Monday, September 19, 2005
The Conservative Constitution, being the fourth part of American Conservatism
Part one here. Two here. Three here.
I am sure I have linked to this piece by Jonah Goldberg before, but it serves as an excellent companion to this series of posts. And as we move onto the main topic at hand, that is, what is American conservatism, the following paragraph is a useful jumping off point.
As I’ve written many times here, part of the problem is that a conservative in America is a liberal in the classical sense — because the institutions conservatives seek to preserve are liberal institutions. This is why Hayek explicitly exempted American conservatism from his essay “Why I am Not a Conservative.” The conservatives he disliked were mostly continental thinkers who liked the marriage of Church and State, hereditary aristocracies, overly clever cheese, and the rest. The conservatives he liked were Burke, the American founders, Locke et al.
Context is everything, and if we are ever to achieve anything resembling a clear definition of American conservatism, we must first come to a deeper appreciation of the historical American conservatism.
In the previous post I discussed France and its own unique cultural heritage. In a sense, both the American conservative and the French conservative are seeking to preserve the legacy of a late 18th century “revolution.” But the French conservative seeks to preserve the legacy of an étatist, interventionist tradition born in a true social revolution. The American conservative, on the other hand, hopes to maintain the inheritance of what was a less obvious social revolution. In fact, the American revolutionaries were quite distinct in their own respect. They did not seek to upend the social order, as did the Jacobins and their friends. Rather they sought to preserve the long-established rights of Englishmen that dated back to the Magna Carta. It was a true conservative revolution – a revolution fought to preserve.
Of course we are in danger of going too far with this analogy. It is not without reason that Forrest McDonald wrote a tome titled Novus Ordo Seclorum. The American revolutionaries were radicals in their own regard, and they created a truly unique form of government. And yet they were guided by what most today would recognize as a conservative understanding of government and its potential. They produced a Constitution that, while groundbreaking in its democratic features, was a model of restraint.
Certain critics of the constitutional interpretation known as originalism contend that is nothing more than a naked attempt to achieve conservative political ends. This contention is not without merit for, as Russell Kirk rightly stated decades ago, the Constitution is a conservative document. Any reading of the Federalist papers, the constitutional debates, or the document itself demonstrates the truth of this statement.
Our nation was born in fear. The anti-Federalist feared an active government, and that is why they opposed the Constitution. The Federalists feared both government and the masses, and that is why they constructed a Constitution that tempered both. Order was needed, and the Federalists felt the need to revise the Articles of Confederation to shore up the powers of the national government so as to institute this new order. Though they recognized the need to maintain democratic institutions, and though they were no fans of unlimited governmental authority, government placed squarely in the hands of the people was a fundamental threat to civic order.
In the 51st Federalist paper, Madison wrote: In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the scepter from reason. Had every Athenian citizen been a Socrates; every Athenian assembly would still have been a mob. This demonstrates that the Framers (well, at least Madison) realized that even the most enlightened citizenry could turn into a dangerous mob with the potential to tyrannize the rights of the minority. Passions of the moment had to be quelled, and the framers were intent on devising a system that as much as possible protected liberty, allowed for some deal of sovereignty in the hands of the people, and produced order.
The Antifederalists feared government, while the Federalists feared the people.
This is perhaps a broad generalization, but it succinctly summarizes the fundamental difference between the two factions fighting for the heart of the American republic in the 1780’s. Both sides, motivated by fear of tyranny of one sort or the other, argued that the other party’s political theory would result in turmoil, chaos, and ultimately degradation. Each side wrote invectives against the other, warning the masses that their liberty was at stake in this political fight. The Antifederalists believed that the Federalists were plotting to consolidate the Union, eliminating states’ rights, and thereby threatening the very liberty that the patriots of 1776 had valiantly fought to secure. The Federalists, on the other hand, saw a nation imperiled by a weak system of government under the Articles of Confederation, and predicted the demise of the union unless the national government was strengthened. The Antifederalists worried that government under Federalist control would be too strong, while the Federalists were concerned that a tyranny of the masses was developing, casting a shadow of anarchy over the United States.
Our Conservative Constitution
Madison was especially concerned about faction, and the best answer to faction was an extended republic which contained a multiplicity of interests. A pure democracy, on the other hand, cannot answer this challenge, because in a pure democracy factions will control. “A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert results from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party.” Such a state of affairs was “incompatible with personal security.” But in an extended republic, the people will be guarded by the filter of the natural aristocracy. Wiser and more judicious representatives will emerge from the great mass of people. Because there will be many more electors in such a republic, it will be more likely that abler representatives will take the lead, and as such they will temper the passions of the moment. Enlightened statesmen will not always be at the helm, but at least there will be enough of a number of them to create some sense of balance.
This extraconstitutional method was one way of curing the ills of faction. But the government itself had to be set up in such a way as to ensure that the branches of government would not be driven by faction, and the answer to this was bicameralism, separation of powers, and checks and balances. Federalist 51, also written by Madison, is a part two of sorts to Federalist 10. Here, it is the competing interests of society that will mitigate the deleterious effects of faction. “Ambition must be made to counteract ambition.” The members of the various branches should be independent of one another, thereby eliminating the chance of centralization of powers.
What is curious about this document is that Madison takes the notion of the self-interested nature of man and turns it on his head. Instead of having a harmful influence, man’s self-interested nature will be used to limit government’s ability to usurp individual rights. The multiplicity of interests will keep a majority faction from forming. Madison writes that this is merely a reflection of reality, and that this system will be the best way to ensure domestic tranquility
But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on government, but experience has taught mankind the necessity of auxiliary precautions.
This is a profound statement that demonstrates much about Federalist thought. Man is imperfect; we are not angels. As such it is necessary to form a government based on this reality. It must be a government carefully balanced, one with great limits. The people are to be a check on the government, but government, too, must be a check on both itself and the governed. In short, all parts of society must be on guard against one another, and because man is primarily concerned about his own concerns, he will zealously guard his liberty and his rights and make sure that none usurps those rights. Action will thus be limited because it will be greatly difficult to form majorities in so extended a republic.
The argument for simple, small republics has thus been refuted by Madison. They, not large, extended republics, are a greater threat to liberty, for it will be much easier for factions to form in small territories. America, as a compound republic, then provides a double guarantee of liberty. “Hence a double security arises to the rights of the people. The different governments will controul each other; at the same time that each will be controuled by itself.” It is clear from such language that the framers were almost agonizingly cautious, and fervently wished to create a system that had a variety of breaks to halt the potential avalanche of legislation that could only make our rights less tenable.
Madison and his fellow Federalists are quite suspicious of the masses, and took great pains to allow for as little popular control as possible. Though they would agree that the consent of the people was ultimately necessary to assure legitimacy of the polity, and that institutions such as hereditary monarchy were a great potential source of despotism, they were also weary of leaving power completely in the hands of the people. Liberty is threatened by a democratic legislature, “where a multitude of people exercise in person the legislative functions, and are continually exposed by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates.”
Even the legislative branch itself must be separated as a further guarantor of liberty. The legislative branch of government could easily be swept up by the passions of the day and thereby pass laws that usurp individual rights. But the Senate, as a second part of the legislature, divided power with the House of Representatives, and “must be in all cases a salutary check on government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation and perfidy, where the ambition or corruption of one, would otherwise be sufficient.” Power has been broken up to an even greater degree than before, and another barrier has been erected to guard against despotism.
Interestingly, the Senate, because of its aristocratic tendencies, will be a champion of liberty, a complete refutation of Antifederalist thought. It is a necessary check on the passions of the people, a more efficient check on the popularly elected House of Representatives. “The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions.” The Senate, as a independent and firm body, will be a more temperate institution guided by sincere deliberation and dispassionate discourse.
The Electoral College was another development created to some extent by fear. It was designed so as to avoid “tumult and disorder.” Hamilton writes in Federalist 68 that the “choice of several to form an intermediate body of electors, will be much less apt to convulse the community, with any extraordinary or violent movements, than the choice of one who has himself to be the final object of the public wishes.” Thus there is to be a sense of detachment in the election of the chief executive. This unique body, the Electoral College, would be a barrier between the people and the president. It is a design to ensure that a demagogue or potential tyrant will not emerge and capture the presidency. The enlightened Electoral College will guard against this potentiality. Once again the possibility that the passions of the people will cause tumult has been thwarted.
These are just some features of our conservative constitution. But these are just the thoughts of stiff-necked reactionaries. What would they know that Howard Dean or Nancy Pelosi have failed to discover about human nature?
I am sure I have linked to this piece by Jonah Goldberg before, but it serves as an excellent companion to this series of posts. And as we move onto the main topic at hand, that is, what is American conservatism, the following paragraph is a useful jumping off point.
As I’ve written many times here, part of the problem is that a conservative in America is a liberal in the classical sense — because the institutions conservatives seek to preserve are liberal institutions. This is why Hayek explicitly exempted American conservatism from his essay “Why I am Not a Conservative.” The conservatives he disliked were mostly continental thinkers who liked the marriage of Church and State, hereditary aristocracies, overly clever cheese, and the rest. The conservatives he liked were Burke, the American founders, Locke et al.
Context is everything, and if we are ever to achieve anything resembling a clear definition of American conservatism, we must first come to a deeper appreciation of the historical American conservatism.
In the previous post I discussed France and its own unique cultural heritage. In a sense, both the American conservative and the French conservative are seeking to preserve the legacy of a late 18th century “revolution.” But the French conservative seeks to preserve the legacy of an étatist, interventionist tradition born in a true social revolution. The American conservative, on the other hand, hopes to maintain the inheritance of what was a less obvious social revolution. In fact, the American revolutionaries were quite distinct in their own respect. They did not seek to upend the social order, as did the Jacobins and their friends. Rather they sought to preserve the long-established rights of Englishmen that dated back to the Magna Carta. It was a true conservative revolution – a revolution fought to preserve.
Of course we are in danger of going too far with this analogy. It is not without reason that Forrest McDonald wrote a tome titled Novus Ordo Seclorum. The American revolutionaries were radicals in their own regard, and they created a truly unique form of government. And yet they were guided by what most today would recognize as a conservative understanding of government and its potential. They produced a Constitution that, while groundbreaking in its democratic features, was a model of restraint.
Certain critics of the constitutional interpretation known as originalism contend that is nothing more than a naked attempt to achieve conservative political ends. This contention is not without merit for, as Russell Kirk rightly stated decades ago, the Constitution is a conservative document. Any reading of the Federalist papers, the constitutional debates, or the document itself demonstrates the truth of this statement.
Our nation was born in fear. The anti-Federalist feared an active government, and that is why they opposed the Constitution. The Federalists feared both government and the masses, and that is why they constructed a Constitution that tempered both. Order was needed, and the Federalists felt the need to revise the Articles of Confederation to shore up the powers of the national government so as to institute this new order. Though they recognized the need to maintain democratic institutions, and though they were no fans of unlimited governmental authority, government placed squarely in the hands of the people was a fundamental threat to civic order.
In the 51st Federalist paper, Madison wrote: In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the scepter from reason. Had every Athenian citizen been a Socrates; every Athenian assembly would still have been a mob. This demonstrates that the Framers (well, at least Madison) realized that even the most enlightened citizenry could turn into a dangerous mob with the potential to tyrannize the rights of the minority. Passions of the moment had to be quelled, and the framers were intent on devising a system that as much as possible protected liberty, allowed for some deal of sovereignty in the hands of the people, and produced order.
The Antifederalists feared government, while the Federalists feared the people.
This is perhaps a broad generalization, but it succinctly summarizes the fundamental difference between the two factions fighting for the heart of the American republic in the 1780’s. Both sides, motivated by fear of tyranny of one sort or the other, argued that the other party’s political theory would result in turmoil, chaos, and ultimately degradation. Each side wrote invectives against the other, warning the masses that their liberty was at stake in this political fight. The Antifederalists believed that the Federalists were plotting to consolidate the Union, eliminating states’ rights, and thereby threatening the very liberty that the patriots of 1776 had valiantly fought to secure. The Federalists, on the other hand, saw a nation imperiled by a weak system of government under the Articles of Confederation, and predicted the demise of the union unless the national government was strengthened. The Antifederalists worried that government under Federalist control would be too strong, while the Federalists were concerned that a tyranny of the masses was developing, casting a shadow of anarchy over the United States.
Our Conservative Constitution
Madison was especially concerned about faction, and the best answer to faction was an extended republic which contained a multiplicity of interests. A pure democracy, on the other hand, cannot answer this challenge, because in a pure democracy factions will control. “A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert results from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party.” Such a state of affairs was “incompatible with personal security.” But in an extended republic, the people will be guarded by the filter of the natural aristocracy. Wiser and more judicious representatives will emerge from the great mass of people. Because there will be many more electors in such a republic, it will be more likely that abler representatives will take the lead, and as such they will temper the passions of the moment. Enlightened statesmen will not always be at the helm, but at least there will be enough of a number of them to create some sense of balance.
This extraconstitutional method was one way of curing the ills of faction. But the government itself had to be set up in such a way as to ensure that the branches of government would not be driven by faction, and the answer to this was bicameralism, separation of powers, and checks and balances. Federalist 51, also written by Madison, is a part two of sorts to Federalist 10. Here, it is the competing interests of society that will mitigate the deleterious effects of faction. “Ambition must be made to counteract ambition.” The members of the various branches should be independent of one another, thereby eliminating the chance of centralization of powers.
What is curious about this document is that Madison takes the notion of the self-interested nature of man and turns it on his head. Instead of having a harmful influence, man’s self-interested nature will be used to limit government’s ability to usurp individual rights. The multiplicity of interests will keep a majority faction from forming. Madison writes that this is merely a reflection of reality, and that this system will be the best way to ensure domestic tranquility
But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on government, but experience has taught mankind the necessity of auxiliary precautions.
This is a profound statement that demonstrates much about Federalist thought. Man is imperfect; we are not angels. As such it is necessary to form a government based on this reality. It must be a government carefully balanced, one with great limits. The people are to be a check on the government, but government, too, must be a check on both itself and the governed. In short, all parts of society must be on guard against one another, and because man is primarily concerned about his own concerns, he will zealously guard his liberty and his rights and make sure that none usurps those rights. Action will thus be limited because it will be greatly difficult to form majorities in so extended a republic.
The argument for simple, small republics has thus been refuted by Madison. They, not large, extended republics, are a greater threat to liberty, for it will be much easier for factions to form in small territories. America, as a compound republic, then provides a double guarantee of liberty. “Hence a double security arises to the rights of the people. The different governments will controul each other; at the same time that each will be controuled by itself.” It is clear from such language that the framers were almost agonizingly cautious, and fervently wished to create a system that had a variety of breaks to halt the potential avalanche of legislation that could only make our rights less tenable.
Madison and his fellow Federalists are quite suspicious of the masses, and took great pains to allow for as little popular control as possible. Though they would agree that the consent of the people was ultimately necessary to assure legitimacy of the polity, and that institutions such as hereditary monarchy were a great potential source of despotism, they were also weary of leaving power completely in the hands of the people. Liberty is threatened by a democratic legislature, “where a multitude of people exercise in person the legislative functions, and are continually exposed by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates.”
Even the legislative branch itself must be separated as a further guarantor of liberty. The legislative branch of government could easily be swept up by the passions of the day and thereby pass laws that usurp individual rights. But the Senate, as a second part of the legislature, divided power with the House of Representatives, and “must be in all cases a salutary check on government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation and perfidy, where the ambition or corruption of one, would otherwise be sufficient.” Power has been broken up to an even greater degree than before, and another barrier has been erected to guard against despotism.
Interestingly, the Senate, because of its aristocratic tendencies, will be a champion of liberty, a complete refutation of Antifederalist thought. It is a necessary check on the passions of the people, a more efficient check on the popularly elected House of Representatives. “The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions.” The Senate, as a independent and firm body, will be a more temperate institution guided by sincere deliberation and dispassionate discourse.
The Electoral College was another development created to some extent by fear. It was designed so as to avoid “tumult and disorder.” Hamilton writes in Federalist 68 that the “choice of several to form an intermediate body of electors, will be much less apt to convulse the community, with any extraordinary or violent movements, than the choice of one who has himself to be the final object of the public wishes.” Thus there is to be a sense of detachment in the election of the chief executive. This unique body, the Electoral College, would be a barrier between the people and the president. It is a design to ensure that a demagogue or potential tyrant will not emerge and capture the presidency. The enlightened Electoral College will guard against this potentiality. Once again the possibility that the passions of the people will cause tumult has been thwarted.
These are just some features of our conservative constitution. But these are just the thoughts of stiff-necked reactionaries. What would they know that Howard Dean or Nancy Pelosi have failed to discover about human nature?
# posted by Paul Zummo : 11:13 PM
