION TO THEORIES OF THE CONTEMPORARY (1989). The Sheryl Crow song that begins this essay is symbolic of the merger of high and low culture. Crow based the lyrics of her song on a poem by Bennington College Professor Wyn Cooper, taken from a book of poetry that originally sold less than 500 copies. Crow added a chorus and then set the piece to music, transforming a work of "high culture" into an object of popular consumption. Ajay Sagal, The Poet and the Rock Star, L.A. TIMES, Dec. 4, 1994, Magazine Section, at 39.


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