Tuesday, March 13, 2018

The Founders Series Part 2

Founding Fallacy

In 1787, a tall, strongly-built man with powered white hair, in period dress, descended from a hill in Philadelphia, and, in a voice that sounded remarkably like Charlton Heston’s, handed down two tablets containing the Constitution and the Bill of Rights. The multitudes cheered; many fell to their knees in awe and gratitude.  Timeless words, hewed in stone, expressing all the accumulated wisdom and truth, for all eternity. 

You have to admit, it would make a great movie. 

One of the peculiarities of the way we think about our history is our conflation of the drafting and signing of the Declaration of Independence, and adoption of the Constitution.  It’s actually the Declaration that made the film—a musical.  It’s July 4th, 1776 (actually, July 2nd) and there they all are, in the Trumbull painting, stout of character and resolute.  Tallest amongst them is Jefferson, author of the powerful words “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

I love that image.  I know what preceded it was a year of listless and pointless debate, as George Washington’s Army, under-funded and under-supplied, did its best to stave off crushing defeat.  I know there was very substantial opposition to the idea of independence from many of the people in that room, and they mirrored the doubts of the population at large. John Adams was obnoxious and disliked, it cannot be denied.  And I know that the moment itself would not have been possible without a shameful tabling of the issue of slavery.  

But still, it seems to belong to me—and even the reason my grandparents crossed the ocean a century ago to come here—the singular moment in time when “We” stopped being subjects of a distant King and became possessed of unalienable rights.  It is the moment when we owned our own destinies.  Jefferson’s words are simplicity itself, and immutable. From this date henceforth, we are free. They marked an ending, and a beginning.

That is not what occurred with the adoption of the Constitution.  The Constitution is an acknowledgement of the limits of freedom.  What Washington, and Madison, Hamilton, and Jay understood was that the right to say no to everything, to go your own way on all points, to always be governed by your personal self-interest, whether the “you” was a person, a town, or a state, was incompatible with the growth of a nation. To the contrary, they believed that the 13 original states inability to act in concert created an existential risk to the very idea of freedom itself.   The British surrender at Yorktown and Treaty of Paris notwithstanding, the Brits really weren’t going away, and the rest of Europe took little note of us.  This had to be fixed.

So, if the Declaration was a glorious Big Bang, the Constitution began the organization of the galaxies, solar systems, and planets.

That one step—organization out of disorder, meant, by definition, that a lot of power was passing from one set of hands to the other.  Every signer of the Constitution had lived under a monarchy, and the monarchy could act decisively without additional consent.  The act of political regicide that was the Declaration released those restrictions and dissipated that power.  Now, the people who came to be called Nationalists (and later, Federalists) were proposing to reconstitute that power, only in a form that was more representative.

The Founders Find The Invisible Hand

There is a core incongruity at the center of the Constitution.  It might even be described as a core incompatibility. By every historical example available to the drafters at that time, it shouldn’t have worked.

Republics, to the extent they existed, had either grown large, autocratic, unwieldy, and then collapsed on themselves (like the Roman Republic), or remained small and un-influential, like the numerous Swiss Cantons, each of which had their own armies, border controls, and currencies.

In effect, Madison, on behalf of the Nationalists, was arguing three things, all of which were open to dispute.  The first was that the system created by the Articles wasn’t working, and the nation was the lesser for it. The second was the reason the Articles weren’t working was because of the weaknesses of the republican system: The “democratic” elements that existed in each state—local government, a state legislature, a chief executive, bred insularity and a tendency to be dominated by special interests.  Madison abhorred factionalism.  But the third was a peculiar elide.  The same system that did not work on the state level could and would work if applied nationally.  

There was obviously vigorous “political” opposition. The larger and more powerful states liked their heft, and the smaller ones liked their autonomy.  In their respective communities, within their fiefdoms, the new structure might have had some flaws (a bankrupt national treasury and unpaid soldiers came to mind) but, at home, it looked pretty good to them. State government was certainly more representative and less dictatorial than a distant King, and it was unquestionably more representative of their interests.

But, even if you agreed, politically, with the first two of Madison’s points, where is the intellectual justification for the third? If each state was an example of a smaller form of republic, with an executive and a state legislature, and local municipalities, all tending to local interests, why wouldn’t that same lack of broader vision also apply to a Federal Government?  In fact, why wouldn’t a more powerful central structure amplify the very shortcomings Madison was critiquing—more factionalism, more pettiness? 

David Stewart, in his recent book, “Madison’s Gift” says Madison’s solution is “mechanistic, suitable to an age in which clockworks were a powerful metaphor.”  In effect, Madison would build a better mousetrap, where systemic checks and balances would create an environment of vigorous debate, followed by both consensus and decisiveness. 

Stewart’s formulation is in line with most contemporary evaluations—the Constitution as a marvelous and enduring machine, begun as a contract, or better yet, a compact, between consenting adults, self-correcting and perfect.  As a lawyer, it appeals to my sense of order and of bilateral obligations. 

But, I don’t find it fully satisfying.  Madison was too intelligent to believe that the small state government model was fully scalable.  First, to create a muscular new nation, you needed muscle at the top.  That involved an element of coercion—not as much as his fellow author of the Federalist Papers, Hamilton, wanted, but nevertheless, someone, or some body, had, at certain times, to be King. You could devise a system where the respective parts of government could review each other’s actions, and even reverse them (the power of the purse, Judicial Review, the veto, veto-override, etc.) but that process had to have limits.  

Second, I just don’t think Madison trusted men enough to think any system he or anyone else devised would always be up to the task.  The very things Madison worried about— "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time" are not fully resolved by his schematic, and he had to have realized that.  His own “first draft”, the Virginia Proposal, which presumably reflected his true desires, was far more top-heavy than what was ultimately adopted.  And, he initially opposed the Bill of Rights, switching sides after he saw it as a political necessity, not necessarily a philosophical one.