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.

Publius [Madison]: Federalist Numbers 62, 63, and 64.

 

Publius turns to an explanation and defense of the Senate, and therefore to the importance of a bicameral legislature, replacing the unicameral legislature of the Articles of Confederation government. With the Senate the Framers solved two crucial problems, one of them regarding the American regime, the other regarding the modern state.

The regime problem: Can a republican regime, a regime in which the people rule themselves through their chosen representatives, muster the prudence necessary to avoid devolution into foolish and unjust rule by mere majority will? If not, then a regime of one or a few rulers, men and women bred to rule, a regime identical to those everywhere else on earth at that time, must finally come back to America.

The state problem: Can a centralized modern state—indispensable in a world full of such states—nonetheless provide ‘political space’ for local and regional self-government? Or must centralization in the national capital or in the capitals of he constituent states of the federation necessarily dry up the springs of citizenship —active participation by the body of citizens in their own communities?

To keep track of Publius’ argument, it’s useful to outline it. He announces five topics for consideration with respect to the Senate, but quickly disposes of the first three. His treatment of topics IV and V—predictably, Publius exhibits a fondness for Roman numerals—takes up more than ninety percent of his attention.

I. The qualifications of senators (#62, paragraph 2).

II. The appointment of senators by the state legislatures (#62, paragraph 3).

III. The equality of representation of the states in the Senate (#62, paragraphs 4-6).

IV. The number of senators from each state and their term in office ($62, paragraphs 5-16; #63, entire).

V. The powers in the Senate (#64, #65, #66).

An American qualifies for election to the Senate upon reaching his thirtieth birthday, having been a citizen here for the last nine years of his life, at least. Because the Senate exercises power over foreign policy—particularly, ratification of treaties and declarations of war—a senator should know more and exhibit greater “stability of character” than a House member. This means that Publius regards the foreign-policy powers of the Senate as weightier than the House’s power of the purse. We might think the opposite, but we live under a system that has consolidated much more domestic power at the national level than the Founders judged wise.

To prevent consolidation of power in the federal government, beyond any control of the states, the Framers had the senators appointed by the state legislatures. This assured the state governments a means of defending themselves from within the federal government itself. In the early decades of the republic, legislatures often sent their appointees to Washington with a list of policy instructions, which the appointee ignored at the risk of his re-election. The Progressive-era abolition of this method of electing senators outflanked the states by giving individual senators a power base independent of their state legislatures. This change in institutional design contributed to the centralization of domestic powers, as senators could begin to collaborate with representatives in the House, effectively transferring the old ‘spoils system’ to their own hands—all without the messy charges of corruption attendant upon the antics of party bosses. Eventually, he roads to re-election became: first, bringing home the bacon legally and second, providing constituent services to voters needing a guide through the bureaucratic maze. This corrupted the intention of the Framers and led to civic indifference among many citizens—’consumerism’ in politics instead of self-government.

An aspect of the Framers’ design that remains unchanged is the equal representation of each state in the Senate. Writing first of all for a New York audience, Publius has every reason to apologize for this feature and move on quickly, as the provision amounts to a major concession by the big states to the small states. But he also fits the Senate into his larger conception of the regime. As he has already explained, the new regime is an extended republic (Federalist #10); it controls the effects of faction by multiplying factions over a large territory. America is also a commercial republic, unlike the military republics of antiquity—most notably, Rome. With the Senate, the United States becomes a balanced, compound republic, “partaking both of the national and federal character,” avoiding “an improper consolidation of the States into one simple republic.” Hence the bicameralism of the U. S. Congress, an institutional design feature elaborately defended by John Adams in his Defence of the Constitutions of the United States. Given the Senate’s power to block laws passed by the House, the states can defend themselves against such consolidation—against excessive statism—while nonetheless forming part of a national state sufficiently centralized to defend itself against the statist and typically monarchist war machines of Europe.

Can a republican regime avoid the fatal defect of previous republics—their lack of fidelity of purpose and of deliberation in debate? Can republics think? Can they act faithfully, steadily? Can they be wise husbands, not silly gigolos?

The small number of senators will promote real discussion instead of “the sudden and violent passions” displayed by large, unicameral legislatures. Longer terms in office will afford senators a real chance to learn their craft and to stick with long-term policies. Fickle governments bring upon themselves the contempt of foreigners and the confusion of citizens. “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood,” undergoing “incessant changes” that prevent citizens from knowing how to plan their own lives, from education to investment. Such laws subvert popular government by leaving effectual rule in the hands of “the sagacious, the enterprising, and the moneyed few” who alone can exploit these protean convolutions that undermine the rule of law itself. ‘Anything goes,’ indeed.

If anything goes, then respect for the regime will go, too. Finally, the failure of the rule of law means the failure of rule, simply—in America’s case, self-government through our elected representatives.

A small Senate whose members serve long terms answers the need for “order and stability” in the national government, thus fostering respect for the “political system” of America—the institutional architecture of popular self-government. In Federalist #63 Publius turns to the importance of cultivating respect for this people and their regime among foreign nations. He then discusses the Senate’s capacity to ensure the truly indispensable thing for any government: the rule of reason.

Under the Articles of Confederation foreign policy was the primary focus of the unicameral Congress, domestic policy having been for the most part the domain of the states. Despite this, Publius argues, America has lacked “a due sense of national character” in the world. He means “character” in both senses: moral soundness, but also a well-defined identity. If the world’s a stage, then each player needs a recognizable role or persona. Without one, the other actors won’t quite know how to ‘play off him,’ so to speak. With a bad one, the other actors will treat him as Iago, or maybe as one of Shakespeare’s clowns. Such notable American statesmen as George Washington and Benjamin Franklin deliberately established their public faces. In choosing good roles and playing them with energy and intelligence, they strengthened their own inner characters and established their reputations among their fellow citizens and throughout the world.

A Senator’s term in office and his status as one of only two representatives selected by his state legislature—itself likely to know the character of their chosen representative better than the voters at large could know it—will incline him to identify his own ambitions with the welfare of his state, knowing that “the praise and blame of public measures” will attach to his own public character. He will be seen; he will be heard; he cannot evade the scrutiny of his colleagues in the Senate or in his state capital.

The matter of character fits well with Publius’ final consideration: responsibility. Although Publius did not invent the word, as some scholars have imagined (it appears in English legal writings as early as the mid-seventeenth century), he did put it squarely on the American political map. If representation is the central feature of a republican regime, then responsibility—meaning both responsiveness to those one represents and accountability for one’s actions—is the soul of representative government. By reasonable responsibility Publius means that no one expects his representative to accomplish things beyond his powers; fittingly, the powers of the Senate are the topic of the subsequent three papers.

Here is where the bicameral institutional structure of Congress comes into play. The bicameral Congress will derive its energy from the often-impassioned House, its prudence from the Senate, which balances “the cool and deliberate sense of the community” against that community’s urgent desires. “What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions?” Even with the greater extensiveness of the American republic, which will serve as a brake upon popular excesses even in the House, the Senate will serve as an “auxiliary precaution.” It is one thing to slow passions down; it is another to map out the right direction for the country.

Above all, it is the republican institution of representation, as opposed to the democratic device of all-citizen assemblies, which will make American lawmaking more stable and reasonable than that of any ancient polis. In both foreign and domestic policy, then, the Senate will provide some of the long-term, prudential thinking previously seen mostly in aristocracies.

To those who fear that the Senate will become an outright aristocracy, dominating the other branches of government, Publius replies that this would require the Senate to corrupt the state legislatures, the House, and the people—an unlikely ‘trifecta.’ Sure enough, the Progressives succeeded in deranging the Constitution in just that way, not only by changing the election rules for Senators but by providing the House with bigger revenues via the income tax. Even so, the Senate remains quite far removed from a genuine hereditary aristocracy.

Publius now turns to his fifth and final topic respecting the Senate: its powers. In Federalist #64 he considers the power to ratify treaties.

Publius argues that the state legislatures will likely choose outstanding men to represent them in Congress. Senators will be known to their electors, who will “not be liable to be deceived by those brilliant appearances of genius and patriotism which, like transient meteors, sometimes mislead as well as dazzle” (think “Aaron Burr”). State legislators will want representation by men they trust who have the intelligence and strength of character to defend and advance the interests of their state in the national government. One might add that the removal of two such men from the local scene would not bereave the less gifted rivals they leave behind.

Did it work? The record of the nineteenth century suggests that it often did: Adams, Clay, Calhoun, Webster, Benton, Houston, Chase, Lodge: These men enjoyed more prominence than most of the presidents of their time. Among the best (if long-forgotten) accounts of the old Senate remains Oliver Dyer’s Great Senators of the United States Forty Years Ago, published in 1889. One of the first stenographers in America, Dyer worked in the Senate in 1848 and 1849, and his highly readable reminiscences of the lions of those days stands as a fine introduction to the nature of political life itself as well as a testament to the kinds of men who once found that life worth choosing.

Such prominence can serve the country in foreign policy. Given the need for secrecy and careful timing in any confidential matter, presidents and their ambassadors negotiate treaties. The experiment in making Congress responsible for such negotiations had failed to satisfy the Framers. The Senators will not negotiate treaties; they will ratify them, inasmuch as the results of secret negotiations obviously require public review. The need for a two-thirds majority for ratification ensures that the treaty will have broad support among the states.

What is more, treaties are laws; still more than that, they are supreme laws of the land. This had not been so under the Articles, under which the states reserved the power to implement treaties, with predictable results.

The supremacy of treaty law made (and still makes) Americans nervous. Publius observes that if treaties were “repealable at pleasure,” no foreign country would “make any bargain with us.” Treaties are contracts between nations not under one another’s sovereignty. They are harder to enforce than ordinary laws. Like contracts, they require the consent of both parties to enact but would be worthless if one party were legally entitled to unilaterally rescind them—unless, of course, the contract stipulates the right to do so under specified circumstances. This does not mean that the United States cannot withdraw from a treaty—break the contract. But it should do so in the knowledge that its partner in the contract may attempt to enforce the terms of the contract, up to and including the use of military force. The conditions for the just termination of treaties and their just enforcement were familiar to the founders from the major works of international law then extant—most particularly The Law of Nations by the French Swiss writer Emer de Vattel, from whom Jefferson had drawn several phrases in the Declaration of Independence.

Domestically, the supremacy of treaty law mean that both states and individual citizens needed to abide by them. Treaties now overrode state laws.

But do they override existing Constitutional law? This worried the senators who voted against the League of Nations, fearing that membership in the League would impinge upon their power to declare war. Although one never knows what a modern Supreme Court decision might say, from more or less the beginning the consensus has been ‘no.’ Because treaties are made under the authority of the United States they cannot (as Alexander Hamilton observed in 1796) “rightfully transcend the constituting act”—change any Constitutional law. If treaty law could amend the Constitution, this would lead to the absurdity of senators amending the Constitution without recourse to ratifying conventions of the states. The Constitution, federal statues, and treaties are all supreme laws of the land, but the Constitution is (as it were) more supreme than statutes and treaties.

Publius touches on a remarkable feature of the treaty ratification power: It is held by the body that represents the states. The ‘locally’-centered branch of the national government will hold the most ‘international’ power. Although the states may see their laws overridden by treaties, it will be the states’ representatives who consent to doing so.

Publius may imply that the habit of causing the ambassadors from the states to think in terms of treaties that will affect the whole country might serve to build national sentiments. This it might have done, but the more powerful domestic issue of slavery, undergirding what were in effect oligarchic regimes in the Southern states, overcame any such sentiments in the 1850s. Be this as it may, lodging the treaty ratification power in the senate solves one problem with the Articles of Confederation. It removes the possibility of individual states obstructing a treaty by refusing to implement it, but it allows the states to retain a proximate influence upon treaties by making their representatives responsible for voting treaties up or down.