Virtue and the American Founding Part II
Last week we discussed Rousseau’s idea that “the act that constitutes the republic isn’t part of its constitution,” done by a “lawgiver” “able to see all men’s passions without having any of them.” Rousseau believed he had solved one of the central problems of democratic life — its contentious disagreements and lack of unity — by placing it on a foundation bereft of self-interest.
Is there an American founding in this kind of sense? Some would have us believe so. America, the thinking goes, is a propositional nation, based on universal principles that themselves are instances of both divine command and favor. The Founders are men wise and just who somehow transcended the petty interests of the day. But this is not how Kirk saw it. Regimes, he argued, and not created out of “abstract principles” but develop “out of the circumstances of the times of trouble” within which a people find themselves. Under the most fractious circumstances, leaders will articulate a vision of common life and the common good without which a people will perish. The leader’s charisma is what makes order possible; his sin is what makes limits necessary.
This helps us understand better Kirk’s chronology, which reveals the back and forth movements where such articulations occur and where they devolve. Tellingly, the conclusion with Brownson reflects Kirk’s belief that the articulation of that vision could receive no further or greater clarification than in the American republic, or at least history had received no greater one. Impressed in America’s DNA is the ancient wisdom of a covenantal people gathered under God to offer the world God’s providential care.
Kirk encouraged skepticism that there were founders or that the persons engaged in forming either our Constitutional system or participating in our war of independence ever thought of themselves as having engaged in a Founding. Granted, there are indications here and there in some letters and speeches of Washington, arguably in the adoption of the Great Seal in 1782, and in a couple of instances in The Federalist Papers.
In Federalist #1 Hamilton claims that it was left to the Americans, who were in the process of creating “the most interesting empire” the world had yet seen, to determine once and for all whether we could shape our institutions “from reflection and choice” or would forever be subject “to fate and chance.” At stake was a particular conception of liberty and the capacity or 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 9 he commented on how the science of politics, like all sciences, had been improved in the modern age, and “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, the key insight for Publius was that republican government was best administered and stabilized on large heterogenous scales rather than in the small, homogeneous communities Montesquieu envisioned.
In Federalist #37 Madison admitted to “the novelty of the undertaking,” commenting that the Convention had attempted to resolve the difficulty of “combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form;” nor had it accomplished the “not less arduous” task of “marking the proper line of partition between the authority of the general and that of the State governments.” Still, “a faultless plan was not to be expected.” It is hard enough, Madison wrote, for the human mind to discern the workings of nature; how much more difficult is it to discern the proper workings of human institutions? “Questions daily occur in the course of practice, which prove the obscurity which reins [sic?] in these subjects, and which puzzle the greatest adepts in political science.” These problems were compounded, in Madison’s estimation, by the contentiousness of the Convention itself that resulted from disagreements over what was being constituted. Madison and Hamilton were both quick to stipulate that such disagreements did not result from the bad faith or perfidy of their opponents.
Immediately after these observations in #37, Madison gave us the closest proximation we have, in #38, of some sense that the Convention engaged in a founding. Every prior effort to establish a government, he began, has not been done by an assembly, but by a single person. Madison reviewed the actions of Draco, Solon, Lycurgus, Brutus and Tulles Hostilius as “new-modeling” and as a laying of a “foundation.” “If these lessons,” Madison wrote, “teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.” And against those who opposed the Constitution, Madison gave two simple and sensible responses: the defects of the current system were sufficiently grievous to justify any kind of new effort, and those who opposed the Constitution had to come up with something better.
Madison’s argument in #38 draws our attention to the fact that the Constitution is a compromise document, but also one with a long patrimony. This is in part demonstrated by the objections to the Constitution. Dissenters noted that the document was filled with innovations, many of them justified not by experience, by practice, or by accepted theory. The innovations, they claimed, were not benign, but were rather taking experimental license with “our ancient liberties.” What was the source of these ancient liberties? Adams in his “Thoughts on Government” makes it clear that the main source of Republican order was the Magna Carta, a document which predates by some 400 years the advent of the liberal era. Indeed, Federalists and Anti-Federalists alike frequently cited the Magna Carta as the foundational document from which American Constitutionalism evolved.
Furthermore, 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 AD). The development of the Common Law, the legal articulation of rights going back to the Glorious Revolution, and the conflicts of Court and Country politics were far more the issues at stake than were any debates over theory, liberal or otherwise. Virtually anyone writing at the time of ratification distinguished sharply between liberty and license, with the preferred liberty with its classical and Christian overtones the antipode to the idea of license that sounds so much like our contemporary idea of autonomy.
The distinction was largely grounded in classical Christian conceptions of human nature. In Federalist #10 Madison detached interest from an overarching sense of the good, but he did reflect on how people form themselves into groups. It was, for Madison, part of associative life. 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 we can count on them being motivated by more narrow interests. Nor should we lightly dismiss those narrower interests: 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 does Madison appeal solely to self-interest. In Federalist #55, for example, Madison 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.” Reinhold Niebuhr made much the same point: man’s capacity for justice makes democracy possible and his tendency to injustice makes democracy necessary. In Federalist #57 Madison argued that Constitutional government required rule by individuals who will 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 prominent theme stated by Hamilton with regard to the Presidency in Federalist #68 and the Judiciary in Federalist #78.
Our Constitutional system is a prophylactic against the twin diseases of tyranny and corruption. Publius believed that the Republics of the past were undone by their tendency to form into factions, no matter how righteous those factions believed themselves to be, which result, as Madison makes clear in #10 and #51, from human nature itself. The result has been that the Republics of the past “have been as short in their lives as they are violent in their deaths” and the protection against which is the strengthening of the Union. Hamilton in #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 a source of both 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 to maintain civil peace, and these mechanisms borrow on Publius’ understanding of what human beings are: creatures whose tendency toward self-interest and self-deception may overwhelm their tendencies toward virtue.
But those engaged in a founding will have none of that. Rousseau made it clear in the aforementioned section of the Social Contract that the purpose of the lawgiver who is reconstituting a regime is to effect a transformation of human nature. The lawgiver would take away each individual’s self-interest and replace it with “one that is alien to him” - namely, the good of the whole. He subordinated the individual into a “greater whole from which he receives his life and his being.” The act of founding reconstitutes not only the political regime, but human nature itself. In the extent and force of its application, it is an act of tyranny.
Such acts are inimical to the American story, which sought to preserve individuals in their liberty and its consequences and to maintain 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 which provides the canopy of meaning and the sanctuary of social peace for our lives. The organic life needs constant attending and nourishment, and needs the light of the sun if it is to grow strong and mighty and beautiful. It needs to resist the winds and storms that threaten to uproot it, and in such resistance become stronger, even as it leans and lists in the direction of the pressures that buffet it.
A tree can look healthy on the outside and be diseased on the inside. Tree doctors will tell you that to determine whether your tree is sick you need to start from the ground up. Begin with the roots, then the root collar, then the trunk upward, finally looking up to the canopy. It’s easy to trim away dead branches and think that you have done all you need to do, but those whose job it is to attend to the health of the organism have to tend to the roots and resist the efforts of those who would poison the water that feeds them. We need to engage in careful pruning and intelligent nourishment. If the poisoners have their way, the tree will come down, either by our own hand or by a witless fateful crash that flattens everything under it.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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