What’s the Rush?
American constitutional government has been changing in ways that undermine its core characteristics and ability to promote the ends of politics. Designed by the Eighteenth-Century Framers to be deliberative, reflective, and decentralized, it has become increasingly overwrought, impulsive, and centralized. The divergence of American political conduct and the Framers’ design is due, in part, to the declining influence of philosophical realism and its sober view of human nature and the possibilities of politics.
The primary authors of The Federalist, Alexander Hamilton and James Madison, were not idealistic about either the people or the government. They helped to devise a constitution that was sufficiently skeptical of both popular will and political elites, while placing a reasonable degree of trust in each. The consequence is constitutional tension or equilibrium. No one part of society, the government or the governed, is given absolute power or sovereignty and each one checks and restrains the other. Everyone is subject to the rule of law. Checks and balances exist between and within the government and the governed. The government is divided into competing branches and levels and the people divide, as Madison notes in Federalist 10, into competing factions, parties, and interests. The American people are divided into states and congressional districts with competing as well as overlapping interests. Constitutional government compels its participants to take time to listen to those with whom they disagree, to search for consensus, to be willing to compromise, all of which require time and deliberation.
What is the point of deliberation in constitutional politics and human life generally? Human beings are not naturally inclined to follow what is reasonable, just, and good. This characterization of human nature is the foundation of philosophical realism. From it stems the need to restrain, limit, and check human will and appetite. When Lord Acton professed, that “[p]ower tends to corrupt, and absolute power corrupts absolutely,” he was in the same philosophical orbit as Hamilton and Madison. Madison’s Federalist 51 justifies constitutional restraints on, and the fragmentation of, power by noting the difference between the moral nature of human beings and angels. The former need to be governed; the latter do not. In Federalist 15, Hamilton asks, “Why has government been instituted at all?” His answer: “Because the passions of men will not conform to the dictates of reason and justice, without constraint.”
Deliberation compels human beings to let their passions cool and the better parts of their nature to ascend. Deliberation can have a transforming effect on individuals who in the passion of the moment are apt to be self-centered, prideful, and inconsiderate of others and their interests. It encourages reflection, research, consultation, and collaboration with others who bring a different perspective that may be unknown or poorly understood. Deliberation brings calm to the mind and the will and makes it easier to imagine compromise than when passion attaches nefarious motives to one’s opponents. Hamilton captures the virtue of deliberation and constitutional disposition when he writes in Federalist 71 that the “republican principle demands, that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests.”
Constitutional constraints as well as limitations on power and liberty are not intended to simply inhibit human will. Dividing, decentralizing, and checking power create constitutional and legal processes that encourage individuals and groups to harmonize and synthesize their competing interests. Madison’s description of representatives in Federalist 10 as wise, patriotic, and just makes them well suited to “refine and enlarge” the competing public views. Madison and Hamilton understood, however, that legislators do not always promote the public good. They can betray it. Hamilton noted in Federalist 71 that representatives in popular assemblies “seem sometimes to fancy, that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter, as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege, and an outrage to their dignity.” The same can be said of presidents and federal judges.
Given that one of the central characteristics of American constitutionalism is deliberation, it is disconcerting that political leaders are often in a rush to do the work of government. It has become all too common for presidential candidates to boast about what they will do using executive orders on day one. FDR’s one-hundred-day standard has been reduced to a one-day standard. The pace of change, in either case, is out of touch with the spirit and substance of constitutionalism that require a rhythm and temperament conducive to reflective distance and calm consideration. Executive orders, unlike laws passed by Congress, can be created with little, if any, deliberation; they can exclude consideration of the variety of interests that are part of law-making by Congress. Executive orders and Supreme Court decisions, the least deliberative instruments of constitutional politics, are becoming the preferred method of governing because they do not require compromise and consensus that stem from deliberation. The formation of policy and law created by executive order and judicial decision-making occur outside the deliberative structure of Congress where the Framers intended most laws and policies to be made. Even when the president’s political party controls majorities in both houses of Congress, executive order is often the preferred method of governing.
The aversion to constitutional deliberation means that the impulsiveness of government representatives has more to do with governing than what in the very first Federalist Paper Hamilton called “reflection and choice.” The character and disposition conducive to constitutional politics does not come naturally to human beings; it must be cultivated and encouraged. One way that constitutions shape the character of political leaders is by constraining and limiting power within a web of constitutional checks and balances. Only individuals with patience, humility, and a willingness to subordinate their will to legal limits can thrive in a constitutional system of government. The crisis of American political leadership is marked, in part, by the tendency of political elites to wriggle free from the constitutional restraints that compel them to develop law and policy that takes account of a variety of interests and views, and harmonizes them to be consistent with the common good. The restoration of American constitutionalism requires renewed commitment to the virtues of deliberation and reflection that make consensus, compromise, and the common good possible.
Bibliography
Hamilton, Alexander, John Jay, James Madison. The Federalist. (The Gideon Edition). Edited by George Carey and James McClellan. Indianapolis: Liberty Fund, 2001.
Michael Federici is Professor of Political Science at Middle Tennessee State University and chair of the Department of Political Science and International Relations.
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