Originally published in Big Government, September 13, 2010.

 

As we celebrate Constitution Day this week, a simple question suggests itself: What exactly does the Constitution constitute? Or, with respect to the Framers: What were these men trying to do?

The Constitution cannot have constituted the American people. The Preamble begins, “We the People….” The American people already existed. They didn’t need a constitution to call themselves into existence. On the contrary, they called it into existence.

Although clearly labeled “The Constitution of the United States,” the Constitution didn’t constitute the United States, either. Eleven years earlier, the Declaration of Independence had already described itself as “The Unanimous Declaration of the Thirteen United States of America.” We the People (the People tell us) ordain and establish “this Constitution for the United States of America.”

The Constitution constitutes not the people, not the states, and not the union of the states, but the federal government of these United States. With characteristic bluntness, the Framers identify their constitution as a framework for ruling. Each of the three sentences introducing what we call the “branches” of the new government forthrightly speak of “powers”: “all legislative powers herein granted shall be vested in a Congress of the United States”; “the executive Power shall be vested in a President of the United States”; “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress shall from time to time ordain and establish.” The American people “grant” their government some of their powers—amendable, even revocable at pleasure by a sizeable majority following lawful procedures, to be sure–but ruling powers nonetheless.

The people “vest” certain powers in each of the three ruling “branches.” To “vest” literally means to clothe; in a monarchy the king or queen puts on the robe and the crown of authority. (An emperor ‘with no clothes’ has more than a problem of embarrassing display with which to concern himself.) In a republic the people vest their government with their own natural powers, arranging those powers in such a way as “shall [in the Declaration’s words] seem to them most likely to effect their Safety and Happiness.” The people so clothe the government in order to secure their unalienable rights—unalienable because natural, given by God and not by men, including the people themselves.

Modern states were invented in order to give governments the power really to secure territories, lives, and property of the people who lived on those territories. Feudal societies had consisted of a variety of authorities, each with its own sources of military and economic power: kings, aristocrats, churches, cities. At best, these authorities existed in a sort of equilibrium, each respecting the others’ spheres of rule, uniting on the occasion of any serious foreign threat.

Builders of the modern state designed differently. They centralized governmental powers, subordinating aristocrats, churches, and cities by establishing a network of bureaucrats who collected revenues, enforced law, defended and extended territories. Modern states crushed tribal and feudal societies in all but the most geographically inhospitable places—Afghanistan, for instance, where the mountainous terrain conduces more to pockets of political authority than to governmental centralization. Without a modern state, most peoples would soon have one, anyway: A state ruled by some foreign conqueror who exploited the decentralization of his victims’ feudal society.

But the same power that enables modern states to secure the rights of peoples, protecting their lives and property, can also ruin lives and take property from the very peoples who rightly ‘own’ that power. This seems to lead humanity into self-contradiction. To borrow an old joke on a slightly different topic, we can’t live with states and we can’t live without them.

With the government the Constitution constitutes the Framers solved the problem of the modern state. They gave the modern state a certain form, a certain regime, which retained the power of the centralized modern state while restricting its power to harm the people who had authorized its existence. The founded a republic, with rulers elected by the citizens—the ultimate rulers—or appointed by those elected representatives. They founded a commercial republic, in which every citizen could acquire and keep the property earned by working. They founded a federal republic, whereby each constituent state shared equal power in the Senate and population-apportioned power in the House of Representatives. They founded a republic of laws, limiting the central government to expressly enumerated and logically implied powers over each citizens, leaving most governing to be done at the local, county, and state levels of the federation. With representation, commerce, rule by law, and federalism in hand they could then frame an extended republic, big enough to defend itself against the geopolitical heavyweights of their day—and every day since then, so far.

Americans thus secured their status as a self-governing people, ready to resist any of their current or future regime enemies. That is what the Constitution is for.

Originally published in Big Government, April 18, 2010.

 

Geoffrey R. Stone, professor of law at the University of Chicago and editor of The Supreme Court Review, has a pertinent suggestion: The retirement of Justice Stevens and the impending nomination of his successor should spark “a frank discussion” of “the proper role of judges in our constitutional system” [“Our Fill-in-the-Blank Constitution,” the New York Times, April 14]. True to his promise of frankness, he charges “conservative” judges with advancing “disingenuous descriptions of what judges—liberal or conservative—actually do.” Such men as Justices Roberts and Scalia claim to seek the original meaning of the Framers, to serve as umpires who call the plays as they see them, according to the rules. But, Professor Stone charges, they do no such thing.

Such Constitutional phrases as freedom of speech, due process of law, free exercise of religion, cruel and unusual punishment do not define themselves, he remarks; “they did not have clear meanings even to the people who drafted them.” The Framers left such definition “to future generations.”

This conservatives on the Court all too eagerly have done. “Fueled by their own political and ideological convictions, they make value judgments, often in an aggressively manner that goes well beyond anything the Framers themselves envisioned.” The list of horrors proves long: examples include First Amendment protection for advertisers; prohibition of the regulation of guns; the right of the Boy Scouts to exclude ‘gay’ scoutmasters, although presumably not cheerful ones. Meanwhile, liberal judges have upheld Madisonian principle by striking down laws prohibiting interracial marriage whilst forbidding forced sterilization, protecting the rights of political dissenters and of minority religious denominations, and similarly handsome things. Bad conservatives. Good liberals.

Conservatives, he continues, don’t protect people. They protect “corporations, business interests, the wealthy and other powerful interests in society.” Driven by “their own political and ideological convictions,” conservatives “employ judicial review to protect the powerful rather than the powerless,” pretending to construe the Constitution as written but in fact injuring those “who are unlikely to have their interests fully and fairly considered by the majority” of their fellow citizens.

What conservatives lack and what liberals have, Professor Stone maintains (echoing Presidents Bill “I feel your pain” Clinton and Barack Obama) is empathy. Empathy, fellow-feeling, “helps the judges understand the aspirations”—don’t forget, intentions and meaning are inscrutable—”of the Framers.” Not only that, empathy “helps judges understand the effects of the law on the real world,” on “the lives of real people”—as distinguished, evidently, from such surreal people as corporate executives, gun owners, and Boy Scouts. If no one today can parse the Framers’ intentions and meaning, divining their aspirations might seem even more difficult, but Stone knows how, and someday might be so kind as to let the rest of us in on that.

Leaving aside Professor Stone’s odd equation of the rich and the powerful with the majority of people in this or any other society—are not property rights, for example, designed in part to protect the few who are rich from the many of us who are not?—two problems arise with this “frank” discussion of judicial deportment.

First, to say that such formulations as free speech, equal protection, and due process had no clear meanings to the Framers, that they are “blanks” to be “filled in” by “future generations” of judges, ignores the several centuries of legal precedent and philosophic reflection that preceded the year 1787. The Framers didn’t pull the Constitution out of thin air, that summer. They had read their Blackstone. The English common law, the treatises of Grotius, Locke, Montesquieu, Vattel and a dozen more philosophers and jurists: no blank slate, surely? True, such foundational terms “are not self-defining.” That’s why the Framers took care to read the books that defined them.

Did the Framers, and those who’ve tried to follow their intentions, understand that Americans will always need living judges to interpret the Constitution and apply it to cases? Good news, here: They were not idiots. They did indeed understand that. but this did not commit them to “empathy,” a word that does not loom large in their writings. When Publius considers judicial overreaching in Federalist # 78, he says that judges “declare the sense of the law”—rather strongly implying that framers of laws put some sense in there, and do not simply draw boxes marked ‘to be filled in later.’ Publius worries not about empathy or the lack thereof, but rather that judges might “be disposed to exercise WILL instead of JUDGMENT,” to substitute “their pleasure to that of the legislative body.” The will, benevolent or malign, empathetic, or cold, does not counsel anyone. The will may command; it may exhort; it does not reason, and it tends to disrespect limits. Judges therefore should not so much empathize or disdain. Judges should judge. That is to say, they should reason, using the law as their guide.

The claim that empathy deserves a central place in judging itself has a history, one traced in Paul Eidelberg’s seminal book, A Discourse on Statesmanship: The Design and Transformation of the American Polity, published in 1974. Eidelberg notices that the Progressives, notably Woodrow Wilson, required of judges and political men generally not so much prudence, reasoning, and judgment but compassion. Wilson did not suppose judges did not really know what the Constitution meant. He rather supposed that to be the problem. Reasoning founded on Constitutional law tends not toward the expansion of the modern state, including large provisions for public charity, which Progressives so fervently commended. Such reasoning tends to find limits to legislative and executive action, and therefore to government. More profoundly, reasoning founded upon Constitutional law tends not to register the Progressives’ historicist conviction that humanity has outgrown the thought of previous generations and that such reasoning must prove inadequate both morally and politically for today. Compassion, being a passion, tends toward the unlimited, toward boundlessness, and endless horizon. Hence such notions, among Progressives, and “the elastic Constitution” (Wilson) and “the living Constitution (Justices Roscoe Pound, William Brennan).

And so it has gone, for much of subsequent judicial decision-making by the new liberals, the Progressives. Compassion ‘helps’ those judges fill in the (alleged) blanks of Constitutional language with, to use Professor Stone’s phrase, “their own political and ideological convictions.” But shouldn’t a constitution, well, constitute something—say, a set of ruling institutions providing a tolerably knowable and stable framework for conducting public business? Precisely what empathy, elasticity, and growth cannot provide?

 

Colleen A. Sheehan: James Madison and the Spirit of Republican Self-Government. New York: Cambridge University Press, 2009.

Originally published in Big Government. April 11, 2010.

 

‘Left’ and ‘Right,’ Americans today call their political life out of joint, and therefore painful. A ‘news cycle’ cannot go by without another show of genteel hand-wringing over Tea-Party activists and radio-show callers—their rage, their seemingly endless array of ‘phobias,’ the menace they pose to decent people everywhere. Complementarily, Americans on the ‘Right’ are outraged or, more precisely, morally indignant. This has nothing to do with the thought-crimes and sentiment-felonies of racism, sexism, and homophobia; rather, as seen in the recent passage of health-care legislation in the face of public opposition, conservatives see a representative form of government that no longer, well, represents the majority of Americans. Both sides feel a dislocation in America, a dislocation of public opinion from government.

In our Constitution “we the people” announce that we rule ourselves, through our elected representatives, But our eyes and ears tell us that our elected representatives listen not to us but to party leaders and other purveyors of elite or ‘advanced’ opinion, ‘expert’ opinion, ‘academic’ opinion. The Right deplores this; the Left says, ‘Thank God!’—or would, if the Left did not now insist on a chaste separation of religiosity from state.

If public opinion in some form rules and thus preoccupies republican regimes, how should it rule? What is the proper relationship between citizens, their opinions, and their government?

As the designers of what Madison called the first “purely republican” regime in the modern world the American Founders thought carefully about the role of public opinion in popular self-government. None thought more clearly than did Madison himself. And today, no one thinks more clearly about Madison that the Villanova University scholar, Colleen Sheehan. In her recent book, James Madison and the Spirit of Republican Self-Government, she explains how Madison understood both the promise and the perils of American political life, particularly as they center on the question of public opinion.

Madison understood politics as the classical political philosophers did, Aristotle above all. Through the regime of the political community, laws shape the character of that community, either strengthening or undermining the regime that produced them.

Between the law and the citizens, so to speak communicating between the two, the “spirit” of the community, its public opinion, circulates. In Sheehan’s words, Madison understands that “the ongoing sovereignty of public opinion” requires “the active participation of the citizenry in the affairs of the political community.” In this respect, the Tea Partiers do exactly what the American Founders wanted Americans to do.

The Tea Partiers (and not only they) seek not only a voice but a voice guided by a renewed understanding of their own regime. They sense that their regime no longer quite belongs to them, any more, or to the much wider numbers of ordinary citizens who have long since given up attempting to engage in active self-government. They and their fellow citizens have not only lost control of their own government, and therewith their way of life, but have lost a sense of how to exercise the sovereignty they are supposed to possess. Americans hunger for a better understanding of how they can govern themselves, sensing that mere outrage, mere sentiment, however justifiable, can’t and won’t get them very far.

Sheehan identifies six components of Madisonian republicanism, all of them carefully interrelated.

First, American republicanism means representative government. Whereas the democracies of ancient Greece resembled big, tumultuous town-hall meetings, where the loudest lungs too often carried the vote, government by elected representatives slowed down the passions of the moment, gave deliberation and choice some purchase against sentiment and force. Meetings and petitions, yes. Government by such means, no, except in towns where everyone knew everyone else, places where you could tell the local windbag to sit down for a spell.

Second, representative government enables the rule of the people to extend through much larger territories and populations than any of the old Greek democracies could manage. This enables governments of, by, and for the people to defend themselves against the powerful centralized states commanded by monarchs and aristocrats. Just as important, the extensive republic also makes factions—unjust majorities and minorities—less able to dominate; by complicating the task of political organizing, republicanism dilutes the effects of faction, prevents factitious leaders from stealing a march on those who have no axe to grind and then wield against the public treasury.

Third, the familiar system of balanced, separated governmental powers provides much the same protection within the government itself. By necessitating cooperation among the several branches of government, America’s constitutional structure prevents the concentration of undue power in any one set of hands, making persuasion not force the habit of those who govern. It is a good habit for such persons to get into.

Federalism stands as another such structure. While separation and balance of powers divide government ‘horizontally,’ federalism divides it ‘vertically.’ Each municipality, each county, each state has responsibility for its level of governance, even as the federal government has responsibility for matters preeminently national. Without federalism, Madison remarks, the executive power must expand, inasmuch as no body of national legislators could know all the details of government down to the individual citizen. Neither can any one executive: hence modern bureaucracy, which the Declaration of Independence had memorably described as “a swarm of Officers” who “harass our People, and eat out their substance.” While Madison worried that Alexander Hamilton and his allies in the 1790s would turn government over to the executive branch, the gentry classes, and especially the bankers, we now see (in addition) a new class of bureaucrats who take over the functions of government from the people and their representatives alike.

Madison’s fifth component of government, public opinion, takes some of its shape because it flows through these institutional structures on its way to becoming the laws of the land. At the same time, public opinion keeps these structures alive; without it, institutions will become only so much dead wood, a tree without its life-giving sap, home to parasites. In the formation of public opinion, some citizens will speak more persuasively than others. No longer entitled to impose their views via a national church establishment, American clergy will persuade their fellow citizens from free pulpits. Equally, what we now call public intellectuals (Madison calls them “literati”) now will use a free press, independent colleges, and public lecture halls as forums of public discussion. Even as Americans enjoy commerce of things in a free market, they will also select from the good offered in churches, public squares, classrooms, newspapers by “the cultivators of the human mind,” the “manufacturers of useful knowledge,” the “agents of the common ideas,” the critics of manners and morals, and the teachers of “the arts of life and the means of happiness” which it is their natural right to pursue.

Finally, this invigorated public opinion works upon those who govern within the ruling institutions, keeping them dependent upon the sovereign people. The sovereign people, in their turn, will respond to the well-articulated, balanced structures of their public life, habituating themselves to thoughtful in addition to (inevitably) self-interested and impassioned public speech.

The American regime thus deserves the name of commercial republicanism in the broadest sense, featuring above all a commerce of opinions as well as of things. This comports with Madison’s definition of ‘property,’ which consists not only of external possessions, not only of one’s body, but also of one’s mind, one’s rights, and indeed one’s opinions, religious and political. Together, arranged as they are, the several components of the American regime will give Americans, in Sheehan’s words, “free exercise of their diverse faculties.” This is what Publius meant when he predicted that American republicanism would vindicate the honor of mankind from European assumptions of superiority. Madison called this regime—in contrast to European imperialism, then bestriding most of the globe, “the Empire of reason,” or as Jefferson called it, “the Empire of liberty.” In such a regime, citizens understand and defend the rights they have by nature, rights “endowed by their Creator,” as the Declaration of Independence calls them. Madison saw that these rights entail an equal duty, the duty to protect all citizens against violations of natural and constitutional rights—ultimately, to defend human beings against tyranny.

As illuminated by Sheehan’s scholarship, Madison still speaks to Americans ‘Left’ and ‘Right.’ To the Left he says: Do not hold your fellow citizens in such contempt. To the Right he says: Government is not sovereign; you are, but only if you really govern yourselves, re-learn the way of life of public reasoning, abandoning the self-indulgent arts of vituperation, rhetorical showboating, and ad hominem attack.

Madison left examples of such public reasoning in his contributions to The Federalist and in his other writings.  Together, they form nearly a complete curriculum of American civic education. Colleen Sheehan rightly brings us back to those essays, and to their author—as timely now as they were some two centuries back.