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.
