Francis Lieber and the Scientific Study of Legislative Politics
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FOREWARD
If you want to stump a newly minted Ph.D. produced by one of the nation’s top political science programs in legislative studies, ask him or her about Francis Lieber. It is a safe bet that most new legislative scholars entering the job market today have never heard of him. This is not surprising given that the political scientists who trained them are likely unfamiliar with Lieber or, at best, uninterested in his work. That so many of today’s legislative scholars are in the dark about someone who helped to establish their academic discipline underscores the present precarious state of legislative studies in the United States.
Lieber was born in Berlin at the end of the eighteenth century. He fought for Prussia in the Napoleonic Wars and was severely injured at the Battle of Waterloo. After the war, he earned a Ph.D. in mathematics, studied topography, and wrote poetry and essays on a variety of topics, including politics and education reform. Lieber took up arms again, albeit briefly, in the Greek War for Independence. He also tutored the son of the Prussian ambassador to Rome, Barthold Niebuhr, a prominent historian and one of the founding fathers of historiography.
Lieber had a long and distinguished career in America after emigrating to the country in 1827. He opened the Boston Swimming School and emphasized the close connection between physical fitness and intellectual development in its curriculum. Lieber assisted Alexis de Tocqueville with his work on the American penitentiary system and served as editor of the 13-volume Encyclopaedia Americana. His contemporaries considered him one of the leading authorities on the laws of war, along with Hugo Grotius and Emer de Vattel. The Geneva Convention was modeled on his “Code of War,” which Lieber compiled during the Civil War at the request of Abraham Lincoln. It was the first comprehensive code of military conduct in history.
Lieber was also a leading scholar and college professor for much of his career in America. He wrote pioneering texts on political philosophy and legal jurisprudence that were widely consulted by scholar-statesmen like Supreme Court Justice Joseph Story, John C. Calhoun and Daniel Webster. In the academy, Lieber first served as a history and political economics professor at South Carolina College (now the University of South Carolina). He eventually moved to New York City to take a position as a history and political science professor at Columbia College (now Columbia University). That makes Lieber the first officially designated political scientist in the United States. His successor at Columbia, John W. Burgess, would establish America’s first school of political science in 1880.
Juxtaposing the standardized career path and specialized methodological focus of today’s prototypical political scientist with Lieber’s unorthodox journey before entering the academy highlights some of the underlying problems that currently beset the scientific study of legislative politics. Lieber’s wide-ranging career as a practitioner and educator informed how the nation’s first official political scientist approached the scientific study of politics as a scholar and college professor. The value of that career for Lieber represented something more than merely illuminating the places where he could find datasets unexplored by his fellow academics. It shaped how he understood the world around him and underpinned his conviction that knowledge is interdisciplinary in nature. Lieber’s prior experiences helped him to appreciate the symbiotic relationship between theory and practice.
On the other hand, many of today’s well-trained legislative scholars are methodologically sophisticated, but they have become unmoored from the intellectual inheritance bequeathed to them by Lieber and other early pioneers of their discipline. They search for knowledge in specialized silos that implicitly reject the premise that knowledge is interdisciplinary. In recent decades, legislative scholars in particular have neglected theory in their work. They have focused instead on testing empirical models using high-powered statistical analysis and game-theoretic mathematical tools to predict what will happen.
However, the practice depicted in much of the recent legislative scholarship bears little relation to what happens in Congress these days. Notwithstanding the insights into that practice produced by legislative scholars over the last half-century, the overall trend in legislative studies toward abstraction, quantification, generalization and prediction has created a disconnect between how political scientists think about legislative politics in the academy and its practice in Congress.
In its broadest sense, science is knowledge. Conceived more precisely, science is specialized knowledge. Political science is specialized knowledge about politics, and Lieber appreciated the fact that this kind of knowledge is capacious by its very nature. That is, he understood that scholars cannot study politics successfully without accounting for the intricate web of cultural, economic, historical and social relationships that influence individuals’ political activity. Lieber emphasized this point when he delivered his inaugural address as a political science professor at Columbia: “Every earnest scholar,” he remarked at the time, “every faithful student of any branch [of science], is a catholic lover of all knowledge.”
But epistemological trends and professional incentives have led many political scientists to neglect Lieber’s capacious outlook and instead to embrace a theoretical orientation that distorts the practice of legislative politics. While scholars utilize a diverse array of research methods, their work is increasingly based on a shared theoretical foundation that obscures important aspects of how the House and Senate operate in practice. The result is a highly stylized depiction of Congress that does not accurately portray the practice of legislative politics inside it. This, in turn, distorts how students, political scientists, the media and legislators understand congressional dysfunction and the reforms needed to treat it successfully.
How seemingly diverse explanations of lawmaking approach political conflict in Congress highlights their common theoretical foundation and focuses our attention on the disconnect between those explanations and the present practice. For example, legislative scholars explain Congress’s present dysfunction in terms of the polarization of its members or the competition between its parties. Polarization and partisanship are problematic because they generate conflict that makes it harder for legislators to legislate.
While scholars utilize a diverse array of methodological tools to explain polarization and partisanship, their work does not offer a clearer understanding of what happens inside Congress. Generally speaking, that work takes it for granted that legislators are presently acting to achieve their goals. In reality, the observed behavior of legislators demonstrates clearly that ideologically polarized and highly partisan teams are not competing inside Congress in the way that legislative scholars expect. Contrary to their expectations, legislators’ behavior often blurs their ideological and partisan distinctions in the rare instances in which they do act. This indicates that polarization and partisanship are not impacting Congress in the way that most political scientists who study the institution currently theorize. Consequently, party-based explanations of lawmaking are insufficient to explain dysfunction.
The present absence of legislative action inside the House and Senate is remarkable. However, it remains unappreciated and understudied by political scientists in the academy because they view the conflict such inaction produces as antithetical to lawmaking. As a result, their theories do not acknowledge the importance of conflict, and their research methods push data that underscores the relationship between conflict and compromise into the shadows. Taken together, legislative inaction— along with its dismissal by scholars—reflects a significant shift in how legislators and the political scientists who study them understand legislative politics. David Mayhew highlights the consequences of this present shift, writing that: “most existing theorizing are not much help.”
Accordingly, to take full advantage of recent methodological advances in legislative studies requires political scientists to re-think their present assumptions regarding the building blocks of politics: institutions; rules; compromise; and time. It is essential that scholars exhibit a firm grasp of these four building blocks in their work because they are the essential elements of which legislative politics are comprised.
Yet, scholars face significant epistemological hurdles to re-thinking the conventional view in each of these areas. For example, recent literature mostly interprets lawmaking as a product of exogenous forces that drive endogenous behavior. That outlook minimizes the importance of the institutions wherein lawmaking occurs and distorts how different legislators use rules to achieve their goals. It also leads political scientists to overlook the relationship between conflict and compromise and eliminates political possibility from their thinking. The result is a cadre of scholars who approach the problem of dysfunction and reform by seeking to increase Congress’s ability to deliberate by walling it off from the political conflict inherent in the institution’s identity as a representative assembly. Implicit in this view, however, is the assumption that conflict and antagonistic cooperation, or deliberation, cannot coexist. This narrow view of politics also produces the common assumption that conflict between legislators must be eliminated in order for compromise to occur. Only then, it is implied, can a rational consensus emerge. But a consensus is not possible when legislators disagree over outcomes. And resolving that disagreement through compromise—not the imposition of a consensus position—is why Congress exists in the first place.
Critically engaging how legislative scholars think about the building blocks of politics highlights how their work can distort contemporary understandings of its practice. Consider the 1953 description of the legislative process by political scientist Bertram Gross, as “one of the methods of untying the Gordian knots created by the growing complexities of a highly organized capitalist society.”
The elemental fact of legislative politics underscored by Gross here can be grasped more readily with an interdisciplinary approach. The philosopher Jacques Derrida described negotiation in similar terms:
There is a word that keeps coming back to me, and the image of a knot. Negotiation as a knot, as the work of the knot. In the knot of negotiation there are different rhythms, different forces, different differential vibrations of time and rhythm. The word knot came to me, and the image of a rope. A rope with an entanglement, a rope made up of several strands knotted together.
Like individual legislators, those strands are separate and distinct, and indeed it is the practice of tying and untying the knot that binds them that makes compromise possible.
Here, Gross and Derrida channel James Madison in “Federalist 10,” where he observes that faction is sewn into the nature of man and therefore, “the regulation of these various and interfering interests […] involves the spirit of party and faction in the necessary and ordinary operations of government.”
According to Madison, Derrida and Gross, then, conflict is not incompatible with compromise. Instead, it makes cooperation and legislative compromise possible in the first place. That is, compromise agreements, according to Gross, arise out of the “development of the group struggle itself, for the vicissitudes of this struggle create the conditions that promote cooperation and make it possible.”
In short, the process of disagreeing makes agreements easier to reach. That process also produces stable outcomes by reconciling losers in a debate to the fact that they lost. For example, Richard Russell (D-Ga.) led the effort in the Senate to stop the Civil Rights Act of 1964. But Russell also accepted the outcome as legitimate and urged his fellow southerners to do so as well. In light of this, the discipline’s theoretical foundation needs to be updated to reflect the essential and inescapable presence of political conflict in the practice of legislative politics. Doing this will raise important questions about how Congress actually does work, and those will frame new avenues of future research that, when taken together, will give us a deeper understanding of legislative politics.
To that end, this compilation is a series of short pieces that frame the challenge that presently confronts us. First, I outline four building blocks of politics that legislative scholars need to re-theorize. Using some otherwise excellent work as a foil, my hope is to spark a productive debate that spurs us all to collectively re-think how we approach the study of politics in general and legislative politics in particular. I hope that the resulting discourse will lead to a greater appreciation of the comparative advantages (and disadvantages) of the various research methods that scholars utilize. My goal is that, out of this debate, a new theory of lawmaking will emerge that explains legislative politics better than the existing approaches.
