POLITICAL PHILOSOPHY OF THE CONSTITUTION (Update)

To speak of the political philosophy of the Constitution is to invite immediate controversy. Many allege that the Constitution has no coherent political philosophy; and those who maintain otherwise often regard its political philosophy as far from commendable.

Those who contend that the Constitution is theoretically incoherent point to its various inconsistences and the many provisions that were the products of compromise. The more charitable of such analysts try to make a virtue of the Constitution's supposed lack of an overarching political theory, arguing that this demonstrates the Framers' laudable ability to ignore their own prejudices. In the words of law professor Donald Horowitz: "What we ought to revere is the spirit of compromise the Framers brought to Philadelphia—compromise that accommodated large states and small, north and south, numbers and wealth, legislative supremacists and proponents of a strong executive."

Probably the most significant obstacle to this view is presented by the federalist, the contemporaneous exposition of the Constitution by alexander hamilton, james madison, and john jay. Written during the turmoil of the battle for ratification, The Federalist presents a remarkably comprehensive and coherent exposition of the constitutional system, fleshing out its fundamental principles of natural rights, checks and balances, bicameralism, separation of powers, and federalism. The Federalist, which was utilized extensively by ratification proponents, goes a long way toward explaining the shared principles that underlay the compromises of the constitutional convention of 1787.

Perhaps a more challenging attack on the coherence of the Constitution comes from those who juxtapose its republicanism with its sanction of slavery. Article IV, section 2, effectively compelled northern states to return fugitive slaves to their southern masters; and Article I, section 9, protected the importation of slaves until 1808. Many of those who criticize the Constitution on this account accuse the Founders of having a contradictory understanding of inalienable rights, claiming that the Founders did not think such rights applied to black Americans. These critics often cite as evidence for this proposition Justice roger brooke taney's assertion in dred scott v. sandford (1857) that the Founders regarded black Americans "as beings … so inferior, that they had no rights the white man was bound to respect."

Yet Taney's claim in Dred Scott was a palpable fiction, one that Taney himself had rejected as defense counsel for an abolitionist preacher earlier in his career. In reality, the Founders were not inconsistent in understanding the principle of inalienable rights; but they were inconsistent in applying it, as they themselves recognized. Slaveholders such as george washington and thomas jefferson knew that slavery abrogated the natural rights on which the Constitution was premised and therefore had to be abolished. The question was how to abolish slavery. Although it is easy to condemn the Framers for their compromise on this issue, one may legitimately wonder how much longer the horrible oppression of slavery would have lasted if the bargain had not been struck and the South had stayed out of the Union.

Incoherency, however, is not the only charge leveled against the political philosophy of the Constitution. Other critics chide the Founders for creating a constitutional system that cannot sustain itself because it is based almost entirely on self-interest. They claim that the philosophy of the Constitution is best summarized by the statement in The Federalist #51 that one must supply "by opposite and rival interests, the defect of better motives." According to these observers, the two pillars of the constitutional system are the extended republic, which fosters such a multiplicity of factions that it will be difficult for any one of them to dominate the rest, and the separation of powers, which similarly aims at preventing any single faction from controlling the government by dividing and arranging "the several offices in such a manner as that each may be a check on the other—that the private interest of every individual may be a sentinel over the public rights."

According to this view, the Founders thought that if the Constitution was properly structured to rely on self-interest, good character on the part of citizens would become expendable. This thesis has been maintained, more or less vigorously, by a variety of scholars from across the political spectrum, including Richard Hofstadter, Benjamin Barber, and Martin Diamond. Yet there are grave difficulties with this interpretation, not the least of which is its negative formulation of the Constitution's principles. According to these critics, devices such as bicameralism, checks and balances, and separation of powers use self-interest to prevent a tyrannical concentration of authority. But this is only part of the story. The Framers also believed that these devices would promote good government by attracting virtuous leaders to federal office and by supplying those leaders with the tools needed to perform their governmental duties properly.

Nowhere can this be seen more clearly than in the separation of powers. The Framers believed that powers should be separated not only to prevent tyranny, but also because the executive, legislative, and judicial powers require by their very natures different talents in order to be exercised well. The executive power requires the capacity for energy, secrecy, and quick and decisive action; the legislative power demands deliberation, or the free and full consideration of diverging points of view; and the judicial power calls for a cool and dispassionate application of the laws. The Framers of the Constitution subsequently structured each of the three branches of government in such a way as to encourage these characteristics. The Framers provided for a unitary executive, believing that this would facilitate quick and decisive action. They created a bicameral legislature to promote the best kind of deliberation. Finally, they provided that federal judges would hold their posts during good behavior, thus insulating them from the partisan battles of the moment and promoting the impartial and dispassionate application of the laws.

In sum, the Framers sought to supply each branch of government with the tools necessary to carry out its assigned tasks in the best manner possible. Of course, this was not the same as assuring each branch would carry out its duties in the best manner possible. A despot elected President, for example, might use the power to pardon to shield the criminal activities of his or her subordinates; unscrupulous senators might hold presidential appointments hostage to extract special favors from the executive branch; and corrupt judges might use their lifetime tenure as a shield for their corruption. Thus, the structure of the various offices ensures that good people, if elected, can more easily fulfill the functions of their offices; but it does not guarantee that good and virtuous people will actually fill those offices.

The Framers of the Constitution were well aware of this, however, and they carefully crafted the selection procedures for the various offices to encourage the choice of persons eminent in both ability and virtue. For example, the Framers believed that the election process for the presidency would tend to elect outstanding individuals because it required a candidate to achieve a national consensus in order to win in the electoral college;no candidate who pandered to narrow or local interests would be likely to obtain such a national majority. Similarly, the selection of senators by their state legislatures would likely encourage the selection of distinguished statesmen because the legislatures would want to choose representatives that might bring luster and distinction to their respective states. More generally, higher age requirements for the offices of senator and President made it more probable that candidates for these offices would have the wisdom and stature that comes from experience.

The Constitution also fosters virtuous leadership in yet another manner: it encourages persons of eminent ability to seek federal office by assuring them that they will have enough time to prosecute their projects for the public good. This is why the Constitution contains no provision for the rotation of offices; the Framers thought that renewability of terms would help attract the best people to federal office. In the case of the presidency, wrote Alexander Hamilton, a great man will be more likely to consider running for President if he knows that he will have the time to complete as well as to undertake "extensive and arduous enterprises for the public benefit.…"

In many different ways, then, the very structure of the Constitution aspires to cultivate virtue in government. One may readily question, of course, whether the Constitution's structural mechanisms are sufficient to bring about good government. To point to only one example: the Founders were certainly correct that the national consensus needed for the election of the President ensures that a candidate of merely local interests will likely fail in his or her bid for office, but this does not necessarily mean that the person chosen will be someone preeminent in ability and virtue. If the citizenry were consumed by self-interest, they might instead elect the most pliable candidate—the one they think can be bullied into supporting their interests by their representatives in Congress. In other words, even the electoral college cannot produce a good President in and of itself. The presidential electors—and ultimately, those who select those electors—must still be good enough to care about justice and virtue.

In the end then, the Constitution can only do so much. It is not a cure-all. But contrary to the claims of some critics, the Founders themselves recognized this. They did not believe that the Constitution was a machine that would run itself. They knew that its perpetuation ultimately depended on the character of the nation's citizens. Hence, even in The Federalist, "a dependence on the people" is acknowledged as the primary safeguard for republicanism, whereas the Constitution's various checks and balances are described as "auxilliary precautions."

Some may object that if the Founders truly considered the character of the citizenry important, they would have mentioned civic virtue in the Constitution explicitly. After all, certain early state constitutions contained appeals to both God and virtue. The preamble to the U.S. Constitution, in contrast, seems but a pale reflection of these earlier documents. It does speak of establishing justice, but instead of going on and listing the requisite civic virtues, it merely stresses the importance of "the blessings of Liberty." Some have interpreted the Founders' emphasis on liberty rather than virtue as proof that they envisioned a republic where self-interest, rather than self-sacrifice, was to be the guiding light. Yet those who interpret "liberty" in this manner are interpolating their own modern conceptions back into the founding.

It is not difficult to understand the reason for the confusion. Today, liberty is equated with the absence of all restraint. Indeed, people who call themselves "libertarians" argue against all government regulation of business and object to criminalizing pornography, hallucinogenic drugs, and prostitution. Yet the Founders' conception of liberty was entirely different. Echoing the Aristotelian understanding of virtue, the Founding generation saw liberty as the golden mean between two extremes: it was the contrary of both slavery and anarchy. Liberty was freedom, but freedom within the confines of the laws of nature and of nature's God. It was the freedom to organize one's own affairs, live where one wanted, participate in politics, and buy and sell property, as long as a person did not violate the immutable moral law. In short, early Americans thoroughly agreed with john milton's aphorism that "none can love freedom heartily, but good men; the rest love not freedom but license."

That this was the Founder's true conception of liberty should become self-evident to even the most cynical observers when they examine the public actions of the Founding Fathers. The same George Washington who presided over the Constitutional Convention of 1787 declared in his Farewell Address: "Of all the dispositions and habits which lead to political prosperity, Religion and Morality are indispensable supports." The same Congress that recommended the Constitution to the states enacted an ordinance for the Northwest Territories that announced: "Religion, morality and knowledge being necessary to good government … schools and the means of education shall forever be encouraged."

But perhaps it was Supreme Court Justice james wilson, arguably the most systematic political thinker during the founding, who best expressed the necessity of schooling Americans in their civil rights and civic responsibilities. In his inaugural law lecture at the College of Philadelphia, attended by such luminaries as Washington and Jefferson, Wilson declared:

On the public mind, one great truth can never be too deeply impressed—that the weight of the government of the United States, and of each state composing the union, rests on the shoulders of the people.

I express not this sentiment now, … with a view to flatter: I express it now, as I have always expressed it heretofore, with a far other and higher aim—with an aim to excite the people to acquire, by vigorous and manly exercise, a degree of strength sufficient to support the weighty burthen, which is laid upon them—with an aim to convince them, that their duties rise in strict proportion to their rights; and that few are able to trace or to estimate the great danger, in a free government, when the rights of the people are unexercised, and the still greater danger, when the rights of the people are ill exercised.

John G. West, Jr.
(1992)

(see also: Conservatism; Constitution and Civic Ideals; Constitutional History Before 1776; Constitutional History, 1776–1789; Liberalism.)

Bibliography

Barlow, J. Jackson; Levy, Leonard W.; and Masugi, Ken, eds. 1988 The American Founding: Essays on the Formation of the Constitution. New York: Greenwood Press.

Horwitz, Robert H., ed. 1986 The Moral Foundations of the Republic, 3rd ed. Charlottesville: University Press of Virginia.

Jaffa, Harry V. 1987 What Were the 'Original Intentions' of the Framers of the Constitution of the United States? University of Puget Sound Law Review 10:343–423.

Kesler, Charles R., ed. 1987 Saving the Revolution: The Federalist Papers and the American Founding. New York: Free Press.