What Constitutes a Political Community?

September-October 1994 

By James W. Skillen

WASHINGTON, D.C—People use different words to refer to the political orders in which they live: nation, state, country, republic, commonwealth, kingdom, and more. In some cases, these political entities are defined by a constitution ("basic law"), which specifies the tasks and limits of government in the state.

Constitutionalism

The massive movement toward democracy in the past two centuries has greatly increased the number of written constitutions around the world. The key demand of democratic movements has been for an end to arbitrary government by autocrats and for the establishment of limited and representative government. The purpose of a constitution is to mark off the boundaries of the political order and to specify the responsibilities of government and the people so that arbitrary and unrepresentative government can be eliminated.

The movement toward democracy and constitutionalism has by no means solved all the big problems of government and politics, however. One big question for every constitution, for example, concerns the nature of the state. What should a constitution constitute? Not many constitutional states have adequately answered this question. Most of them, including the United States, have used their constitutions to do two primary things: (1) to lay down electoral procedures and to distinguish the levels and/or branches of government, and (2) to list a number of protected rights that the people hold independent of government.

What these constitutional features do not do is to clarify the identity and purpose of the republic or commonwealth itself. Of course, the Preamble to the U.S. Constitution seems to do this: "We the people of the United States, in order to form a more perfect Union, establish justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

But these words, as preamble, do not function as operative law, and they remain quite general in regard to what the republic should be. To "provide for the common defense" may sound like a fairly specific stipulation, but the other phrases about justice, domestic tranquility, general welfare, and the blessings of liberty remain quite open and unlimited. In other words, neither the Preamble nor the actual text of the Constitution distinguishes the responsibilities of the federal and state governments from the responsibilities of families, churches, schools, business corporations, and numerous other institutions in which people bear non-governmental or non-political responsibilities.

Identifying the Republic

Perhaps this is asking too much of an 18th-century document, but the matter is urgent for us today. Our struggle in the United States now is not that of trying to end the arbitrary rule of a king or to gain representation for the people in law making. Our predicament is that "the people," who lay constitutional claim to all authority over government, to the protection of their individual rights, and to the right of participating in regular elections, cannot agree on what the republic ought to be.

One faction in the country believes that government should govern as little as possible because the main aim of government should be to "secure the blessings of liberty," which means individual freedom from government. According to this view, the political order (the republic) should be something minimal, merely a means of protecting individual freedom and private property, rather than a prominent community in its own right with government acting (and spending) to promote the social good of all citizens.

A contrary American faction seems to take its cue from the Preamble's phrase "to promote the general welfare." The United States is a political community under government and its citizens find a higher degree of fulfillment in being part of that community than they do as mere individuals. The purpose of the political community, therefore, is to enhance itself, which means to enhance the wellbeing of all citizens through legislated measures covering everything from social security to government-run education to universal health care—all funded by general taxation or by other means mandated by government.

The fact that these extremely different views of what the United States ought to be can coexist within our borders bears testimony to the ambiguity inherent in our Constitution. And the ambiguity is due largely to the fact that the Constitution says so little. It affirms popular sovereignty and individual rights while creating several different branches of the federal government. Such a constitution sets up the very dynamics that may now be crippling the United States. It says that the people, by means of majority votes, may use the government to do whatever they want it to do as long as they follow constitutional procedures and do not violate individual rights. But increasingly, individuals and minorities within the U.S., who do not like what government is doing, are turning to the courts to protect their rights and to charge the government with violating constitutional procedures. Instead of "the people" feeling that the majority is representing them adequately, an increasing number of them now feel that life in the republic is merely a battle among competing interests.

The point is this: a constitutional state or republic needs more definition than simply a description of its government offices, a listing of prior individual rights, and an articulation of some procedural rules for elections and the conduct of government. If the United States exists to establish justice, to promote the general welfare, and more, then we need to know what kind of justice and welfare properly belongs to the republic.

Distinguishing Political Community from Other Communities

This is where the Center for Public Justice wants to go on record arguing for a clearer specification of the character of the political community in distinction from other kinds of communities. A just republic should be clear about its identity as a community that binds citizens to government and government to citizens for public justice and not for any and every kind of good thing that the majority of the people might want. Citizens under a constitutional government make up a community that is quite different from communities of parents and children in a family, of teachers and students in a school, of employers and employees in a corporation, and so forth.

For one thing, a political order recognizes the right of government to monopolize the use of force (except in some cases of self-defense) for the purpose of enforcing its laws on everyone within the territory over which it governs. States are territorial communities of public law, which can be enforced by the police. Military forces controlled by the state may use force to defend the state. Families, schools, churches, corporations, and voluntary organizations have neither the right to use force nor an exclusive territorial claim. The kind of authority that parents, teachers, church authorities, and corporate boards exercise holds only for the members of their families, schools, churches, and corporations. Moreover, if any of these authorities violates a citizen's civil rights, the government may intervene (by force, if necessary) to protect the civil rights of those persons.

Within a single territory, in other words, many different kinds of organizations and responsibilities can coexist, but only one authority has the right to make territorial laws that are binding on all citizens and residents regardless of the other organizations and relationships to which they belong. It is in this sense that all non-government law making has a private character to it. This is not to say that families, churches, corporations, and scientific organizations, do not function in public or have public rights, influence, and impact. But it is to say that these organizations may not make laws that bind a person outside their own private jurisdictions.

Having said this much, we must return quickly to our concern about the identity of the state—the republic or commonwealth. A state should exist not in order for "the people' to use government to do anything they want with it, but rather so that citizens and government may establish and sustain a just public legal order. Such an order is upheld by laws that assure all citizens of fair treatment and that protect them in their many different vocations and responsibilities from unjust treatment by other citizens, by private organizations, and by government itself. Of course this involves the protection of many individual rights, the due process of law, and the assurance of an equitable share in public goods such as highways, parks, sewage disposal, fire protection, and much much more.

People Are More Than Citizens

But one of the most important aspects of public justice in a state is the government's proper recognition and protection of all the non-governmental responsibilities people have. Or to put it another way, citizens under government are always more than simply citizens; they are people whose talents and vocations may involve marriage, family life, business, science, art, journalism, and a thousand other non-political activities. A just state is one in which government protects what is not political and does not attempt to exercise an unlimited or omnicompetent authority in every aspect of life.

In the United States we tend to take for granted that our government cannot be totalitarian because we are a democracy, we hold regular elections, and we protect individual rights. But "the people" in a democracy can, by means of majority votes, push government to rule on a host of non-political issues. Such overreach, or over-extension of government power, is typically what offends the advocates of minimal government, and their reaction is to become even more hostile to government. The dynamic that unfolds is one of increasing conflict between minimalists, who want government to do as little as possible, and maximalists who want government to do any good thing they want it to do. In both cases, true public justice gets lost.

Citizens living under government do constitute a real community defined as a public-legal community, and all of its members (who should properly be called "citizens") have a right to share in the fruits and benefits of its commonwealth. Government in a republic has more responsibility than merely to defend individuals against thieves and murderers. A minimal government will not be able to promote the general welfare of the republic. But by the same token, a maximalist effort to promote any and every good thing by means of government may interfere with or dislodge responsibilities that properly belong to parents, teachers, scientists, doctors, pastors, neighbors, friends, and entrepreneurs. Public justice means doing justice both to the "republic" (from the Latin res publica, meaning public entity) in which all citizens share, as well as to what people hold separately in capacities that are not politically qualified.

[This is the third in a series of articles elucidating the basic principles and the approach to politics of the Center for Public Justice. Dr. Skillen directs the Center. His newest book will be released in November—Recharging the American Experiment: Principled Pluralism for Genuine Civic Community.]