If Medieval “Standestaat”—a state of estates—were thought to be divisible into three separate groups, then contemporary Americans tend to see the primary division in our national political community as being between the few and the many, the majority versus the minority, which they sometimes translate as the strong and the weak.23 So even as we herald the wisdom of the majority, we hail the genius of a Constitution that protects the minority. Indeed, Columbia University political scientist Giovanni Sartori once argued that the only reason to believe in constitutions at all is if “we think that somebody needs protection from somebody else.”24
This insight helps explain why Americans tend to think of rights in moral terms, sacred protections that are heroically demanded and/or benevolently bestowed. This weak/strong dynamic injects no small amount of paternalism into a political process we otherwise think of in terms of bargaining, sausage-making, and horse-trading. Rather than being perceived as a political compromise made to maintain social tranquility, the granting of rights is often portrayed as if it were a morality tale. Which brings me back to Alfonso IX, who clearly saw it as a necessary element of a mutually beneficial exchange.
In his 2012 essay, “Constitutions and Constitutionalism,” NYU’s Stephen Holmes urged Americans to start thinking about rights more through the lens of realism than idealism. Claiming this his observations should be interpreted as instructive rather than cynical, he argued the “democratic constitutions emerge and survive” when society’s “most powerful social forces find that they can promote their own interests most effectively by simultaneously promoting the interests of, and sharing political influence with, less powerful but not utterly powerless swaths of the population.”25
Why? Because it is only “when the powerful discover the advantages they can reap from making their own behavior predictable,” do they “voluntarily submit to constitutional constraints.” Put even more bluntly, when non-elites bring incentives to the bargaining table, “elites respond opportunistically by granting legal protections and participatory rights in exchange for cooperation indispensable to elite projects.”26
Holmes wasn’t the first theorist to make this argument. In 1919, Max Weber, one of the founders of modern sociology, argued that much of modern western democracy was itself a product of national elites’ need for disciplined soldiers to fight wars. It was military necessity, then, that compelled them “to secure the cooperation of the non-aristocratic masses and hence put arms, and along with arms political power, into their arms.”27 While Weber was not referring to the U.S. Constitution, he was nonetheless recognizing the existence of political bargaining as the essence of constitutionalism in general.