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A CRB discussion of Saving the Constitution

By: Jean M. Yarbrough, Bradley C.S. Watson, Michael M. Uhlmann, Jeremy Rabkin, John Marini, James W. Ceaser
December 12, 2012

The Spring 2012 issue of the Claremont Review of Books featured two cover essays, one titled "Abandoning the Constitution," in which John Marini analyzes America's departure from constitutional government, and the other "Restoring the Constitution," in which James W. Ceaser charts a course back to the U.S. Constitution.

For this edition of "Upon Further Review," we invited CRB contributors Jean Yarbrough and Bradley Watson to respond to Marini's essay, and Michael Uhlmann and Jeremy Rabkin to respond to Ceaser's. John Marini and James Ceaser reply below.


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Jean M. Yarbrough

America has a problem. The severity of that problem is directly related to the fact that it is dimly perceived. The problem is the gradual rise, beginning over a century ago, of the administrative state, creating a shadow government that operates parallel to the written Constitution but according to a theory fundamentally averse to it. Most Americans are, to put it gently, no longer conversant with the purpose or specific provisions of our Constitution. Unsurprisingly, they remain ignorant of the ways the administrative state works to supplant, not fulfill, the Constitution's true intentions.

Much of the problem at the theoretical level, John Marini argues, can be ascribed to the Progressive era romance with German State theory in general and G.W.F. Hegel in particular, a romance perfectly captured by the poet Walt Whitman when he observed, "Only Hegel is fit for America-is large enough and free enough." What was it about Hegel that so enraptured American intellectuals? The homegrown, "St. Louis" Hegelians, saw the Hegelian dialectic in the Civil War, which pitted "abstract right" against "abstract morality" and issued in the emergence of a unified American nation. Then, there were scholars who went abroad, the vast majority to German universities, because the United States had no graduate programs where they could continue their studies.

These scholars embraced Hegel's argument that Lockean liberalism was too abstract and ahistorical. According to Hegel, freedom was not, as Locke and later Jefferson had argued, the natural condition of human beings everywhere, but emerged only historically as individuals became conscious of their freedom and acted on it. Thus, it made no sense to construct a government based on dubious insights into human nature revealed by theorizing about a pre-political state of nature.

Just as freedom emerged only historically, Hegelians believed, so did the State. Once again, the social compact theorists erred in allowing too great a role for what The Federalist called "reflection and choice" in the American Founding. All nations must go through a necessary process of historical development. What's more, it was only after the State had been established that rights talk made any sense. Although Hegel sought to protect the rights to life, liberty, and property, he denied that individuals somehow possessed these rights "by nature." It is the State that determines and guarantees rights, which are historically contingent. Hegel argued that protecting these rights could never be the sole or highest end of the State because they were merely "negative" liberties, too closely tied to necessity to constitute true freedom.

But it was not simply Hegel's criticism of Lockean liberalism that attracted American intellectuals. Hegel also offered a positive vision of the State's potential. In his view, freedom was much more than the protection of individual rights. True freedom was rational freedom, where individuals chose the good for its own sake. Rational freedom required a willingness to sacrifice private rights and economic gain for the sake of something nobler and grander, which could only be achieved by and through the State. Accordingly, liberal abstract right necessarily pointed beyond itself to the individual as a spiritual being, sustained in his free choice of moral action by the institutions of the "ethical" State.

In his Philosophy of Right, Hegel set forth the institutional arrangements that supported his conception of the "ethical" State, two of which held great promise for his American followers. First, a class of highly trained civil servants would diagnose and remedy social problems. Because the "ethical" State aimed at rational freedom, it was dangerous to assume that the people, who acted on the basis of their particular "subjective" interests and needs, could know what was right. Rational freedom, then, could not rest on so shaky a foundation as the consent of the governed. Though Hegel recognized the danger that these experts might abuse their power or become too remote from the governed, his argument emphasized the rewards, not the risks, from empowering disinterested civil servants to rise above political divisions in pursuit of the common good. Such communitarian impulses struck a responsive chord in an audience grown weary of "individualism" and its materialistic fruits.

Second, Hegel sought to promote rational freedom by overcoming what he considered the excessive rigidity of the separation of powers that prevented the State from achieving its "ethical" ends. Such a mechanical view of government might serve the ends of limited government (which he mistakenly thought extended no farther than checks and balances), but fell far short of his far grander conception of what the "ethical" State might accomplish. Not surprisingly, the Americans who went abroad to study in Germany returned home determined to push for this new and improved political order.

Let me suggest three friendly amendments to Marini's analysis of the problem of the administrative state. First, the progressive assault on the Constitution did not begin with Franklin Roosevelt, nor can it be entirely blamed on his Democratic predecessor, Woodrow Wilson. In fact, every departure from American founding principles in FDR's 1932 "Commonwealth Club Address" can be traced to FDR's Republican cousin, Theodore Roosevelt, who has, for far too long, been given a pass on these matters. It was T.R. who in 1912 first endorsed the idea of a new social compact between the people and the government, in which the state would guarantee new economic and social rights. That idea, in turn, was preceded by his assertion in his "New Nationalism" speech in 1910, that "every man holds his property rights subject to the general right of the community to regulate its use to whatever degree the public welfare may require it." In T.R.'s new republic, the object of government was not to secure individual rights, but to redistribute the wealth of the nation more fairly.

German State theory and its philosophy of history were one of the sources for T.R.'s departure. As Roosevelt wrote to Harvard professor Hugo von Munsterberg in 1916, "I do not for a moment believe that the Americanism of today should be a mere submission to the ideals of the period of the Declaration of Independence. Such action would not only be to stand still, but to go back." Roosevelt then reassured the professor that he had "actively fought in favor of grafting onto our social life, no less than our industrial life, many of the German ideals." In fact, for every "English ideal or habit," Roosevelt ventured that he had supported "a dozen" German "ideals and habits."

In addition to recasting the social compact and making government the guarantor of new economic rights or entitlements, Roosevelt also sought to overcome the structural limitations of the Constitution-barriers imposed by the obsolete notions of separation of powers and federalism. During his presidency, he worked to expand the federal bureaucracy, circumvent Congress whenever it proved recalcitrant, and challenge the courts in the name of what would later be called "the living constitution." In his final years, he would become even more progressive, proposing social and economic policies, some of which, like Social Security, would be enacted during the New Deal, and others, such as health care, that remained on the progressive wish list until Barack Obama's presidency. Not for nothing did FDR study (and in significant ways, imitate) the presidency of his cousin.

T.R. made such proposals, it must be said, in response to what he believed was a genuine crisis, one brought on by the compounding effects of industrialization, mass immigration, urbanization, and the depletion of critical natural resources. These problems cried out for increased federal regulation, or "supervision," as he liked to call it. And this brings me to my second point: we need to pay much more attention to the facts on the ground. In short, we have to ask: just how severe was this crisis? Or, to put the question another way, is it really the case that the old constitutional order was incapable of rising to these challenges?

These questions, merely empirical, are nonetheless difficult to answer. The political, economic, and legal historical scholarship of the last century has been dominated by progressives, broadly understood to mean those sympathetic to the Left. To the extent dissenting voices have occasionally emerged, they have, as James Ceaser notes in his essay, been from libertarians, who have their own problems with the original Constitution. What we need is a fresh look at the Progressive era, shedding new light on the severity of the problems and the constitutional resources that might have been used to address them if reformers in thrall to the siren call of the "ethical" state had not pursued a different, transformative agenda. But where are such intrepid historians to be found, given the current state of the discipline or the prospects for employment?

Finally, I would like to suggest that, as helpful as Hegel may be for understanding the intellectual sources of our present troubles, they can blamed only in part on German imports. Before the enchantment with Hegel, Tocqueville had famously warned in the second volume of Democracy in America about "the kind of despotism democratic nations have to fear," foreseeing precisely the dangers that progressive politics would bring. He predicted, all too accurately, that democracies would attack those forms-constitutional, legal, and institutional-standing between them and their immediate wishes. He also foresaw the assault on individual rights in the name of collective rights, and warned against the rise of a paternalistic bureaucracy that would treat citizens as children, relieving them of the burden and sapping them of the will to govern themselves. These forebodings were all predicated on Tocqueville's insight that democratic societies tend to love equality more than they do liberty. What's worse, the more equal society becomes, the more frustrated people are with the remaining inequalities. This applies, of course, to conventional social and economic differences, but it also extends to natural inequalities-all of which must be leveled by a benevolent State exquisitely sensitized to such matters. However much the Declaration of Independence insists that the end of government is "to secure these rights," we cannot seem to get our minds off the antecedent phrase that "all men are created equal." Oops, make that all persons.

This insatiable desire for equality-not the "manly" taste for equality that admires merited success, but its "depraved" evil twin that resents those who do better-lies at the root of the problem. If we are to make any headway in restoring the original constitutional design, we must somehow induce the majority of our fellow citizens to care more about guarding the domain of liberty than about expanding the empire of equality. As Tocqueville again suggested, what democratic societies most need is a healthy dose of pride-pride in themselves as free men and women engaged in the great project of republican self-government. If-and it's a big if-we can recover the political spirit of our ancestors, we may be reasonably confident that the rest will follow.

Jean M. Yarbrough is professor of government and Gary M. Pendy, Sr., Professor of Social Sciences at Bowdoin College, and the author of Theodore Roosevelt and the American Political Tradition (University of Kansas Press).


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Bradley C.S. Watson

John Marini offers a finely crafted definition of the problem confronting us, and our Constitution. Constitutionalism is no longer meaningful to politics, he contends, because we no longer distinguish a constitution from a government-or from the laws made by a government to deal with changing historical circumstances.

It was not meant to be that way. The American Founders rejected assaults, ancient and modern, on our capacity to know and follow moral truths. Their politics rested on a fact of nature: the political equality of human beings. The founders did not embrace the self-evident falsehood of equality in all respects, but the self-evident truth that no man is born so naturally superior to another as to be entitled to rule without the consent of the other. Hence, legitimate government is rooted in the compact of politically equal beings, and depends for its operation on the continuing consent of the governed. The founders' moral realism held, with Plato in the Minos, that law aims to be a discovery of what is; and with Aquinas in the Summa, that all human law, to be law, must align with the natural law-God's reason about the moral order.

Our Constitution is therefore grounded, theoretically, in the sovereignty of the people. Yet it has been reduced, practically, to the sovereignty of the government. The latter sovereignty manifests itself through the byzantine, though supposedly rational, machinations of the administrative state. The intellectual movement that precipitated this shift was American progressivism, which has dominated American political thought from shortly after the age of Lincoln to the present day. Progressivism embodies a philosophy of History, with a capital H-not history as a record of events, but a history that is going somewhere, that is unfolding inexorably and in a direction that is largely scrutable to elites. But in the view of those elites it's unfolding less efficiently than it might, and therefore requires their expert superintendence to ensure it reaches its goal expeditiously and uninterruptedly. With everything in motion, a Constitution dedicated to preservation must itself be overcome. Furthermore, a Constitution premised on the idea that there is a truth that transcends the unfolding of History, a truth that does not vary with time is, intellectually, an absurdity.

For progressives, the foundations of morality and politics rest not on the cognizable facts of nature, but in the unfolding of rational will. Marini sees Immanuel Kant as their point of departure. Kant is indeed important to the new constitutionalism, for a historicism grows out of his thinking even though it's not directly attributable to him. Kant maintained there is no knowable moral or political law apart from human will. There are two consequences to this argument-consequences that were articulated and embraced both by early progressives, and later by what we have come to know as political liberals. The first is moral subjectivity, or relativism, in the form of the triumph of will over what liberals see as the phony authority of any claims of universal right, including those embodied in a political document such as a constitution. The second is the attempt to rationalize and reintegrate the many individual wills that assert themselves when there is nothing but will-when reason is divorced from nature as a knowable and unchanging standard-into some kind of communal or communitarian whole.

The point of this reintegration is to express the true will of individuals and the political communities they constitute-the general will, as it were. In the historical process by which this reintegration comes to pass is, time corrects all errors and the future takes care of itself, in the words of Louis Brandeis. We must look to the future to see where we should go now. We cannot look back, with Lincoln, to musty, dusty historical documents like the Constitution. A philosophy of history, of one sort or another, is needed to describe and account for this process. And history indeed becomes, as Marini argues, the way in which we, or at least our elites, understand politics and constitutionalism.

All of this accurate as far as it goes. But our problem runs even deeper than Marini shows. American progressivism and the modern social science that is its handmaid reflect but a moment in the unfolding of human consciousness-the deep-rooted desire of human beings to be liberated from standards, and constraints: constraints even more authoritative than a political Constitution dedicated to the preservation of natural rights. Kant and German historicism are the tips of an iceberg. There is a much larger philosophical psychology at work, to which the progressives merely attached themselves.

At the dawn of time, "when the woman saw that the tree was good for food, that it was pleasant to the eyes, and a tree desirable to make one wise, she took of its fruit and ate." The human soul has shown itself from the beginning to be driven to be its own master, to operate without constraints, no matter how tangible, immediate, and over-awing those constraints might be; to rebel, even in the immediate presence of God. The age-old desire to be free, to liberate the self, has overtaken Kant's desire to establish one last moral universal-the good will itself.

American liberal elites have imbibed not merely progressivism but, in the extremity of liberalism, a contemporary form of nominalism. Words have come to mean what the smart people in control of the organs of the state think they should mean, based on our historically revealed preferences and our historically situated sense of what freedom requires. We seek expertise not so much to reveal and direct what the early progressives saw as the ironclad laws of History and value-free social science, but to tell us where our psyches are situated in the unfolding of emotional history.

American Hegelianism died with Woodrow Wilson on February 3, 1924, but our new nominalist progressives are still under the sway of a philosophy of history. Theirs is an inchoate faith in the future, resting on decidedly American philosophical doctrines like social Darwinism and pragmatism. At its heart is a Darwinian sense that we must, by definition, evolve or die. Politically, we must keep up with the times, as revealed in more advanced places-other social democracies, in particular. And this Darwinian sense of the necessity for change and the need to embrace change, coupled with American pragmatism's categorical approval of individual and social experiments, militate strongly against both constitutionalism and nature itself as a standard.

The path to our present dilemma cuts through and unites medieval nominalism, early modern liberalism, Kantian rationalism, Hegelian historicism, and finally American progressivism. Our new nominalism is more inchoate, more comprehensive, more American, and harder to combat than a single German philosophical doctrine. The most striking examples of it-of words coming to be understood by elites not to refer to anything in nature, but to float freely above things-in-themselves-are to be found in courts of (what used to be) law.

Certain state court rulings (soon to become federal court rulings, we can be sure) on the purported right to same-sex "marriage" illustrate the point. The word marriage is casually divorced from all traditional and natural significations-from the wisdom of the ages, and from the shared rational faculties of men, which cannot help but see the male-female distinction as the most obvious articulation of the laws of nature and nature's God. Courts feel free not simply to twist or ignore the meaning of words in political documents like constitutions, but also in the Oxford English Dictionary. And with this, the brave new world begins. There is literally no constraint on the power of state actors to do-and by manipulating language itself-make us think as they please.

A Constitution cannot be antecedent to government, in Marini's terms, because there are no longer any antecedents. All meaning is to be constructed; we look for our guidance prospectively, rather than retrospectively. And so when contemporary progressives in effect say, "Come, let us build ourselves a city, and a tower whose top is in the heavens, let us make a name for ourselves," they do nothing more than express the earliest and most powerful of all human desires. The heart wants what it wants because understanding can no longer even begin to tame the heart's desire.

So we confront a problem even more wide-ranging than Marini suggests, and more difficult to combat than it would be if it had begun with Kant and Hegel. We no longer merely ignore constitutional text to suit the needs of the administrative state and its growing list of clients. We deny the moral universe, which Kant and Hegel did not quite do.

Marini, with remarkable clarity and compactness, has delineated a subset of this larger problem. And he offers something else-concrete grounds for hope: "The American government was among the last of modern industrialized societies to rationalize politics by centralizing administration in national government." This is no small thing, and it's linked to our founders' hostility to centralized administration and any political theory underlying it. The veneration that most Americans still feel for their founders in spite of progressive assaults is no small thing, either. A growing body of scholarship, largely grown out of the Claremont school, reinforces that veneration. In light of these things, we can reasonably say our cup is half full, rather than half empty.

Marini offers yet more food for thought: modern bureaucratic government established on the theoretical foundations of the rational state is less able to govern effectively (including cost-effectively) the more completely it tries to administer the details of social and economic life. Perhaps this is our avenue out: realism, and the constitutional order that embodies it, will reassert themselves when the alternatives are the dreary despotism of 1984, or, less dramatically, the farcical consequences of entrusting government to graduates of our best law schools and public administration programs. As conservatives, optimism is not permitted us, but hope springs eternal.

In the face of persistent, powerful assaults on moral realism-an instance of which is the progressive assault on the founders-can the achievements of limited constitutionalism be anything more than temporary? That political question extends beyond America, but the argument between our founders and their progressive critics reveals the most serious questions and tensions within the Western tradition. With Marini having made clear the nature and implications of this argument, we see the magnitude of what is contained within the American experience. We now hope, that of all the nations, America is the most likely to resist the fatal temptations, and be as a shining city on a hill. The fate of unborn millions is still to be determined by how we comprehend, and respond, to our Constitution and our politics. And we now sense-those of us who seek to defend our founders against their progressive critics-that this is our moment, this is our time.

Bradley C.S. Watson is professor of politics, Philip M. McKenna Chair in American and Western Political Thought at Saint Vincent College, and author of Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence (ISI Books).


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Reply from John Marini

I want to thank Jean Yarborough and Brad Watson for their thoughtful and generous comments on my essay. In their reviews, there were large areas of agreement, some interpretative disagreement, and, perhaps, a little misunderstanding. There was general agreement on the importance of German thought, especially that of Kant and Hegel, in terms of establishing the intellectual foundations of the progressive movement. All seemed to agree that German historicism coupled with scientific Darwinian biology helped to establish the authority of the social sciences and contributed to institutionalizing that authority within the newly created graduate departments of American universities such as Johns Hopkins. There is much to agree with in the responses of Yarborough and Watson that I must pass over. Consequently, I will focus primarily on those areas of disagreement and seek to clarify any misunderstanding that arises from my arguments.

Jean Yarborough is surely right in suggesting that the assault on the Constitution did not begin with Franklin Roosevelt. Indeed, I attempted to show that progressivism as an intellectual movement had triumphed even before the beginning of the 20th century. It dominated political thought and established the ground of all partisanship by the election of 1912. Theodore Roosevelt, Woodrow Wilson, and Eugene Debs, were not the only ones who described themselves as progressives; even William Howard Taft called himself a progressive conservative. In my attempt to elucidate the difference between constitutionalism and the administrative state, I tried to make clear that it is the theoretical character of the American Founding that no longer resonates and has been replaced by another theoretical perspective.

I chose Thomas Paine as the best representative of the earlier view because he was the most influential theoretic politician of the revolutionary era. And Washington, Jefferson, and nearly all of the American Founders subscribed to Paine's principles derived from theoretical reason. Agreement on theoretical principles, however, does not preclude disagreement on prudential grounds, or concerning politics, which is derived from practical reason and rests upon opinion. Surely, Paine's political opinions, as opposed to his principles, were not so widely shared when the political science of the Constitution came to be understood by The Federalists as "inventions of prudence." The theoretical character of the American Founding was dependent upon both theoretical and practical reason, not to mention nature, or natural right. When theoretical reason resonated, it was possible to distinguish principles from political practice, which rested upon opinion. It was possible therefore to distinguish a constitution from government. Subsequently, historians, oblivious to the principled agreement derived from metaphysical reason, could see only political disagreement among the founders and came to conclude that it lacked any theoretical coherence, or unity of purpose.

In denying the authority of nature and theoretical as well as practical reason, progressive thought was constructed upon an understanding of freedom, or will; human action establishes the ground of morality and becomes the animating force of historical progress. Consequently, there is no further need to distinguish theoretical reason (principles derived from nature) from practical reason, or prudence (application of those principles in concrete circumstances). The moral will is derived from practical reason, making prudence superfluous. Thus, the problem of politics becomes one of establishing scientific or technical rationality, (eventually it became social science) which would practically and efficiently ensure that the will is made actual. That historical transformation requires moral leadership, or vision, as they now say. As with Paine, in terms of theory, I looked to the single most successful progressive practitioner, or politician, of our time. As important as Theodore Roosevelt was in the early century, I focused on Franklin Roosevelt; because he was the one who transformed what had been primarily a powerful intellectual movement, progressivism, into the most successful political movement of the 20th century, liberalism.

Yarborough gently reminds me that not all the blame for the ills of progressivism can be laid at the feet of Hegel. I agree. She suggests that Tocqueville foresaw some of those problems in the "tendency of democratic societies to love equalitymore that liberty." Tocqueville was persuaded that the passion for equality of conditions arises from the acceptance of the general idea of equality, which derives from Christianity. The demand for equality requires ever greater uniformity, rationality, and centralization of administration. In his view, equality, then, becomes the closest thing to a principle of democracy. Thus, he insists that all democratic regimes are characterized by a commitment to equality, and all modern regimes will become democratic. The problem that concerned Tocqueville was the status of liberty in democratic societies.

I, too, am a great admirer of Tocqueville's analysis of centralized administration as the "kind of despotism democratic nations have to fear." Yet, I did not think he was helpful in establishing the theoretical character of a constitutional regime based upon principles of natural right. Nor, do I think that Hegel was any less concerned with liberty than Tocqueville. And, although, Hegel understood equality in terms of citizenship in the state, and Tocqueville in terms of democratic society, both understood theory from a perspective of history, not nature. Tocqueville accepted the practical implications of what Hegel had made explicit theoretically, that the historical process is purposeful without regard for human choice. If Providence had mandated the triumph of democracy, and equality; the defense of freedom rested upon the preservation of those pre-democratic institutions (aristocratic traditions, religion, free townships)where ‘communal liberty' existed before democratic equality was established.

Tocqueville's new political science, therefore, was an attempt to fathom a new world made intelligible by history and not nature. Consequently, his view of equality comes to be understood in historical terms, as a general idea which shapes, and is shaped, in democratic society. If the democratization of society leads inevitably to equality of conditions or administrative centralization, no natural beneficial order of human society, which must be made intelligible through the use of human reason, is attainable. Rather, democracy and equality of conditions leads inevitably to despotism. In Tocqueville's view, equality, therefore, was not to be understood in terms of reason or metaphysics, nor is it derived from philosophic principles established on the ground of nature, or natural right. Not surprisingly, Tocqueville did not attempt to defend the American Founder's understanding of the principle of equality, because he did he not think that equality could serve as the ground of political right, or justice. For Tocqueville, the closest thing to a universal principle of political right is not equality, but liberty. Equality was fated; the problem that concerned him was the fate of human freedom in democratic times, something which was still within human control. The problem of democratic despotism arises because of an inability to harmonize equality and liberty once society is democratized. Although equality is compatible with freedom or despotism, it moves almost inexorably toward democratic despotism. Freedom, therefore, must be preserved against the growing demands for greater equality which originate in democratic society.

Unlike Tocqueville, the American Founders had argued that equality and liberty were not only compatible but were necessary concomitants. Neither was fated, but both were understood to be objects of political choice derived from reflection. Both could be lost if not properly understood and nurtured. A proper understanding of the equality and liberty is akin to a proper understanding of theory and practice. They are the opposite sides of the same coin. The political problem requires a reconciliation of theoretical and practical reason, of principle and prudence, of constitutionalism and government. In the founders view, both equality and liberty were wholly necessary and only compatible when established within a constitutional or political regime in which a limited government and an autonomous civil society serves to protect individual natural rights. When constitutionalism was undermined and came to be understood in terms of the administrative state, the meaning of equality and liberty was transformed by political necessity. Equality was no longer understood in terms of a defense of individual natural rights. Nor, was liberty understood in terms of preserving the autonomy of civil society. Rather, equal citizenship required that government becomes the arbiter of all political rights, based upon the unity of the State, itself. Indeed, the State was meant to transcend the distinction between government and civil society, church and state, and the individual and the social, or communal. In John Dewey's view, progressive liberalism was meant to replace the founders', or John Locke's, liberalism.

It is not surprising that the progressives like John Dewey and Mary Parker Follett came to understand political freedom in terms of social, or group, rights, and individual freedom, not in terms of self-government, but in terms of self-expression, or creative self-discovery. When government established the ground of right in the State, freedom comes to be understood in terms of equality of rights, or equal citizenship. Individual rights, and civil society, become unintelligible theoretically, and eventually politically as well. Is it possible then to understand equality and liberty as having both a theoretical unity, and a practical separation, as it was understood by the founders? Furthermore, are not the various 20th-century social and cultural movements,(what comes to be called identity politics, whether of blacks, women, ethnic, or religious, minorities, gays. etc.), made on behalf of liberation, or evolving consciousness of freedom? And, always, it seems that these demands for equality have made on behalf of liberty? I don't doubt that the progressive intellectuals, like the theorists who inspired them, (including Rousseau, Kant, and Hegel, or Marx) loved liberty as much as equality. It was the meaning of equality and liberty that had changed. Tocqueville was right about the meaning of equality as it came to be understood historically. At the same time, he refused to understand liberty in the way it came to be understood in the Hegelian conception of freedom as equal citizenship within the State.

Finally, I can only agree with Brad Watson that "our problem runs even deeper than Marini shows." Watson points to a crisis of historicism itself that was revealed most clearly by Nietzsche. To achieve some clarity on that subject would require what Nietzsche described as a kind of knowledge about man derived from physio-psychology. I did not want to descend to those kinds of subjective depths. I preferred to remain on the surface. Consequently, I tried to give a political and theoretical account of the transformation of the American regime. And, perhaps I succeeded somewhat. Professor Watson, himself, concluded that my analysis offered in his words, "concrete grounds for hope." In political philosophy, as well as reasonable religious belief, there is always ground for hope. That is because the desire for justice and happiness, or salvation, offer human possibilities that forces individuals to look outside of their subjective world. The optimistic progressives had hoped that politics and religion could be replaced by a free, or un-coerced, rational or scientific democratic society. That hope came to be viewed as more akin to a dream rather than as an objective analysis. The pessimism of 20th-century liberalism grows out of a loss of confidence in the rationality of the historical process and science, itself. In denying any objective or meaningful reality, it has revealed itself as a kind of nihilism. It is for this reason that I wanted to remain on the level of a theoretical and political, or common-sense, analysis of our problem.


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Michael M. Uhlmann

In his characteristically thoughtful and gently provocative manner, Jim Ceaser has drawn our attention to a missing feature of contemporary constitutional discourse. The belief that constitutional government necessarily means limited government was once widely understood and accepted as a sine qua non of American political life. That overarching conviction, according to Ceaser, now lies buried beneath layers of "legalistic" reckoning about constitutional language that only law journal editors can understand. This narrow preoccupation with the Constitution writ small has proven no match for the seemingly inexorable growth of government power. Indeed, one would be hard-pressed these days to identify an activity thought to be beyond the scope of federal regulation.

In a word, we seem to have missed the forest for the trees. In lieu of robust constitutional arguments that once animated elected officials and even political parties, we seem to have settled for the shop talk and shorthand of technical legal experts who ply their wares almost exclusively in the courts. For their part, the courts have become the final arbiters of constitutional meaning. Ceaser urges us to rise above legalistic constitutionalism by restoring a properly politicalconstitutionalism, which is to say a constitutional discourse that engages the minds and hearts of the citizenry.

The distinction between a legalistic and political constitutionalism is a useful one, if for no other reason than that it reminds us of what our public conversation has lost. Much contemporary constitutional discussion is indeed technical, mechanical, and dry as dust. Consider the current litigation concerning the health insurance mandate. Most of the discussion revolves around the technical meaning of "in or affecting commerce" as that term has been deployed in various Supreme Court opinions. That's fine, and even necessary, but it goes only so far. Contrast that court-centered litigators' approach with a full-throated political debate on whether the federal government has any business telling citizens the kind of health insurance they must buy, the price doctors may charge for their services, or the liabilities insurance policies must cover.

Political constitutionalism of the sort Ceaser has in mind may be a long way off, but it offers at least a glimmer of hope. This in contrast to the perspective elaborated by John Marini's essay, which could have been subtitled, "We Are Doomed." If we were playing a game of "Clue," Detective Marini would conclude that Dr. Hegel killed the Constitution in the library, and that death occurred after repeated blows inflicted by heavy scholarly tomes. Detective Ceaser, though no doubt aware of the threat posed by Dr. Hegel and other unnamed co-conspirators, is for the moment less interested in whodunit than in the fact that the intended victim still seems to be breathing. Before arresting the alleged perps, he wants to ensure that every effort is made to keep the victim alive.

That is no small task, as Ceaser well knows, but before it can be undertaken he insists that we first free ourselves from the habit of chanting judicially contrived formulas that offer little promise of success, and even obscure what is ultimately at stake. He gives a number of telling examples about the fecklessness of legalistic constitutionalism, all involving federal spending and entitlement programs and the inability of conservatives (thus far at least) to provide a satisfactory constitutional rationale for limiting the growth of federal power. The problem, as Ceaser notes, is not one conservatives have made. Since 1937 the Supreme Court's expansive interpretation of the Commerce Clause and the Necessary and Proper Clause, and concomitant evisceration of the 10th Amendment, have provided the federal government with an almost unlimited carte blanche to do as it likes. So long as opponents of federal power limit themselves to the categories established by Supreme Court precedent, they're playing a rigged game.

As I write, the nation awaits the Supreme Court's decision on the constitutionality of Obamacare. For the Court to reject part or all of that law would reanimate constitutional principles limiting the federal government's scope, ones most jurists thought had been buried in 1937. The judicial affirmation of these principles would affect not only the sweeping health care legislation passed in 2010, but pose a threat to the entire foundation on which the modern welfare and regulatory state has been constructed. The health care case raises many urgent questions. One of them is this: if the Court starts down this road, how far is it prepared to go. Another question is whether the citizens will stand aside to let legislators and jurists wage the constitutional battles, or demand either that the Court press on towards delegitimizing the New Deal, or turn back from that endeavor.

The restoration of limited government is not going to come through the courts, nor, on Professor Ceaser's reckoning, should it. He suggests its restoration will require, among other things, abandoning the contemporary presumption that the Supreme Court is, or ought to be, the last word on constitutional meaning. Getting there will require, in turn, a gradual alteration of the political consensus that the federal government should guarantee employment, housing, health care, and pretty much everything else of any importance. Ceaser implies that a comparable counter-movement will be necessary before the idea of limited government can once again acquire purchase in the public imagination, or for that matter in the courts. Lest one despair altogether at that prospect, consider this: it's not as if we haven't learned a thing or two about the impossibility of achieving the utopian goals of FDR's "Second Bill of Rights" as set forth in 1944 State of the Union Address. N­or we blind to the increasingly arbitrary and coercive powers government must assume if it is allowed to try.

What are the chances such a counter-movement might form, or even succeed? The happy news, perversely, is that the federal government can no longer pay its bills, because there isn't and will never be enough money for all the promises that elected officials have made to increasingly dependent constituencies. Many state and local governments, induced to emulate their spendthrift national overseers, are also broke.

There's no room in the liberal agenda for the prospect of governmental insolvency. Egalitarian redistribution was supposed to be indefinitely sustainable, on the assumption that redistribution's beneficiaries will always outvote redistribution's providers. Until now, that formula has proven highly successful, but only because government has been able to pass a large part of the redistributive burdens on to future generations, who don't vote in today's elections. The problem now confronting liberals is that the bills are coming due, and the "future" generation is too small to pay them easily, and too large to bear them quietly. An ethos of limited government may yet arise from the ashes of liberal excess.

How will 20- and 30-somethings react to this prospect? That depends on how good they are at the mathematics of self-interest, and on the will and ability of political leaders' to instruct them on constitutionalism rightly understood. Unlike their parents' and grandparents' generation, they are lightly invested in the New Deal-Great Society political consensus that has dominated American politics for most of the past 80 years. Even those who find it attractive have no hope that they, or their children, will receive its benefits or can afford its costs. There's a fighting chance the younger generation may well take a hard look at our welfare state and say enough is enough. If they do, the restoration of political constitutionalism of the sort commended by Jim Ceaser may begin sooner than we thought possible only a few years ago.

Michael M. Uhlmann is visiting professor of political science at Claremont Graduate University.


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Jeremy Rabkin

Jim Ceaser first presented his new teaching on "political constitutionalism" at the CRB's conference on "The Constitution and Our Politics" in October 2011. Now that the Supreme Court has spoken on the Affordable Care Act, I wonder whether he wants to embrace Chief Justice Roberts as an adherent to this new kind of constitutionalism. But let me put off that question until the end of this response. Let me start by explaining why I don't believe the Constitution's framers or previous generations of American statesmen subscribed to this version of Ceaserism.

On Ceaser's telling, constitutionalism is about "broad ends" rather than "procedural rules" or mere "fidelity to a formula." On this view, the most important part of the Constitution should be the Preamble, which sets out those "broad ends." Awkwardly, however, none of the plans presented at the Philadelphia Convention included any sort of general introductory statement of this kind. The Preamble to the federal Constitution was a last minute addition by the "committee on style." The delegates seem to have given no attention at all to its precise wording.

Instead, the Philadelphia Convention remained preoccupied, down to the last weeks, with such seemingly picayune issues as whether or not Congress should have the power to tax exports (finally deciding not: Art. I, Sec. 9, Cl. 5) or whether states should or should not be allowed to collect any sort of fees for the use of their ports (yes, but only with severe limits: see Art. I, Sec. 10, Cl. 2). The Virginia delegates originally proposed that Congress be authorized "to legislate in all cases to which the separate states are incompetent"-as Ceaser would perhaps have preferred. The Convention actually settled on a fairly detailed enumeration of federal powers-on the assumption that a more open-ended grant of powers would be abused.

On Ceaser's view, the framers should have indicated in general terms that the principal federal officers should be "reasonably mature" and "reasonably well-informed about their constituents." Instead they stipulated precise (but varying) age and residency qualifications for representatives, senators, and presidents. On Ceaser's view, the framers should have included a general admonition for cooperation between the branches. Instead, they stipulated in pedantic detail exactly which measures passed by the House and Senate would need presidential approval to take effect and which would not, which officers could be appointed by each House, which officials would be appointed by the president (or by others, answerable to the president). And so on.

From Ceaser's perspective, the actual text of the actual Constitution may seem excessively "legalistic," preoccupied as it is with "formulae and rules." But the fact is, most of the delegates at Philadelphia were trained lawyers. And most had been involved, only a decade earlier, in mobilizing a revolution against Britain on the rather "legalistic" or "procedural" ground that the British Parliament was not authorized to impose "internal taxes" on Americans-not even the sort of modest excise taxes that Americans were quite willing to impose on themselves.

Nor is it true that great party debates thereafter eschewed legalistic wrangling in favor of Ceaser's version of "political constitutionalism." Perhaps the early debates between Jeffersonians and Federalists-with their clause-by-clause parsings, to determine the validity of Hamilton's Bank or Washington's Neutrality Proclamation-don't count, because the participants were too close to the actual founding. But four decades later, Democrats insisted that the Constitution only authorized tariffs to raise revenue, not to protect domestic industries. And to limit the need for revenue, they argued that no federal funds could be expended on projects (such as roads or canals) that would primarily benefit citizens of a particular state. Whigs responded by arguing (in party platforms) that tariffs could provide "suitable encouragement to American industry" if also justified by genuine revenue needs- and tariff revenues could constitutionally be deployed to "repair harbors and remove obstructions from navigable rivers whenever such improvements are necessary for the common defence and for the protection and facilit[ation] of commerce with foreign nations or among the states...."

There was quite a lot of parsing of constitutional clauses and Supreme Court doctrine and procedure in the Lincoln-Douglas debates. The ensuing national Republican Platform in 1860 not only affirmed-against the contrary doctrine of Douglas Democrats-that Congress had power to prohibit slavery in federal territories: it also insisted that the language of the 5th Amendment required Congress to avoid giving any protection to slavery in federal territories. You could say that Jefferson and Hamilton, van Buren and Webster, Douglas and Lincoln were disabled from practicing "political constitutionalism" because they were lawyers. As it happens, though, they were also very good at politics.

True, there were ultimate winners and losers in these disputes. Over time, the country has embraced different understandings of what the Constitution does actually allow or require. Ceaser, himself, however, condemns those "law professors" who claim that "the public" can decide each dispute as it pleases, making the Constitution whatever the prevailing majority wants it to be. But Ceaser remains opposed to precedents and rules as a guide to what the Constitution means. If the "broad ends" of the Constitution don't imply limiting "rules and formulae," how does the Constitution constrain anyone from introducing new exceptions for particular favored measures?

I take the point that we can hope to change predominant opinion and prevailing practice, by repudiating past practice in the light of later (hopefully better) understandings. President Harry Truman claimed that a resolution of the United Nations Security Council gave him authority to commit the United States to a full-scale war in Korea without any separate authorization from Congress. That stand provoked so much controversy that none of Truman's successors has reaffirmed the argument. President Obama's Justice Department insisted the war in Libya was lawful without congressional authorization, not because it was authorized by the U.N. but because it was meant to be very brief and involve only a very peripheral American commitment. I hope our next president will try to limit the force of that precedent, too.

But the next president won't still be fighting Truman's war in Korea or Obama's war in Libya. Ceaser's notion seems to be that you can repudiate a past mistake without committing to a rule that excludes it-and so without actually repudiating the current legal validity of that supposed past mistake. On Ceaser's telling, the real argument against Obamacare must turn on "the net sum of effects of ordinary policies" across all policy fields. Ceaser's "political constitutionalism" does not, as he tells us, require leaders to "undo every past obligation that has been voted into law, but to chart a course from where we are now." Unless I've misunderstood, that constitutional standard seems to invite proponents of Obamacare to say, "Well, yes, let's respect the Constitution from here on...and let's especially restrict federal authority for President Romney. But let's keep this last great Progressive measure in place."

Or else, Ceaser seems to think we can say, "No, Obamacare is too recent to qualify as constitutional, but don't worry about Social Security, even if it rests on the same constitutional mistakes-we'll grandfather that one into our restored Constitution." How do you distinguish those programs that should be allowed to remain and those that must be repudiated under the imperatives of "political constitutionalism"? Ask Office of Management and Budget experts to offer up more statistics on the "net sum of effects"-and do that to avoid the "occult jargon" of legal experts and judges? Seriously?

Critics of Obamacare offered an entirely serious legal argument, one so easy to grasp that even a number of federal judges embraced it, before five justices of the Supreme Court finally endorsed it in National Federation of Independent Business v. Sibelius. The argument boils down to this: if someone sitting at home doing nothing whatever can be forced to participate in a federal mandate-on the grounds that his failure to conform is a threat to "commerce among the states"-then the congressional power over "commerce" has no limits whatever. The proof that Congress never previously imagined it had this power is that, in all the vast accumulation of federal legislation now on the books, no previous law attempted what Obamacare does-imposing new personal obligations on those not engaged in commercial activities nor engaged in any identifiable activities of any sort.

Ceaser dismissed this argument because "the consensus of legal experts" holds that Obamacare could be justified under the federal taxing power, anyway. The first thing to notice is that this was the "consensus of legal experts" who already insisted that the whole Obamacare program would be constitutional under the commerce clause. It's true that five justice finally agreed that the Affordable Care Act can be justified as an exercise of the taxing power. But again, four of those five-the Court's liberals-affirmed that the measure could be justified just as well under the commerce clause (and presumably would have been happy to endorse it under any old theory). Only Chief Justice Roberts held to Ceaser's view that you can dismiss the commerce clause difficulties and fall back on the taxing power in this case without any trouble at all.

The problem is that, as even Roberts acknowledged, the taxing power is not unlimited, either. It would have been quite odd for the framers to limit the reach of some powers and then insert a catch-all power to accomplish all the forbidden objects by simply fashioning controls as prohibitive taxes. Apart from implied limits, one limitation is stated quite explicitly: "No capitation or other direct tax shall be laid, unless in proportion to the census [of population in each state]." (Art. I, Sec. 9, Cl. 4). Viewed as a tax, the Obamacare mandate looks very much like a "capitation"-a head tax-on those heads harboring bad thoughts about participating in a federal program, who then are taxed for...the non-activity of declining to buy health insurance. If that is not a prohibited "capitation," what could be? If that restriction has already been repealed by "political constitutionalism," why is there no precedent of any kind for such a head tax on soreheads? To his credit, Roberts did try to counter this argument. But he could cite no precedent for approving a federal tax on non-activity, by distinguishing it from a "direct tax" on ownership (or on having an intact head). As the dissenters pointed out, Roberts argument rested on "fly-by-night argument" leading to "like and a promise" conclusions.

I don't think Chief Justice Roberts will have the last word in this debate. Perhaps he did not even expect to have the last word. I think the objections posed by the dissenters are worth pursuing precisely because they do draw some basic lines and because they are lines we might still insist upon. Obamacare crosses lines that are not obscure or arcane. That won't solve our budget crisis in itself. But it will remind our elected representatives that their power is subject to limits.

By insisting on respect for those boundaries that can be formulated as rules, we don't reduce the whole Constitution to rules. But we show that constitutional claims must be taken seriously. Even if you hope to appeal to the "spirit of the Constitution"-as opposed to the letter-you had better hope you still have some definite lettering to start your argument. Then you might hope to show that a questionable proposal is at least analogous to something clearly forbidden (as overly invidious laws have at times been compared with prohibited bills of attainder, though technically they are not bills of attainder if they do not impose explicit criminal penalties).

Thomas Jefferson said, "Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction." Let me say to my friend and colleague from Mr. Jefferson's university: Jefferson did have a good point there. We may not now accept all of Jefferson's particular constructions, but we can't embrace even the general idea of a limited constitution if we can't specify some limits. Limits that depend on calculating the "result" of "the net sum of all the laws and regulations on the books" may be "political" in some technocrat's understanding of "politics." If that is the meaning of "political constitutionalism," I don't think it is a safe replacement for our traditional version of constitutionalism.

Jefferson argued that the states could rally popular opposition to federal "acts...so palpably against the Constitution as to amount to an undisguised declaration that [the Constitution] is not meant to be the measure of the powers of the General Government." (Kentucky Resolutions, No. 8, 1798) Jefferson's theory of state power to resist federal laws may have been misplaced, his larger theory of popular resistance to constitutional usurpations too optimistic. But a majority of state governments have now filed legal briefs arguing that Obamacare exceeds limits on the federal government. That fact should, at least, focus the attention of our fellow citizens. I don't see how Ceaser's version of "political constitutionalism" ever can engage an ordinary citizen.

With all due respect to modern learning from Charlottesville, I'll stand with Jefferson-and Webster and Lincoln and all the other great figures of our constitutional tradition. The Ceaser doctrine-with its echoes of European Union doctrines of "subsidiarity"-might sound better in French. I don't see how it can rally Americans to the defense of constitutional government. And I don't see how we can maintain constitutional government if we can't sometimes rally our fellow citizens with the argument that some particular government measure-like Obamacare-really crosses a line we need to defend. If there are no lines, we have much less hope of defending ourselves.

Jeremy Rabkin is a professor of law at George Mason University School of Law, and author of Law Without Nations?: Why Constitutional Government Requires Sovereign States (Princeton University Press).


* * *


Reply from James W. Ceaser:

It is a sound rule of intellectual life to be skeptical of all new terms and concepts. I am therefore grateful to Michael Uhlmann and Jeremy Rabkin for their thoughtful commentaries on "political constitutionalism," a category I introduced in the essay "Restoring the Constitution." My hope in this instance is that I have beaten the odds and identified an idea that will contribute to further insights and better analysis.

I am much indebted to Michael Uhlmann for the sharpness and clarity of his characterization of the decline of political constitutionalism. Uhlmann writes, "In lieu of robust constitutional arguments that once animated elected officials and even political parties, we seem to have settled for the shop talk and shorthand of technical legal experts who ply their wares almost exclusively in the courts.... Courts have become the final arbiters of constitutional meaning." Political leaders, parties, and citizens have regrettably come to regard themselves as mere spectators of constitutional issues, having lost sight of the fact that the most important constitutional questions are often found not in the legal cases, but in the broader themes captured in a political program.

Reactions to the recent decision of the Supreme Court on Obamacare confirm the progression of this way of thinking. It was regrettable that this case was settled before the 2012 election, as it shut down whatever political debate there had been on the plan's constitutionality. A full political discussion, as Uhlmann explains, would have gone beyond the matter of the individual mandate to open up to the more general question of whether so vast an extension of federal power into the economy and into the authority of the states did not represent a violation of the constitutional principle of a federal government of enumerated powers. It would have asked "whether the federal government has any business telling citizens the kind of health insurance they must buy, the price doctors may charge for their services, or the liabilities insurance policies must cover." And it might have expanded into a fuller articulation of a general program, based on a presentation of constitutional principles, to reign in the expansion of federal authority in other areas. Under the aegis of our current legalistic understanding of the Constitution, however, the issue of the mandate was taken to define the full scope of constitutionality of the act. Once the much-anticipated ruling was handed down, the general view was that, for the public and parties, constitutional issues were now settled. People might continue to debate whether the law was good policy, not whether it was unconstitutional.

Uhlmann's language is direct and forceful, but his presentation of matters is nuanced. He is not at war with courts, he is not opposed to judicial review, and he acknowledges the importance of legal argument.

It is not a matter, as he so well explains, of eliminating legal constitutionalism; it is a matter of reviving a political constitutionalism. Political leaders and parties need to regain the confidence to debate constitutional issues, going beyond the ways they are discussed in court cases, and relate them to a full agenda—eliminating some laws and enacting other ones—that will promote constitutional objectives.

 

My good friend Jeremy Rabkin has grown more sensitive to legalities since he became a law professor. It is therefore not surprising that his commentary is critical of the concept of political constitutionalism—so critical, in fact, that he all but orders me to cease and desist in its use. Rabkin’s objection to the concept is two-fold: he claims that it is descriptively inaccurate and normatively dangerous.

 

On the first count, he contends that when the Constitution has been debated in the public arena in the past, most of the arguments have in fact been legalistic. The term political constitutionalism, he argues, contributes to a distortion of the historical record. Political debates are filled with lots of “parsings.”

 

Any disagreements Jeremy Rabkin and I may have about the historical record could not be settled without a long and detailed discussion, which is impossible to undertake here. But as the reader of my essay should be able to see, I never sought to exclude legal reasoning from expressions of political constitutionalism, any more, I hope, than Rabkin would ban lawyers and judges from referring to general constitutional principles. Both have been used. But discourse in programs of political constitutionalism tends to be different, not just because the public has a limited interest lawyerly parsings, but also because the purpose of political constitutionalism is often different from that of legal constitutionalism. Political constitutionalism is usually less interested in settling a specific case than in enacting a whole agenda or preventing an agenda from being enacted. When, for example, Thomas Jefferson spoke in his First Inaugural of “support of the State governments in all their rights, as the most competent administrations for our domestic concerns and the surest bulwarks against anti-republican tendencies,” he was invoking a general theme of political constitutionalism that his party had vigorously defended during the previous four years. He was not seeking a specific legal ruling in a case of law.  Similarly, when President William Howard Taft in his 1912 presidential campaign sought to defend constitutional government against “the political emotionalists and neurotics” [read Theodore Roosevelt], he was launching a program of political constitutionalism: "The real usefulness of the Republican Party consists in its conservative tendencies to preserve our constitutional government and prevent its serious injury."

 

Rabkin relents somewhat on his first criticism in order to transition to his second and more important point. His charge here is that the concept of political constitutionalism can only do harm. It opens the floodgates to a sloppy way of thinking that undermines the legal articulation of clear lines, lines that alone can provide real constitutional protection.  He writes: “I don’t see how it [political constitutionalism] can rally Americans to the defense of constitutional government.”

 

The important distinction for Rabkin—the one he believes can guide us—is between legalistic reasoning and constitutional bombast. Political constitutionalism embodies and encourages constitutional bombast. Political constitutionalism according to Rabkin, represents a kind of modernist heresy, one that has roots in Europe—I daresay he may even be thinking of France. Legal argumentation by contrast is American. Rabkin is so much in the thrall of legalistic discourse that he ends his essay by indulging in a bit of bombast of his own, wrapping himself and his cause in the mantle of Jefferson, Webster, and Lincoln.

 

Rabkin unexpectedly initiates his commentary with a discussion of the preamble to the Constitution. He does so on the grounds that if one is going to talk about the Constitution in a non-legal way, as I do, then the preamble is the model. Rabkin wants me to own the preamble, heart, body, and soul, even though I never spoke of it in my essay. The constitutional principles I stressed derived from the legal Constitution, from the parts that outline the structures of government and that delineate powers. They included the idea of a national government of “enumerated powers,” a principle never mentioned in the text, but that I was able to infer from a reading of Article I section 8, and the “separation of powers,” again a principle never directly cited, but which I managed to infer from a reading of Articles I, II and III.

 

As for the preamble, its peculiar status as something other than pure law has never troubled me. Not so for Jeremy Rabkin. His passion for legality overflowing, he is not content to leave the poor little paragraph in peace. Since he cannot banish it, he does his best to diminish its status.We learn that the preamble was “a last minute addition,” slipped in by the stealthy committee on style, and “that the delegates seem to have given no attention at all to its precise wording.” This may be so. But I am legalist enough to opine that this is immaterial. Not only did the convention delegates, acting without compulsion, approve the whole document, but so too did the majorities of delegates in at least nine of the state ratifying conventions, which is the relevant legal criterion for the adoption of the Constitution (Article VII). Besides, no less a figure than Abraham Lincoln invoked the preamble in his First Inaugural, suggesting that he thought it had probative value, especially the phrase "to form a more perfect Union," in establishing the case against the constitutionality of secession. If the preamble is good enough for Lincoln, it is good enough for me; and, if I could appeal to the better angel of Jeremy Rabkin’s nature, I would hope that it is good enough for him as well.          

 

Rabkin continues to have fun at my expense by elevating me to the imaginary status of framer-for-a-day. In my Constitution, the qualifications for holding office would be the simple statements that elected officials should be “reasonably mature” and “reasonably well-informed about their constituents,” rather than the legal language we find in the Constitution that stipulates age and residency qualifications for representatives, for senators and for presidents. Since Rabkin has extended the bait, let me swallow half of it. Let the founders’ legal language stand, but there is nothing wrong in inferring from it the reasons and principles behind the words. Not only does an articulation of these principles aid in understanding the document and cultivating attachment to it, but it can serve to help guide a program of political constitutionalism. We know for example, that the goal of representatives being “reasonably well-informed about their constituents” was important enough to George Washington that it precipitated his only comment at the convention, when he asked for change in language to in ensure a broader initial representation, on the grounds that the existing language might offer “insufficient security for the rights & interests of the people.” The purpose is important, and it figured in debates in Congress about whether or not to enact a statute requiring representatives to be elected in individual districts, rather than selected at large by general tickets for the whole state. The letter of the law is only part of the Constitution. It bids us to try to recognize its spirit, so that we might know how to proceed to promote its objectives.

 

The sparring here opens up to a larger point. The aim of my essay was not to replace legal constitutionalism with political constitutionalism, but to revive political constitutionalism. The two are mechanisms that often proceed on different planes. Only sometimes do they overlap and it is rarer still that they directly conflict. Courts, as I see it, can continue doing all that they do legally, only we should not ascribe more authority to that function than it is supposed to have. Besides, courts and legal line-drawing are ill-equipped to promote constitutionality in some of its most important respects. There is often more constitutionality in the sum of legislation and of administrative rules than in much of the corpus of court decisions. If one is speaking today of a concern for federalism and for maintaining a federal government of enumerated powers, the protection of these ends will come from judging the implications of a statute like No Child Left Behind, which risks, under the guise of testing standards, transferring effective control of large parts of the curriculum in our schools to federal authorities. If one is concerned with the constitutional issue of excessive administrative discretion and delegation of authority to administrative bodies, it will be necessary to look at the net effect of many statutes and formulate new legislative measures to address these problems.

Solutions can only come from a political party that articulates a full program of political constitutionalism. Constitutionality is not always a matter of setting a legal line, but often advancing in a direction according to political judgments. One will not see the whole Constitution unless one knows where to look for it.

 

A revival of an understanding of what political constitutionalism is, which is a precondition to adopting any intelligent program of political constitutionalism, is now essential. It is essential not chiefly because political constitutionalism was once robustly practiced (though it was), nor because political constitutionalism connects political leaders and the public more closely to the Constitution (though it does), but because it is the constitutional position that retains the proper balance among our institutions. Recall that when the Constitution was ratified, written constitutions were still a novelty in the world, the first exemplars having been adopted only a decade earlier in the form of our state constitutions. The basic properties of a written constitution—what it was and how it worked—were still very much unknown. One of the great issues the framers pondered was how a written constitution would remain in effect and continue in its vigor. What mechanisms would operate to keep intact its intended delineations of power and maintain its intended tone? A document, even one written on a medium as impressive as parchment, is not self-executing.

 

Jefferson for a time held that no written constitution would be able to sustain itself—hence his proposal that each generation write and ratify its own constitution.

In response, different methods were proposed or developed for maintaining a written constitution. One was a reliance on courts to settle the meaning of the Constitution by judicial determination. Another was to give sufficient power to different parts of the system to protect and defend their respective powers. Finally, there was political constitutionalism, political leaders and parties sustaining the Constitution through the political process. It is no disparagement of judicial review to point out that courts were never intended to be the sole mechanism for settling constitutionality. Such a role would give them more authority than they should safely exercise.

 

What about the relations between legal and political constitutionalism? In what areas and in what ways do they intersect with one another? There are a few different categories.  First are the instances of direct conflict. The Supreme Court may hold that a law or action violates the Constitution in opposition to what a program of political constitutionalism supports. Under the system of judicial review, the Court’s view must be legally respected. Political constitutionalism is not a doctrine of lawlessness of disobedience. It does not derogate from the legal powers of the Court. A second category consists of the instances in which the types of constitutionalism function in harmony. The Supreme Court interprets the Constitution in a manner favored by a program of political constitutionalism. There is a third area in which the two kinds of constitutionalism barely touch one another. A program of political constitutionalism succeeds in passing legislation and enacting measures that are never subject to litigation of challenge in the courts.  The final category is one in which the two forms of constitutionalism embrace opposed positions intellectually or theoretically, but in which there is no legal conflict. When the Supreme Court holds a certain law to be constitutional, i.e., not in violation of any constitutional provision, it does not follow that a party, following a program of political constitutionalism, must recognize it as constitutional. A party can continue to seek to repeal the law on constitutional grounds, by its standard. Thus today, while the Court has judged Obamacare to be constitutional, there is no legal reason why the Republican Party must follow suit. The Court may control actions, it does not dictate thought. It is in this area today, however, that the public and parties increasingly accept the Court’s opinions as definitive. Here is where the ascendancy of legal constitutionalism is so evident. Some blame this development on the arrogance of judges, an arrogance we have come to accept. It is more correct to attribute it to a grave error of political scientists, who have failed to make clear the character of our constitutional system. People will only challenge this outsized view of the Court if they understand what political constitutionalism is and why it is a legitimate part of the political system.

 

Jeremy Rabkin continues his criticism of political constitutionalism by raising a problem about consistency. He asks, “How do you distinguish those programs that should be allowed to remain and those that must be repudiated under the imperatives of ‘political constitutionalism’?” The answer is: very politically. It is true that a program of political constitutionalism would be at its strongest, so far as public presentation is concerned, if it had a perfect rule it could articulate and stick to without deviation. But political constitutionalism operates in a realm in which success is achieved by winning a majority and pushing forward an agenda. Perfect consistency can sometimes be an impediment to popular support. A party is answerable to the public, not to judges.

 

If it were a matter of strict legal reasoning, I would clearly wish to have Rabkin as counsel. We had a colloquy about Obamacare in October, before it was even clear that the case would be heard in this session. Fearing that the law would not be struck down, I tried to rally the case against it by urging recourse to a program of political constitutionalism. I tried to minimize the legal weight of what the court was doing, arguing that the act would have easily passed muster if the exact same law had been passed under the tax provision rather than relying, implicitly, on the commerce clause. My source for this claim was “the consensus of legal experts,” not a study of the Constitution. Rabkin not only took me to task for my laziness, but he presented for the first time a compelling legal argument for why the individual mandate was just as unconstitutional under the taxing power as under the commerce clause. Parsing Article I, Section 9, Clause 4, he writes “Viewed as a tax, the Obamacare mandate seems indistinguishable from a ‘capitation’—a head tax—on those…declining to buy health insurance.” He goes on, “If that is not a prohibited ‘capitation,’ what could be?”  Of course, as we know, the Court answered: almost nothing.  I hope that Jeremy Rabkin pursues his legal line of reasoning and that at some point, by the power of his argument, he succeeds in forcing a change. In the meantime, however, the battle will need to move to the political arena. In the belief that the public might have some difficulty with his legal argument, I propose that he relax his standards a little and join with me in sounding the call: “No capitation without representation!”

 

Rabkin at one point seems to offer a concession to me, on the condition that I offer one to him in return: “Even if you appeal to the spirit of the Constitution, you had better hope that you have some lettering.” I endorse the spirit of this comment. So it may be that we are not so far apart after all, though, to paraphrase a fine legalistic distinction, it all depends what the meaning of “some” is.