This is a chapter from the book:
The Democratic State
Chapter 2: Sovereignty — The people — Constitutional rights — Representation
The people’s will for political rule is fulfilled by the sovereignty of the state. The power of the state originates with the people and complies with their political will by enforcing it, as the public interest, against all the private individuals. The constitution lays down the relations between citizens in the form of valid principles for the state’s use of force. Constitutional rights define what citizens and the state are allowed to do, while professional representatives of the will of the people see to it that all the implied duties are performed. Bourgeois society maintains its conflicts by dividing its members into citizens with constitutional rights, on the one hand, and servants of the people obligated to use force, on the other.
a) A sovereign serving the public interest
The bourgeois state is sovereign, i.e., it is an independent body separate from its citizens and distinct from all their particular interests. It is a power acknowledged by all citizens solely because it enforces its own interest, the common good, against all the private individuals. By using its force to ensure that they use their particular economic resources only in accordance with its interest in person and property, the state serves those interests which derive from the ownership of productive property. In substance then, this sovereignty turns out to be quite relative.
By acting without consideration for individuals and their property, the state ensures the functioning of property in general, a purpose which it can achieve only by being sovereign. Its sovereignty is maintained by the will of the people. It is just their common will for a state that makes the individuals of a society into a people, this will manifesting itself as approval of the state’s decisions. The question of whether a state should exist in the first place is never a matter for free decision. Rather, this is decided by force. Everyone wants representatives, whether elected by the people or appointed by the state itself, and these representatives are expected to act sovereignly “in the name of the people.”
b) Constitutional rights
As a maxim of state sovereignty, the state grants its private citizens protection against violent attacks from each other. Constitutional rights define the negative relation between competing individuals in the form of rights and duties toward the political power. Only to the extent that they assume duties toward the state does it grant them the right to be free private persons. The state is therefore a means for society, subjecting its citizens to its sovereignty and requiring them, by way of constitutional rights, to make use of their liberty while acknowledging the state. Constitutional rights formulate general restrictions. By giving permission to do all kinds of things, these rights inform citizens of everything they are not allowed to do, or of how the state is allowed to deal with them. In this manner each constitutional right simultaneously formulates its own conditions. Whoever makes use of a constitutional right must always expect the state to intervene, especially when this right concerns the relation between the state and its citizens.
The philosopher Hegel already knew that constitutional rights imply duties. He preferred to put it the other way around in order to celebrate the state, as if rights were some positive good different from duties. Rights are equal to duties, they are the same thing. By granting rights, the state is using its power to ensure that every relationship between citizens satisfies the principles of its rule, nothing more. Constitutional rights are also called human rights (to distinguish them from animal or plant rights) since they are thought to correspond to human nature. The “nature” that demands constitutional rights for humans is the world of competition, in which property does not leave much room for mutual respect. The positive determination of what is human, which the state bestows on everyone, has a purely negative content. The power of the state ensures competition and respect!
When public servants, from the highest statesman to the lowest clerk, perform their duties, they represent alongside society the public interest that does not exist within society itself. They act for private citizens by taking action against them. In so doing, they display the heedlessness that goes hand in hand with their clear conscience. After all, they are executing the will of the people! To representatives of the people, the particular wishes of individual citizens can appear as unjustified hindrances, since the whole point of sovereignty is that the state achieve its own aims. On the other hand, it is not always a matter of course for the state representatives to fulfill their duties, since they too have individual interests and their offices present many a temptation. Collisions between the public interest and the private interests of state functionaries are inevitable. This is the reason for the corruption of public officials, who have the opportunity to misuse their positions of authority for themselves. This is also the reason why the state attempts to secure its servants from the hazards of competition, guaranteeing their careers and perquisites of office.
Those for whom serving the public has become second nature know that a critical attitude toward the state is incompatible with the proper performance of official duties. Public service is not just another job. To prove it, Germany, for example, maintains a blacklist for public service, while America stages the occasional witch hunt.
d) Historical remarks
The struggle for the sovereign state involved ending the fusion of political power with the Church, nobility, and landed property in order to subject the entire society to its power. Its decisions were disengaged from all particular interests, including those outside its territory. The state was to be accountable only to its citizens, but to all of them, and vice versa. Thus the fight for recognition of person and property was fought by freeing the old state from all its dependent relations. In the name of the sovereignty of the people, all those parts of society not formerly recognized by the state demanded participation in the public power. All of the decision-making bodies of the state, unlike the old sovereigns, were to respect everyone under state rule by granting them constitutional rights. The old sovereigns were removed, and the declarations of the rights of man ushered in the execution of political power by representatives of the people. Those who had fought for their interests against the old state now became representatives of these interests. They no longer spoke and acted for the concerns of their people, but restricted them with all the means of statecraft. To those who had fought the battles, many a bourgeois revolutionary thus appeared a traitor after victory!
For the practical way of thinking of citizens, the inescapability of their submission to the sovereignty of the state is the starting point for all sorts of expectations and disappointments. They consider themselves to be constantly overburdened by duties, while everyone else gets to enjoy all the rights. Their representatives are now indecisively weak, now recklessly misusing their power. Citizens reconcile themselves to being bound by constitutional rights by forever haggling over the extent to which the state is entitled to restrain other people, who also make use of their constitutional rights. Their interest in state rule is often disappointed in areas such as these, which leads them to pass judgment on the leadership qualities and trustworthiness of their representatives. The demand for worthy representation is anything but rebellion, as can be seen whenever intellectuals criticize their leaders for lowbrow blunders. This demand goes along with the attitude that it is legitimate and understandable for representatives to use their power to increase their own prestige, as long as this serves the national interest. The public also accepts the brutality associated with the execution of political power with the help of the common saying that “politics is a dirty business.” And as for worries about so-called scandals ruining the reputation of the state, they evaporate just as soon as the offending bad apples have been removed and replaced (“Watergate” not being the first nor last example.)
The propagandists of functioning rule, the political scientists, regard the relationship between the state and its citizens strictly from the point of view of whether it works. What they like about the sovereignty of the people is the economy of force, the stability of political power which is based on consent. Their explanation of representation in terms of territory, population count and degree of political maturity is based on the ideal of a popular will which demands responsibility, both from the representatives of state power and from the citizens too. When political scientists extol constitutional rights, they never fail to make the transition from the wonderful possibility of being a free citizen to the necessity of using this freedom properly. Every elucidation of a constitutional right ends up balancing the extent to which people should be allowed to exploit the constitution for their own ends. On the other hand, the different ways that foreign states treat their citizens are explained simply by noting that they violate human rights. The “human rights weapon” was especially useful with respect to the former communist states, because it underscored in such a nice moral way the imperialist intention to eradicate this other form of rule. It is still brandished against the few holdouts, and for cleaning up the third world.
Leftist devotees of the true will of the people use the same weapon to strike enormously moral blows in the opposite direction. Year in and year out they demand more rights for workers and farmers, because they want them to have the pleasure of being totally at one with the power of the state. The trouble with the public power, as far as they are concerned, is that the pressure from Wall Street prevents it from genuinely representing the people. In the right hands, the state would finally meet its obligations to society.
Fascist critics also want a closer relationship between the people and their state. Instead of a sovereign power at the service of competition they want a sovereign that organizes competition as a service to the nation. They regard the state’s recognition and regulation of the freedom of private interest as a sign of weakness. They consider constitutional rights to be fetters on the power of the state, instead of the means by which it achieves its purpose. In its representatives they see degenerate weaklings who oppose the true spirit of the people, just because democratic politicians make the citizens’ will for a state the motor of their politics. That is, just because politicians take the exigencies of competition seriously, being the reasons why people want a state and the reasons for the state to exist in the first place. Fascists want private individuals to be exclusively citizens of the state!