An American Founding? Part II
[Editor's Note: this is part 2 of an essay on the question as to whether America was "founded" in any sense. The original version of this essay was published in the journal Modern Age. The argument may seen arcane to some readers, but an understanding or origins is essential to understanding the nature of a thing.]
In Federalist No. 1, Alexander Hamilton claimed that the Americans had to determine once and for all whether the formation of political institutions could result from reflection and choice or would forever be subject to fate and chance. At stake was a particular conception of liberty and the capacity of mankind to control its own destiny. There are other indications that Hamilton believed he was setting politics on a whole new set of principles. In Federalist No. 9, he commented on how the science of politics, like all sciences, has been improved in the modern age: “The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients.” The key discovery, “however novel it may appear to some,” was the “enlargement of the orbit within which such systems are to revolve.” In other words, Publius’s epiphany was that republican government was best administered and stabilized on large, heterogeneous scales rather than in the small, homogeneous communities that Montesquieu celebrated. …
Clearly, America was not “founded” in the ancient sense. Still, Madison believed the defects of the regime under the Articles of Confederation were sufficiently grievous to justify a recasting of the system, and those who opposed the Constitution as the solution to the problem had to come up with something better. Yet in any case, such recasting, he believed, had to result from popular will and not from the actions of a tyrant.
Madison’s argument drew attention to the fact that the Constitution was a compromise document, and one with a long patrimony. The integrity of that patrimony was a focus of debate between supporters and opponents of the Constitution. Opponents noted that the document was filled with innovations, many of them not justified by experience, practice, or accepted theory. These innovations, they claimed, were taking experimental license with “our ancient liberties.” What was the source of those ancient liberties? John Adams in his 1776 “Thoughts on Government” made it clear that the main source of republican order was the Magna Carta, a document that predated by some four hundred years the advent of the liberal era. In their clash over ratification, Federalist and Anti-Federalist alike frequently cited the Magna Carta as the originating document from which American constitutionalism evolved.
Indeed, debates over constitutional formation and ratification took place within the context of English legal history going back at least as far as the Battle of Hastings (1066). The development of the common law, the more recent articulation of rights going back to the Glorious Revolution, and the conflicts of Court and Country politics in seventeenth- and eighteenth-century Britain were far more the issues at stake in the arguments over framing and ratification than were any debates over theory, whether liberal or otherwise. Moreover, the arguments emerged over a largely shared understanding of human nature and the mutual conviction that it could not be reshaped by political action.
The idea of ordered liberty was largely grounded in classical Christian conceptions of human nature. Federalist No. 10 is often cited as evidence for the claim that the American founding is a purely liberal one. It is indeed the case that Madison detached interest from a natural political telos in that document, but he did this in the context of how people form themselves into collective entities. Why would people organize themselves politically into groups with other persons unless it was done on the basis of some sort of “common impulse of passion or of interest”? While we might hope that people are motivated by virtue and by love of the true, the good, and the beautiful, we can count on their being motivated by more narrow interests. Nor should we dismiss those narrower interests as necessarily disconnected from what is true or good or beautiful, even if each man tends to be his own judge in such matters. We should expect, for example, that a parent will be more interested in the well-being of his or her progeny than that of someone else’s.
Nor again did Madison appeal solely to self-interest. In Federalist No. 55, he wrote: “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government.”
In Federalist No. 57, Madison argued that constitutional government required rule by individuals who seek the common good, and this required the appointment to office of men of sufficient wisdom and virtue. Rule by the wise and virtuous was also a theme in Hamilton’s contributions, with respect to the presidency in Federalist No. 68 and the judiciary in Federalist No. 78.
The debates at the Philadelphia Convention and at the state ratifying conventions were concerned with the virtue of political leaders and the populace alike, questions of how to grasp and pursue the common good, and how to create a just society, which, as Madison reminded us in Federalist No. 51, is the end and purpose of government: “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” Why would liberty be lost in the pursuit of justice? While Madison was not a metaphysical skeptic as regards the just and the good, he was an epistemological skeptic. Justice and liberty are concepts, he argued, that are not simple objects of knowing the way that physical objects are, and thus they involve greater degrees of indeterminateness. For example, you and I may both love our children, but that love, though being the same thing, does not attach to the same object, and it may thus become a source of conflict rather than unity between us, even if the love in each case is identical in its formal properties.
More important, human knowing is never untouched by human depravity: as a good Humean, Madison believed that passion and not reason occupied the driver’s seat in human psychology. And like David Hume, Madison believed that factions—whether they be of principle, interest, or affection—were baked into the nature of things precisely because human beings had competing and contrasting loves, desires, and motivations that were substantively distinct, and whose individuation admitted of moral justification.
And beyond that, more than any of the other virtues, justice is indefinite in both its conceptual nature and its mode of operations. One can be foolish in the exercise of courage—but, in practice, probably not too many times before the real requirements of courage become clear. With regard to justice, however, opportunities for foolishness abound, and given justice’s relationship to coercive authority the consequences of mistakes going uncorrected can be severe. For that reason, concrete experience and humility are better guides to justice than are abstract principles with their sheen of certainty.
Plato argued that our understanding of justice is related to scale, saying that the only way to discern justice in the city is to rescale it to the dimensions of the soul. Madison recognized that the problem of justice in the society envisioned in The Federalist was going to intensify, inasmuch as Publius’s political theory reimagined republicanism on an extended scale. The fallibility that attends an understanding of justice becomes even more pronounced when politics is scaled up. Precisely because of justice’s indefinite nature, it can actually become a source of tremendous social strife, particularly when human beings organize themselves with others who share their particular (i.e., factional) understanding of what justice is and what it involves. That is especially true when an understanding of justice is connected to a sense of what one is entitled to. The result will be “oppressive combinations,” Madison warned, where the weaker are subjected to the ideological whims of the stronger, who wield power and thus rendered liberty insecure.
Publius believed that the republics of the past were undone by their tendency to form into self-righteous factions, a defect that arises, as Madison made clear in Federalist No. 10 and No. 51, from human nature itself. The result was that the republics of the past “have been as short in their lives as they are violent in their deaths.” Strengthening the Union was the way to avoid that outcome in our country. As Hamilton wrote in Federalist No. 9:
A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection. It is impossible to read the history of the petty republics of Greece and Italy without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions by which they were kept in a state of perpetual vibration between the extremes of tyranny and anarchy. If they exhibit occasional calms, these only serve as short-lived contrast to the furious storms that are to succeed. If now and then intervals of felicity open to view, we behold them with a mixture of regret, arising from the reflection that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party rage. If momentary rays of glory break forth from the gloom, while they dazzle us with a transient and fleeting brilliancy, they at the same time admonish us to lament that the vices of government should pervert the direction and tarnish the lustre of those bright talents and exalted endowments for which the favored soils that produced them have been so justly celebrated.The tendency of factions believing themselves to be just to “vex and oppress” those who disagree with them is the main source of tyranny and corruption. The mechanisms of power must be adequate to the task of checking such tendencies in order to protect the proper exercise of liberty and maintain civil peace. These mechanisms borrow from Publius’s understanding of what human beings are: creatures whose tendency toward self-interest and self-deception may overwhelm their capacities for virtue.
But those engaged in a “founding” will have none of that. Again, Rousseau made it clear in the Social Contract that the lawgiver who reconstitutes a regime transforms human nature. The lawgiver takes away each individual’s interest and replaces it with “one that is alien to him”—namely, the good of the whole. The individual is subsumed into a “greater whole from which he receives his life and his being.” The act of founding reconstitutes not only the political regime but humanity itself. Man is replaced by citizen. In the scope and force of its application, this is an act of tyranny.
Such acts are antithetical to the American story, which generally sought to preserve individuals in their liberty while maintaining a peaceful civil order as a precondition to a flourishing one. Organic growth requires attendant care. If we hew too closely to the roots, we risk damaging the tree that provides the canopy of meaning and the sanctuary of social peace for our lives. The organic life requires constant ministration, nourishment, and light if it is to grow strong and beautiful. It must resist the winds and storms that threaten to uproot it, even as it inevitably leans and lists in the direction of the pressures that buffet it.
A tree can look healthy on the outside while being diseased on the inside. Tree doctors will tell you that to determine whether your tree is sick you need to examine it from the ground up. Begin with the roots, then the root collar, then the trunk, finally looking up to the canopy. It’s easy to trim away dead branches and think you have done all you need to do. But those whose task it is to attend to the health of the organism have to tend to the roots. In our time, unfortunately, those who argue that America was badly founded wish to uproot our old-growth constitution entirely.
To put it another way, American order has been deforested by generations of ideological fires.1 The effort to falsify the American experience at the level of theory has now played out at the level of practice, too. In each case, the object is to dismantle the painstaking work done by our forebears and the civilization they nurtured. It was predictable that once the authors of the 1619 Project convinced our elite institutions that the story of America was simply the story of slavery, alienated youth would take that message to heart and to the streets, as we saw in the rampant vandalism and iconoclasm that broke out last summer. If the foundation was wrong, so was everything built upon it; and, if wrong, then in need of destruction. But the metaphor of a founding is itself wrong, and the same tradition that is tainted with injustice is also, and most importantly, the source of its remedy. Our order lives through its roots in the past, tangled as they are, and it cannot survive if they are ripped up.
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1From Robert Bolt’s A Man For All Seasons:
Roper: So now you’d give the Devil benefit of law!
Sir Thomas More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that!
More (roused and excited) : Oh? (Advances on Roper.) And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? (Leaves him.) This country’s planted thick with laws from coast to coast - Man’s laws, not God’s - and if you cut them down - and you’re just the man to do it - d’you really think you could stand upright in the winds that would blow then? (Quietly.) Yes, I’d give the Devil benefit of law, for my own safety’s sake.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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