Athenian Stranger: Is it a god or some human beingâ€¦who is given the credit for laying down your laws?
Kleinias: A god, stranger, a godâ€¦
One who asks the law to rule...is held to be asking god and intellect alone to ruleâ€¦Hence law is reason without passion.
The [civil] magistrate may also, in a more strict and proper sense, be said to be ordained of God, because reason, which is the voice of God, plainly requires such an order of men to be appointed for the public good.
But it is the reason of the public alone that ought to control and regulate the government.
Publius writes in Federalist 78, "the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them." Publius goes on to explain why the court is the "least dangerous" branch of the national government:
The executiveâ€¦holds the sword of the community. The legislatureâ€¦commands the purseâ€¦The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.1
But this opinion of the judiciary as the weakest branch of government — unable to implement its own decisions, and in fact dependent upon the elected branches for the "efficacy of its judgments," — is not shared by the conservative intelligentsia today. To the contrary, many conservatives think the judiciary, in particular the U.S. Supreme Court, but also the federal circuit and appellate courts as well, has become the most powerful, influential, and tyrannical branch of the national government.
Perhaps one of the best examples of the anti-judicial fever running high in conservative circles is the now-famous (or infamous?) First Things symposium on judicial activism, and the ensuing turmoil it sparked. "The End of Democracy? The Judicial Usurpation of Politics" was originally a collection of essays published in the November 1996 edition of First Things, but it created such a firestorm among conservative intellectuals and scholars — including special features in the pages of National Review, Commentary, and The New Republic — that it formed the basis of a book published a year later.2 As the title indicates, the central question was whether activist judges had "usurped" political power from the people by "displacing" the constitutional arrangements of self government via judicial review (the nullification of congressional law by the Supreme Court). Moreover — and this proved to be the real source of controversy — the question was raised, "whether we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime" which the courts have created? Some participants in the symposium went so far as to compare the rise of judicial activism during the past forty years as a prelude to an American regime comparable to Nazi Germany: "America is not and, please God, will never become Nazi Germany, but it is only blind hubris that denies it can happen here andâ€¦may be happening here." With regard to the courts' most egregious violations of the Constitution as well as the sustained attacks on traditional morality — such as their stand on abortion, euthanasia, pornography, and their radical misreading of the "establishment" and "free exercise" clauses of the First Amendment — some conservative critics have concluded that "[t]he government of the United States of America no longer governs by the consent of the governed." According to the editors of First Things, this is because "the judiciary hasâ€¦declared that the most important questions about how we ought to order our life together are outside the purview of 'things of [the American people's] knowledge.'" (See End of Democracy?, pp. 3-5.)
One might say that "judicial activism" has become the rallying cry for mainstream conservatism. During the Cold War, conservatives, amalgamated from a variety of political theories and perspectives, were united primarily if not solely by the fight against communism abroad and socialism at home. But in the post-Cold War era, the destruction of the Soviet Union has left conservatives searching for another common enemy against which they can coalesce. That common enemy might turn out to be our own Supreme Court.
The move for constitutional reform, then, is becoming increasingly popular among conservative scholars and jurists. Because of the judicial threat to self-government, the argument goes, we must invent some new legal or constitutional tool by which the elected branches can check what the courts do. In particular we must limit the damage courts can inflict using judicial review. Judge Robert Bork, for example, wants to alter the constitutional separation of powers with an amendment that would either subject Supreme Court decisions to modification or reversal by Congress, or simply deprive the court of the power of judicial review altogether (The End of Democracy?, p.17; see also Robert Bork, Slouching Towards Gomorrah: Modern Liberalism and American Decline, pp. 96-122, 318-319). The reason for Bork's easy-going attitude about changing the nature of the Constitution is that he thinks the Constitution was flawed from the beginning. Bork writes, "On the evidence, we must conclude, I think, that this tendency of courts, including the Supreme Court, is the inevitable result of our written Constitution and the power of judicial review."3 This criticism of the Constitution, however, flows from Bork's more fundamental criticism of America. Bork believes that the principles for which the Patriots of '76 fought the Revolution and upon which the American regime was built — principles bound up in the "laws of nature and of nature's God" — were inherently flawed. (See Slouching, pp. 56-82.) He has attacked the central teaching of the Declaration as the basis of modern liberalism, including the development of what has become known as the administrative or regulatory state, as well as the sexual revolution of the 1960's. Of course, the same natural rights theory enshrined in the Declaration, with human equality as its core, can be found in numerous documents from the American Founding, including many of the original state constitutions. The Massachusetts Constitution, to cite but one example, states that "All men are born free and equal, and have certain natural, essential, and unalienable rights." Despite such evidence, Judge Bork holds the opinion that "Our constitutional liberties arose out of historical experienceâ€¦.They do not rest upon any general theory."4
As I shall discuss shortly, judicial review is required only if there are certain things which are permanent and unchangeable — things which are beyond the scope of majority rule because they are the very ground from which majority rule arises — things such as unalienable rights which all men possess by nature. These must be protected from an abusive majority by a branch of government insulated from the immediate tides of majority will. The judiciary is the only such branch. As I shall also make clear, however, if one rejects the idea of natural rights, then there is no rational argument against the majority tyrannizing the minority. Absent the idea of natural rights, democratic rule becomes unqualified majority rule, and an independent judiciary armed with the power of judicial review becomes an impediment to that rule. This, I believe, is the case with Judge Bork. By rejecting the theory of natural rights, he embraces unqualified majoritarianism, which is incompatible with an independent judiciary as well as a constitutional regime that protects minority rights. In the end, Bork, a leading conservative judge and scholar, rejects both the theory and practice of American constitutional government as envisaged by the Founders.5
But conservatives by definition want to "conserve" or "preserve." They must be willing to ask themselves, therefore, what it is they are conserving or preserving. In general conservatives like what is traditional and old. They are skeptical of change. As a matter of historical fact, an independent judiciary, equipped with power of judicial review, is part of our constitutional tradition. Thus our first inclination should be to revere the judicial branch as a traditional and desirable feature of the Constitution. Intelligent conservatives, however, understand that not all that is traditional is good — there are, after all, bad traditions. Thus what is traditional should be revered not simply because it is old, but because it is good. That is to say, the task for conservatism seems to be a matter of separating — of judging — what in our tradition is good from that which is not, and defending the former while reforming the latter.
In his decision in Marbury v. Madison, Chief Justice Marshall remarked that the "essence of judicial duty" is to "say what the law is." But, according to Marshall, this function of the judiciary is to be understood in light of the fact that "the Constitutionâ€¦is superior paramount law, unchangeable by ordinary means (5 U.S. 137)." It is because the Constitution is superior law that the role of an independent judiciary is so important. Thus the question of changing the nature of the judicial power should come only after serious reflection on the relationship between the Constitution, the courts, and the moral and political problems we are faced with today. We should remind ourselves, at the same time, that it was the legislative branch that Publius warned would be the most serious threat to individual liberty.
Thus our first duty, as Americans, as conservatives, is to understand the nature of the judiciary and the separation of powers as originally intended by those who wrote and ratified the Constitution. Then we must determine whether reform is desirable. We can find no greater assistance in such an endeavor than by turning to the political science of The Federalist, and looking in particular to the remarks of Publius concerning separation of powers and the creation of an independent judiciary.6
* * * * *
Judge Bork's proposal to subordinate the judiciary to the elected branches brings to light one of the tensions running throughout the pages of The Federalist: namely the juxtaposition of self government, or republicanism, and good government. One aspect of this tension is the combination of protection for individual liberty with the necessity of having stability and energy in government.
Americans in those early years were distrusting of a strong centralized government — they had, after all, just fought a war against England, a government they thought too strong and too centralized. Their inclination was to de-centralize and therefore defuse political power among the states and citizens. But at the same time all were painfully aware that the government created under the Articles of Confederation was weak and impotent. Fresh in the memory of Americans during the debate over ratification was Shays' Rebellion of 1786, where a group of enraged Massachusetts farmers managed to close the courts in Berkshire, Hampshire, and Worcester counties, preventing lawsuits for the collection of debts, and nearly took the federal arsenal at Springfield. Shays' Rebellion demonstrated the dangers to which the new nation was vulnerable. As Publius points out in Federalist 15 - Â22, under the Articles of Confederation, corruption at the state level combined with the inability of the national government to enforce its own law would lead to "the violent death of the Confederacy" (Federalist 16, p. 114).
The Americans had fought the Revolution because they claimed that only self-government was legitimate government. Self-government meant government by consent, but it also implied governmental protection of individual rights. In the years intervening the Revolution and the Constitution, however, Americans were "consenting" to violate the rights of their fellow citizens. Property rights in particular were trampled upon by such means as the issuing of worthless currency and nullification of contracts. American democracy was being destroyed by democratic means. If the American experiment in self-government failed, it would show the world that the claims to freedom and self-government were utopian. Self-government needed a "republican remedy," and it needed a republican advisor: Publius.
The foremost object of the Constitutional Convention, then, was to design a system of republican self-government in such a way so as to prevent it from turning into mob rule. This problem underlies Madison's famous statement in Federalist 51:
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 controuls 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.
Men are not angels, and therefore unchecked majoritarianism provides little hope for good government. The arbitrary will of the majority is incompatible with the "safety and happiness" of the people. In order for government to be good it must not simply follow the unstable and changing whims of the majority, but it must do what is right. More specifically, government must "establish justice" — meaning primarily securing the unalienable natural rights of individuals — which is not the same thing as following the dictates of the majority or most powerful will. (Cf. Plato's Republic, bk. I.) It is to say that in a self-governing republic, the government (through public policy) should emphasize and capitalize on what is good in public opinion, and de-emphasize, if not reform, what is bad. It is also to say that public opinion in many ways sets a limit as to what government can or cannot do at any given time. Government (as well as an individual) is therefore confined to doing what is most right and reasonable in a particular political situation, or at a minimum doing what is least wrong and unjust. Prudence, as opposed to a categorical imperative, provides guidance for action in the service of justice. To paraphrase Aristotle, it means natural right is a part of political right (Nicomachean Ethics, 1134b - 1135a).
From the perspective of The Federalist, justice is not identical to the will of the majority: the majority may from time to time be possessed of a good will, but the principles of justice and right are a feature of an unchanging nature, a nature that is discernible by unassisted reason. From its inception, however, the Constitution has been attacked for distancing itself too far from the will of the people, for being too anti-majoritarian, as if majority will and right were one and the same. This was the central criticism of many Anti-Federalists, most famously "Brutus." 7 And as the Supreme Court is the most undemocratic feature of the Constitution, it is understandable why it was attacked as setting up an obstacle to self-government. Indeed, Robert Bork is far from being the first person to suggest bringing the Court under the direct control of the elected branches. During the Founding Era similar reservations about the Court's power were voiced by various constitutional critics, including the author of the Declaration of Independence, Thomas Jefferson.
* * * * *
Before we proceed any further, however, a few preliminary remarks are in order concerning the structure of The Federalist.
The Federalist can be divided into two parts: of the eighty-five papers, numbers 1 - 36 are concerned with the general subject of union, and in particular the necessity of union for the safety of the states. The first part of the book deals with what is lowest in political life: necessity. The theme of the second part of the book, numbers 37 - 85, is republicanism, or the merits of the proposed constitution. The underlying theme of part two is the relationship between the general form of republican government and the particular structure of the proposed Constitution. Publius wants to show that the Constitution is not merely republican, but republicanism at its best. The second part, then, goes beyond necessity to a discussion of what kind of government is good. From part one to part two the argument moves from the low to the high. And within part two the discussion of the structure of the proposed Constitution moves from the most democratic branch of the national government, the House of Representatives (numbers 52 - 58), to the least democratic branch, the judiciary (numbers 78 - 83). Both the structure of the book as a whole and the structure of the second part serves a rhetorical purpose: the book as a whole begins on ground common to both potential friends and enemies of the Constitution, that is, the necessity of safety, and thus union. The second part begins with the most democratic branch, to meet the objection that the proposed Constitution is not representative enough. One sees that insofar as the primary threat to republican government is the legislature, the movement from most democratic to least democratic reflects the movement of the book as a whole: from the low to the high. (Cf. Charles Kesler, "Federalist 10 and American Republicanism," pp. 19-21.) can be divided into two parts: of the eighty-five papers, numbers 1 - 36 are concerned with the general subject of union, and in particular the necessity of union for the safety of the states. The first part of the book deals with what is lowest in political life: necessity. The theme of the second part of the book, numbers 37 - 85, is republicanism, or the merits of the proposed constitution. The underlying theme of part two is the relationship between the general form of republican government and the particular structure of the proposed Constitution. Publius wants to show that the Constitution is not merely republican, but republicanism at its best. The second part, then, goes beyond necessity to a discussion of what kind of government is good. From part one to part two the argument moves from the low to the high. And within part two the discussion of the structure of the proposed Constitution moves from the most democratic branch of the national government, the House of Representatives (numbers 52 - 58), to the least democratic branch, the judiciary (numbers 78 - 83). Both the structure of the book as a whole and the structure of the second part serves a rhetorical purpose: the book as a whole begins on ground common to both potential friends and enemies of the Constitution, that is, the necessity of safety, and thus union. The second part begins with the most democratic branch, to meet the objection that the proposed Constitution is not representative enough. One sees that insofar as the primary threat to republican government is the legislature, the movement from most democratic to least democratic reflects the movement of the book as a whole: from the low to the high. (Cf. Charles Kesler, "Federalist 10 and American Republicanism," pp. 19-21.)
The separation of powers — the first in the catalog of improvements in the science of politics announced in number 9 — is the subject of Federalist papers 47 - 51, preparing the way for a discussion of the particular structure of the proposed Constitution in the remaining papers. The issue under consideration is not the whether separation of powers is necessary for good government, but how best to keep the powers of the different branches separate from one another: "It is agreed on all sides," Publius writes, "that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it." After laying out the theoretical limits of power assigned to the legislative, executive, and judicial branches, however, "the next and most difficult task is to provide some practical security for each, against the invasion of the others." Indeed, how best to secure each branch in its assigned power "is the great problem to be solved (Federalist 48, p. 308)."
In papers 48, 49, and 50, Publius discusses three proposals, respectively, for maintaining the separation of powers, rejecting each of them in turn. He then presents his own teaching on the subject in Federalist 51.
Number 48 asks whether "it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power?" But as Publius demonstrates, these "parchment barriers" are inadequate to prevent the legislative branch from encroaching on the other two branches, given that "parchment barriers" are legislative in nature, and that "the legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex."
The purpose of separation is not only to keep power dispersed among the various branches, but in particular to work against the tendency of the regime. In a monarchy that tendency is for power to accumulate in the executive; but in republican America the tendency is for power to accumulate in the legislative branch: "[I]t is against the enterprising ambition of [the legislative] department that the people ought to indulge all their jealousy and exhaust all their precautions." Publius gives three reasons why the nature of legislative power is the most threatening in a republican form of government: 1) "â€¦[I]n a representative republic, where the executive magistracy is carefully limited both in the extent and the duration of its powerâ€¦the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people with an intrepid confidence in its own strength." Being more attached to the people directly, the legislative branch believes it is the true voice of the people and has a "supposed influence" the executive and judiciary lack, therefore operating with "intrepid confidence." 2) "Its constitutional powers being at once more extensive and less susceptible of precise limits, it can with the greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments." The powers of the executive and judiciary are much more limited and simple, and therefore transgressions of their assigned power is much easier to detect than in the legislature. 3) "As the legislative department alone has access to the pockets of the peopleâ€¦and a prevailing influence over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former." The legislature alone has the power of the purse, and therefore controls the salary of other office-holders. This creates a financial dependency on the legislature by the other branches.
Publius' Constitution solves these problems with three corollary constitutional responses: (1) The composition of Congress, especially the election of Senators by state legislatures, reduces their claim of being the true voice of the people (Art. I, sec. 3). In particular, it is the judicial branch that will defend the constitutional rights of the people against an encroaching or usurping legislature, therefore in many respects being a more important voice for the people, and thus attaching their sentiments to the Constitution, instead of the legislature. (2) By enumerating and specifying the legislative powers, the Constitution defines in a fairly clear manner what Congress can and cannot do (Art. I, secs. 8, 9). And (3) by prohibiting changing the rate of "compensation" for the executive and judicial branches during tenure of office, Congress cannot bribe or threaten the other branches with salary increases or decreases (Art. II, sec. 1; Art. III, sec. 1).
In papers 49 and 50, Publius considers whether direct and easy recourse to the people is an effective deterrent against breaches of constitutional authority. Number 49 discusses Jefferson's proposal for occasional conventions to decide controversial constitutional questions, while number 50 examines the idea of regular, periodical appeals to the people.
Thomas Jefferson had "subjoined" to his Notes on the State of Virginia a proposed constitution for that state. Jefferson's draft provided that "whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution or correcting breaches of it, a convention shall be called for the purpose" (Federalist 49, p. 313. Emphasis original.). Publius begins number 49 by saying that Jefferson's plan, "like every thing from the same pen, marks a turn of thinking original, comprehensive and accurate; and is the more worthy of attention, as it equally displays a fervent attachment to republican government, and an enlightened view of the dangerous propensities against which it ought to be guarded." Publius acknowledges that an appeal directly to the people for questions of constitutional interpretation is not only "worthy of attention," but "displays a fervent attachment to republican government." Perhaps, however, Jefferson's plan is a little too republican, too democratic?
Publius acknowledges that "the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived." And therefore "it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of government," but also "whenever any one of the departments may commit encroachments on the chartered authorities of the others."
According to Publius, "[t]here is certainly great force in this reasoning." As a result, there should be a mechanism by which recourse to the people can be made. But Publius wants to limit its use to "certain great and extraordinary occasions." There are, Publius will explain, "insuperable objections" against the idea that frequent appeals to popular opinion will keep "the several departments of power within their constitutional limits."
To begin, Jefferson's plan fails in the case "of a combination of two of the departments against a third." Publius does not dwell on this objection, however, as "it may be thought to lie rather against the modification of the principle, than the principle itself." More important is the tendency of frequent recurrence to the people to diminish the "veneration" or reverence the people will have for the Constitution:
[A]s every appeal to the people would carry an implication of some defect in the government, frequent appeals would in great measure deprive the government of that veneration, which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.
People venerate what is old and traditional. What is new is by nature suspect — it has not proven itself to be good. Veneration requires the passage of time. As time passes, the people become increasingly distant from the Constitution. Or, rather, they become increasingly distant from the creation of the Constitution, thus forgetting that the Constitution is a product of their own making. Time bestows veneration because time allows the people to become more attached to the principles and goodness of the Constitution, and reflect less on the act of creation. Time allows constitutional founding (the giving of law) to evolve into constitutionalism (the rule of law).
But why does "the requisite stability" depend on "veneration?" Free government, which in the post-classical world means limited government, requires the citizens to acknowledge the superiority of the law, the highest in America being the Constitution. The problem with self-government is getting the people to acknowledge the superiority of something they made.8 For if the Constitution is a product of their will, then their will can be taken as the measurement for what is right, and how then does one choose between the will that creates the Constitution and the will that wants to destroy it? The answer is to show that the Constitution is the embodiment not simply of self-government, or popular will, but good government, that the Constitution rests upon a principle of inherent right. This means that the goal for Publius is not so much to show how the Constitution accommodates public opinion, but rather to shape public opinion in support of the Constitution. In doing so, the people will come to venerate the Constitution not only as their own, but as good. This veneration will over time mold and shape popular opinion in support of the Constitution:
If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself is timid and cautious, when left alone; and acquires firmness and confidence, in proportion to the number with which it is associated. When the examples, which fortify opinion, are ancient as well as numerous, they are known to have a double effect.
Opinion, then, is strongest when supported both by time and numbers. The problem with a frequent recurrence to the people is that it detracts from the tradition of the Constitution, and therefore will lower the number of people who revere it. The solution to this problem, offered by Publius, is to combine an emphasis on the republicanism of the Constitution — thus attracting the support of a large number of the people — while preventing frequent recurrence to the people by making the amendment process difficult, though not impossible. In doing this the source of law becomes obscure over time, and the Constitution appears more and more magnificent, if not somewhat divine. (Cf. Plato's Laws, 634d - 634e.)
This entire discussion of the need for "veneration" points to the defect in republicanism. For self-government to be identical with good government, self-government would need to be perfectly rational government. The people who govern themselves would need to be perfectly rational beings. According to Publius, this could only be expected in something as fantastic as Plato's doctrine of philosopher-kings:
In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws, would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage, to have the prejudices of the community on its side.
Here we see in Publius a classical understanding of politics and human nature: "Enlightened reason" tells us that in a "nation of philosophers" the reason of the law alone would inculcate a "reverence for the laws." (We note that even philosophers, however, are in need of law. Cf. Strauss, Philosophy and Law, Eve Adler translation, p. 39.) But for ordinary, political men, reason will not suffice. Man by nature is a mixture of reason and passion, the latter always frustrating the former. (See, e.g., Aristotle's Politics, 1287a25 - 33.) Human affairs, i.e. politics, can never be entirely rational — men can never become angels — and thus man is by nature limited in his ability for self government. That is why we need time to bestow veneration on the Constitution, because however reasonable the law may be, even be it perfectly rational, the judgment of the people is always less than rational. Or as Publius says, even "the most rational government will not find it a superfluous advantage, to have the prejudices of the community on its side." The Constitution must become the object not only of our reason, but of our "prejudices."9
The defect of human reason is the defect of the republican theory of government, and is thus the reason why mere "parchment barriers" — which are nothing but human legislation — are insufficient to remedy the republican problem. The defect of human reason is also the reason why at least one branch of government must be insulated to a considerable degree from the changing, temperamental will of the people.
This, however, does not exhaust the reasons why Publius opposes frequent recurrence to the people for constitutional questions. "The danger of disturbing the public tranquility by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions, to the decision of the whole society." The passions of the people are provoked, usually, at the expense of "tranquility," or stability. Publius admits that during the wave of state constitution writing during and shortly after the Revolution, reference was made, repeatedly, to the people, and without ill consequence for the stability of the state governments. But this was due, Publius explains, to the fact that the circumstances under which those constitutions were written were rare. They had a common enemy, England, that distracted them from their internal differences:
We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the antient government; and whilst no spirit of party, connected with the changes to be made, or the abuses to be reformed, could mingle its leven in the operation (Federalist 49, p. 315)
The future constitutional crises that will require participation on the part of the people will stem not from a common external enemy, but from internal divisions of opinions. Hence the passions of the people will not be united; they will be directed against one another. Moreover, we must keep in mind that the Articles of Confederation were written under the same circumstances as the state constitutions — with a view to England as the common enemy — and it turned out to be a dismal failure. And even the state constitutions were far from models of good government: most of the corruption America was experiencing in 1787 and 1788 was at the state level. Hence, Publius concludes, "the experiments [of frequent recourses to the people] are of too ticklish a nature to be unnecessarily multiplied."
Finally, Publius states what is "the greatest objection of all," that "the decisions which would probably result from such appeals [to the public], would not answer the purpose of maintaining the constitutional equilibrium of the government." The reason is that a constitutional convention is ill suited for the purpose of judging the merits of claims to power between governmental branches. As Publius explained in Federalist 48, it is the legislature that most threatens the "constitutional equilibrium of the government." "The appeals to the people therefore would usually be made by the executive and judiciary departments," writes Publius. The convention would in the end be performing the function of a trial, with the judicial and executive branches on one side, the legislature on the other, and the people sitting as judges via their elected delegates. Publius then raises the question, "would each side enjoy equal advantages on the trial?" The answer: No. The primary reasons are twofold: First, the legislature has more sway with the people. Publius writes:
The members of the executive and judiciary departments, are few in number, and can be personally known to a small part only of the people. The latter by the mode of their appointment, as well as, by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy: And their administration is always liable to be discolored and rendered unpopular. The members of the legislative department, on the other hand, are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship and of acquaintance, embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue (Federalist 49, p. 316).
Secondly, the legislators would most likely be elected as the delegates to the convention. "The same influence which had gained [the legislators] an election into the legislature, would gain them a seat in the convention." In other the words, they would be the judge in their own case: "The convention in short would be composed chiefly of men, who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them." According to John Locke, that is the definition of the state of nature (Second Treastise, ch. II). Such a convention would actually be a regression from civil society back to the state of nature.
The problem arising when there are conflicts of constitutional interpretation points to the importance of judging, or choosing well. As Publius makes clear, conventions would be called only under conditions of constitutional crisis, and therefore cannot be relied upon to reach a judgment in a cool and well-reasoned manner. Hence the problem arising from maintaining the separation of powers points to an independent judiciary whose job is to pass judgment in such cases in a disinterested manner. It also points to the necessity not only of keeping the judiciary separate from the legislative, but separating the will of the people from the maintenance of the Constitution. Regardless of whether a convention was called occasionally due to crisis or periodically by plan, the decision it would render could "never be expected to turn on the true merits of the question." By questioning the ability of the public to reason about such things, Publius prepares the rejection of the proposals considered in numbers 49 and 50.
According to Publius, under the most favorable circumstances, the people would still be too partisan to judge properly:
[The decision of the people] would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very men who had been agents in, or opponents of the measures, to which the decision would relate (Federalist 49, p. 317).
The objections to frequent or occasional conventions, however, go far beyond the simple question of how best to settle constitutional questions. What Publius is here saying is that when the people themselves deliberate either en masse or via delegates — at least most of the time — they are not really governing themselves. The people are less inclined to deliberation and rational reflection; they are not good at judging. Instead their opinions are made by parties, or "persons of distinguished character and extensive influence in the community." (Perhaps Publius aspires to be such a person?) And their reliance on parties or "distinguished" individuals itself is not wholly rational. Hence it is "the passions" Publius concludes, and not "the reason, of the public, [that] would sit in judgment." But for government to be good it must be rational. It is "the reason of the public alone that ought to controul and regulate the government. The passions ought to be controuled and regulated by the government." This arguably is the central thesis of the political science of The Federalist: Republicanism alone is not identical to good government. The goodness of a government is directly proportionate to its rationality. In a republic, where the people are to rule, it is their reason that must "sit in judgment." It means that government by consent must be government by enlightened consent, and that those who consent to be governed recognize the rule not necessarily of wise individuals — for as Publius says in number 10, "[e]nlightened statesmen will not always be at the helm" — but of wisdom simply.
The challenge is to mix the republican principle with the rule of reason. In a republic, the greatest threat to the rule of reason is the passion of "the public." As Publius asks in number 6, "Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities?" The public, therefore, must be distanced from the government. Or rather, reason must ultimately rule the passion of the public, but must do so through government. Hence government controls the passions of the people, but is itself controlled or ruled by the reason of the public. This means that while republican government is "government of the people, by the people, and for the people," the government is not identical to or synonymous with "the people." In Federalist 63, after a discussion of numerous examples of ancient governments that employed some form of representation, Publius writes, "The true distinction between these and the American governments, lies in the total exclusion of the people, in their collective capacity, from any share in [America], and not in the total exclusion of the representatives of the people from the administration of the [others]" (Federalist 63, p. 387. Emphasis original.). Under Publius' Constitution, then, we can speak of "the American people" and "the government" as two related, yet ultimately separate things.
The "reason of the public" is manifested not in unprincipled majority will, but in expressions of that will that are good and reasonable. It is manifest in the separation of powers, because it shows that the public understands the limits of their own reason. And the separation of powers is crowned by the judiciary, because it is the branch best capable of protecting the public's reason from their passion. The Court does this by defending the Constitution, the manifestation of the public's reason par excellence. The Constitution is what is ultimately wise and reasonable, and therefore entitled to rule. Nevertheless, that claim to rule is limited — it must be diluted: the people are the original source of authority for the Constitution, and therefore the Constitution can rule only with the consent of the governed.10
* * * * *
The forgoing discussion of the separation of reason from passion, and therefore the people from government, points toward an independent judiciary, and in particular judicial review, to which we now turn our attention. Papers 78 through 83 of The Federalist expound the nature of judicial power under the proposed constitution. But it is 78 that we will focus on, as it provides Publius' memorable defense of judicial review.
Publius begins 78 by reminding us that in the earlier papers he had already explained the "utility and necessity of a federal judicature." Furthermore, says Publius, "it is the less necessary to recapitulate the considerations there urged" because "the propriety of the institution in the abstract is not disputed." We recall, however, that in Federalist 22, the want of a national judiciary power was said to "crown the defects of the Confederation." Perhaps that which repairs the greatest defect is in effect the greatest asset?
There are two questions concerning the composition of the Supreme Court: 1) the mode of appointing the justices, and 2) the tenure by which they will hold office. In a strange and sudden move, Publius simply dismisses the former: "As to the mode of appointing the judges: this is the same with that of appointing the officers of the Union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition" (Federalist 78, p. 464). Moreover, he points to "the last two numbers," i.e. numbers 76 and 77, concerning the executive, as the "full discussion" on the mode of appointing judges, but he fails to remind us that he also discussed that subject in 51. What we are left with is the fact that in 78 Publius discusses the life tenure of the justices but opts to ignore the method by which they are appointed, while in 51 he defends the method of appointed judges — saying we need "a mode of choice which best secures" the "peculiar qualifications" of judges — but simply asserts the idea of permanent tenure. It seems as though Publius does not want us to consider these two elements of the court at the same time. Perhaps Publius is afraid that if we do we will see plainly the un-republican nature of the court?
The remainder of 78, then, concerns primarily the tenure of judges. According to the Constitution, "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior" (Art. III, sec. 1). Allowing judges to serve "during good behavior" is "certainly one of the most valuable of the modern improvements in the practice of government" (Federalist 78, p. 465). It is a modern improvement of "government," but it is not necessarily republican. According to Publius, life-tenured judges improve a monarchy no less than a republic: "In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body." The principle of life-tenured judges is the best check against that body in any regime that tends to accumulate the most power, and "it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws." (Cf. Aristotle, Nicomachean Ethics, 1134a35-1134b2.)
Publius moves quickly to show that a judiciary composed of judges serving during good behavior is not a dangerous threat to the other branches. Here we see again the passage with which we began, but this time in full:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
The executive and legislature combined possess four powers: honors, the sword, the purse, and the rules by which the duties and rights of every citizen are to be regulated. According to Publius, it is only the sword and the purse over which the Courts have no influence, implying that the courts may well have power with regard to dispensing honors and regulating the rights and duties of citizens. Moreover, even the "sword" and "purse" are transformed into "force" and will," of which Publius again assures us the judiciary has neither. But if we look back to Federalist 51, we see Publius there saying that each branch of the national government has its own will — in fact, the entire schemata of separation of powers outlined in 51 is built upon that premise: "â€¦it is evident that each department should have a will of its own," in order that "[a]mbitionâ€¦be made to counteract ambition." Thus it is only "force" that the court lacks. But even this may be an understatement: for while the court has no means of physical enforcement, it certainly is empowered with legal force. In fact, Publius begins the next paragraph by saying that what he has just described is the "simple view of the matter," thus suggesting that his "simple" claim of the judiciary's weakness may conceal some of its potential, though perhaps indirect, power.
Although the court may from time to time misjudge in particular cases, and therefore violate the rights of particular individuals, it can never be a serious threat to the "general liberty of the people" so long as "the judiciary remains truly distinct from both the legislative and executive." Publius then appeals to Montesquieu as an authority for his opinion: "For I agree that 'there is no liberty, if the power of judging be not separated from the legislative and executive powers.'" Publius seems to use Montesquieu to defend the idea that one of the reasons the court is weak and need not be feared is because the court should and will be kept entirely distinct from the executive and legislative branches. Interestingly, however, Publius had used the same quotation from Montesquieu back in number 47. There Publius said that Montesquieu's rule should not be taken literally:
From these facts by which Montesquieu was guided it may clearly be inferred, that in saying "there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no partial agency in, or no controul over the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted. (Federalist 47, pp. 302-303.)
In number 47 Publius interprets Montesquieu very loosely: shared power is only a threat when one branch controls all the power of another branch; therefore it may be permissible to let the coordinate branches have "partial agency" in the acts of each other. Upon this premise, the court could have some authority over the acts of the other branches, such as judicial review, and could then be possessed of considerable power. But in number 78, Publius is trying to score rhetorical points with those who fear the judiciary, and he therefore emphasizes the weakness of the court by emphasizing its independence. Publius goes on to say that the best way of maintaining the independence of the judiciary, and therefore preventing it from become a powerful threat, is the permanent tenure of its judges. In this way it is much less likely the court will have an incentive for collusion with the legislature. Publius concludes the paragraph under discussion by saying the judiciary, composed of judges with permanent tenure, is "the citadel of the public justice and the public security."
Publius next connects the "complete independence of the courts" with the notion of a "limited constitution." Strangely, he defines a limited constitution as "one which contains certain specified exceptions to the legislative authority; such for instance as that it shall pass no bill of attainder, no ex post facto laws, and the like." This definition is different than the definition given in number 41, where a limited government was understood to be a government of enumerated and limited powers. But in 78 it seems as though the legislature, without regards to Article I, Section 8 of the Constitution, has a general grant of power, but with certain exceptions. The exceptions to the legislative power "can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void."
Publius takes up the question whether the court is superior to the legislature due to the ability of the former to strike down the acts of the latter. This discussion will take place, however, in terms of the "rights" of the courts: "Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power." In the previous paragraph (quoted above), where judicial review is introduced, judicial review is a duty of the "courts of justice." But now judicial review is described as a right of the judiciary. By putting these statements together, one can say that the nature of the court, or the function of the court, brings rights and duties together. The power of judicial review is a right stemming from the duty of the court to uphold what is right — what is right being manifestly the Constitution. If the Constitution is simply an expression of will, then there can be no duty to defend it: why is the arbitrary will of the people to be preferred to the arbitrary will of the judge? Why should the judge — or anyone else — have a duty or obligation to respect that which has no intrinsic worth? But if the Constitution is grounded in something intrinsically right, we as moral beings have a duty to respect the conditions of the Constitution, and in particular judges have a moral duty to protect it.11
Publius wants to remove the "perplexity" that has arisen because of an "imagination that the doctrine [of judicial review] would imply a superiority of the judiciary to the legislative power." This requires a "brief discussion of the grounds on which it rests."
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act therefore contrary to the Constitution can be valid.
Contrary to a general grant of legislative power, restricted only by "specified exceptions," legislative power is now understood as "delegated." The legislature in particular is bound by the "tenor" of the "commission" granted by the public via the Constitution. The public is the source of legislative authority. However, as we saw in Federalist 49, they are not an effective check on legislative abuse. Furthermore, Publius points out that the legislature cannot be the "constitutional judges of their own powers" because it would violate the "natural presumption" that the representatives can "substitute their will to that of their constituents." But it is not the will of the constituents qua will that makes it superior to the will of the legislature. Publius understands the will of the people in light of their intention; and their original or fundamental intention is the Constitution: "â€¦in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." Only an independent branch, then, whose job is judging, can check legislative abuse. This suggests that the doctrine of judicial review is inherent in the idea of a limited constitution.
But the court should defend the Constitution not merely because it is willed by the people. The Constitution is more than will. As was shown in the discussion of number 49, the Constitution is the embodiment of right because it is reasonable. Throughout The Federalist, right and reasonable are treated as interchangeable terms.12 The Constitution should be defended because it is reasonable; and the power of judicial review is the best way of protecting the Constitution from an encroaching legislature; therefore judicial review embodies right reason — judicial review represents the reasonable and good will of the public.
It may be said that to understand fully the argument of Federalist 78, one must read it in light of number 49. Publius says in 78 that the power of judicial review does not "by any means suppose a superiority of the judicial to the legislative power." On its own terms — and that is the way modern conservatives understand judicial review — that statement is untrue. If "superiority" is identified with power, then the court is superior to the legislature insofar as it can exercise judicial review. This problem plagues the next sentence by Publius as well:
It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. (Federalist 78, p. 468.)
Judicial review "supposes that the power of the people is superior to both." But why is the power, or will, of the people superior to that of the court or the legislature? Why "ought" the judges (or the legislators) be governed by the will of the people? Why are the laws willed by the people "fundamental," while those willed by the legislature are not? These questions cannot be answered without recourse to something higher than the Constitution. These questions ultimately point to nature, to what is inherently rightful and reasonable. Publius does not give an account in number 78 as to why the Constitution is reasonable, and therefore, based on 78 alone, these questions remain unanswerable. But, again, if one looks back to 49, one sees that the Constitution embodies right reasoning. The Constitution is reasonable, and the proof is in the fact that it is a limited constitution, and above all in the separation of powers crowned with an independent judiciary. To know what reason is means to know the nature, or limits, of human reason. The Constitution limits and separates power because of those limits. This was the argument of number 49, therewith explaining why the Constitution as the manifest will of the public "ought" to govern as supreme law.
As Publius also explained in number 49, the danger in referring to the public for constitutional questions is the tendency of the public to be guided more by passion than reason. As the legislature is closest of the three branches to the turbulent tides of public opinion, then, it seems reasonable to assume that its motives will be grounded more in passion than reason, that acts of the legislature will tend to be more willful than rightful.
Publius builds on this argument as he proceeds in number 78: If there exists some rational ground that two conflicting laws share, reason and law should "conspire" in order to reconcile the differences. But more often than not, such common rational ground may not be present in statutory law. Thus when two acts of ordinary legislation conflict, it may be an inappropriate rule of construction to judge them by their reasonableness:
The rule which has obtained in the courts for determining their relative validity is that the last in order of time shall be preferred to the first. But this is mere rule of construction, not derived from any positive law, but from the nature and reason of the thing.
Perhaps it would be more accurate for Publius to say it is the absence of reason in the "nature and reason of the thing" that dictates the rule of preferring the most recent law. That is, as expressions of will, there exists no principle upon which one can judge one law as superior to another, except that the last in time is the most recent expression of the will of the legislature: It is "reasonable, that between the interfering acts of an equal authority, that which was the last indication of its will, should have the preference."
But when there exists a conflict between a statutory law and the Constitution, it is a conflict of something less reasonable with something manifestly reasonable. This accounts for the reversal of the rule of constitutional construction in number 78:
But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that, accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter, and disregard the former.
Publius again assumes the argument of 49. He says "the nature and reason" of the conflict between the Constitution and ordinary legislation implicitly points to the superiority of the former. If time confers superiority, then it would be redundant for Publius to say "the prior act of a superior." What is prior would ipso facto be superior. The same applies to his invocation of "the subsequent act of an inferior and subordinate authority": "Subsequent" would imply "inferior" and "subordinate." The nature and reason of the conflict, however, must be understood in light of the reasonableness of the Constitution. Nature and reason come together in the Constitution. The Constitution embodies reason, and the precepts of reason are eternal and unchanging; therefore future legislation, in order to be good law, must begin from the rational basis upon which the Constitution rests. If the Constitution is rational, then any law that deviates from the principles of the Constitution is proportionately less rational. Legislation that subtracts from the rationality of the Constitution contradicts the "manifest tenor" of the Constitution. When it does, the court has a reasonable duty to strike down such law as violating the Constitution, which is in turn in the service of reason.
According to Publius, the superior law is that which is rational. That which is rational is the Constitution. As was the good fortune in America, that which is rational is also prior. As part of the act of founding, the Constitution precedes in time all subsequent and derivative statutory law. The Constitution is the original law, and though the source of its authority is the people, it is given to us by Publius. As we saw above, Publius identifies the Constitution with the will of the people, but distinct from the will of the legislature. The public is the source of the first law, which is a good and reasonable law, but the legislature is the source of all subsequent law. The court, by exercising judicial review, defends not only the Constitution, but that which is oldest. In a sense, then, we can say the court defends tradition. Thus judicial review ultimately promotes "veneration" of the Constitution, which, according to number 49, is necessary for the "stability" required for the rule of law. It could be said that judicial review is the necessary corrective to the arbitrary rule of passion.
The people can choose to live under a constitution, and they can choose to limit the powers of the government formed by that constitution. But the fact that they can choose implies a standard of how they ought to choose. That is, in choosing their government, the people must recognize that each one of themselves is endowed with the same freedom by nature. The recognition of the equal rights of each individual sets the limit to what the government can rightfully or legitimately do. James Madison explains this succinctly in his essay "On Sovereignty,"
The first supposition is, that each individual being previously independent of the others, the compact which is to make them one society must result from the free consent of every individualâ€¦But as the objects in view could not be attained, if every measure.â€¦required the consent of every member of the society, the theory further supposesâ€¦that the will of the majority was to be deemed the will of the wholeâ€¦Whatever be the hypothesis of the origin of the lex majoris parties, it is evident that it operates as a plenary substitute of the will of the majority of the society for the will of the whole society; and that the sovereignty of the society as vested in and exercisable by the majority, may do anything that could be rightfully done by the unanimous concurrence of the members; the reserved rights of individuals (of conscience for example) in becoming parties to the original compact being beyond the legitimate reach of sovereignty, whenever vested or however viewed. [Emphasis added.]13
The function of just government points above beyond mere willfulness: it points to nature. Judicial review reflects the limited capacity of man to govern himself. It is rare that man wills for himself a government as rational and good as the American Constitution. And once he does, he is likely to deviate from that goodness by passing laws that contradict the rational principles of its origin. Thus man demonstrates his ability to reason above all by choosing a constitution with an independent judiciary, and he allows that judiciary the full power of judicial review by granting permanent tenure to judges:
If then the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges, which must be essential to the faithful performance of so arduous a duty. (Cf. Plato's Laws, 657b, 875d.)
* * * * *
Publius gives two other reasons in support of permanent tenure for judges: (1) to guard against the "ill humors" of those who seek to undermine the principles of the Constitution; and (2) to insure the appointment of men "who will have sufficient skill in the laws to qualify them for the stations of judges." While the latter is certainly worthy of discussion, especially its supplement to number 51, we will conclude with a brief mention of the former, as it points to the current political problems with which we began the paper.
Publius warns us that "the rights of individuals" are endangered "from the effects of those ill humours which the arts of designing menâ€¦sometimes disseminate among the people themselves, and whichâ€¦have a tendency in the mean time to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community." Here Publius takes very seriously the principle that ideas have consequences. Indeed, the Constitution itself is built upon a definite set of ideas. But when those ideas become "ill humored," the possibility of constitutional government itself becomes questionable. Moreover, destructive ideas become a serious threat to freedom when propagated by "designing men," or, as Publius refers to them elsewhere, "visionary" men (Federalist 6, p. 56). As Publius pointed out earlier, the public is moved more often by passion than reason, and in particular a passionate attachment to men of influence. Yet the public is responsible for electing legislators who in turn will pass laws that will in part shape future public opinion. The challenge posed to the public is similar to the problem of Plato's Republic: The public will not possess the wisdom of a statesman, but they must nonetheless possess enough wisdom, or the kind of wisdom, that will enable them to differentiate statesmen from swindlers. Here we note the word "demagogue" appears only twice in The Federalist: numbers 1 and 85, the first and last of the papers. It may be said that self government, as presented in The Federalist, is literally surrounded by the problem of demagoguery.
The ideas most threatening to "the rights of individuals" are those which deny individuals have rights. If the legislative body is able to "qualify their attempts" to undermine the Constitution with such ideas, it will "have more influence upon the character of our governments than but few may be aware of," because eventually these ideas will "disseminate among the people themselves" (Federalist 78, p. 470).
Earlier I quoted the editors of First Things questioning whether the United States could ever become Nazi Germany. And while America is not now a Nazi regime, the editors correctly state that "it is only blind hubris that denies it can happen here and, in peculiarly American ways, may be happening here." It is "blind hubris" because, as Churchill said, "the future, though imminent, is obscure," and we can never know for certain if the people's adherence to the rational principles of the Constitution will remain steadfast. Indeed, it looks as if it may not.
In order to remain free we must remain firm in our devotion to the rational principles of the Constitution and Declaration, principles rooted in nature. As Abraham Lincoln wrote in a letter to Henry Pierce, those principles "today, and in all coming daysâ€¦shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression." Without those principles, the moral and rational foundation of the law are dissolved. In the introduction to The City and Man, Leo Strauss put it this way: "[A] society which was accustomed to understand itself in terms of universal purpose, cannot lose faith in that purpose without becoming completely bewildered." Strauss identifies that "universal purpose" with the universal principle of human equality as understood by the American Founders. He begins Natural Right and History by quoting the Declaration of Independence: "We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness." Strauss points out that "the nation dedicated to this proposition has now become, no doubt partly as a consequence of this dedication, the most powerful and prosperous of the nations of the earth." He then asks a question — a paraphrase, actually, of the challenge put forth by Lincoln at Gettysburg — that all Americans should ask themselves: "Does this nation in its maturity still cherish the faith in which it was conceived and raised? Does it still hold those 'truths to be self evident?'"
Lincoln said in an 1856 speech, "Our government rests in public opinion. Whoever can change public opinion, can change the government, practically just so much."14 If our government rests in public opinion, then there is no more important object of our opinions than the Constitution and the principles that animate it. The "veneration" of the Constitution requires the support of public opinion. Lincoln followed his observation quoted above by saying, "Public opinion, on any subject, always has a central idea, from which all its minor thoughts radiate. That central idea in our political public opinion, at the beginning was, and until recently has continued to be, the equality of men." The self-evident truth of human equality, implying as it does individual natural rights, is the basis in nature for the reasonableness and goodness of the Constitution. As Publius writes in Federalist 78, the Constitution serves justice by its "inflexible and uniform adherence to the rights ofâ€¦individuals." Human nature provides the telos of the Constitution, and the natural phenomena of human equality is intrinsic to the politic science of The Federalist. It is a moral truth that infuses a political document such as the Constitution with goodness.
Public opinion is always shaped in part by "elites." Today that influence is greater than ever. The professoriat of our universities and law schools shape the opinions of our future lawyers, judges, politicians, and those Publius called "persons of distinguished character and extensive influence in the community." But the reigning doctrine in those institutions is moral relativism. Thus we see distinguished jurists such as Judge Bork reject the natural law foundation of the Constitution in favor of legal positivism and unqualified majoritarianism. But according to moral relativism, the "reason" of the public is indistinguishable from its "passions." On such premises, the political science of The Federalist collapses because the distinction between good government and mob rule becomes nothing but preference or prejudice. What was the moral purpose of government for Publius, and the final cause for the Constitution as defended in The Federalist, becomes meaningless.
According to Bork, the moral principles of the Declaration are incompatible with the positive, procedural structure of the Constitution. The Constitution concerns only means, not ends. For Bork ends are nothing but "value judgments," which by definition are irrational and subjective. "There is no way to decide these questions [of competing "values"] other than by reference to some system of moral or ethical imperatives about which people can and do disagree. Because we disagree, we put such issues to a vote andâ€¦the majority morality prevails."15 This raises the question, however, if ends are purely subjective, why not the means as well? And if all value choices are equally arbitrary, why is the value preference of a majority superior to the minority? or to any individual?
It is difficult to imagine any position more alien to the understanding of those who wrote and ratified the original Constitution, or wrote its greatest defense in The Federalist. For, as we have demonstrated, the theoretical high point of The Federalist, number 49, relies upon the natural distinction between reason and passion, a distinction intrinsic to the idea of human nature as a normative standard. Moreover, the Constitution, drained of its moral and rational content, becomes an empty vessel. The question then becomes a matter of deciding with which "values" to fill it: liberal or conservative? But qua "values," both sides seem to agree there is no rational ground available upon which such questions can be decided. Based upon Judge Bork's position, there is no reason to prefer a jurisprudence of original intent over that of a "living constitution." In arguing against the judicial activism of the left, legal positivists such as Bork have unwittingly given it its most sophisticated defense.
Strauss writes that modern social science would "give advice with equal competence and alacrity to tyrants as well as to free peoples," except for the fact that "it prefers — only God knows why — generous liberalism to consistency." If all moral judgments are relative to time or place or culture, and are therefore ultimately arbitrary, there is no reason to prefer freedom over tyranny, much less constitutionalism over arbitrary rule, and thus no reason why not to give consistent advice to tyrants as well as democrats, or perhaps instead of democrats. It is this relativism which poses the biggest threat we face today. The courts are not a threat to the liberty of Americans. Rather, moral relativism has attacked and jeopardized the principles of our Constitution, and therefore all the institutions built upon them. And it has done so under the authority of modern science. The corruption of the judiciary is only one symptom of a much more serious disease. Thus our job today is not to destroy or weaken the court, but to articulate the moral truths upon which our freedom rests. We must repair the moral fabric of America if we are to recover the rational basis of law. And this means we must challenge the relativism and historicism entrenched in our universities and public offices. We must build a majority party that will defend the principles of freedom, and that can be maintained in office for a considerable amount of time. Only then can the we appoint judges who will uphold the Constitution, and restore the proper separation of powers. The job before us is neither constitutional nor legal, but manifestly one of public philosophy. We are in need of a philosophy of the conditions of freedom, and scholarship in support of that philosophy, until such philosophy becomes what Lincoln called "the political religion of the nation."
1 Alexander Hamilton, James Madison, John Jay, The Federalist Papers, ed. Clinton Rossiter (New York: Penguin Group, 1961); hereafter cited as Federalist; p. 465. href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote1return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote1return">(Return)
2 Mitchell Muncy, ed., The End of Democracy? The Judicial Usurpation of Politics (Dallas: Spence Publishing Company, 1997). href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote2return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote2return">(Return)
3 Bork, Slouching, p. 15. Assuming that Judge Bork knows the power of judicial review is not explicitly granted in the Constitution, it seems odd that he blames both "our written Constitution and the power of judicial review." Does Bork mean to say that judicial review is implicit to a proper understanding of a written constitution? As we will see, this is the argument Publius makes in The Federalist. But if Bork is against judicial review, and judicial review is implicit in a written constitution, does it follow that Bork is against a written constitution? And if this is the case, is he ultimately against constitutionalism, as opposed to unprincipled majoritarianism or some other form of arbitrary rule? href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote3return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote3return">(Return)
4 "Tradition and Morality in Constitutional Law," a lecture at the American Enterprise Institute, reprinted in M. Cannon and D. O'Brien, eds., Views from the Bench: The Judiciary and Constitutional Politics (Chatham, N.J.: Chatham House Publishers, 1985). In arguing that the Constitution does not rest upon any general theory, and that the courts are too anti-majoritarian, Bork unwittingly aligns himself with the arguments of Charles Beard in his 1913 book, An Economic Interpretation of the Constitution of the United States, arguably one of the most influential books in the development of Progressive thought. Of course, thirty years after publishing his Economic Interpretation, Beard published The Republic, in which he greatly modified many of his earlier opinions, and acknowledged that the theory of individual natural rights was a central feature of the original Constitution. If Bork continues his Beardian train of thought, perhaps he too will come to acknowledge the natural rights theory that dominated the political thought of the American Founding. href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote4return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote4return">(Return)
5 For a thorough discussion of the moral relativism of contemporary conservative jurisprudence, including that of Bork and Chief Justice William Rehnquist, see Harry V. Jaffa, Original Intent and the Framers of the Constitution: A Disputed Question (Washington D.C.: Regnery Gateway, 1994). href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote5return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote5return">(Return)
6 I wish here to acknowledge my debt to Professor Charles Kesler for his insightful commentaries and seminars on The Federalist. To the best of my knowledge, he is the first Federalist scholar to challenge the interpretation that number 10 is the key to understanding the full argument of The Federalist. That interpretation was first given by Charles Beard to support his quasi-marxist critique of the Constitution. Later scholars who argued against Beard, such as Martin Diamond and Douglass Adair, though disagreeing with Beard's conclusions, continued to emphasize the centrality of 10. See, e.g., Saving the Revolution: The Federalist Papers and The American Founding, ed. Charles Kesler (New York: The Free Press, 1987), esp. Kesler's Introduction and Chapter One, "Federalist 10 and American Republicanism," pp. 13-39; and "The Founders and the Classics" in The American Founding: Essays on the Formation of the Constitution, eds. J. Jackson Barlow, Leonard W. Levy, and Ken Masugi (New York: Greenwood Press, 1988) pp. 57-90. href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote6return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote6return">(Return)
7 See, e.g., Herbert Storing, ed., The Anti-Federalist: Writings by the Opponents of the Constitution (Chicago: University of Chicago Press, 1985). href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote7return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote7return">(Return)
8 Intrinsic to modern republicanism is the theological-political problem, or the problem of political obligation. In the ancient polis the fundamental law was divine law; both law and lawgiver were higher than citizens — there was no question of political obligation: one obeyed the law because it was God's law. This, I believe, is Strauss's point when he praises Fustel de Coulanges, who "above all othersâ€¦have made us see the city as it primarily understood itself as distinguished from the manner in which it was exhibited by classical political philosophy: the holy city in contradistinction to the natural city." (City and Man, pp. 240-241.) In this light ancient Israel was typical of any ancient city. One could also argue the establishment of Christianity in the Roman empire followed the same logic, but only on a universal scale. As the empire crumbled, new states came into existence, each claiming the allegiance of its citizens — yet Christianity remained the religion of the Western world. And thus was borne a problem unknown to the ancient city: the earthly city and the heavenly city now represented two competing sources of obligation. This problem would be the source of religious wars for a millennium and a half. It would remain unsolved until the American Founding, where nature — as represented in the idea of human equality and natural rights — provided the rational ground not only for civil but also religious liberty. See Harry V. Jaffa, The American Founding as the Best Regime: The Bonding of Civil and Religious Liberty (The Claremont Institute, 1990). href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote8return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote8return">(Return)
9 Cf. Abraham Lincoln's "Lyceum" speech of 1838: "As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor; — let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children's liberty. Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap — let it be taught in schools, in seminaries, and in colleges; — let it be written in Primers, spelling books, and in Almanacs; — let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars." href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote9return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote9return">(Return)
10 Cf. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1965) pp. 140-142. href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote10return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote10return">(Return)
11 In the Declaration of Independence it is not only the right but the duty of a people to resist tyranny when it is prudent to do so. This is a rejection of the precepts of modern political philosophy, especially that of Hobbes. In Hobbes what is highest is self-preservation, therefore there can be no "duty" to sacrifice oneself for something higher, because there is nothing higher than life itself. Also absent in Hobbes is the idea of "honor," because honor implies some standard of goodness above mere life. The Declaration, however, ends with the signers pledging their "lives, fortunes, and sacred honor." See also the 1776 sermon of Samuel West, "On the Right to Rebel against Governors." href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote11return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote11return">(Return)
12 Thomas Aquinas defines natural law as the rational creature's participation in the eternal law, by which God governs the universe. By Aquinas' account, that which is reasonable is right. Summa Theologica, Query 93, Article 2. href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote12return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote12return">(Return)
13 James Madison, "On Sovereignty," 1835. Madison introduces the forgoing discussion on sovereignty as follows: "To go to the bottom of the subject, let us consult the Theory which contemplates a certain number of individuals as meeting and agreeing to form one political society, in order that the rights the safety & the interest of each may be under the safeguard of the whole." He concludes by stating: "Of all free government, compact is the basis and the essenceâ€¦" According to Russell Kirk, neither Madison nor Hamilton looked to "such artificial constructions as the pretended Social Contract." The Politics of Prudence (Intercollegiate Studies Institute, 1993) pp 45-46. Recall also the comment of Bork, that "[o]ur constitutional libertiesâ€¦do not rest upon any general theory," cited above, p. 5. href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote13return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote13return">(Return)
14 Abraham Lincoln, Portion of Speech at Republican Banquet in Chicago, Illinois, December 10, 1856. href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote14return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote14return">(Return)
15 Robert Bork, The Tempting of America: The Political Seduction of the Law (New York: Free Press, 1990) p. 259. href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote15return" mce_href="https://www.claremont.org/cmsadmin/internet/publications/edit_pub.asp#footnote15return">(Return)