The publication of The Debate on the Constitution, in two new volumes of the Library of America, is an occasion for reflection.1 Edited by Bernard Bailyn, now the foremost professor of American history, these books are not intended for historians, who would turn up their noses at a mere selection of sources, but for us non-historians. What do we have to learn from the debate on the Constitution?
Most Americans regard the Constitution as an authority, as a success; so for them the debate is closed. Most American academics do not agree. Unimpressed with America’s relatively long survival, to say nothing of its greatness, they will praise the Constitution only for its openness, which consists mainly in its ability to inspire new invention. But a debate on the Constitution supports neither position: it shows the Constitution before it became an authority, but argues over its merits as if it might deserve to become one.
The Debate on the Constitution does not include the deliberation that went into it; so next to these volumes on the shelf of any serious observer of American politics will be Farrand’s Records of the Federal Convention of 1787 as well as The Federalist in book form. The Debate takes us through the period of ratification day by day from September 1787 to August 1788. It contains hundreds of newspaper articles, pamphlets, speeches, and letters authored by both the famous and the forgotten, printed in chronological order so that the reader sees how the debate developed, indeed lives through it in his imagination. In Farrand’s Records we have the Framers; in The Federalist we have the Framer-Founders (except for Jay); and in the Debate we have the Founders understood broadly as the contributors to the debate over the American founding.
One result of the Debate’s presentation is that The Federalist appears as but one voice among many, paper by paper (though not all are included)—a kind of deconstruction that is both good and bad. It is good that we see the many alternatives to The Federalist, both for and against the Constitution; and indeed the superiority of The Federalist shines all the more in the comparison with its rivals and opponents. But, though first published as a serial, The Federalist was intended to be a book and it has the parts and the rhetorical motion of a book. Thus its original context in the constitutional debate as re-created is less than its share in the debate as we recur to it now.
The Debate includes a useful chronology, biographies of the participants, and the editor’s notes, which inform rather than interpret. Keeping to the practice of the Library of America, Bailyn provides no introduction. He leaves his readers as poor, wandering souls, deprived of authoritative guidance. I think I can guess the reason for his neglect. Perhaps he is conscious that anything he might have said would have settled the matter and terminated the discussion, contrary to the intent of the publication. So he left us unguided but free to take the measure of a generation of American politicians. The consequence is not to humanize the Founders, for though they may not be demigods, they are far above us. The contrast with our own generation is marked. To read anywhere in these volumes is to be overcome with a shameful sense of inferiority, in both substance and style. It is to be confronted with the appalling toll exacted on us by the invention of television, by the use of speech writers, and more generally by our opinions and our education.
Eager judges, reckless of the consequences encouraged, resort to the courts and have brought us close to a condition in which a citizen is someone who sues.
Today there are two main reasons given for returning to the debate on the Constitution: one is to find the “original intent” of the Founders in order to support the Constitution’s authority; and the other is to see how to imitate the Founders in order to be able to redo the Constitution. The first is an academic restatement of the popular respect for the Constitution that I mentioned, dating from the Reagan administration. “Original intent” was an attempt to curb the judicial activism that has caused so much harm to our government and indeed to our common life by inciting the passion for litigation. Eager judges, unconscious of their own ambition and reckless of the consequences encouraged, resort to the courts and have brought us close to a condition in which a citizen is someone who sues. (Ralph Nader’s group of suers is called “Public Citizen.”)
It was only reasonable to look for a formula to serve as a line of defense against encroaching judges and to make them aware that the Constitution is an instrument of limitation as well as a license to act. But the need to pin down the judiciary, which was the original intent of “original intent,” impelled the notion of judicial restraint toward literalness and away from principle.
The plain words of the document could be held immune from expansive interpretation, but a principle is always open to debate and hence to exploitation. So the literal or positive version of original intent propounded by Robert Bork gained currency over the principled version put forth by the author of the phrase, Gary McDowell, who was an assistant to Edwin Meese (Reagan’s second attorney general). Bork’s version seemed to say that the Constitution, because it had been a democratic decision, was authoritative (i.e., especially over the judiciary).
Curiously, the opposing view—at least the views of those like Bruce Ackerman and Sanford Levinson—also rested on democratic decisionism. It admitted the relevance of the Constitution to contemporary social problems and took on the the task of interpreting the Constitution: a burden that requires many hours of clerk and paralegal time. This “interpretivist” position held that what the people had decided once it could decide again, and otherwise, and with equal authority. So judicial activism was justified because it merely applied another Constitution—that of the New Deal, for instance—which had been democratically elected.
This sketch is of course simplified, but it shows that both sides tend to reduce intent to decision, in order either to establish or to undermine the authority of the Constitution. But why should the Constitution have authority over us? What is largely missing in today’s debate on the Constitution is the claim—found in different forms throughout these volumes—that the Constitution, as Noah Webster put it, would inaugurate a new era, an empire of reason. It is not enough simply to assert that a democratic decision should prevail: why democracy? And specifically, which kind of democracy? The latter especially was the subject of the original debate on the Constitution and deserves to be reconsidered today. For we cannot know in which light to consider the authority of the Constitution—as constraint against innovation or inspiration for it—until we know what we require from a democracy. The first answer I shall give to why we should return to our beginnings is the need to question whether democracy, and in particular our democracy, has a basis in reason. The original debate makes a very ambitious claim for America’s greatness that we still need to appreciate and assess.
To explore the matter we have to return to a beginning long before the Constitution in modern political philosophy. That beginning is none other than the “state of nature” described by Thomas Hobbes and John Locke, a concept that has lost most of its force today but that still had currency among the Founders. It was their beginning.
The state of nature was a pre-political condition, to which it was necessary to recur in order to find the basis of politics: politics must be based on what comes before politics. Why? To see the reason for this fateful conception, we need to compare it to the thought it opposed and replaced, which is conveniently found in Aristotle. For Aristotle, there is no beginning behind or before politics that provides a guide or basis for politics; every beginning of politics is political. That is one thing intended by his statement that man is by nature a political animal. Every kind of politics, every regime, is guided by the principle which rules it from the beginning: a beginning in accordance with a principle and a rule in accordance with the principle of the beginning. To justify this elaboration, I mention that the Greek word arche means rule, principle, and beginning. From Aristotle’s standpoint, then, to understand America one would first look for its principle of rule in the speeches of its rulers, in the Constitution, and also in the Declaration of Independence.
To this political view of politics, which looks at politics in its own terms, there is indeed a nonpolitical background out of which every regime comes, to which it returns. This is the cycle of regimes, in which regimes rise and fall. Regimes arise because previous regimes have fallen. Why do they fall? In every case they fall for accidental causes but also, and especially, for one essential cause: they are all imperfect. They are imperfect because they are partial and partisan. Although they claim to advance the common good, in fact they represent the good of a party, typically the party of the few or of the many. All regimes are typically oligarchies or democracies. Aristotle mentions the possibility of a mixed regime that would have the advantages of both parties, and he urges it on the partisans; but he does not have much confidence that it will be adopted. Although every regime is debatable, the debate will be judged by the very partisans who carry it on; and they will surely judge in their own partisan interest.
No actual regime is likely to represent an impartial common good. And yet it is very important to judge regimes by the standard of the truth of their partisan claims. For their partialities will eventually catch up with them and bring them down. For example, a regime based on the self-evident half-truth that all men are created equal will eventually founder because of its disregard of the many ways in which men are created unequal. Even if such a regime seems powerful at the moment, it will be subject to revolution by the partisans, in this case those of the few, whom it ignores. Sooner or later they will gather their forces, pick on a convenient pretext, overthrow the regime and set up their own—only to make a compensating error, leaving their regime also open to future revolution or destruction. In the long run, therefore, human beings repeat the same mistakes and learn nothing from their political experience. They live in a cycle of regimes that turns from one regime to another without ever achieving gains that cannot be lost. Some regimes are surely better than others, but no regime is capable of establishing irreversible “progress,” as we call it.
They agreed with the ancients that the truth matters in politics, so much so that they thought, contrary to the ancients, that they had found a true solution for the partisan ills that put a term to regimes.
The great promise of modern political philosophy, reflected in the great hopefulness that inspired Americans on both sides of the debate on the Constitution, was that such irreversible progress could be made. All their realism was enlisted in the service of their idealism. Their historical studies and their political experience were directed by the belief that the truths they knew could be made effective and lasting in this—or another—Constitution. They agreed with the ancients that the truth matters in politics, so much so that they thought, contrary to the ancients, that they had found a true solution for the partisan ills that put a term to regimes. Their grounded hopes are echoed by shrill voices expressing the groundless hopes of our time.
If the constitutional debate were held today, the parties would exchange declarations of “values” or “preferences” as if it were enough to assert them regardless of truth. In matters of public policy we constantly claim that this or that scheme will “work,” implying often unconsciously that it accords with the truth. But in larger, constitutional questions we seem to suppose that the whole system rests on a wish, above all the wish for democracy. Our pragmatism differs from that of the Founders, who of course did not use the word. Their pragmatism said that a constitution works if it’s true; ours says that it’s true if it works, or even, in recent liberal philosophy, that it doesn’t matter whether it’s true if it works.
The great confidence of the constitutional generation—Our Fathers, Lincoln called them—arose from the modern idea of constructing politics from the pre-political beginning I mentioned, the state of nature. The foremost advantage to be had from beginning in this way was to banish partisan opinion from constitution-making, for partisan opinion not only keeps us from discerning but also from applying truth in politics. Partisan opinion is confusing because it is diverse; partisan opinions differ over the nature of happiness, over the ends of action. By following Hobbes and turning to the passions that allegedly precede opinions, above all to the passion of fear, we can discover a universal, non-partisan foundation for politics. We may not know what happiness is, but each of us can know or imagine the fear of death we would feel without a government to keep the peace. The shift from “we” to “each” (since each fears dependably for his own death) expresses the individualism of modern politics and also gives rise to its emphasis on liberty together—uneasily—with peace.
With a very powerful (though imaginary) fear, a new situation (the state of nature) is created in which we will be too frightened to insist on our political opinions and will therefore be able to begin anew unencumbered by them. That non-partisan beginning provides the ground for a new non-partisan constitution, promising the “new era” in politics that Noah Webster announced. Aristotle thought that politics is essentially partisan, but Hobbes and Locke believed that they had found a way to tame partisanship by restraining its excesses and harnessing its energies. Their entire programs—for indeed they differed strikingly—included a new education (in science and religion) and a new economics. The political part was the construction of a model constitution (now I speak of Locke and Montesquieu) from existing material, the English constitution, so as to prove this was a workable scheme and not a utopia. The English constitution was reinterpreted as an impartial republic, a republic in fact but not in name, a republic without republican animus, not resting on republican opinion. If England, where republican opinion was scarce and held repugnant, could nonetheless have a republican constitution in effect, then the possibility of distinguishing politics from political opinion would seem to be validated.
What is the general character of the modern impartial regime? For Aristotle, the typical partisan conflict is between the many and the few, the people and the nobles. To replace that conflict, the general formula for the modern impartial regime is to remove one of the two parties, the people, as a political actor. Then let the elite compete before the people for its favor. When the people elects the government, it becomes the judge of government. It does not form a government itself; the people does not rule. In our understanding, the people is no longer a party, no longer the demos that is just one part, if the majority, of a city. With us, everyone belongs to “the people,” even those who supposedly serve it. Instead of setting the few against the many, the impartial republic puts the few among the many, doing them benefits while advancing their own ambition. In government, the few formally represent the many and are prevented from ruling the many by a constitution of checks and balances. That constitution will have variations, and will always need to be ratified if not constituted by the people; but in its general formula, in principle, it is permanent. Its discovery is not only a boon to mankind, since it benefits—and to the necessary degree reconciles—the two political parties. It is also irreversible because the benefits are visible to all and do not depend on doubtful rhetoric, much less on a particular culture, for support.
Such is the ambition of modern political science, which inspired the debate on the Constitution. This was the beginning behind the beginning of the Constitution. The choice between the Constitution of the Federalists and whatever alternative the Anti-Federalists might have agreed on—perhaps the existing Articles of Confederation somewhat modified—does not simply repeat the old debate between the few and the many, or any such partisan conflict in the Aristotelian mode. It is a debate on the character of the impartial republic, of the single regime, however varied in detail, which is to change the nature of politics from then on. Americans wished to constitute a regime that would take from the English constitution the honor of serving as a model for mankind. The debate carried on in these volumes, though laden with references to American interests, was not solely or mainly concerned with what was good for America. Nor, on the other hand, was it a debate solely among philosophers with no practical intent. The debate had all humanity in mind and each particular people, beginning with the American people, in view. The monumental ambition expressed in that debate is the second reason for returning to it.
Nowadays we hear little of the state of nature that was supposed to secure the impartial modern republic. Fearful self-interest has lost its political role of taming partisan stubbornness; it has been reduced to economic incentive, and in the process fear has been replaced by avarice. The seventeenth-century state of nature has been replaced by “culture,” as we have called it since the nineteenth century, a new realm of opinion understood as having no relation to nature. Pure nature, distinct from opinion, has yielded to pure culture, which is nothing but opinion. So today many academics think that the American beginning has no relation to the truth about human nature but merely expresses parochial American values. From this faulty premise the inference is drawn that every constitution “works” because it suits the values that determined its conception and acceptance. How could it not work? If we were free to posit values regardless of truth and nature, every regime should be self-validating for those who posit; and those who refuse are equally justified. There would be no debate because there would be no possibility of argument. But the recent collapse of Communism, said to have happened because Communism “didn’t work,” suggests that truth matters after all. That wondrous event was a great victory for America not least because it sustained the premise of our Constitution that nature is more powerful than culture.
Nonetheless, culture is in a way more important than nature in the Constitution. For although the Constitution is based on the state of nature, it is not a natural constitution in the sense of being determined by nature. It had to be constituted, and the choice of how to do so between Federalists and Anti-Federalists was a real one: the outcome was not a foregone conclusion. Then again, after the Constitution was constituted, it produced a way of thinking—a culture—favorable to itself. This disposition of mind was what the Federalists wanted and the Anti-Federalists were afraid of. The Federalists hoped that the American people, having made a reasonable choice in favor of the Constitution, would come in time to venerate it, no longer treating it as a choice they could take back.
A constitutional culture of this kind is the very opposite of the culture discussed above. It is the culture of which the Constitution is the cause, not the effect. It is deliberately produced even if unexamined and accepted through habit by later generations. Instead of replacing or opposing nature, this culture cooperates with nature, with the self-interest in ambition and security natural to human beings. It takes advantage of natural impulses and inclinations instead of denying them. It thereby admits a standard in nature by which to compare and judge regimes. The debate on the Constitution was over the form and direction of American politics thereafter; it was over the nature of the founding. A founding is a political beginning or principle that comprises the natural basis of the regime and allows it to be humanly chosen. We can live a life that is reasonable because it is based on nature and yet our own because it has its own culture that is not determined by nature.
To understand the enduring character of American politics is the third reason for returning to the beginning. Anyone who wishes to know about American politics has much to learn from contemporary events; but there is no substitute for careful reflection on the founding. Everything begins from the founding, and the subsequent changes have occurred to America as founded. Even the attributes of our politics said to have changed since 1787—democratization, heterogeneity, complexity, centralization, bureaucracy—were either set in motion then or took their particular character from the founding. Even when ineluctable necessities such as bureaucracy are imposed on us, we submit to them in our own way, creating an American bureaucracy. Here I have been speaking in Aristotelian terms because the American regime is not simply a theoretical, impartial republic modeled on mankind’s necessities. It has its own character and has made its own culture.
Abraham Lincoln described the relationship between the Declaration of Independence and the Constitution in biblical language (Proverbs 25:11) as the apple of gold in the frame of silver. The apple is the natural principle of human equality; the frame surrounding it is the conventional or cultural structure that displays the principle, gives it life, and makes it ours. The two together are a whole, necessary to each other. But they are also separate parts: one that in 1776 declared the principle, another that in 1787 made it work politically. Their separateness makes a point of the act of constituting, done with calm and, despite the heated words, with a certain noble elevation in both the deliberation of the Constitutional Convention and the debate over ratification afterward.
We can be glad that the Federalists won the debate. As I said above, by the standards of contemporary political debate the argumentation was unattainably higher on both sides. But the Federalists were clearly superior. The essential question between Federalists and Anti-Federalists was over the source of great danger to republics: does it come from the many or the few? The Anti-Federalists consistently (if variously) maintained the traditional republican opinion that the few are the main enemy of republics. But the Federalists disagreed with this bromide. They offered the paradoxical judgment that the many are their own worst enemy, that the bane of popular government, in the statement of Federalist 10, is “majority faction”—a phrase that sounds like a contradiction in terms to traditional republicans. To be sure, the ambitious few are also dangerous, but mainly because they can get the backing of an aroused majority. For their innovative view the Federalists were accused by their opponents during the constitutional debates, by Thomas Jefferson in the 1790s, and by later historians of lacking faith in the people, of being unrepublican. But they were intelligent republicans looking for ways to make republics more viable, and so raise them in the esteem of respectable opinion in the civilized world.
The Federalists accepted the risk of appearing to be doubtful republicans; they were a party concerned to reduce the partisanship of republics. In their Constitution they created an introspective republicanism not preoccupied with denouncing the enemies of republics but alive to the dangers from within the principle. In their view the worst faction in a republic was the one that looked like a republican majority, and they fashioned a republic that could defend itself against the republican danger, using “republican remedies.” Merely to mention the makers of the French Revolution evokes the contrast between American introspection—I will even say sophistication—and men who had no proper notion that republics too could be tyrannies. That thought combines the three reasons for returning to our beginnings, and it is still valid now.
- The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification, edited by Bernard Bailyn. Part One: September 1787 to February 1788 (1,214 pages); Part Two: January to August 1788 (1,175 pages). The Library of America, $35 each; $70 the boxed set.
This article originally appeared in The New Criterion, Volume 12 Number 1, on page 48
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