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  • American Constitutional Fantasies:Escape from Difference Through Escape from Government
  • David C. Williams (bio)

One of the delights of comparative legal work is coming to understand the way that different legal traditions offer quite different answers to the same questions. Perhaps an even greater joy is discovering that not only do different legal traditions have different answers, they also find quite different questions to be central and pressing. This conference, at which Americans and Europeans meet, is organized around the question, "Back to Government? The Pluralistic Deficit in Decisionmaking Processes and Before the Courts." In Europe, where this conference has been organized and is occurring, this question has powerful resonance. Some have the sense that in Europe, both within the Member States and the European Union (EU) itself, some degree of power has shifted from government to governance. For the Americans, I should perhaps explain that government in this formulation refers to the formal channels of governmental institutions; governance has a somewhat more vague and contested meaning, but it generally refers to legal and political mechanisms that people have developed to advance their interests and values outside of the formal channels of government-such as lobbying and privatization. In Europe, this field of governance is conceived as a tertium quid, in neither the government nor the private sphere. People have looked to governance to protect their interests when the government seems to be seized by a small group of powerful interests. Governance, however, suffers from its own accountability problems, and so the conference organizers wonder whether it is time to go back to government. In fact, Europeans may approach this question from a particular historical perspective: we have tried so hard to understand and develop the field of governance, these Europeans may think, but it has not worked, so is it at last time to ponder the possibility of rehabilitating government?

In the United States, this question does not have anything like the same resonance; in fact, it might be argued that the question has no resonance at all because [End Page 415] it presupposes a set of categories and issues quite different from those that currently dominate the American legal and political horizons. To speak of going back to government implies that we were once there and are now returning, perhaps going home or to an old friend or familiar territory. In fact, some of the organizers of this conference have suggested that sometimes they feel nostalgic for government. But for Americans the title might better be "Still Getting To Government," because we never really got there in the first place. Many, perhaps most, Americans tend to imagine government as an artificial creation with shallow roots and doubtful legitimacy, so they want to protect themselves from its reach. These days, we Americans hear very little about the good that government can do, and we hear a great deal about how we might roll it back. In Europe, people divide the world tripartite into government, governance, and citizens, with complicated and contested relations between the three; but in America, people divide the world simply between the public and the private, with a pronounced preference for the latter over the former. Indeed, in this view, the line between the public and the private must be kept quite sharp, without the confusing "governance" category, so as to keep the government within bounds, away from the private sphere. The closest analogue that we might have to governance is civil society, but again we imagine that concept as private persons voluntarily associated to check and control government, not as some intermediate element. In short, then, we can imagine that a fairly typical American, when asked to think about going "Back to Government," might observe: "Back to Government? We were never really there! And thank God!"

To understand why Americans have such a different reaction to the question posed by this conference, we must examine certain foundational legal ideas and stories; these are legal myths, if you will, in the sense of being fundamental conceptual structures that explain the world, not of being fictions or superstitions (though some may find them to be so). Before I offer my thesis in a more rigorous way, some...

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