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Northwestern University Law Review,
Summer 1987,
81 Nw. U.L. Rev. 869
Routine and Revolution
By Cass R. Sunstein
The most prominent theories
of public life in American law tend to be rooted in conceptions of virtue,
welfare, or autonomy. For example, modern interest-group pluralism is defended
on the ground that it respects private preferences, thus enhancing autonomy, and
accurately aggregates private interests, thus promoting welfare. The
principal competitors to pluralism stem from republican theories of politics,
which are designed to profit from and to cultivate virtue in political actors,
whether citizens or representatives. Republican theories also draw on a
conception of politics that sees freedom in the selection rather than the
implementation of ends. The dispute between pluralist and republican theories
turns out to be a disagreement about the meaning and place of freedom, welfare,
and virtue in public life.
Roberto Unger's Politics rejects these positions and places in their
stead a distinctive theory of human nature and a distinctive approach to
politics. The institutional proposals in Politics -- embodying
what Unger calls "empowered democracy" -- are designed to break down the
distinctions between routine and revolution and to facilitate individual and
collective self-transformation. It should not be hard to see that this system
departs dramatically from those based on the conceptions of virtue, autonomy,
and welfare that have influenced modern democratic theory.
This Essay is organized in three parts. The first explores the relationship
between Unger's approach and eighteenth-century constitutionalism, the principal
target of Unger's institutional proposals. The second compares Unger's system of
"empowered democracy" with the various understandings of public life that have
dominated American constitutional theory since its inception. I explore the
relationships among Unger's approach and the more conventional alternatives. The
final part of the Essay examines Unger's conception of the relationship between
democracy and constitutionalism. The task for the future, I suggest, is to
minimize the pathologies of traditional constitutionalism in systems that have
at least partly abandoned the goal of limited government. Unger's institutional
proposals would not be likely to accomplish that task. For this reason, the
program of Politics -- a romantic, impressively learned, sometimes
vague and repetitive, excessively rhetorical, seemingly self-contradictory work
-- ultimately points in the wrong direction.
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