Trying to escape "politics" as usual.

This infographic illustrates the actual cost of obtaining a seat in Congress. While this
could be termed “politics as usual,” John McGowan argues for a different,
pragmatic approach to politics with an emphasis on the rule of the law.
Graphic via

Director of the Institute for the Arts and Humanities at the University of North Carolina

When President Obama issued his recent executive order to stop the deportation of undocumented aliens under the age of thirty who have no criminal record, the press predictably called the move “election-year politics.” The more accurate description, it seems to me, would be “democracy in action.” Isn’t this the way it is supposed to work? Citizens exert pressure on elected officials through the vote. If Obama believes he must protect some illegal immigrants in order to secure the Hispanic vote this year, then the system is working for Hispanics.

Perhaps the confusion here has to do with sincerity. One might think Obama doesn’t truly care about the plight of the undocumented, but he pretends a concern in order to win votes. But therein lies another confusion: Obama’s true feelings are both unknowable and irrelevant. What he does matters; why he does what he does makes no difference. Our personality-driven presidential elections have hopelessly obscured this point. Gary Wills recently wrote that one should always vote for the party, not for the man. Mitt Romney, famously, has a very inconsistent record on a number of issues: abortion and health care to name two. But his positions at any given moment in his career track quite closely to received wisdom in his political party. A politician acts from what she understands as the basis of her political power—and the party remains the form in which political power is most well organized and mobilized. So the politician is first and foremost beholden to her party. If you want to know what Romney as president will do, you need look no further than what his party currently trumpets as its top priorities.

I don’t dispute that parties are not the only significant players. Obama’s executive order is about trying to win Hispanics’ long-term loyalty to the Democratic Party, but also about wooing a set of voters who are currently often unaffiliated. So the successful politician must also build bases of power beyond what her party currently affords. But in a democracy it is always about creating a mass support that approaches a majority. Otherwise, little can be done, and nothing can be sustained. And that is how it should be. That’s what democracy promises. And that means it is politics all the way down, if politics is understood as the unending effort to forge a substantial enough coalition that enables, supports, and defends the politician’s actions.

There are many ways we can try to escape politics, which means trying to escape the hurly-burly of endless conflict and the infinite effort to secure (and maintain) the power to gain one’s ends. I shall consider one such way here: the rule of law.

Rights are only the most extreme example of the attempt to place some things outside the range of political negotiation or change. A constitution, we might say, is a promise to ourselves as a political community that these stipulated rights will remain above dispute. Except, of course, that they are disputed all the time through our adversarial court system. Thus, the Supreme Court aspires to be above politics, and is institutionally absolved from the need to build bases of popular support for its decisions. That very absolution gives it extraordinary power—and makes it unanswerable to democratic procedures.

The Supreme Court’s recent health-care decision does nothing to mitigate the paradoxes and dangers of the institution’s anomalous position in our American political system. Chief Justice Roberts might very well have been motivated by a desire to maintain the notion that the Supreme Court is above politics. But I think it more accurate to understand the Supreme Court as positioned differently than the legislature or the executive, but still firmly within the political arena.

The rule of law is a precious thing; we scorn it at our own peril. We do want and need a law that does not change each time a new party takes office. Yet no less an authority than James Madison thought rights worth little since he believed a determined majority or a powerful party could always abrogate rights with impunity. Rights are no bulwark against tyranny; there must be strong advocates for the rights if they are to be maintained. Removing the Supreme Court from direct democratic pressure is meant to make it easier for the Court to defend rights, especially the rights of minorities. The history of the Court, of course, shows that it can be as wayward in its opinions as the fickle demos that writers like Madison or Tocqueville feared.

All of which leads me to the pragmatist position that stating principles has its uses as a way of clarifying one’s commitments and for rallying one’s forces. The principles captured in the law also can provide some stability, some sense of the ground rules, for social interaction and disputes. But it would be foolish to think principles or laws are immune to change—or to think that such principles and laws disconnected from committed adherents can maintain their effectiveness.


John McGowan is author of Pragmatist Politics: Making the Case for Liberal Democracy. He is the Ruel W. Tyson Jr. Distinguished Professor of Humanities and director of the Institute for the Arts and Humanities at the University of North Carolina, Chapel Hill. He is the author of five previous books, including American Liberalism.

“This is an exceptional book, both instructive and challenging, and one that almost anyone concerned with the huge political problems facing modern, developed societies will welcome.”
—Alan Malachowski, author of The New Pragmatism

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