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The Opening Dilemma

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Richard Bensel suggests why the opening dilemma might become a serious threat toAmerican democracy if the nation were to attempt to convene a new constitutional convention.

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The speaker discusses their long-standing interest in parliamentary rules and the democratic process, highlighting a fundamental conundrum in establishing democratic legislatures or constitutional assemblies. They argue that three essential elements—parliamentary leadership, certified representatives, and parliamentary rules—must coexist for a legislature to function, yet each is dependent on the others for its creation. This video video interdependence presents a significant challenge, as a democracy cannot self-establish the institutions necessary to express the will of the people, which is a critical requirement for any constitutional entity.

The speaker explores the disconnect between democratic theory and rational choice theory, noting that while democratic theory focuses on how people come to recognize a collective will, it often does not address how institutions that express this will are actually formed. Conversely, rational choice theorists analyze how preferences are processed within established institutions but struggle to explain the emergence of those institutions.

Drawing on examples from United States constitutional conventions, particularly the challenging Illinois Convention of 1869, the speaker illustrates how closely divided political parties can lead to institutional gridlock, reflecting the opening dilemma of creating a legitimate assembly. They suggest that, like the Illinois case, a hypothetical future constitutional convention in the U.S. could encounter similar challenges, leading to a crisis in recognizing a collective will.

The speaker concludes by emphasizing that modern foundings—both democratic and non-democratic—tend to rely on a mythological conception of the will of the people and grapple with the same opening dilemma regarding identity and purpose. Through examining historical examples, the work reveals universal patterns in how societies navigate the establishment of political legitimacy and institutional structures.

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I've been interested in parliamentary rules

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for over 50 years,

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and I wrote my doctoral dissertation on it.

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And for, for many decades, I've been pre,

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I've been persuaded that formal rules,

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processing preferences in legislatures could implement,

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the democratic will, the will of the people.

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Uh, and it was a matter

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of processing these preferences into outcomes,

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and that was a mathematical and a logical problem.

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Um, but then, about 20 years ago,

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I became persuaded that while rational choice rules

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and frameworks of interpretation could explain a lot of what

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went on in legislatures

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and constitutional assemblies, they could not explain

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how those constitutional assemblies in legislatures

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would be created.

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And in fact, there's a very important,

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conundrum at the founding of legislatures

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and constitutional assemblies,

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and that is that you need to begin with,

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you need three elements in order to create a legislature

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or a constitutional assembly.

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You need a parliamentary leader to recognize motions.

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You need members who are certified

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and legitimated as representatives

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of their their constituencies.

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And you need parliamentary rules.

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You need those three things.

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The problem comes is that,

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you cannot create any of these things

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without the other two.

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And that as a result, a democracy cannot found itself

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because it cannot create the institutional forms

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through which the will of the people could be

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translated into a constitution, into a state

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with formal powers.

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Um, and that conundrum then, is

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a, well, a fundamental fact.

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It's a logical, fundamental fact of, of,

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democratic life.

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My work is, is primarily,

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engaging two different li literatures.

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On the one hand, there is a very vibrant, active literature,

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and democratic theory about how peoples come

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to recognize themselves

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and come to constitute a collective will.

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Um, and in democratic theory,

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that is a really fundamental, problem.

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Um, the way that political, the political theorists have

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recognized that the people must constitute themselves.

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The problem for political theorists is

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that there is no way for a people

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To constitute themselves except through imagination.

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And so they try to solve this problem, by assuming,

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usually by assuming a primordial essentialist identity

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for a people that predates their, their consciousness.

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On the other hand, political theorists aren't,

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primarily concerned

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or even often concerned in the institutional ways.

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This people then create a state so that for

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that reason, the conundrum isn't solved and democratic,

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and, and political, theory, theories of democracy.

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On the other hand, this is a fundamental problem

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for rational choice theorists who do

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concentrate on formal institution making

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and processing, preferences into a, into a popular will.

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Um, but they have no way of explaining

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or accounting for the way in which those institutions

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that are processing these preferences are

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created or emerged.

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So this brings together the rational choice

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and democratic theory, components of the problem.

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Um, and I address both of them in the paper.

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Oh, I don't resolve it.

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I, I, I think

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that dilemma sits right in the heart of problematic,

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for democracy.

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Um, democratic theory can do a lot

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of things once the institutions are, are up and running,

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but they cannot explain,

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or they cannot account for,

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how they're created in the beginning.

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Um, now the,

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but your question is, has another element to it,

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which is, we know this problem is resolved

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'cause we don't, democracies are everywhere.

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And so how did they resolve this opening dilemma?

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Um, and in the United States,

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which has probably had more constitutional conventions than

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any other, country in the world,

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because the states have done this, they routinely,

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fairly routinely, the political,

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when a state holds a constitutional convention,

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political parties arrive at the site

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and they decide that who their, their leaders are.

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And usually one of the parties has a majority

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of the ostensibly elected delegates.

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And that leader then becomes the leader of the convention.

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And then that leader recognizing the members of

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that majority party institutes rules and so forth

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and so on, all of these things are customary.

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They are, done through tradition and habits.

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Um, and as long as all both parties,

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including the minority party, recognize those traditions

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and customary practices, then the,

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opening dilemma is in

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A sense, you know, put, shoved under the rug.

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You don't, you don't see it.

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Uh, and for that reason, they've been, they've been

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so common, that the opening dilemma has usually

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not appeared in public view.

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In American political history.

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I have this library, of political documents

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and old books and references, 20,000 books.

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And one of the book, and something like, like 50

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of them are constitutional conventions, journals,

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and, and records.

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So when I imagined discovered there was this conundrum,

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I went to those, those records,

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and I started going through them.

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And most, and most of them are journals.

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And it was very hard because it was abstracted to see

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where the, how the opening dilemma was, was,

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you know, resolved.

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But on the other hand, the Illinois Convention

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and 1869 had two very thick volumes,

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a thousand pages a piece, that was a verbatim record.

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And what, what I found there, was

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that they had incredible problems

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establishing the institutional forms

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for their constitutional convention.

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And the reason for that was that the two parties were very,

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very close in numbers.

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And in fact, there were five members

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or so who were ostensibly Republicans,

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but who didn't like their, their party members very much.

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And so they, they're swing votes.

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So they couldn't, they didn't have a majority,

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neither part political party had a majority.

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So neither political party, though, they elected leaders,

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could impose their leader,

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through customary practices on the convention.

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So what they had to do is that, first of all, is they, they,

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they, they bounced around this.

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They couldn't elect a, a presiding officer.

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So they said, well, if we can't elect a presiding officer,

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maybe we can determine who the members are.

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Well, they rapidly found out

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that they had no procedural rules for, for, so,

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certifying the membership.

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So then they, then they said, well,

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maybe we could create some rules

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and the rules for customary rules.

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But they rapidly found out that some members who wanted to,

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to delay the proceedings could talk forever,

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because there were no rules

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that prevented that from happening.

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So the problem was they couldn't figure out any way

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of solving this problem, for a while.

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In fact, they had two temporary leaders,

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one from each party, and they would,

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they would decide on common, common decisions,

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but they couldn't decide the, the most important questions.

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So what happened in the Illinois Convention in 1869

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Is that the members ca came face to face

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with the opening dilemma.

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They confronted it in a way that both surprised them

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because they'd never seen it before,

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and also frustrated them.

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Um, and so they began to talk in very flowery, very grand

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notions of will to the people

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and who they were, were representing,

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and so forth and so on.

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Um, it was really, really, wonderful stuff.

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It was very common.

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People, because constitutional conventions

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have very common people.

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They're, they're, they're not, they're, they're not,

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established leaders in most cases.

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Uh, just common, common folk, confronting

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a conundrum that they didn't understand.

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Imagine that the United States in say, 2025,

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wants to hold a constitutional convention.

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And there are reasons why a constitutional,

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a new constitutional convention, would res would

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what change some of the practices, some

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of the institutional forms,

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and make them more democratic.

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For the United example,

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the United States Senate might become a proportional rather

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than two states and so forth.

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There are things out there that might,

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that, that might be done.

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So imagine that the United States attempts

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to hold the Constitutional Convention in 2025,

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and they elect the delegates

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and the, the, the, the egs that say they,

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they arrive in Washington

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and the two parties are very closely matched.

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They'd run into the same thing

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that the Illinois Convention did in 1869.

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They would be unable to certify themselves

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as legitimate representatives that'd be unable to

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elect a parliamentary leader,

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and they'd be unable to elect to,

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to ratify rules of procedure.

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Then what would happen is they would, you would have the,

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the entire political system come face to face with the fact

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that there is no will of the people, the will of the people,

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and in fact, is a methodological, imagined thing.

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It's very useful in democracies when it's,

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when it's clothed in institutional forms.

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But as an abstract methodological belief

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or idea, it really needs consensus.

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The United States doesn't have that consensus.

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I think holding a constitutional convention,

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right now would be an incredibly dangerous thing

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for the United States to do.

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When I wrote this paper,

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and published it, I was in the process of doing that.

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Um, I also started on a book,

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and the book is the founding of Modern States.

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And in that book, I undertook to un to analyze

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six different modern foundings,

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and how they resolved the opening dilemma.

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You know, how they had an answer for it.

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Um, three of them were non-democratic states.

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The Russian revolution in which the dictatorship

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of the proletariat, resolved the answer

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through the Communist Party.

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Uh, the second, was the,

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Nazi regime brought to power in 1933 in Germany, that

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that became the enabler of the historical destiny

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of the German people.

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And the third was the creation of the Islamic theocracy,

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in Iran.

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And in those three cases, the resolution

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of the opening dilemma, is that

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a revolutionary party declares itself

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to be the will of the people

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and declares itself to be the will of the people

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because it embodies

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and, is the vehicle

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for the historical destiny of that people.

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So when non-democratic foundings, the will

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of the people is still fundamentally important,

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but it is not a democratic notion in the sense that we,

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we in the west usually imagine it to be.

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Um, I also, looked at three democratic

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or traditional democracies, the unwritten English

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constitution, which embodied the rights of Englishmen,

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the American Revolution, which w was created

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after those rights of Englishmen were denied

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to the colonists and the French Revolution,

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which asserted the rights of man as a justification

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for the demolition, of the, of the remains

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of, of feudalism.

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Now, when I look at those

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and I, I compare them, there two things happen.

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First of all, all modern foundings have been committed

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to the existence of a mythological conception of the will

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of the people, including a belief that that will,

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can only be revealed through a properly conceived and pro

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and performed political practice.

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That there are differences between non-democratic

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and democratic foundings, but they're not distinct

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or significant differences.

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They both do the same thing.

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The second is that all modern foundings have been grounded

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in a priority normative decisions concerning the identity

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of the people, the transcendent social purpose associated

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with their historical destiny

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and the practice through which the popular will, is

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and should be manifested.

14:42.705 --> 14:46.525
So for example, in the Soviet, for the Soviet state,

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the Bolshevik revolutionary elite identified the proletariat

14:51.385 --> 14:56.245
as the people declared the global communist revolution

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to be their destiny, and asserted that the,

14:59.405 --> 15:02.965
that their party was the vehicle through the, which the will

15:02.965 --> 15:06.005
of the prolo proletariat would be manifested.

15:06.545 --> 15:10.405
So these things are their universal,

15:10.825 --> 15:14.525
as I see it, and that that opening dilemma,

15:14.735 --> 15:17.925
which we see at the founding that always occurs,

15:18.185 --> 15:21.965
always present at the founding of a constitutional assembly,

15:22.625 --> 15:26.685
in fact, has a much broader relevance and application

15:26.875 --> 15:30.765
because it has to do with how we imagine people's

15:31.145 --> 15:32.205
and political purpose

15:32.905 --> 15:36.325
and the, the way in which the institutional forms meaning

15:36.345 --> 15:38.885
the state that we erect in order

15:38.985 --> 15:40.965
to combine these two things, I.

Democracy's Foundational Elements and Challenges

00:00:00 - I've been interested in parliamentary rules for over 50 years, and I wrote my doctoral dissertation on it. And for, for many decades, I've been pre, I've been persuaded that formal rules, processing preferences in legislatures could implement, the democratic will, the will of the people. and it was a matter of processing these preferences into outcomes, and that was a mathematical and a logical problem.
00:00:35 - I became persuaded that while rational choice rules and frameworks of interpretation could explain a lot of what went on in legislatures and constitutional assemblies, they could not explain how those constitutional assemblies in legislatures would be created. And in fact, there's a very important,
00:01:06 - and constitutional assemblies, and that is that you need to begin with, you need three elements in order to create a legislature or a constitutional assembly. You need a parliamentary leader to recognize motions. You need members who are certified and legitimated as representatives of their their constituencies. And you need parliamentary rules. You need those three things.
00:01:38 - you cannot create any of these things without the other two. And that as a result, a democracy cannot found itself because it cannot create the institutional forms through which the will of the people could be translated into a constitution, into a state with formal powers.
00:02:10 - a, well, a fundamental fact. It's a logical, fundamental fact of, of, democratic life. My work is, is primarily, engaging two different li literatures. On the one hand, there is a very vibrant, active literature, and democratic theory about how peoples come to recognize themselves
00:02:39 - and in democratic theory, that is a really fundamental, problem. the way that political, the political theorists have recognized that the people must constitute themselves. The problem for political theorists is that there is no way for a people To constitute themselves except through imagination. And so they try to solve this problem, by assuming, usually by assuming a primordial essentialist identity

Democratic Theory and Institutional Creation Dilemma

00:03:16 - On the other hand, political theorists aren't, primarily concerned or even often concerned in the institutional ways. This people then create a state so that for that reason, the conundrum isn't solved and democratic, and, and political, theory, theories of democracy. On the other hand, this is a fundamental problem
00:03:45 - concentrate on formal institution making and processing, preferences into a, into a popular will. but they have no way of explaining or accounting for the way in which those institutions that are processing these preferences are created or emerged. So this brings together the rational choice and democratic theory, components of the problem. and I address both of them in the paper.
00:04:14 - I, I, I think that dilemma sits right in the heart of problematic, for democracy. democratic theory can do a lot of things once the institutions are, are up and running, but they cannot explain, or they cannot account for, how they're created in the beginning. now the, but your question is, has another element to it, which is, we know this problem is resolved
00:04:48 - And so how did they resolve this opening dilemma? and in the United States, which has probably had more constitutional conventions than any other, country in the world, because the states have done this, they routinely, fairly routinely, the political, when a state holds a constitutional convention, political parties arrive at the site and they decide that who their, their leaders are.
00:05:21 - of the ostensibly elected delegates. And that leader then becomes the leader of the convention. And then that leader recognizing the members of that majority party institutes rules and so forth and so on, all of these things are customary. They are, done through tradition and habits. and as long as all both parties,
00:05:51 - and customary practices, then the, opening dilemma is in A sense, you know, put, shoved under the rug. You don't, you don't see it. and for that reason, they've been, they've been so common, that the opening dilemma has usually not appeared in public view. In American political history. I have this library, of political documents

Challenges of 1869 Constitutional Conventions

00:06:23 - And one of the book, and something like, like 50 of them are constitutional conventions, journals, and, and records. So when I imagined discovered there was this conundrum, I went to those, those records, and I started going through them. And most, and most of them are journals. And it was very hard because it was abstracted to see where the, how the opening dilemma was, was, you know, resolved.
00:06:55 - and 1869 had two very thick volumes, a thousand pages a piece, that was a verbatim record. And what, what I found there, was that they had incredible problems establishing the institutional forms for their constitutional convention. And the reason for that was that the two parties were very, very close in numbers. And in fact, there were five members
00:07:26 - but who didn't like their, their party members very much. And so they, they're swing votes. So they couldn't, they didn't have a majority, neither part political party had a majority. So neither political party, though, they elected leaders, could impose their leader, through customary practices on the convention. So what they had to do is that, first of all, is they, they, they, they bounced around this. They couldn't elect a, a presiding officer.
00:07:59 - maybe we can determine who the members are. Well, they rapidly found out that they had no procedural rules for, for, so, certifying the membership. So then they, then they said, well, maybe we could create some rules and the rules for customary rules. But they rapidly found out that some members who wanted to, to delay the proceedings could talk forever,
00:08:27 - that prevented that from happening. So the problem was they couldn't figure out any way of solving this problem, for a while. In fact, they had two temporary leaders, one from each party, and they would, they would decide on common, common decisions, but they couldn't decide the, the most important questions. So what happened in the Illinois Convention in 1869 Is that the members ca came face to face
00:09:01 - They confronted it in a way that both surprised them because they'd never seen it before, and also frustrated them. and so they began to talk in very flowery, very grand notions of will to the people and who they were, were representing, and so forth and so on. it was really, really, wonderful stuff. It was very common. People, because constitutional conventions have very common people.

Challenges of a 2025 Constitutional Convention

00:09:33 - established leaders in most cases. just common, common folk, confronting a conundrum that they didn't understand. Imagine that the United States in say, 2025, wants to hold a constitutional convention. And there are reasons why a constitutional, a new constitutional convention, would res would
00:10:03 - of the institutional forms, and make them more democratic. For the United example, the United States Senate might become a proportional rather than two states and so forth. There are things out there that might, that, that might be done. So imagine that the United States attempts to hold the Constitutional Convention in 2025, and they elect the delegates and the, the, the, the egs that say they, they arrive in Washington and the two parties are very closely matched.
00:10:38 - that the Illinois Convention did in 1869. They would be unable to certify themselves as legitimate representatives that'd be unable to elect a parliamentary leader, and they'd be unable to elect to, to ratify rules of procedure. Then what would happen is they would, you would have the, the entire political system come face to face with the fact that there is no will of the people, the will of the people,
00:11:13 - It's very useful in democracies when it's, when it's clothed in institutional forms. But as an abstract methodological belief or idea, it really needs consensus. The United States doesn't have that consensus. I think holding a constitutional convention, right now would be an incredibly dangerous thing for the United States to do.
00:11:41 - and published it, I was in the process of doing that. I also started on a book, and the book is the founding of Modern States. And in that book, I undertook to un to analyze six different modern foundings, and how they resolved the opening dilemma. You know, how they had an answer for it. three of them were non-democratic states. The Russian revolution in which the dictatorship
00:12:15 - through the Communist Party. the second, was the, Nazi regime brought to power in 1933 in Germany, that that became the enabler of the historical destiny of the German people. And the third was the creation of the Islamic theocracy, in Iran. And in those three cases, the resolution of the opening dilemma, is that

Understanding People's Will in Governance

00:12:48 - to be the will of the people and declares itself to be the will of the people because it embodies and, is the vehicle for the historical destiny of that people. So when non-democratic foundings, the will of the people is still fundamentally important, but it is not a democratic notion in the sense that we, we in the west usually imagine it to be.
00:13:21 - or traditional democracies, the unwritten English constitution, which embodied the rights of Englishmen, the American Revolution, which w was created after those rights of Englishmen were denied to the colonists and the French Revolution, which asserted the rights of man as a justification for the demolition, of the, of the remains of, of feudalism.
00:13:49 - and I, I compare them, there two things happen. First of all, all modern foundings have been committed to the existence of a mythological conception of the will of the people, including a belief that that will, can only be revealed through a properly conceived and pro and performed political practice. That there are differences between non-democratic and democratic foundings, but they're not distinct or significant differences.
00:14:22 - The second is that all modern foundings have been grounded in a priority normative decisions concerning the identity of the people, the transcendent social purpose associated with their historical destiny and the practice through which the popular will, is and should be manifested. So for example, in the Soviet, for the Soviet state, the Bolshevik revolutionary elite identified the proletariat
00:14:56 - to be their destiny, and asserted that the, that their party was the vehicle through the, which the will of the prolo proletariat would be manifested. So these things are their universal, as I see it, and that that opening dilemma, which we see at the founding that always occurs, always present at the founding of a constitutional assembly,
00:15:38 - because it has to do with how we imagine people's and political purpose and the, the way in which the institutional forms meaning the state that we erect in order to combine these two things, I.

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