282 A “Republican” Constitution?

  Following the work of the Constitutional Convention of 1787, a Philadelphian asked Benjamin Franklin:  “Well, Doctor, what have we got, a republic or a monarchy?”  Franklin promptly responded, “A republic, if you can keep it.”   He and his colleagues obviously sought to establish a constitutional republic, subject to laws rather than men, but they also (as was evident in many of their debates) wanted to preserve this “republic” from a host of “democratic” abuses that might threaten it.  This differentiation sets the stage for Randy E. Barnett’s insightful treatise, Our Republican Constitution:  Securing the Liberty and Sovereignty of We the People (New York:  HarperCollins, c. 1916), wherein he argues that we must interpret the Constitution in light of the Declaration of Independence’s memorable assertion:  “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.  That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”  

That pre-existing, natural Rights are given by the Creator and possessed by individual persons, not groups of people, marks a true Republic!  Such rights were then secured by a written document, the Constitution, affording coming generations protection from those who would infringe upon them.  “A Republican Constitution views the natural and inalienable rights of these joint and equal sovereign individuals as preceding the formation of governments, so first come rights and then comes government” (#621).  Contrariwise, when one thinks rights reside in collectives—and are therefore posited or granted by certain groups, e.g. a majoritorian government—he champions Democracy.  “A Democratic Constitution is a ‘living constitution whose meaning evolves to align with contemporary popular desires, so that today’s majority is not bound by what is called ‘the dead hand of the past.’  The will of yesterday’s majority cannot override the will of the majority today” (#592).  It logically follows that in a Republic there are elected “representatives” who serve the people; in a Democracy there are “leaders” who court and implement the will of their supporters. 

To oversimplify, Americans lived under a Republican Constitution for the first century of this nation’s existence.  During the next century, however, an increasingly Democratic Constitution became normative.  At issue today is this:  can we—will we—find ways to restore the Republic established by Franklin and his colleagues?  To do so requires us, firstly, to rightly understand the Constitution as crafted in 1787, beginning with the Declaration of Independence and its reliance on the “Laws of Nature.”  Here Barnett, a distinguished professor of law at Georgetown University, exemplifies his pedagogical profession, describing and explaining it.  To understand what the Declaration meant by this phrase, Barnett cites an illuminating passage from a sermon delivered by the Reverend Elizur Goodrich in 1776:  “‘the principles of society are the law, which Almighty God has established in the moral world, and made necessary to be served by mankind; in order to promote their true happiness, in their transactions and intercourse.’  The laws, Goodrich observed, ‘may be considered as principles, in respect of their fixedness and operation,’ and by knowing them, ‘we discover the rules of conduct, which direct mankind to the highest perfection, and supreme happiness of their nature.’  These rules of conduct ‘are as fixed and unchangeable as the laws which operate in the natural world.  Human art in order to produce certain effects, must confirm to the principles and laws, which the Almighty Creator has established in the natural world’” (#812).  This succinctly summarizes the “Natural Law” tradition.

The Constitution composed in Philadelphia sought to establish a tightly limited government rooted in these natural laws, securing “we the people’s” inalienable rights from the pervasive excesses of democracy under the Articles of Confederation—on display to James Madison wherever “measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority’” (#1120).  The people are indeed sovereign, the source of the republic’s authority.  But such sovereignty, as clearly recognized by John Jay and John Wilson, the nation’s preeminent judicial thinkers, resided in individuals, not the collectivist “general will” of Rousseau.   

Yet Rousseau’s position helped shape the Democratic Party which was established by Andrew Jackson and Martin Van Buren in 1832.  “The concept of the will of the people was central to Van Buren’s ‘true democracy.’  He believed that the great principle first formally avowed by Rousseau ‘that the right to exercise sovereignty belongs inalienably to the people’” who should rule through popular majorities (#1585).  In the 1850s Stephen A. Douglass would pick up on this idea and promote his vision of “popular sovereignty” in defense of allowing the diffusion of slavery wherever the people supported it.  Abraham Lincoln, of course, took a different view, and the Republican Party first waged a war and later passed the 13th, 14th, and 15th Amendments to secure the individual rights of all persons, thus eliminating slavery in this nation.   

Following the Reconstruction era, however, Barnett says we began “losing our Republican Constitution” when the Supreme Court effectively gutted the three Amendments that freed the slaves and recognized their status as citizens, thereby acceding to the will of racist Democrats in the South.  Simultaneously the Court (as personified by Oliver Wendell Holmes) gradually endorsed legislation passed by Progressives (both Democrat and Republican) who wanted to change the nation by implementing a variety of political, economic and social reforms—often through administrative agencies and courts, staffed with the “experts” so beloved by Progressives.  They insisted the Constitution is a “living” compact—a “living and organic thing” said Woodrow Wilson—constantly subject to change in whatever direction a majority of the people desire.  With the triumph of FDR and the New Deal, this “living” Constitution—a will-of-the-people Democratic agreement—  became the “law of the land.”  

Though this “Democratic” understanding of the Constitution still prevails in this nation’s corridors of power, Barnett thinks it possible to restore the original, “Republican,” understanding to its rightful place.  The federalism and limited government intended by the Founders in 1787 still matter if we are concerned with our God-given rights and personal liberties.  And since 1986, with the appointment of William Rehnquist to the Supreme Court, hopeful signs of a renewed federalism (apart from economic policies) are on the horizon, though President Barack Obama has done everything possible to frustrate this possibility.  Thus Barnett thinks we need to add ten new amendments (initiated by the states) to the Constitution, so as to preserve its Republican nature.  

Though some of Barnett’s presentation will appeal only to readers with suitable backgrounds in legal history and political philosophy, he has set forth a meaningful way to understand the basic issues in this nation’s 200 year history.  Restoring a Republican Constitution would require heroic work in many ways, but it is certainly a goal worth pursuing for citizens concerned for the real welfare of this Republic.

* * * * * * * * * * * * * * * * * 

In Living Constitution, Dying Faith:  Progressivism and the New Science of Jurisprudence (Wilmington, DE, c. 2009) Bradley C. S. Watson aims “to elucidate the connection that American progressivism as philosophical movement and political ideology has with American legal theory and practice” (p. xvi).  Combining Social Darwinism and Pragmatism (the twin ingredients of Progressivism evident in William James and John Dewey, Oliver Wendell Holmes and Louis Brandeis, Theodore Roosevelt and Woodrow Wilson and Barack Obama), we are now subject to “historicist jurisprudence”—taking what is at the moment as good and true simply because it is the current cusp of historical processes, being “on the right side of history.”  We have a judicial system that “is not only hostile to the liberal constitutionalism of the American Founders, but to any moral-political philosophy that allows for the possibility of a truth that is not time-bound” (p. xvi).  These Progressives consciously rejected the Natural Law tradition running from Plato to the American architects of the Constitution, that good law must be anchored in abiding truths authored by God.  

The “living” or “organic” Constitution as promoted by Progressives was on display when the Supreme Court, in Planned Parenthood v. Casey (1992), which justified (as a constitutional right) abortion inasmuch as every person has “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” (p. 3).  Within a decade the Court (in Lawrence v. Texas) further affirmed an “emerging recognition” of homosexual behavior that would lead, within another decade, to the legalization of same-sex marriage.  Only an ever-evolving “constitution,” utterly unhinged from the written document of 1787, could rationalize such judicial edicts!  But this was clearly the Progressive vision set forth by Herbert Croly century ago when he urged jurists to discard “Lady Justice,” blindfolded and holding a scale in her hands.  To replace her he suggested a studious woman wearing spectacles, committed to “social justice,” with suitable tools at hand with which to accomplish her goals.  Judges were to decide how to make the world better, not to give “what is due” to all persons.

To show how Progressivism has changed the nation, Watson revisits the “Constitution of the Fathers” which set forth the American Creed, beginning with the Declaration of Independence’s great affirmation that we “hold these truths to be self-evident, that all men are created equal.”  As Abraham Lincoln—one of the greatest of the Constitution’s interpreters—believed, “there are such things as natural rights that do not change with time, that the American Constitution is dedicated to preserving them, and that the role of great political actors, while responding to urgent necessities, is to look backward rather than forward” (p. 38).  When Lincoln famously declared (in 1863) that this nation was “conceived in liberty, and dedicated to the proposition that all men are created equal,” he clearly appealed to “the laws of nature and nature’s God,” undergirding America’s constitutional republic.  

Yet even as Lincoln was invoking God’s laws, Charles Darwin was unleashing an intellectual  revolution, reducing everything to evolution through natural selection.  Consequently, Social Darwinists, enamored with evolutionary “progress,” declared themselves freed from all allegedly eternal principles and embraced the historical developments that improve both the human animal and society as well.  Change is constant—and under the guidance of natural selection (which is helped along by scientifically-trained experts in the social world) it is always for the better!  In America, enthusiastic Darwinists, most notably John Dewey, provided a philosophy (Pragmatism) for committed Progressives from FDR to Barack Obama, who sought to improve things through “progressive education, the welfare state, and the redistribution of capital” (p. 83).  “Long before ‘the courage to change’ became effective presidential campaign slogan, Dewey helped ensure that ‘change’ would have a central position in American political rhetoric” (p. 84).   

After retelling the story of Progressivism’s political triumphs, running from Woodrow Wilson’s “New Freedom” through FDR’s “New Deal” to LBJ’s “Great Society,” Watson explains how it shaped “the new science of jurisprudence” whereby the “moral realism” of Madison and Lincoln was replaced by skepticism and sociological jurisprudence.  Thus Progressive jurists, Richard Epstein says, “‘attacked the twin doctrines that most limited government power—federalism, on the one hand, and the protection of individual liberty and private property, on the other. . . .  However grandly their rhetoric spoke about the need for sensible government intervention in response to changed conditions, the bottom line, sadly, was always the same:  replace competitive processes, by hook or by crook, with state-run cartels’” (p. 117).  

To influential jurists such as Oliver Wendell Holmes, the Constitution means whatever the Supreme Court decrees.  He and his disciples openly disdained any objective moral standards—right and wrong simply changed over the course of time as the stronger rightly dominated the weaker!  Thus “Holmes is a candidate for many labels—pragmatist, utilitarian, Nietzschean, social Darwinist, nihilist” (p. 132).  Rather like the  Thrasymachus in Plato’s The Republic, Holmes considered “justice” to be whatever the dominant person or system determined.  Whatever the established government wants, it rightly gets.  In a democracy, whatever the majority of the people wants, they should get.  In time, their wants will change, so laws (or constitutions) must change to implement  their desires.  By rejecting the Natural Law, Holmes and his followers clearly repudiated Lincoln and Madison, but they also rejected “the very notion that human beings are creatures of a certain type, with transcendent purposes and ends that do not change with time.  The new jurisprudence was suspicious of the very idea of justice itself” (p. 145).  

Obviously dismayed by the impact of this “new science of jurisprudence, Watson concludes his work by noting “the future is now.”  For the good of our nation, for the good of coming generations, it’s imperative to return to the wisdom of the Founders as endorsed by Abraham Lincoln.  To do so requires us first of all to recover our language.  Progressives, as Orwell’s 1984 makes clear, manipulate language, massaging it to attain their ends.  Thus advocates of same-sex marriage effectively change the meaning of marriage, a noun which by definition requires an opposite-sex union, something affirmed through centuries of “common law and American constitutional law” (p. 186).  Advocates of same-sex marriage dramatically illustrate the power of philosophical Nominalism—saying so makes it so!  More radically, Watson predicted, “courts will routinely declare men to be women and vice versa, according to the political pressures of the age” (p. 191).   

* * * * * * * * * * * * * * * * * *

  Living in a “constitutional republic,” we Americans should (one would think) seriously seek to understand the document that sets forth its principles and precepts.  To do so, it’s helpful to consult The Constitution:  An Introduction (New York:  Basic Books, 2015) by Michael Stokes Paulson and Luke Paulson.  This is a father (Michael) and son (Luke) duo, written during nine summer vacations while Luke was in high school and college and while Michael was teaching law at the University of Minnesota.  Their partnership initially involved Michael writing a chapter and allowing Luke to edit it with an eye on readability for students and non-lawyers, hoping “to provide a reasonably short, reader-friendly, intelligent interaction to the United States Constitution in all respects—its formation, its content, and the history of its interpretation” (#87).  

Successfully separating from Great Britain, this nation’s founders inscribed their convictions in two pivotal documents:  The Declaration of Independence and The Constitution of the United States, both declaring “the ultimate right of the people to  freely chosen self-government, protective of their natural rights” (p. 4).  When the Articles of Confederation failed to function effectively, a distinguished company of men—the “Framers”—gathered in Philadelphia in 1787 to compose “something entirely new:  a written constitution for a confederate republic, covering a vast territory and embracing thirteen separate states.  . . . .  There was literally nothing in the world like what the framers were trying to achieve” (p. 23).  That it was to be written was hugely important, establishing a government of laws, not men, clearly setting limits to what it could do and not do.  Thus “the meaning of the Constitution is fixed by the original meaning of its words.  The people can change their written Constitution by amendment, but they should not be able to evade or supplant the ‘supreme Law of the Land’ simply by inventing their own meanings for words or altering meanings to suit their purpose” (p. 27).  

As a result of considerable debate and compromise, the Constitution prescribed a federalism balancing powers within the national government (two legislative bodies, an independent executive, an unelected judiciary) and reserving important rights to the states.  When working rightly, this checks-and-balance system guards personal freedom within the legitimate controls of good government.  Though each branch of government has extensive powers, they are limited to those “enumerated” or “granted” and further curtailed by the first ten amendments.  Thus James Madison “worried aloud, when introducing his proposed Bill of Rights in the House of Representatives, that liberties like religious freedom not be set forth in language too narrow, as if to suggest that they were granted by the Constitution rather than recognized in the Constitution” (p. 99).  The Paulsons effectively describe the work of the Founders, providing helpful biographical vignettes of the leading Framers and celebrating their genius.  But one of their compromises—the three-fifths provisions regarding slavery—sullied their work and scared the new nation’s face for 70 years until a bloody war and three constitutional amendments abolished it.  

Having detailed the important components of the written Constitution, the authors address arguments set forth by proponents of a “living Constitution.”  Obviously the Founders crafted a permanent document which would not change over time, except as properly amended.  But various actions (by all three branches of the government) beginning in the first administration of George Washington and advanced by John Marshall’s Supreme Court slowly expanded its powers.  With the Union’s victory in the Civil War and Reconstruction the powers of the national government grew quickly, as was evident in Lincoln’s Emancipation Proclamation, and it is clear “that the Civil War was fought over the meaning of the Constitution—and over who would have the ultimate power to decide that meaning” (p. 155).  Then the 14th Amendment abruptly “transferred vast areas of what formerly had been exclusive state responsibility to federal government control” (p. 181).  

With the demise of Reconstruction, however, the authors lament the epoch of “betrayal”—the years from 1876-1936 when the Supreme Court “abandoned the Constitution,” denying equal rights to women, upholding racial segregation, nullifying social welfare legislation, etc.  Here it seems to me they think that whenever the Court failed to endorse progressive legislation and ideas it “betrayed” the Constitution.  Other scholars, more libertarian or conservative in their orientation, definitely see these years quite differently!  Fortunately, say the Paulsons, FDR rode to the rescue, and the New Deal Court rightly restored the Constitution by correcting earlier abuses.  FDR’s appointees upheld the constitutionality of his commitment to extend “national government power over the economy” (p. 220), though they curtailed the executive branch’s authority by annulling one of President Truman’s orders in the pivotal Youngstown case.  Especially important was the Warren Court’s Brown v. Board of Education, ending racially segregated schools and launching “the process of dismantling America’s history of legal racial apartheid” (p. 220).  

From 1960 to the present, the national government has expanded dramatically, leaving little of the Constitution’s original “federal” structure standing.  As judicial activists in the courts have sustained this process, we increasingly have an unwritten constitution, meaning whatever the current Supreme Court desires it to be, even claiming itself the “supreme authority to interpret the Constitution—provocatively elevating its own decisions to the same level as the Constitution itself.  However questionable that claim, nobody successfully challenged it” (p. 262).  Such arrogance was fully on display in the Roe v. Wade decision that imposed abortion-on-demand through the land.  “Not even Dred Scott, warped as it was in its distortion of constitutional text, so completely seemed disregard the text as Roe did” (p. 270).  Other critical decisions—ranging from affirmative action to same-sex marriage—further illustrate the withering of the “written Constitution” which once preserved this nation as one under laws rather than men.

# # #