Rousseau and Direct Democracy (with a Note on the Supreme Court's Term Limits Decision)
George Mason University School of Law
Journal of Contemporary Legal Issues, Vol. 13, No. 2, pp. 459-510, 2003-2004
George Mason Law & Economics Research Paper No. 03-41
This contribution to a symposium on direct democracy is devoted primarily to exploring Rousseau's modification of the natural rights liberalism initiated by Hobbes and Locke. Although Rousseau may not have had a large direct influence on American political institutions, he has a kinship with certain important dissident or subdominant strains in American political thought, such as the Anti-Federalists and our contemporary communitarians. To the extent that these elements of our political culture are worth taking seriously, Rousseau's greater depth of thought may help us to understand them better, and perhaps better than they have understood themselves.
After examining the theoretical critique offered in Rousseau's most openly philosophic work, the Discourse on Inequality, the paper argues that the Social Contract is not so much an effort to establish the true basis of political legitimacy as it is an effort to show why and how legitimacy is an inadequate criterion for evaluating political institutions.
The theoretical issue involving the legitimacy of representative legislatures illustrates Rousseau's approach. A careful examination of the Social Contract's presentation of the general will, and of its apparently unqualified condemnation of all representative legislatures, suggests that this condemnation is deliberately overstated. That conclusion is confirmed by Considerations on the Government of Poland, which accepts the necessity of representative legislatures in large states and suggests techniques for reconciling that necessity with the genuine principles of the Social Contract, which do indeed imply a certain kind of superiority of direct democracy over representative legislatures.
The paper then turns to the Term Limits decision of the U.S. Supreme Court. The Court's decision, in addition to being legally wrong, appears to have been a particularly dangerous decision when viewed in light of Rousseau's political science. The paper concludes with a brief discussion of Rousseau's analysis of institutions like our Supreme Court. Rousseau's analysis suggests that we should consider significant changes, such as abolishing life tenure and putting a stop to the use of stare decisis in constitutional cases.
Number of Pages in PDF File: 53
Keywords: constitutional law, jurisprudence, direct democracy, liberalism, Hobbes, Locke
JEL Classification: K10, K30
Date posted: September 17, 2003 ; Last revised: February 21, 2008