Almost exactly one year ago I wrote on this blog:
I believe the US stands in need of a return to its founding principles.
It turns out I wasn’t alone. Voters in large numbers worried that the administration had abandoned the first principles of American governance in favor of an elite-managed social democratic model, Europe-style. The November elections turned on this question, and the result – an epochal disaster for the president’s party – was a clear answer. The people want their federal government back in the box.
For obvious reasons, the political insurgents of 2010 make much of the Constitution. To curry favor with them, the politicians they just elected began the new session of the House with a reading of that document. Liberals reacted with anger. Strangely, the Constitution of the United States has now become controversial.
Liberal politicos and writers feel wounded by the election results. They wish to strike back at their opponents, which is understandable. But they often sound like the Constitution, to them, is some sort of antiquarian irrelevance, to be dismissed with contempt.
Some of their mockery is childish, and probably harmless. Others seem disgusted because the Constitution once embraced slavery and banned the sale of liquor. Such outlandish positions, they imply, remove all legitimacy from the document. Loftier liberal critics describe the Constitution as an ancient parchment full of strange-sounding words, open to infinite interpretation. An emotional attachment to this museum piece becomes a symptom of know-nothingism, and of a futile revolt, not against President Obama or social democracy, but the inexorable changes of the modern world.
I’d like to focus on the question whether the Constitution offers a specific moral and political perspective, so I’ll deal with the critics very briefly.
First, slavery. If the Framers had insisted on abolition, they would have failed in their task. It’s that simple. There would be no Constitution, because there would be no United States. Instead, the Framers behaved like grownups, and accepted an unpleasant tradeoff. They chose some freedom over none. Those who condemn this decision must explain which alternative would be morally preferable.
Second, antiquity. The right to property goes back to Roman times. Habeas corpus was formulated in the Middle Ages. Representative government evolved in England during the Stuart and Hanoverian periods. Funny-sounding words, many of them foreign, were used to express these principles of American self-rule. It is bizarre, not to say ignorant, to equate antiquity with negation.
But is the Constitution so sketchy and obscure as to be open to any and all interpretations? Here, at last, we come to the heart of the matter.
I don’t believe the Constitution can be considered a political platform in the contemporary sense of the phrase. It advocates no policies or laws. Nor do I believe it’s a particularly conservative document. It smiles on progress and perfectibility. Nor do I find in it a rejection of big government: the size of the budget is left for the people and their representatives to decide.
But it places sharp limits on the scope of government, and this limitation flows from a specific moral ideal about the relation of the citizen to political power.
The Framers, to a man, believed in the necessity of “virtue in the people” – Madison’s words – to the preservation of freedom. This entailed personal responsibility and accountability. The individual thus was sheathed in constitutional rights and protections, which no government may abrogate. The American citizen, by the law of the land, is a moral agent. He does right or wrong on his own account – not that of his lord, or his president, or his government.
Sovereignty arises from moral agency, and from the first three words of the preamble the Constitution imparts both to the individual citizen, who in the aggregate become “we the people.” Power belongs to the people: it is never bestowed.
Yet the Framers also believed in human corruptibility, particularly when it came to the abuse of power and wealth. They read history, and knew their Suetonius. The trick, for them, was to find a way to balance the need for personal virtue with the requirements of a functional government.
They achieved this balance in two ways. The Constitution, on principle, places many activities beyond the writ of government: for example, suspending habeas corpus, criminalizing an action after the fact, and awarding titles of nobility. Much is forbidden to political actors. The number of constitutional barriers erected against government intrusion far outnumber the handful of positive powers we the people hand off to our public servants.
And if we look to the explicit powers of the president, we find he’s to be commander in chief, negotiate treaties, and make appointments to various offices – and that’s it. Most enumerated powers are listed under the authority of Congress, which was expected to retain a closer bond with the people.
Principle, of course, works only for the principled. Corrupt politicians can always uncover loopholes to trample on the document’s intent. Being politicians themselves, the Framers knew this, and devised a practical and unprecedented approach to principled politics. They invented a dynamic geometry of power.
In a New Yorker article which finds it necessary to observe that the sheets of the original Constitution were “made not from the pulp of plants but from the hide of an animal,” Jill Lepore concludes that the document “doesn’t exactly explain itself.” That’s true only if one is blind to the mathematics. Everywhere in the text there is division and subdivision, weight and counterweight, authority pared to ever thinner slices.
Power is fractured among president and Congress. But there are two houses in Congress. There are two senators from each state. The president makes treaties but they must be ratified by the Senate. The same applies to his power to appoint. The House can impeach a president, but only the Senate can evict him. One can almost hear the music – a Bach counterpoint – emanating from the most elaborate and baffling system in the history of politics.
The American model of government is ponderous and often gridlocked. That was intended. “Ambition,” Madison wrote, “must be made to counteract ambition.” The great physical and economic might of the state must be dispersed, so that the citizen can retain his moral agency, sovereignty, and dignity.
It is this arrangement which infuriates top-down reformers: people who think they know best. In the geometry of power, they see a broken machine. In the moral agency of the citizen, they find an obstacle to change. I have no doubt this is how President Obama and the chief people in his administration feel. They wish to improve us by absorbing moral agency and sovereignty unto themselves. They think they have the answers, and they don’t want to tap-dance around a bunch of eighteenth-century clutter.
Social democracy, the goal of these reformers, is the political equivalent of a nursery school. Only a few are allowed to behave like adults.
I’m also reasonably sure that those who oppose the president do so because they wish to keep agency and sovereignty in their own hands. If, to make their point, they choose to engage in a “cult” of the Constitution, I think they will find justification in the spirit and the letter of the document.