The Constitution as political theory
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The Constitution as political theory

October 9, 2019


GARY J. SCHMITT: Good evening everybody. Good
evening, and welcome to the American Enterprise Institute and our third annual Walter Berns
Constitution Day Lecture. My name is Gary Schmitt. I’m the program director for the
project on the Program on American Citizenship here at AEI. It’s a great pleasure to introduce this
evening’s speaker, James Ceaser, who is the Harry F. Byrd professor of politics at
the University of Virginia. It’s a pleasure for a number of reasons, the first being that
Jim is someone I’ve known since, God, late ’70s, and has been a friend ever since.
He’s also been a particularly good friend since I joined AEI, authoring essays that
I bludgeoned him into writing, being a key participant in a seminar series that I directed
on Tocqueville and China of all things, as well as volunteering – I should say – to
participate on advisory boards for various civic education projects we’ve run here. But the second and more important reason why
it’s a pleasure to have Jim give this year’s Berns Constitution Day Lecture is that I don’t
know anyone in academia today who comes as close to Walter in breadth of analysis of
the American regime. As you can read from the brief biography we’ve handed out of
Jim, Jim’s writings run from the philosophic to the meat and potatoes of governing institutions
and electoral politics. Like Walter, Jim has his head up, but his feet firmly planted on
terra firma. So it’s quite fitting that Jim would give this year’s address. Now, before we begin, four small notes. First,
I want to draw your attention to a paper that my program will be publishing tomorrow by
David Campbell of Notre Dame. The paper documents for the first time that in states with civic
exam requirements for high school graduation there is substantive and positive impact on
civic knowledge with the greatest gains among African-Americans, Hispanic, and immigrant
youth, and especially among Hispanic immigrants. And while many of you in this room may not
be surprised about that fact, the fact is the national debate over the efficacy of state-run
level exams has ignored whether assessments in civics enhance democratic education or
not, once upon a time a primary function of our public schools. So it’s a whole – we
hope that our program – (audio break) – plug. Second, even though she could not be here
today, I do want to thank publicly Ann Dias-Griffin, a former student of Walter’s, for her generous
support for this annual event. This is actually our fourth Constitution Day event, the first
being an address by Justice Antonin Scalia and a follow-on panel consisting of my colleague
Leon Kass, Jeremy Rabkin, and former head of AEI, Chris DeMuth that took up the arduous
task of discussing Walter’s own scholarly corpus. It was at that event that Arthur Brooks,
AEI’s current president, announced that succeeding Constitution Day lectures would
be named in honor of Walter. It was then that Ann, without any prompting, stepped up to
provide support for these events. Now, third, after Jim’s talk, we’ll have
time for a few questions from the audience, so please don’t hesitate to raise your hand.
We only ask that you wait for a mike and identify yourself. And then, upon conclusion of that,
the question and answer period, we’ll have a reception for Jim in the foyer afterwards,
where I promise you don’t have to identify yourself to get a drink. And finally, I do want to head off Jim’s
almost certain attempt to make fun of the fact that we are hosting this event on September
16th, not tomorrow, September 17th, which is the official federally observed Constitution
Day. But before he gets the chance to do so, I just want to point out that we’re starting
this event at 5:00 p.m. this evening. And as the Catholics in the audience would know,
we can fulfill our obligation to go to Sunday mass or a mass on a designated holiday of
obligation by going to service the evening before, as long as it starts at 5:00 p.m.
or after. So with that pontifical license in hand and
a broad interpretation of the First Amendment’s free exercise clause in mind, I now turn the
microphone over to friend and scholar, Professor James Ceaser. (Applause.) JAMES CEASER: Thank you, Gary, for that very,
very kind introduction and I’m happy you mentioned these other religious traditions
that holidays do begin the evening before. For mine, it’s quite the same. I’ll just
call this the Kol Nidre of Constitution Day. I also want to express my gratitude to Professor
Berns, who was, of course, my teacher of constitutional law many, many years ago at Cornell University.
And from him I learned what little I do know about the constitutional law. In fact, after
spending that semester, I can say, since that time that I don’t believe I’ve read a
constitutional law case from beginning to end, with the exception of Bush v. Gore for
technical reasons. And that was because having studied those cases from the time of the Warren
Court, I concluded that the decisions were important, but very frequently, in many of
the arguments, there really wasn’t much there. So I rely on friends to tell me which
particular opinions to read, but reading a whole case is much more than I can possibly
bear at this day. Well, the Constitution of the United States
is first and foremost a legal document. It’s serves as the supreme law of the land, establishing
the basic structure or framework of our federal government, determining the powers of the
federal government, as well as some of the powers of the states and delineating a set
of basic rights. Yet the Constitution has played another important role, far less remarked
upon, that is unrelated either to its status as law or to any connection it has to the
United States. The body of thought that went into developing
the Constitution and then into explaining and defending it during the debate over ratification
comprises a notable contribution to political theory. The American thinkers who were involved
in this task engaged fundamental questions of political life. They challenged a number
of well-known philosophical positions, and they offered new insights. The best of their
work, which found its deepest expression in the “Federalist Papers,” merits a place
alongside such classics in political theory as Locke’s “Second Treatise” or Rousseau’s
“Second Discourse” or Burke’s “Reflections on the Revolution in France.” One of the topics of reflection in constitutional
thought grew directly from the main practical business with which they were involved – making
a new government. The two questions that attracted attention were, first, what is the best recommended
way to go about forming a government. And second, how does a government, once formed,
influence or shape thereafter what might be called the public’s political epistemology?
This admittedly abstract term refers to the way in which people conceive of or process
the whole political world about them. Whether, for example, people claim to figure everything
out by their own reason or whether they allow some space for revering and venerating things
past and things noble. These two questions are quite distant from
current concerns relating to the Constitution, such as the proper scope of the president’s
power or the degree of protection that should be afforded to businesses claiming the right
of free exercise of religion. I can therefore proclaim with the usual academic pride the
irrelevance of the remarks to follow. In fact, pushing perversity still further, I can, in
the Constitution’s own language, solemnly swear or affirm to avoid mention this afternoon
of any of the major constitutional principles commonly referred to in public discussion,
whether it be separation of powers or judicial review or federalism or checks and balances. Further still, I pledge never to refer to
the text of the Constitution itself, neither to an amendment, nor to an article or clause,
nor even to a word or term. And this includes capitation, which Chief Justice Roberts plucked
from somewhere in the First Article to salvage the Affordable Care Act. Needless to say,
you will not hear a citation from any Supreme Court decision, current or past. Perhaps, then, it would be appropriate at
this point to pause in order to allow the lawyers and policy experts in the audience
to make a quick exit. Now, for those who’ve chosen to remain, who must be of a more theoretical
disposition, I should provide a preliminary point of clarification about the term “political
theory.” Political theory has been defined in a strict sense as the quest for truth or
knowledge about political things. It has been distinguished from political thought, which
is the exposition of political ideas and which might include advancing a series of arguments
to support a certain view or position, which is akin, say, today to tracts promoting a
liberal or a conservative line. Now, political thought may borrow arguments
from political theory, but its goal is less to advance truth or knowledge and more to
advance or further some political objective. It turns out that by the exacting standard
of what is political theory, most political writings, including many, many texts counted
as political theory, are not political theory. This is certainly so for many of the writings
defending the Constitution. The main aim of the “Federalist Papers,” a work written
during the ratification debates by Hamilton, Jay, and Madison, was to make the case for
the Constitution. Yet, it has also been widely recognized that this work in making a defense
of the proposed Constitution relied greatly on arguments and reasoning coming from political
theory and it introduced important theoretical ideas of its own. In a preface to the volume written by Alexander
Hamilton, he concluded his remarks as follows, “the great wish is that it may promote the
cause of truth and lead to a right judgment of the true interest of this community.” The “Federalist Papers,” to which I’ll
be referring today, has two other advantages to commend it. One is that it was connected
to actual events, and therefore compelled to address certain questions and issues that
arose directly from the practice of politics, some of which are not found in theoretical
accounts, where the theorist can shape and decide what he wants to talk about. The other advantage is that since the Constitution
in the “Federalist” was tied to an actual event that might occur, namely the adoption
of the Constitution, it hazards propositions of what would or would not happen, allowing
us, looking back on the work, to judge the merits of some of its arguments in light of
what did occur. We have, in short, a kind of controlled experiment for analyzing certain
ideas. Now, the first question about the preferred
or best way for how government should be made or formed is raised right at the outset of
the “Federalist,” in the opening paragraph of the book. The issue is stated in a very
long and complex sentence, a part of which reads, “it seems to have been reserved to
the people of this country, by their conduct and example, to decide the important question
whether societies of men are really capable or not of establishing good government from
reflection and choice or whether they are forever destined to depend for their political
constitutions on accident and force.” That’s not a sentence that Hemingway would
write. Setting aside some of the difficulties of this formulation, the basic issue posed
seems clear enough. There are two possibilities. Either government can come into being by reflection
and choice; that is, by some humans consciously making a plan to which people would then consent,
or governments can come into being by accident and force; that is, by chance and without
consent. There’s no doubt which of these alternatives
the Federalists hoped to see confirmed. If the experiment at hand worked; that is, if
the Constitution would be ratified and put into effect, it would support the claim that
human beings, using their reason and intelligence, can make good government and that this is
the preferred way, perhaps the only way, to make good government. Notice, too, that the matter being determined
here is not merely a local one, concerned with government only in America, but a general
idea that would settle a great theoretical question. For many years, I confess, I read
this passage in the “Federalist” without ever entertaining even the possibility of
the superiority of the alternative position. The position favoring reflection seemed so
obvious and clear as not to require any argument whatsoever. And in fact, at this stage of
the book, no argument is really offered. Far from being universally accepted, the position
supported by defenders of the Constitution was a matter of great disagreement at the
time and a few years later, in the aftermath of the French Revolution, it became a central
– maybe even the central point of controversy within political theory. I’ll dispense for
the moment with the dimension of whether choice is better than force and focus on the dimension
of whether reflection is to be preferred over accident. Now, on the side of reflection, there are
the works of so many theorists that deal with the theme of constructing government on the
basis of plans derived from philosophy or from some science of politics. This tradition
goes all the way back to Plato’s “Republic,” where city is constructed in speech. Of course,
it’s to be understood that some of these efforts were not meant as real plans or suggestions,
but models for instruction of some kind. Still, the idea of making government on the
basis of reason, ideally making it from scratch, has captured the imagination of theorists.
By the time we get to Rene Descartes, the first great modern philosopher, we find him
sitting in front of his warm stove in the midst of a cold winter in Germany, recommending
the building of a city just like an engineer, with the engineer using his reason to design
everything freely on level ground. But there is, in fact, an opposing view deriving
from a whole school of thought with roots in the political theory of Montesquieu and
Hume and which entered more explicitly on the scene in the speeches of Edmund Burke.
This view challenges the superiority of the idea of making and remaking government. It
does so not simply on prudential grounds that if a government is made, the project should
be executed with great care and perhaps only when absolutely necessary. Such arguments
are fully compatible with, and in fact were often made by those favoring the proposition
of making government by reflection. Now, this school that I’m referring to affirmed
the proposition that good government is more apt to result from growth and accretion, which
is to say in large part from something akin to accident. Of course, most proponents of
this position allowed for a modicum of human agency at the margins, where political actors
could inflect things a bit here and there, but it was an error, they said, and a dangerous
one to proclaim the superiority of the idea of wholesale making or as it was sometimes
called at the time, remodeling governments. As Burke observed in speaking of his beloved
constitution of England, which of course has no written constitution, but still, the English
Constitution, he said was not – I quote from him now – “formed upon a regular
plan or with any unity of design. It developed” – I continue the quote – “in a great
length of time and by a great variety of accidents. In parts,” he went on, “gradually and
almost insensibly the constitution accommodated itself to things. The very idea,” he said,
“of the fabrication of a new government is enough to fill us with disgust and horror.”
By this standard, a day marking the formation of the Constitution, like Constitution Day,
should be an occasion for mourning, rather than celebration. A national law should be
passed, requiring the flags be flown at half-mast, as a sign of our repentance, not only for
making a new government, but for boasting about doing so. Now, among the arguments in favor of this
Burkean position are these. One, the very act of conceiving or remodeling the government
has something fearful about it because it seems to presuppose a total central authority
able to make and remake. It endorses or underwrites, conceptually at least, the notion of a central
power without limits or restraint, at least at the time that the government is being made.
Once acknowledged and accepted, what will prevent this power from being invoked again? Second, human reason is unequal to the task
of erecting a plan of this magnitude. It’s just too big and complex a job. To cite David
Hume, “no human genius, however comprehensive, is able by mere dint of reason and reflection
to effect a project of this magnitude.” If, as some say today, you can’t make one-sixth
of the economy, what makes you think that you could make nine-tenths of a political
system? Third, the position favoring remodeling government
openly declared is destabilizing. Remodeling government sets a dangerous precedent. If
a government is remodeled once, why not just remodel it again, just as people are inclined
to tear down a house deemed too old or obsolete and replace it with something new and modern,
like the Chevy Chase, Maryland model of replacing every bungalow with a Mcmansion (ph)? But
whatever the merits of this approach in real estate, instability in political life on the
most basic issues can have dire consequences. The almost natural process of growth and accommodation
that Burke described and praised for the forming of government by accident is sometimes referred
to in textbooks of political theory as the organic model. It refers to an almost natural
process of development where nature is akin to what happens in biology, like the growth
of a great oak tree. With this, in some versions, we find an additional component: the idea
that one should therefore be partial to customs and habits that are our heritage. These embody
the customs of the past. In another version, there’s worship of the
principle of spontaneous order so beloved by those at the Cato Institute. Friedrich
Hayek loved to trace this notion of spontaneous order to the Scottish philosopher Adam Ferguson,
who gave the following succinct encomium to accident of a reflection. “Nations,” he
wrote, “stumble upon establishments, which are indeed the result of human action, but
not the execution of any human design.” This nest of ideas is also sometimes referred
to as conservatism. Now, this model stands in opposition to the idea of making, which
has no simple name, but which one might call the synthetic or constitutive model. It too
makes an appeal to nature, where nature often refers mostly to necessary relationships or
laws that the human mind grasps. Now, if the organic view is the definitive
criterion of what is conservatism, then it seems that America, at least the American
mind as sketched by the defenders of the Constitution, by definition cannot be conservative. This
is a position to which many English and continental conservatives have long subscribed, claiming
that conservatism in America is impossible. But accepting this would allow the definition
of a word to rule us tyrannically without our consent. Perhaps there’s another form
of conservatism that is as good as the organic variant. One fact, though, is certainly undeniable.
An important strand of constitutional thought, by underscoring and elevating the claim that
good government is made by reflection, has shaped some portion of the American mind.
There are many today who call for a redo of the Constitution. One supporter of this view,
Professor Sandy Levinson from the University of Texas, never ceases to quote from “Federalist
1.” And then he adds for good measure another passage from “Federalist 14.” “Is it
not the glory of the people of America that while they have paid a decent regard to the
opinions of former times and other nations, they have not suffered a blind veneration
for antiquity or for custom.” It’s probably fair also to conclude that
the event of passing the Constitution and getting it going, which was touted in the
“Federalist,” has had an impact on subsequent history of the world. Modernity, for better
or worse, was partly shaped in favor of attempts to make governments on the strength of the
American example. Now, these are highly broad categories. And
in reality, political thought and political theory wants to get a little bit beneath the
hood of such basic generalizations. And many have raised the possibility that there could
be a little less theory and a little more rhetoric in these two models than meets the
eye. It’s certainly plausible to suppose that many who support the idea that good government
is made by reflection would not deny that it might sometimes come about by accident.
And likewise, it is plausible to suppose that some who argue that good government results
from accident would not deny that it sometimes could come about by reflection. What is being debated here is in the disagreement
between the organic and synthetic views. It’s not really an argument about reality in the
full sense, but a dispute about doctrines. By a doctrine, I mean a general conclusion,
perhaps derived from theory, that is put forward publicly as a general rule and it is meant
to be an instrument active in the world that will influence the subsequent course of events.
Political theory itself is rarely rule-bound, which is to say it’s rarely doctrinaire. The thinking of proponents of the organic
view probably contains such logic as this: Because so much destruction, idiocy, and fanaticism
has resulted from comprehensive efforts to remake government, it’s best to support
a doctrine that good government results from accident. Some of the proponents of the synthetic
model might have in mind the calculation that because so much folly, ignorance, superstition,
and alike have been built into our legacies, it’s probably best to support a doctrine
that argues for making government by reflection. While constitutional thought came down initially
on the side of making, it occupies a distinct position inside this category. The authors
of the “Federalist” sought to do the most possible within the framework of the argument
in favor of making to take into account all the reasonable concerns raised by these organic
objectors. Furthermore, in a way that I’ll try to show later, it qualifies the synthetic
position and seeks to forge a kind of combination or amalgam between the organic and the synthetic
view. In short, we’ve seen this thus far only half of the “Federalist” full argument. I turn now to another facet of the question
of how governments are made, which is the theme referred to in the 18th century as the
Lawgiver, with a capital L, and which we today usually call the Founder. The process of founding
involves setting in motion the idea for a fundamental change, devising a plan for the
new order society, that is lawgiving in the strict sense, and then acting to put the plan
into effect. The founder, or it could be founders, performed some or all of these tasks and the
one or those who subsequently are credited with having done the essential work win the
sublime status and enter into the elite club of being known as founders. Before saying anything about political thought
on founding, it’s worth reminding ourselves how often we Americans speak about founding
and founders. It’s a huge theme of American discourse, academic and popular. And it seems
to be far more prominent here than it is the case in other nations. Our founders are generally
viewed favorably, although, as anyone in the field of higher education will know, there’s
no shortage of criticisms that depict the founders as defenders of wealth and privilege,
misogynists and racists. Either way, talk of – there’s much talk
about founding and founders in America. And we have monuments to the founders and streets
named after them. There’s a certain looseness in our designation of who we consider to be
founders, with the leaders of the Revolution and the makers of the Constitution usually
being grouped together. The names of some individuals from the Revolution, like Jefferson
and Adams, often receive more attention than those who wrote the Constitution. But the
creation of the Constitution is usually considered to be more at the core of the idea of the
founding and of the idea of founders. What is it that accounts for the prominence
accorded in America to the founders? Now, one answer might be that it’s the simple
result of the facts of history objectively considered. It is a reflection, no more, no
less, of how things actually took place. We speak so much of the founding and founders
because we had a founding and we had founders. They built it. But there’s another possibility worth considering.
Americans pay so much attention to the founders because of a theoretical doctrine introduced
in constitutional thought that elaborated the concept of founding, ascribed to it a
positive valance, and attached to it the making of the U.S. Constitution. This doctrine, which
begins with the previous insistence that governments are made, served to prime people to look for
founding and founders and to accord founders such an elevated status. Absent this doctrine,
we might never have seen the founders in the way that we do. In fact, we might not be calling
them founders today. This doctrine in favor of founding is set
forth in the “Federalist,” indirectly throughout the work, but specifically in “Federalist
No. 38,” which is a sequel to the first “Federalist Paper.” If government is to
be made by reflection, then there must be a maker or makers. “Federalist 38,” which
discusses the theme of the lawgiver, is one of the fuller treatments of this topic in
modern political thought, worthy of being studied alongside of surprisingly few other
modern works on this subject, among those which would be passages from Machiavelli and
Rousseau. Works by these authors discuss such figures as Moses and Romulus. The “Federalist,” likewise surveys some
of the great lawgivers of antiquity, including Lycurgus, the founder of Sparta, and Solon.
What is interesting about this discussion is that in addition to emphasizing the centrality
of the event of founding to politics, it places America’s founding – potentially, at any
rate, since the founding had been achieved. It places it into the context of these other
monumental foundings of the past. More than that, it begins to suggest that our founding
will surpass those foundings. Perhaps our founders will come to rival and replace the
founders of antiquity. More certainly, our theoretical understanding of the way to go
about founding, they say, has improved on the ancient theoretical understanding. I don’t wish to contend that there’s no
such thing as real history and that we only count as facts what theoretical doctrines
encourage us to see. The world is not that malleable. What I am instead suggesting is
that doctrines can influence the interpretation of reality. If the doctrine of constitutional
thought may have had the effect of building up founding, it’s even more evident that
other rival doctrines of modernity have had the effect – they’ve certainly tried – to
tamp down and downplay the idea of founding. This is evident in the organic position. Under
this doctrine, because governments are not made, but grow, there can’t be a maker.
The function of the founding and founders thus all but disappears and history is read
or interpreted so that accident or process in history replaces founding. And it’s not
just the organic doctrine that is hostile to founding. In the political theory from
which Americans otherwise borrowed so much – I’m referring to the thought of John
Locke – the theme of founding is also downplayed. It is replaced in part by an idea that societies
originate in a compact or contract, not by the efforts of some few persons. Liberal theory, in general, has little place
for founding and it has all but banished the figures of founders from its analysis of politics.
Students of the history of political theory might find it interesting to speculate on
why American constitutional thought elects to break on this point with so much other
modern thinking. Since founders and founding are so conspicuous in classical political
thought – it can be seen in the works of Xenophon and Plutarch, among others – the
temptation might be to say that American thought, in conjunction with the thought of Machiavelli
and Rousseau, is on this point more classical in character. It’s also possible to argue – and this
would be classical as well – that American constitutional thought, since it arises from
and it’s so enmeshed with actual politics, stays closer to the phenomenon of politics
than does organic theory or compact theory. It’s less doctrinal, meaning less inclined
to deploy ideas simply to change the world. Quitting these speculations, it is more important
to concentrate on why constitutional thought adopted its view of founding and what effect
this view has had. The “Federalist” account of founders, it seems, was meant to support
and endorse the idea of political greatness and to keep that idea alive inside of modern
American politics. The “Federalist” emphasizes, it certainly does not seek to hide or obscure,
the fact that political talents and virtues are unequal. The insistence on individuals of such high
rank in America is a paradox. The Constitution abolishes rank and formal titles and establishes
popular government. Yet those who created this government recognized and underwrote
the idea of hierarchy in the realm of political action. They stretched the idea of hierarchy.
Greatness is an idea that bids us to look up to something, something far beyond the
normal. The idea of founding keeps alive an aristocratic notion in American politics. As for the qualities that comprise greatness,
it’s difficult as always to supply a complete list. The “Federalist” celebrates the
courage, both military and intellectual, of the leaders of the Revolution. But it clearly
emphasizes another model, which is found in the prudent lawgiver. The lawgiver displays
both sagacity and a kind of persistence and boldness, which is illustrated in the account
of how the founders pursued the project of the new Constitution with such commitment
and almost beyond the limits of the law. The “Federalist,” therefore, is a kind
of modern mirror of princes in which the quality of the lawgiver become the model of virtue.
Now, exiting a moment from a discussion of theory, it’s interesting to consider how
much and how well the authors of this doctrine achieved their goal in the realm of practice.
America’s lawgivers are the only persons in the world today, excepting perhaps Gandhi
and Mandela, who are considered successful founders. The founders of antiquity have been
largely forgotten, largely eclipsed by the Americans. Among the moderns, those who have
vied for high status and may have held it for a time, have mostly fallen by the wayside. In the former Soviet Union, the outsized statues
of Lenin have mostly been torn down and their mighty stone ground to dust. The statues of
Vladimir Putin, shirt off and abs prominently displayed, have yet to appear. Mao, though
still formally credited as founder in China, does not supply the model for China. Even
in the case of Ataturk, the modern lawgiver in Turkey, who went so far in transforming
the habits and mores of that people, we are now seeing his project challenged and perhaps
dismantled. I’d like to turn now from the general idea
of founders and founding to the question of the way in which founding took place. It’s
on this score, as I mentioned, that the “Federalist” makes one of its boldest theoretical claims
by calling attention, and I quote, “to the improvements made by Americans on the ancient
mode of preparing and establishing regular plans of government.” So the Americans in
a way set forth the fact that they made an advance over anything in this theory of founding. There are, according to the “Federalist,”
three great differences cited between the Americans and the ancient mode for establishing
government. First is the number of founders, where the
ancients always lauded one single person, while the Americans admit the possibility
and proclaim a few or many. A few would be the principal movers I suppose behind the
Constitution or behind explaining it, like say Madison, Washington, or Hamilton. The
many would be every delegate who attended the Constitutional Convention in Philadelphia,
all of the mediocrities included. Second is the critical issue of consent. Most,
but not all, of the ancient founders relied either on armed force or superstition, which
is the kind of psychological force. The American mode relied on consent. Consent may have required
some compromises with wisdom. In fact, those today who in effect favor force in looking
back on the Constitution are those who would like to see the founders eliminate slavery.
But consent is key. Finally, the ancient mode, the third, did
not employ a written constitution, but the Americans did. Now, each of these issues that I mentioned
is worthy of a great discussion, but caught as I am between the Scylla of limited time
and the Charybdis of my own guilelessness, I’ll devote the rest of the talk to the
written constitution. The idea of a plan of government being contained
in a written document is a point now so widely accepted and taken for granted that it is
almost never noted or commented upon, and it’s seldom seen as an innovation. There
are, of course, a few who point out that one can have a constitution without having a written
document. The United Kingdom, or what soon will be left of it, has no written constitution,
though it is the oldest constitutional government in the world, and many consider it to be the
most constitutional of constitutional governments. Even here, what has largely been lost in the
whole discussion is the case that once was made against the wisdom of a written constitution,
which at least early on was a pretty important argument. A discussion of the reasons why
you wouldn’t have a written constitution is for another day, but ought to be resurrected. Yet in looking back to the constitutional
period, in this case going back to right after the Revolution and what happened in the states,
we see the development of written constitutions, and we see that counted as a major innovation
and of great theoretical import. Thomas Jefferson claimed, and I quote, that “Americans were
the first of the nations of the earth which assembled its wise men peaceably together
to form a fundamental constitution, to commit it to writing, and to place it among their
archives, where everyone should be free to appeal to its text.” And strange as this
claim sounds and implausible, I’ve not heard of it being definitively controverted. Proceeding by means of a written text was
a necessary innovation given the prior idea of public consent. The public had to consent
to something, and it was only by seeing that thing; that is, the written text, that people
assembled in different places in different times could conduct the exercise. This represents
in fact the actual history of the event in which the text of the Constitution was read
and debated sometimes provision by provision in the state ratifying conventions. Yet the significance of a written text went
far beyond the requirements of the procedure of consent. Conceived of as a written supreme
law, the written text now became the highest authority placed above government, the authority
of government derived from the Constitution and no office and no official could claim
to exercise any power except as that power was consistent with the Constitution. The “Federalist” speaks of this innovation
as follows: the important distinction so well understood in America between a constitution
established by the people and unalterable by the government and a law established by
the government and alterable by the government seems to have been little understood and less
observed in any other country. That’s another way of saying it’s quite an innovation.
The principle here is that will, even the will of the highest officials, is subordinate
to written law. The source of this law lies in the consent
of the people as it was conceived in the process of ratification. This process proved to be
an event in the realm of practice that has entered into and altered political theory. One of the great inventions of modern political
thought was the idea of the social contract, which is prominent in the works of John Locke.
The idea of the contract was widely considered as the juridical source for modern legitimate
government. But as its critics like to point out, this idea was only a hypothesis, not
an actual fact – something written about in books but which could not be located literally
in history or practice. The use of popular choice in adopting the
Constitution took a hypothetical theoretical idea and transformed it into a living or actual
legal institutional reality which has played an important role in the development of modern
constitutionalism. Yet as important as the idea of a written constitution is, still more
important is the way in which people have come to regard that document. Just what kind
of thing or being is a written constitution and how is to be considered? It is on this
point that constitutional thought took one of its most significant and innovative steps. From a purely legal standpoint, a written
constitution is higher law. All agreed on that. But though higher law is it merely law
or just law or is a written constitution a text having a different kind of status, a
document that can claim to be regarded with reverence and veneration, a text that can
be looked up to and deemed to have meaning beyond its black letter law, and that, in
addition, can play some role, a deeper role, one that endows the government with a degree
of respect and then helps to give birth to a community and to supply a bond of attachment
for the citizens that holds the nation together? It is this proposition that is put forward
in “Federalist No. 49.” It is here that the idea is promoted of attaching reverence
to the Constitution and through it to the whole structure and plan of government and
of the founding. This proposition is not itself found in written law. It is nowhere set down
in the Constitution that is should be revered. It was a product of constitutional thought,
an unwritten law to be created by a theoretical doctrine. Here is another instance where many today
find it difficult to see and grasp this point. Since many have already come to consider the
Constitution in a certain way as something to be looked up to, a little bit anyhow, yet
there’s nothing intrinsic in a written document called the Constitution that would make it
be regarded in any way with veneration. There’s nothing logical that connects reverence or
veneration to what, after all, are only words on a page. Evidence of this contention may
be found by consulting people’s posture towards other constitutions today. Even today,
it’s a strange kind of person who would profess reverence for, say, the Constitution
of Illinois or New Jersey. These constitutions do not have the status. Furthermore, there’s this historical fact:
I’ve spoken with many historians who have told me that there was no idea and certainly
no expectation in 1787 that anything like a sentiment of reverence would be attached
to the Constitution. Constitutions were simply not yet endowed with anything resembling this
quality. The doctrine of attaching reverence to a written
constitution was hotly contested. Thomas Jefferson, who did believe that constitutions were higher
law, nevertheless strongly protested the notion that constitutions should be considered from
the perspective of veneration. His proposal that all constitutions should expire after
19 years, incidentally an idea that is found in some state constitutions, that may seem
odd or Quixotic to us. But it was not regarded as such at the time. Constitutions, he believed,
should change and keep up with the times, just like any other law. A constitution was
higher law, but still ordinary law or merely law. What were the reasons for moving to attach
a degree of reverence to a written document? One of them is surely practical, though practical
in the largest and most expansive sense. It derived from the observation that pulling
off the feat of writing and passing a constitution was highly difficult. Those who took part
in this event were sensitive, even awed by how challenging this task was, and they believed
it was unlikely that it could ever easily be pulled off again. Certainly, the risk of
trying to do so could destroy the community and create instability in the process. Better
then to lock in the gain and by endowing the constitution with reverence ensure durability
of the constitution. This durability would connect the American people also the founding. Yet there was another reason for asking for
the Constitution to be venerated. It was the importance of introducing the idea of veneration
itself as a mode of thought in the public mind. Instead of veneration being introduced,
therefore, to maintain the Constitution, the Constitution understood in a certain way becomes
a vehicle for introducing and encouraging veneration. At bottom, therefore, the issue
was one of shaping the public’s political epistemology. On one hand, there was the idea that public
political epistemology should be simply a rationalist one. As Jefferson wrote, “No
experiment could be more interesting than that we are now trying and which we trust
will in the end establish the fact that man may be governed by reason and truth.” This
is the idea that was introduced by the “Federalist” at the outset in the claim to make government.
This view was never repudiated, but it is surely modified and qualified. The “Federalist” wants a people that is
in part shaped by the idea that reason should govern but also a people held in check by
a capacity to revere and to venerate. No doubt these two cannot be fully reconciled. They
haul and pull at each other, but perhaps the best place to be is somewhere suspended between
them. For this reason, I chose, upon solemn reflection,
to place “Federalist 49” on my license plate. By this means, I hope to remind all
on the road of the importance of fidelity to the Constitution. I wish to remind especially
the willful who tailgate of the need for restraint. And I wish to remind all of the importance
of veneration. This is the proper spirit I believe in which to observe Constitution Day. Thank you. (Applause.) Q: David Brezel (ph). I’m here as a private
citizen. You mentioned veneration of the Constitution historically – as a desire by the founders,
but historically when did that develop in a sense? Today we have this veneration for
the Constitution. Was that the same thing in 1845, before the Civil War, say, or early
on? Could you give us some historical – MR. CEASER: Yeah. I believed the doctrine
proposed in “Federalist 49” began to take hold I can’t say exactly when, but it is
interesting to look at the point where it becomes really hotly debated, which is in
the late 19th century and into the progressive period. It’s at this point that scholars
looking back – and I’ll something about these interpretations in a minute – began
to speak of the emergence of a cult of the Constitution. I think Edward Corwin among
others spoke of this – that the Constitution was so revered that it closed off all rational
analysis and, of course, made change to the Constitution impossible. It was likened, therefore
– the word cult is important – to a cultic belief, a belief which shut the door on rational
thinking. And, of course, this is what I mean about
public epistemology. What really is at stake here, if you venerate too much and revere
too much, you no longer can think rationally. And that was the argument of Jefferson, why
he didn’t want to go down this path. It would destroy or undermine how people think
and change the mode in which they think and process reality. So this became a strong complaint throughout
progressive literature, decrying this thing called the cult of the Constitution. A long
book and a very good book is written on the history of the Constitution by Isaac Kramnick.
It’s called the “Machine” that – something like that – “Machine That Works by Itself.”
I forget the exact title, but it’s a very good book. And, in this book, he began with
this notion of the cult of the Constitution because this was the prevailing view. And
he set about looking for it, and meticulously goes through all of this period of time and
he can’t quite find it. He doesn’t find anything like a cult. Of course, he never
disputes the idea of a cult, but he’s a little troubled at the end of six chapters
showing that there was no cult. It turns out I think pretty clearly that the
notion of a cult of a Constitution, a veneration to that extent – to the point of irrationality
– was really a creation of those who opposed the Constitution, and wanted to make the idea
of support of it so abominable as to undermine support for the Constitution. It was a great
rhetorical ploy. If there anything that begins to resemble
more cultic elements of the Constitution, it probably was in reaction to this accusation
of the cult of the Constitution by the progressives. So we have the building here in Washington
built during – Hoover, I think, called the temple to the Constitution. That’s the National
Archive building. And, you know, if you look at the iconography of that building, you come
up the steps and – you used to – you come up the steps, you enter, and it’s like the
holy of holies. And there, on a pedestal, in the art, there’s nothing but the Constitution
itself. And perhaps then in the 1920s and ’30s, in reaction to the progressives, you
did get some cultic like elements, though I doubt not really that strong. Andrew Ferguson wrote a brilliant article,
as he usually does, in the “Weekly Standard” a month or so ago about the new entrance to
the archives. I say this now because I was a member of the archives commission under
President Obama for one year and President Bush for four years. I have a great interest
in the archives, but they redid it, the archives, and I think you have to enter through this
display, as he describes it, where you read element – every element of how bad the founders
were or something. And then I think you come in, as he has described it, and instead of
looking up at the Constitution, you look down at it. I haven’t yet visited the display
so I can’t confirm that. But that’s dismaying. That would truly be the end of a cult when
you look down on something. So that’s a little bit the history, so far
as I know it, of how this developed. And I can’t say exactly when it started but certainly
you get an element of this in Lincoln’s Lyceum address that was already evident in
the 1830s. And the strong movement of the American Whig party to qualify a rational
perspective and inculcate into the American mind the habits of reverence and veneration,
that’s a large part of the – you can say the writings of some of those in that party,
to make that a far greater theme. And, therefore, an open critique that took place at the time
on enlightenment thought and an open critique of what was even then called Lockeanism (sp),
which was a critique that was so prominent in the 1830s and ’40s. Q: Well, my question is in regards to – MR. CEASER: Where are you? Oh, there you go. Q: Yeah. Sorry. I’ll stand up. It’s better.
My question is in regards specifically to the written Constitution. Now, I was sort
of, you know, overhearing what you’re saying and sort of listening a bit carefully, and
I know that there was a debate I believe between I want to say Madison, and it was Madison
and Jefferson between whether or not the Constitution should actually be written. And I’m curious
like what was sort of the nature of that debate in particular. OK. There was a debate between Madison and
Hamilton, a very famous one, which began in “Federalist 49” and which they carried
on in conversation and in writing about whether the Constitution should be written – rewritten
automatically after I’d say one generation, Jefferson favoring the idea that the Constitution
should be rewritten because, as I said, it’s higher law while it’s in effect, but it’s
ordinary law. It plays no other function than law. And so he said, since the human mind
will progress, we’ll just redo it in light of circumstances. There’s no reason to revere
a constitution. And Madison – it’s in reaction to that
in “Federalist 49” that Madison makes the argument in favor – the arguments in
favor of an enduring constitution, an enduring constitution which is in a way promoted by
reverence towards the constitution. So they never disagreed on the fact of writing the
Constitution, but on what form it would take, whether it would be perpetual or short-lived. On that theme of writing a constitution, that’s
a little strange. But there were people, maybe not in America, who thought that writing a
constitution was a pretty poor idea. A French conservative, (true ?) conservative, Joseph
de Maistre went after the idea of a written constitution calling it an absurdity and a
very poor idea. And there are some good reasons why there
might not be – one might not want a written constitution that I can think of. I mean, one idea is that a constitution sketches
the government but a government in certain circumstances might never be able to act for
reasons of state in accord with the constitution. We run into this problem all the time in written
constitutions. What happens when all the good rules of the constitution can’t be maintained
and yet society continued to survive? So you have to break the constitution. So that undermines
the idea that the constitution really can shape a government or so some might argue.
And this is Schmitt’s argument as well about emergency. In an emergency, the law has to
take second place to just the facts of the situation. Another idea I would think of against the
written constitution is this: there long had existed notions of higher law. It just that
it wasn’t written. The higher law was a natural law or God’s law. It wasn’t written
down, but in constitutional regimes the king, or whoever it was, was bound in theory by
the higher and natural law, which was never written down. That was the problem with it;
it was vague and could be interpreted. Still, it was a check on power. You could say the
idea of a written constitution maybe replaces the higher or natural law with merely written
law. So is there a place for natural law inside
of the American Constitution or by writing the Constitution have we made written law
the supreme master? This came up in the Thomas hearings initially – can you say that there’s
some idea of natural law that’s active? And then, of course, maybe the worst thing
about this, once you have written law, the ones who are most qualified or think they’re
most qualified to interpret it are, of course, the lawyers. They’re the interpreters of
law, whereas under natural law, the ones who are most qualified, supposedly, to interpret
it, would be philosophers or theologians. So they’re in a way written out of business
and they get corner offices in the universities with unclean halls and the lawyers get a higher
status because they’re the ones with the stamp of approval. So, anyhow, to make a long story short, there
are lots of different reasons why maybe writing a constitution isn’t a good idea. Some of
them are implicitly I think supplied inside the “Federalist” papers itself, maybe
the same reason why you don’t want the Bill of Rights could be applied to the Constitution,
maybe, or something like that. Q: Yeah. Kenneth Rothschild. Isn’t there
a way that we can venerate a constitution, not necessarily ours, and a constitutional
process, and also have that respect for that – for a constitution where we can go on
and analyze whether or not ours is working as well as it could be, because if we don’t
go back to the process of what are the objectives of the constitution, what is a decision-making
process – so my question to you is in your culture, there doesn’t seem to be this reflection
of whether or not our Constitution is truly serving the needs of today, and we get carried
away too much with the veneration of the piece of paper and not enough with the process and
the fact of developing a good, workable constitution? Yeah. Well, there’s a judgment, but I certainly
agree with you. I mean, too much veneration, simple or blind veneration, a cult prevents
you from being able to question or think. So if that were the sole component of what
I call the public’s epistemology, that would be a severe problem. So I was thinking there should be a balance.
There’s a strong emphasis on reason, and this is appealed to by those who want to change
the Constitution, and a strong emphasis or some emphasis on veneration. And I think that
if you consider this is probably the best that you can do, so either one by itself possesses
danger. Q: (Off mic.) Well, there was just a meeting of the Federalist
Society, for example, proposed the idea of rewriting the Constitution. I think, you know,
there’s veneration and then there’s something we call reason that supports veneration. Veneration
is something that maybe doesn’t demand reason, but you – veneration could be reasonable,
that is you can reason – some can reason to why they want to support veneration. And
the answer might be Harry Reid and Nancy Pelosi. They would be delegates to a convention and
leaders, and the question is could they do as good a job as the people in 1787? So it’s fear of what could be opened that
may make some people rationally push the object of veneration, fearing the quality of the
minds that would redo the Constitution and their ability to be able to really make improvements.
I mean, the great question in political theory is what’s always been called the question
can you get consent for wisdom? And the answer is it’s pretty darn tough to get. It can
only happen rarely. And that’s one of the arguments of “Federalist
49.” They say we had all of the circumstances operating in our favor that you can imagine
in 1787, and it’s rare that those circumstances will ever occur. We all hated the British.
We all just came out of the Revolutionary War and felt a little bit good together. And,
on top of that, we had George Washington. Those are conditions which will allow something
like this to go through under the guidance of intelligent people. Put yourself in the future: you don’t have
a common enemy you hate as much. Your people aren’t as good and their minds aren’t
as good. That’s for sure. And so this would give you pause. So one of the ways that reconciling these
two has been spoken of as rational veneration, which people speak of, but rational veneration
can only take you so far. Rational veneration is the veneration which the few understand,
but veneration is really what the many are engaged in. Q: Thank you. Darryl Chandler (sp). Isn’t
it in practice that there’s really very little difference between the constitution
that’s created and a government that grows organically? After all, what we have today
governing us are our Constitution with a Supreme Court that acts in a way that was never expected
and expanded presidential power and a commerce clause that wasn’t intended to act the way
it does shows that we don’t have what we had? And, on the other hand, in Britain, they
have an unwritten constitution that’s nearly written and, in fact, is almost the same as
our Constitution? Yeah. On the last point, I would dispute whether
the British Constitution is almost the same as the American Constitution. They’re both
liberal democracies and everything like that, but they certainly have different ways of
operating that are significant. Though I would agree with you that there have been some ways
in which you’ve seen a convergence. I mean, the prime minister used to be within the cabinet,
and now at least he tries – as long as he’s in office, he tries to be like a president
and relates to the public more as a president, as a single leader, diminishing a little bit
the cabinet. So I dispute that, but, of course, you’re
right that there’s some interplay between writing or organic development. I wouldn’t
doubt that. And our current Constitution today, in practice, is some combination of the two.
And we admit that, even members of the Supreme Court seem to admit that when they say this
really is unconstitutional but to undo it would be to undo a lot of precedents, which
they at least sometimes admit to. So I don’t dispute the main point. But I
still think that the written Constitution structures, still the main features of U.S.
government and provides the basis for at least its main components. And why now, despite
all the dispute about the powers of the president, there’s at least some pushback from Congress.
The reason they push back, or some of them, in part is on the basis of the Constitution,
so we’ll see what happens because we need a basis for making a claim. It’s not self-enforcing
but a basis for making a claim, and certainly the Supreme Court has powers based – deriving
from the Constitution that it’s able to exercise despite what others think. So I think
the written element is still pretty important. Q: Hillel Fradkin. Jim, speaking about the
question of veneration and the question of the founders, so the veneration – there
was veneration of the founders, not of the document itself, it seems. And that veneration
was presumably attached to their claim, which you cited earlier, that they had a special,
unique insight into the necessities of popular or republican government that was better than
anyone else’s in the past, based on a lot of solid evidence that republican governments
failed in the past. So it struck me that, if it is the case that
their account in the “Federalist” of what the liabilities and vices are and what they
have done to address them is genuinely superior, then they’re entitled to the veneration
and we’re entitled to venerate them and the document that they produced. But the question, therefore, looking at what
they claimed and what developed over time, is there something you think that they seriously
missed about what would be the liabilities, the problems of this government? And, if not,
then they’re entitled to their claim and we’re entitled to venerate them. Well, I never suggested that they weren’t
entitled to this. I just said that they point out indirectly because after all they’re
modest men publicly and they didn’t begin, like some others, they don’t begin every
sentence with “I.” But surely the – if you read between the
lines, you see that they have set up a doctrine of founding independent of what they did,
which is massive and claims that to elevate this principle – that was part of the point
I was making is that they really claimed that this was a founding of the first order of
magnitude, as important as anything we’ve seen historically, et cetera. So they built
up the idea of founding so they also, of course, let it be known indirectly that they’re
entitled to the idea and the veneration which they stipulate should go to a founder. As for any mistakes that they had in all the
Constitution, there probably were a few. I wouldn’t want to begin by saying exactly
which one. They never quite worked out the issue of the relationship of the federal government
to the states. The question is whether the enumeration of powers is a plausible way of
dividing the powers up in perpetuity that would work. And it hasn’t quite worked in
part by its vagueness itself right from the beginning and part by amendments which have
come in and changed things. But I’m not sure that that worked and I’m
not sure that Madison believed an enumeration ever could work as a method really of restraining.
I think he was looking for other mechanisms, but that, today, in my view would be, you
know, a huge – one of the largest constitutional problems – the notion really of a significant
role for the states in many areas, and areas which I think commonly would have been understood
to be within the province in the state is just easily swept aside. In fact, sometimes
it’s swept aside without even people thinking that they need to argue it. It’s astounding to me how many, for example,
take the step of the government slowly moving down the path of setting a national curriculum,
which is going to be the outcome of where we’re going without even worrying about
the issue of constitutionality. It’s all debated on the issue of policy, the policy
reasons for and against, but the major constitutional issue is simply forgotten or set aside and
that applies to people on both sides of the political aisle. Not only might the founders
have dismayed by this but certainly Alexis de Tocqueville would have been that this isn’t
raised, because as you take power away from any entity, then you take away the incentive
to participate and be concerned about it. Well, please join me if not in venerating
Jim’s presentation, at least giving him a good hand for it. (Applause.)

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  1. JUSTICE was entrusted to the Judicial Branch which has failed to acknowledge and accept that the judiciary has been undermined by state supreme court actions which has affected every court in the country and caused the current Constitutional Crisis.

    http://work2bdone.com/live/2014/09/the-constitutional-crisis-the-cause-and-the-resolution/

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