Friday, August 28, 2009

The Dignity of one Particular Legislator

In his 1999 book, The Dignity of Legislation, Jeremy Waldron offered a deliberately idealized picture of the process of legislation to compete with the idealized pictures of judging that one typically encounters in academic jurisprudence, and to serve as an antidote to the cynical view of legislatures as nothing but places in which log-rolling, deal-making, and the pursuit of special interest prevail. As the title suggests, Waldron aims to develop an account of legislation that explains its dignity, that is, that says why this form of lawmaking commands respect.

I am not wholly sold on Waldron's affirmative project (and I am not at all sold on his negative project, i.e., his spirited critique of judicial review), but I do think that his view serves as a useful counterpoint to the "public choice" view of legislation. To his theoretical exegesis we might add that particular, public-spirited legislators serve as counter-examples to the public-choice model. I would venture that most elected officials spend at least some of their energy pursuing the public good as they understand it. (Not all, I admit.) And some legislators are primarily interested in serving the public good.

It is, of course, natural for politicians to praise a fallen colleague, even one with whom they disagreed on matters of policy. But I regard the nearly universal esteem in which Senator Kennedy was held by the end of his long Senate career as something more: The other Senators had genuine affection for him. Now such affection might have nothing to do with public-spiritedness. A politician concerned only about holding and exercising power, or worse, about rewarding his friends and punishing his enemies, could, nonetheless, be personally popular if he were friendly, jovial, and charming at a personal level. Kennedy may well have been all of those things, but there can be little doubt that he was more. He served those many years in the Senate because he genuinely believed in the causes he championed.

None of this is to deny that there is a certain undemocratic character to the relation between the Kennedy family and political power. Noblesse oblige assumes noblesse, an uncomfortable concept given our national commitment to democracy. At the same time, however, society benefits when the well-off use their money, energy, and influence to advance the causes of the less fortunate. The charge of limousine liberalism has thus always struck me as misdirection. It directs anger at those who advance humane policies that work to their own financial disadvantage, rather than at those who can avoid the charge of hypocrisy only by pursuing their narrowly defined self-interest to the detriment of the greater good.

Posted by Mike Dorf