Jonathan Cohn

Do the Founding Fathers' Views Still Matter?

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Via Ezra, I very much enjoyed Lexington’s discussion (in the Economist) of Framer worship, Founder worship, and Constitution worship (second link is to his print column, which I won’t discuss here until the end, but it’s really highly recommended -- excellent stuff).

Lexington leans on a lecture by Michael Klarman of Harvard Law. Having not read or heard the lecture, I’m reacting only here to Lexington’s summary, so my apologies if I don’t do justice to the original. It’s an interesting argument to think about, but I think I have a bit of a dissent. Lexington:

Professor Klarman made four main points about what he calls “constitutional idolatry”. They are (1) that the framers’ constitution represented values that Americans should abhor or at least reject today; (2) that there are parts of the constitution America is stuck with but that are impossible to defend based on contemporary values; (3) that for the most part the Constitution is irrelevant to the current political design of the nation; and (4) that the rights that are protected today are mostly a result of the evolution of political attitudes, not of courts using the Constitution to uphold them.

Point (1) is surely unarguable: the protection of slavery, the restriction of suffrage and so on.

OK. Point two I think is certainly correct, and as Klein points out is actually shared by the amendment-happy Tea Partiers and other Republicans, even if they might disagree with Klein, Lexington, and Klarman about which parts are hard to defend. Point four is an empirical argument about the effects of court decisions...I know of the academic debate about that, but don’t know enough to really endorse either side (I suspect the truth is in the middle, but, you know, isn’t it always easy to say that?) That leaves points three -- the relationship between the Constitution and the actual functioning of the government today -- and point one, the alleged abhorrent values embedded in the document. I’ll take #3 first.

Is it true that “for the most part the Constitution is irrelevant to the current political design of the nation”? Here Lexington (for Klarman) talks about the administrative machinery of the government, but he might as well be talking of political parties, or the press, or interest groups, or the ways that the each of the Constitutional branches performs legislative, executive, and judicial tasks. That’s true. Add it all up and the actual functioning of the American political system isn’t easily recognizable from a literal reading of the Constitution. And yet...the reason that things work the way they do, with dispersed and multiplied power, and separated institutions sharing powers, and all the rest of it, is in my view fundamentally tied to Constitutional design. For example, the fact that the American bureaucracy is more political (in the sense of partisan and electoral politics) than bureaucracies in other democracies is a direct consequence of the mixed masters the Constitution gave the “executive” branch. So while plenty of our current institutional arrangements evolved over time, I would strong argue that the core political theory embedded in the Constitution is quite relevant to how they evolved, and the institutional arrangements detailed in that rulebook are quite relevant today.

Now, to the much harder case, regarding the values of the constitution. Do “the protection of slavery, the restriction of suffrage and so on” mean that “the framers’ constitution represented values that Americans should abhor or at least reject today”? I’m not so sure. It is certainly the case that many of the framers had values Americans today abhor and should and do reject. I tend to support those who argue, however, that most of those values were not, in fact, found in their Constitution (and are certainly not in ours, which contains the Civil War Amendments, among other improvements).

Steering away for the moment from race, think just about the question of democracy. Yes, the Framers as a group were afraid of what they thought of as democracy; feared the masses and did nothing specific in the Constitution to enfranchise them; and had ideas about citizenship and virtue that were interesting but also deeply problematic (interested? Want to read something terrific? Try Hanna Pitkin, Fortune is a Woman). Yet it’s also the case that the ideas of self-government they derived from liberalism and republicanism turned out, in practice, to be intensely democratic. In other words, whatever they thought about “democracy” at the time, and whatever their own personal prejudices about elites and masses may have been, what they actually put into the Constitution was extraordinarily democratic. That’s not only true in the sense that it was amazingly democratic for its time (which it was), but in that whatever they thought they were doing, what they actually did was to create self-government. In other words, the values of the Constitution are in my view democratic, even if we should and do reject the anti-democratic side of the Framer’s values.

But, yes, race. The Constitution protected slavery, no question about it. Still...I’d argue that even there, the values of the Constitution are not values of racism and dehumanization -- not even the odious 3/5 clause. The values of the Constitution are pragmatism and compromise in the spirit of self-government among real people in the real world. The values of the Constitution say: in a democracy, in true self-government, one sometimes has to learn to work with bigots, with really hateful people, and find a way to keep things together anyway. Now, that’s a tough lesson, and it will without a doubt lead to mistakes...there’s no question but that Americans who were not themselves bigots have, over time, made many mistakes of pragmatism and compromise that never should have happened. But I’m not unhappy that the Constitution forces us to see that self-government involves making terrible choices.  The alternative is a kind of happy-talk democracy, in which we pretend that The People are good and pure, and that if only we properly listened to The People then everything would be hunky-dory and flowers and rainbows. Democracy, by that conception, is equivalent at all times with what’s good and right. The Constitution, however, says: no! Self-government means nothing more than self-government, and sometimes that’s going to mean tragically horrible choices. Believing in democracy -- really believing in democracy -- means accepting that abhorrent things are going to be done in your name, because you are a citizen, not a subject. Even worse, believing in democracy -- really believing in democracy -- means that sometimes you will have to grudgingly support abhorrent things because the alternative is something even worse, and because, as a citizen, you have to choose.

Of course, that’s not the final word. It’s also a Constitutional value of self-government that if you lose this round (or find yourself having to “win” a terrible compromise), you can move forward and try to do better. You can find better politicians, convince more voters...you,you, can try to improve things. Self-government doesn’t mean that the bigots lose, but it does mean that you can educate people, you can find allies, you can choose the party that you believe fights for justice, and if it doesn’t you really can stand up and change things. Or at least you can try. The Constitution reminds us that actual people, part of We the People, supported slavery and “had” to be bought off if the United States of America was going to happen. That actual people, part of We the People, have been bigots and won plenty of battles, with terrible and terrifying consequences. But also that actual people, part of We the People, fought back and won some battles of their own. And we can remember the specific elections and candidates and political parties in which those battles took place.

Last bit...I want to think a bit more what Lexington says about one aspect of the Constitution:

[Tea-partiers] say that the framers’ aim was to check the central government and protect the rights of the states. In fact the constitution of 1787 set out to do the opposite: to bolster the centre and weaken the power the states had briefly enjoyed under the new republic’s Articles of Confederation of 1777.

I think that’s somewhat, but not completely, true. Madison and Hamilton may have wanted to weaken the power of the states. What the Constitution actually does, however, as Hannah Arendt pointed out, isn’t to weaken anyone’s power: what it does is create power. That’s the secret of “separated institutions sharing powers,” and the secret of federalism; by creating many different institutions that matter and that can do things on their own (and/or with the cooperation of or in rivalry with other institutions), the system as a whole is far more energetic and dynamic than any one hierarchy could be. Not to be too sappy, but in this sense “Yes we can” is one of the most important values of the Constitution of the United States of America. We the people can do all these things (Establish justice! Promote the general welfare!), by creating a government that represents us and can do all these things. 

So, yes, the Framers had all sort of values that we can and do reject. But for whatever reasons, the Constitution they created through a spirit of pragmatism and compromise doesn’t, I don’t think, stand for those values. The real values of the Constitution? Those, we can admire. 

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