Joshua B. Stein: Commentary on the Constitution from Plato to Rousseau. Lanham: Lexington Books, 2011.
The living judge the dead, a safe undertaking, but what if the dead could judge the living? One of the judges Stein selects remains very much alive, namely God, and the constitution being judged isn’t literally alive, even if it remains in operation, so the amounts an assortment of the mostly dead judging the sort-of living. Stein has the clever idea of treating not only God but a range of august humans as judges of the Constitution, thereby “testing the Constitution’s strengths and weaknesses” from the “vantage point” of each. The drawback of this project is that it is impossible for one scholar to do it well. No one (well, God excepted) can know enough about all fourteen authors here considered (in addition to the American Founders and the Constitution) to bring the thing off. Stein himself throws in the towel when it comes to the Koran, bringing in a Muslim scholar to help. And after 330 pages of this, it is dismaying to learn that “we will never know” the original intent of the Framers, anyway.
On Plato, Stein does see that Socrates does not intend his ‘regime in speech’ in the Republic as realizable on earth. Beyond this, Stein imagines that Plato would object to the Constitutional preamble’s announced intent to secure the blessing of liberty for American citizens, saying that “Plato warns against unbridled liberty and might have been concerned with this intention.” Since the very nature of a political constitution suggests limits on liberty, this complaint falls flat. He rightly observes that the Athenian Stranger in the Laws recommends an established religion, including expulsion of atheists, whereas the Framers recommended neither. On Aristotle, he claims that Aristotle “saw the poor as the revolutionary class,” but in fact Aristotle regarded the rich as just as likely to revolutionize a democratic regime as the poor were likely to revolutionize an oligarchic one, and in either case often for justifiable reasons. He rightly judges that Aristotle would have endorsed the Framers’ aim of securing the property of the moderating, middle class. Cicero would have found the Constitution’s “lack of direction the Constitution provides for how to live a virtuous life” to be “upsetting,” although (Stein might have added) none of the ‘ancients’ would have overlooked the role of education, and the institution of public schools especially, in the early decades of America, to say nothing of the already-substantial presence of churches here. That is, the ‘ancients’ would understand the American regime as they understood all regimes—as rulers and arrangements of offices beyond those mentioned in any written ‘constitution,’ however authoritative.
Stein addresses the first of two revealed religions in his chapter on the Hebrew Bible. He observes that Israelites themselves saw four different regimes: patriarchic, tribal but unitary (in the desert), “purely tribal,” and monarchic. Both the Israelites and the American Founders clearly distinguished kingship from tyranny, abhorring the latter. The Bible commands against fugitive slave laws, without condemning slavery itself, whereas the U. S. Constitution included such laws while the principles of the Declaration of Independence bear witness against slavery, and the Founders aimed at the gradual abolition of slavery, an aim they could not begin to accomplish in the core Southern states, in contradiction with those principles. Slaves who were Israelites enjoyed much better legal protections than did most slaves in the South, and Stein makes the important point that the harsher Biblical laws governing foreign slaves cannot be used to justify those Africans who converted to Christianity after their importation here.
One of the most interesting chapters is the one contributed by Islamic scholar Imad-ad-Dean-Ahmad on the Koran. He observes that both the Islamic covenant given by Muhammad to Muslims at Quraysh and the U. S. Constitution’s preamble aim at “a more perfect union.” He also notices that while the Koran endorses “religious pluralism” of a sort, at least as it is extended to Jews and Christians, “he would have disdained the non-establishment clause” of the American document. Indeed, Jews and Christians are protected by Koranic law, but their status is that of dhimmitude, not full civic equality. As for the role of the legislature, under Islamic law it could make laws regarding matters indifferent to religion (speed limits, for example) but nothing beyond that. Legislators would need to accept guidance not by the consenting people but according to the consensus of Muslim scholars. This would indeed prove a check on any “excess of democracy.” Such a check would be needed, as there is no separation of powers in a Muslim regime. As for slavery, “Muhammad would have found the association of slave status with a particular racial group unacceptable”; in this, the Koran permits what might be termed equal-opportunity slavery imposed upon prisoners of war. Republicanism of some sort might be valid, so long as divine law sets the limits; similarly, amendments to a given community’s constitutional law would be licit so long as they did not contradict the laws set down in the Koran. Islamic regimes would not set down native birth as a condition for serving as the executive, only “declared commitment to the source of the [Islamic] law.” Juries at trial would consist of experts in Islamic law, not citizens approved by secular lawyers. Muhammad would concur in the prohibition against cruel and unusual punishment, but would define it very differently, likely defending “bodily mutilation as more civilized than imprisonment.” Finally, the Framers intended “to secure men’s freedom from other men, not from God,” although it must be added that Allah prescribes a different set of laws to set the parameters of freedom than do Jews, Christians, and the American Founders.
Catholic Christian thinkers as Stein interprets them would have limited sympathy with the Founders’ regime. The thirteenth-century Holy Roman Emperor Frederick II would have frowned at the notion of separating governmental powers, as “he was the fount of law” and indeed the earthly “equivalent of God.” Stein notes that Frederick’s regime wobbled upon the death of His Excellency; “the vital energy of the center” went with him, whereas the U. S. Constitution “survived without Madison.” Dante Alighieri would equally have disliked the limited powers of the American executive and the fairly extensive powers of the states in our federal system. He also supported the founding of a world government under the governance of a Christian monarch, as the American Founders did not.
Anti-papal Machiavelli, in contrast, “would have loved” the Constitution. Stein assumes that the “virtue” Machiavelli lauds means virtue in the old Roman sense, which it didn’t; he assumes that the Framers imitated the Roman Republic in their constitutional design, which they didn’t, at least not entirely. Above all, Stein’s Machiavelli would admire the features of separated, balanced powers, encouraging political struggle and breeding “the virtue of struggle,” and he cites John Adams’s Defence of the Constitutions of Government of the United States as evidence of this. He would have wished the Framers had used religion more—”not that Machiavelli was a believer in the worth of any particular religion”—a bit of political cynicism which might have worried Adams, and would surely have been rejected by many of the Framers.
And so it goes. Hobbes would have misliked the Constitution; he was a monarchist. Locke and Montesquieu would have liked much of it; they were republicans. Small-government-loving, anti-‘bourgeois’ Rousseau would have disliked it, as he did so many things. No surprises, there. In the end, Stein doesn’t think that the Constitution can be regarded as a coherently-intended document, but only what an earlier scholar called “a bundle of compromises.” It “has worked as well as it has” because “it reflects what he have become, a country which is as multi-ethnic, multi-cultural, multi-lingual as it is, unified by fear that what we have may not be perfect, but content that it is what we have, a reflection of our compromises based on ethnic and political differences.” Tell that to an Islamist, a fascist, a communist, a monarchist (whether Holy Roman or Hobbesian). For all its grand ambitions, this book trivializes the American Constitution and the several thinkers Stein has dragged into commenting on it.
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