Victor Nuovo: The constitution — ignore it and perish
Editor’s note: This is the 17th in a series of essays on the history and meaning of the American political tradition.
Richard Hofstadter, from whose The American Political Tradition I have taken the title of this series, has observed that the framers of the Constitution were by and large moral pessimists and that their pessimism led to the outcome of their labors. They believed that most if not all men were selfish, resentful, more often driven by passion rather than by cool impartial rational judgment—I use the term “men” here, because the framers were under the misapprehension that the business of government was solely men’s business.
In any case, they believed that men were not disposed by nature to respect the rights of others or to put the common good above their own private interests, and that even the best of men, individuals who were regarded as morally upright in their day to day behavior, seemed to lose all moral constraint when part of a crowd.
James Madison summed it up in his comment that “had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”
Madison’s remark was profoundly ironic for he was well aware that it was an Athenian popular assembly that had condemned Socrates to death for questioning popular wisdom. He believed that all popular assemblies were by nature “intemperate,” prone to vindictive madness, which in the end is self-destructive. According to this point of view, men are not by nature political animals, as Aristotle supposed, rather, as Hobbes believed, they become such by necessity.
The Framers of the Constitution embraced this opinion. They desired a strong central government that would be immune to human selfishness, populist enthusiasm, and the pride of the individual states, one founded on “republican principles.” They hoped, perhaps believed, that high office would ennoble the individuals who occupy them. It was a vain hope, but essential if government is to work at all.
The Constitution was drafted and approved by an assembly of delegates that met in Philadelphia from May 25 until September 17, 1787. It was then transmitted to the states for ratification. Article VII of the Constitution stipulated that at least nine of the thirteen states must ratify it before it could became law.
Almost two years would pass before this was achieved. During this period, three of the framers, Alexander Hamilton, John Jay and James Madison published newspaper articles promoting the Constitution and explaining its principles. These articles since gathered together are known to us as The Federalist Papers, which has become a world classic. Thomas Jefferson gave it high praise calling it “the best commentary on the principles of government, which was ever written.” This is especially noteworthy because Jefferson was not a Federalist.
Of the three authors, the papers written by Madison are most relevant to our theme. In Federalist Papers no. 39, he summarized the “republican principles” that he desired to become the foundation of the American constitutional system. There are three principles: first, all government officials, executive and legislative, must be selected directly or indirectly by the people; second, their offices are for a limited duration; third, members of the judicial branch shall hold office without limit, although on good behavior, which gives the judiciary an advantage over the legislative and executive branches of government and an immunity from popular sentiment. They are supposed to be foremost guardians of the Constitution. A fourth may be added to these, the principle of representation, which prescribes that the business of government be conducted not by committees of the whole but by representatives of the people.
The underlying principle of these four is the separation of powers. The founder who championed this principle was John Adams. It was his opinion that separation of powers was necessary to avoid the abuse of power in any one office, but also to avoid the pressure of mass assemblies. Adams stated and defended his theory of government in a long scholarly work, A Defence of the Constitutions, first published in January 1787. It served as a guidebook to delegates to the Constitutional Convention. It was Adam’s genius and moral outlook, not Jefferson’s, that presided over the framers of the Constitution.
In this respect, the Constitution differs from the Declaration of Independence, which Jefferson authored. The Declaration is founded on the premise of the rights of the people. The Constitution is founded on the principle of the rule of law; it makes no mention of rights, an omission that would be rectified by the first ten amendments, the Bill of Rights.
Together these two documents represent the two poles of our system of government. Each is necessary. Without rights, the rule of law becomes oppressive; without law, a system of rights devolves into anarchy. Tyranny and anarchy are the two extremes of our political existence; they are ever-present tendencies, in constant tension. The aim of republicanism is to negotiate a safe path between them, using a system of checks and balances as its navigational guide.
The American Republic, then, is a complex affair of opposing systems, expressed in our two founding documents. Madison explains this also in Federalist Papers, no. 39. At first glance, this complexity is confusing, but as one reflects upon it, it seems a work of genius.
Madison observes that our system is based on two political entities: a nation and a collection of independent states. This diversity is also expressed in our two legislative bodies, the House of Representatives and the Senate. Members of the House are chosen by the direct popular vote, apportioned according to districts whose boundaries are determined by population. The Senate assigns two seats to each state, regardless of their population; it is based on the principle of the equality of the states, regardless of their size and wealth.
The election of the president is by popular vote of the nation, but filtered through the Electoral College. Here too there is a playing off, as it were, of the nation and the states. The Electoral College, proportioned to each state, chooses the President, and it is not bound by the rule of majority so that it is possible that the candidate who received the smaller popular vote might become president, which is currently the case.
Whether this system is just, is a moot question, which I am not qualified to answer. The Electoral College was supposed to base its decision on the moral qualities of the candidates. This may have been the hope of the framers of the Constitution, but if so, it was a false hope.
The Federalist Papers, consisting of 85 newspaper articles, were published under the name of a fictitious author: Publius, a Latin word, signifying a representative of the People. Alexander Hamilton wrote most of them (51), followed by James Madison (29), and John Jay (5). A convenient edition is published in paperback by Oxford World Classics. Every household should have one.
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