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October 20, 2014

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Common Ground: The Founding Era
George W. Carey - 01/05/12

The following is an excerpt from Georgetown professor George W. Carey’s indispensable book A Student’s Guide to American Political Thought.

A uniqueness attaches to the American political tradition that serves to provide a focus to its study. The source of this uniqueness derives from the query put by Alexander Hamilton at the beginning of the first essay in The Federalist, “whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident or force.” This, he believed, was the overriding question facing the American people at the time of the ratification struggle—and not only the American people but all mankind as well. The affirmative answer given this question with the adoption of the Constitution has served to provide a fixed point of reference for students in the field.

That the Constitution should serve this function is quite understandable. It was not ordained or sanctioned by the gods, nor was it “given” to the people by a mythical lawgiver. Rather, it is a written document, the result of a deliberative process, that can be considered the embodiment of the “constitutive will” of a people; that is, the Constitution spells out in some detail the processes and institutions by which the people, acting in their constituent capacity, have consented to be governed. It is “fundamental law” in the sense that it is unalterable by the government it creates. James Madison, writing in Federalist 53, conveys this understanding of the Constitution’s status when he distinguishes “between a constitution established by the people, and unalterable by government” and systems such as the English one, in which legislatures have “a full power to change the form of government.”

In fact, at no subsequent period in their history have the American people ever seriously entertained the idea of undertaking a new act of founding; that is, of deliberating as a people with the end of producing a new constitution that would embody their “constitutive will.” Quite the contrary. There is a common understanding (a “constitutional morality,” if you will) that the Constitution should be amended only when there is a compelling need. Alarm is frequently expressed by politicians and opinion leaders at the mere prospect of constitutional conventions meeting at the request of state legislatures to draft specific amendments (e.g., amendments requiring a balanced budget, sanctioning voluntary prayers in public schools, or limiting terms of office) for fear that these conventions might go too far and thereby destroy the handiwork of the framers. In the popular culture, at least, it would appear that the motives and deeds of the framers are beyond reproach.

The Declaration of Independence and the Articles of Confederation are also central documents in the American political tradition. We know that without separation from Great Britain, the choice of which Hamilton writes would not have been possible. Although controversy surrounds the Declaration’s precise role, import, and status within the tradition, its significance cannot be denied because, among other things, it justifies our separation from Great Britain, sets forth “self-evident” “truths,” and advances the proposition that governments derive their “just powers from the consent of the governed.” In addition, as Thomas Jefferson wrote nearly fifty years after the event, the Declaration “was intended to be an expression of the American mind,” and “its authority rests . . . on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c.” Most students of the period agree with Jefferson’s assessment.

During the founding era the American people were obliged by circumstances to think about fundamental political values and to make authoritative and strategic decisions that would bind subsequent generations. As a consequence, to use a metaphor, the founding period can be looked upon as both the center of and the energizing force behind the ever-expanding universe of American political theory.

 

The Founding: Search for Deeper Meaning

That the founding era should enjoy the special status it does is not surprising, since we still live under the forms of the Constitution. But the fact that it provides a common ground for students of American theory has not produced a consensus about either its character or about what the founders were really up to. With increasing frequency since the turn of the twentieth century, many scholars have raised troubling questions about the founders and their motives. Did they really believe in republican government, or were they intent on constructing a system that would protect elite interests under the rubric of a republican form? Can we take them at their word, believing what they said and wrote publicly, or were they advancing a hidden agenda? At still another level questions have arisen over what values or theories dominated during this period and whether or not it is marked by a theoretical continuity. Taken as a whole, the disputes that have arisen over the character of our founding have led some to conclude that any clear understanding of the American political tradition and the values that have informed it is next to impossible. Put otherwise, there seems to be an inverse relationship between the scholarly attention devoted to this period and our understanding of it, as evidenced by the proliferation of interpretations that have given rise to these critical questions.

There are reasons for these disputes. To begin with, there are those who seek an understanding of the American political tradition, of which the founding era is taken to be the core, from both a broader and “deeper” perspective. They seek, that is, to incorporate American political thought into more systematic philosophical schools or enduring strains of thought within the Western tradition, thereby rendering it more coherent and “whole.” In light of the fact that American political thought at its best is usually narrowly focused, these efforts are understandable. The Federalist, for example, is praised largely for its nuts-and-bolts approach, not for its metaphysical insights or theoretical coherence. Consequently, those concerned with the deeper questions concerning the origin and purposes of the state, the limits of law, the meaning of justice, and the like, find even the major works of the American tradition wanting. Their efforts are directed toward filling this void.

These endeavors would seem destined to produce different understandings of the tradition, if only because different individuals are bound to see different connections between American and Western political thought. Additionally, interpretations of major philosophers in the Western tradition often vary, sometimes significantly—John Locke comes readily to mind in this regard—so that views will differ over the nature and extent of their connection to the American tradition. Furthermore, any endeavor to demonstrate the influence of a particular philosopher or school of thought on the founders—beyond particular, limited concerns or issues—involves showing a direct cause-and-effect relationship that is extremely difficult to establish with a high degree of certainty.

Yet another major reason for the confusing and contradictory accounts of the beliefs and motivations of the founding fathers is the effect of political ideology—that is, the political perspectives of scholars that often channel their vision and color their analyses and interpretations. This is not at all surprising given the fact that partisan political advantage can be derived by linking one’s desired programs and policy goals to the underlying values of the American tradition, particularly to the founders’ ideals. Simply linking an ideology to a respected tradition lends legitimacy to the goals of that ideology, all the more so if a scenario can be constructed that shows how those goals, sanctioned by our forefathers, have been misunderstood, subverted, or ignored over the decades. Such endeavors usually involve tinkering somewhat with the raw materials of the tradition.

Contemporary controversies surrounding constitutional interpretation illustrate an important dimension of this process. Given the reverence most Americans have for their Constitution, no party in a constitutional dispute wants to be in the position of opposing the “intentions” of the founders. A key question thus becomes: What were their intentions with respect to the issue at hand? More often than not, this leads to the proliferation of conflicting positions that, in turn, are based on different and often incompatible views, frequently couched in theoretical terms, about what the framers intended. Or, when the intent of the framers seems clear but unacceptable to one of the contending parties, recourse can then be had to the tactic of asking: In light of changing circumstances and values, what would the framers think or do today?

Precisely because the founding period is so crucial for understanding the character of the American political tradition, students should be fully aware of the limitations of those approaches that strive to give it a deeper meaning, as well as the political factors (including ideology) that come into play in interpreting the founders’ motives and beliefs. The two are not, we should emphasize, mutually exclusive. . . .

 

Multiple Influences

Single-theory interpretations of the founding era, along with those that picture it in terms of a battle between the forces of good and evil, are now often viewed as presenting only a partial, and sometimes distorted, account. There is increasing awareness that multiple influences and motivations were operating within the founding generation. This awareness produces an even more confusing account of the era, but one that is also probably more faithful to reality.

The colonists clearly sought to preserve the better portions of their English heritage. They had long enjoyed the common law rights and protections that had emerged from the English tradition. To take but one example, Article 39 of the Magna Carta (1215), the foundational document of English liberties, provides: “No freeman shall be taken or imprisoned, or disseised, or outlawed, or banished, or any ways destroyed, nor will we pass upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land.” Five centuries later, we find that among the rights listed in the Massachusetts Constitution of 1780, widely regarded as the Rolls-Royce of the state constitutions adopted after the Declaration of Independence, is the guarantee that “no subject shall be arrested, imprisoned, despoiled . . . or deprived of his life, liberty, or estate; but by the judgment of his peers, or the law of the land.” Beginning in the middle of the seventeenth century, the phrase “due process” gradually came to replace the expression “law of the land,” so that we may say that the origins of the “due process” clauses of the Fifth Amendment and the Fourteenth Amendment to the Constitution, among other liberties we enjoy, are found in the Magna Carta.

The Revolutionary War, many scholars contend, was a “reactionary” revolution in the sense that the colonists were fighting for a restoration of the English liberties that they had once enjoyed during the “benign neglect” period. Edmund Burke, the great English statesman of the founding era who sought reconciliation with the colonies, argued that the colonists’ discontent stemmed from the deprivation of liberties to which they had grown accustomed. Certainly their claim of “no taxation without representation” and their protests against illegal searches and seizures and the housing and quartering of troops possessed great weight because they were based on the common law. In fact, many of the grievances against King George III that constitute the bulk of the Declaration of Independence concern Britain’s violations of the common law.

The influence of classical and modern political thought on the founders is also evident. While, as we have suggested above, it is difficult in many cases to show a direct connection between the thought and actions of the founders and a given political thinker or school of thought, there are cases where this connection seems clear. That John Locke had an impact is beyond question, particularly with regard to the opening paragraphs of the Declaration of Independence, which spell out certain self-evident truths. William Blackstone’s Commentaries on the Laws of England (1765–69) in providing a comprehensive understanding of the common law largely within the framework of Lockean thought, had a significant impact as well, particularly among lawyers. Major figures of the Scottish Enlightenment were also influential, especially David Hume, whose speculations on the possibility of an extended republic and whose analysis of factions greatly influenced James Madison. Federalist 10, the most widely read of The Federalist essays in modern times, borrows heavily from Hume’s writings. That the views of Thomas Reid, a Scottish philosopher of the “common sense” school, carried great weight with James Wilson, a key player in the Philadelphia Convention and later a Supreme Court justice, can be readily seen in Wilson’s Lectures on the Law (1790–91).

Montesquieu, the French political philosopher and author of The Spirit of the Laws (1748) deserves special mention because his views were widely quoted by the contending parties in the ratification struggle, the Anti-Federalists and the Federalists. The Anti-Federalists cited Montesquieu to the effect that a republic must be confined to a small territory with a small population having very similar interests. On these grounds, they opposed ratification of the Constitution and the creation of a large republic, since it would, in their view, open the doors to corruption and eventually oppression and tyranny. Hamilton, in Federalist 9, seemingly felt obliged to counter this argument by returning to Montesqueiu and citing his view that a “confederate republic” provided the means for establishing an extensive republic with ordered liberty. In Federalist 47, when setting forth and explaining the reasons for the constitutional separation of powers, Madison also refers to the celebrated Montesquieu,” “the oracle who is always consulted and cited on this subject.”

Most of the founders were also familiar with Greek and Roman history. The essayists and pamphleteers of the period used as pseudonyms the names of prominent Romans—Publius, Cato, Caesar, Brutus, Agrippa—and The Federalist is replete with references to the political history of the “petty republics” of ancient Greece. Those with a college education, given the college curricula of the period, were steeped in ancient history and knew well the fate of the Greek city-states, the Roman republic, and the Roman empire. Indeed, at the time a requisite for admission to college was the ability to read both Latin and Greek.

While there is no question that the founders were influenced by history, the experience of other nations (both ancient and modern), and the major political writings of the Western tradition, there are two important facts to bear in mind relative to these influences. First, each nation has, so to speak, a unique cultural and political DNA. Thus, those teachings of the broader Western tradition that were assimilated into the American tradition were modified in important particulars to fit American circumstances and values. For instance, while Montesquieu is important for understanding the justification for our separation of powers, the separation we find in the Constitution differs fundamentally from that which he proposed. Montesquieu favored a “mixed” regime that would require an accommodation of the interests of the crown, aristocracy, and commons, a regime resembling that of the Great Britain of his time. The conditions of and prevailing thought in America, however, precluded any such arrangement. Simply put, America had no aristocracy or royalty, a fact noted at an early stage in the deliberations at Philadelphia. Consequently, the separation of powers found in the Constitution is one adapted to republican principles.

Second, though they were no doubt influenced by what is generally regarded as modern Enlightenment thought—e.g., Locke and the thinkers of the Scottish Enlightenment—the founders seem to have been unaffected by the more radical Enlightenment thinking that fueled the French Revolution. The American Revolution was of an almost entirely different order, lacking the ideological character of the French, which sought a radical reordering of society. Only snippets of the more radical French thought are to be found in the founders’ writings, and these primarily in the writings and correspondence of Benjamin Franklin and Thomas Jefferson. . . .

 

The Aftermath: Two Competing Traditions

Many conceptual frameworks can be used for the study of American political thought after the founding period, particularly the period from the Civil War to the present, an era toward which scholars in the field take widely divergent approaches. But despite scholarly disputes about the character of the founding period, there is one approach that not only embraces much of the subsequent political thought concerning the nature of the Constitution and its major principles, but provides as well a narrative for understanding the major political controversies that have arisen in the American tradition. To be concrete, the thesis advanced by James Allen Smith that the Constitution betrayed the democratic principles of the Declaration of Independence—a thesis that has gained currency among a large number of American historians and students of American political thought—has also provided the basis for a deeper understanding of major themes in American political thought. But to appreciate why this is so, we must first survey some basic interpretive differences concerning the character of the Declaration of Independence and its role in the tradition.

The meaning of the Declaration and its status within the American tradition have been extensively debated. To begin with, we find significant disagreement about its place in that tradition. On one side are those who emphasize that the Declaration was necessary to secure French assistance for the coming war; that it should be taken for what it professes to be, namely, a declaration severing the existing “political bands” with England and giving the reasons for this severance; that it was in no way an “ordering” document in the same sense as the Constitution, as it provided little guidance relevant to the questions of proper ordering other than the principle of consent; and that, in many ways, it reflects the values and principles of the American tradition up to that point in time and should be understood in that context. To show its continuity with the tradition, the proponents of this view emphasize that the main body of the Declaration lists twenty-eight charges against King George III and that most of them relate either to violations of the common law (e.g., “For imposing Taxes on us without our Consent,” “For depriving us in many cases, of the benefits of Trial by Jury”) or to disruptions of the processes of deliberative self-government (e.g., “He has dissolved Representative Houses repeatedly,” “He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of the public Records”). On the other side are those who see in the Declaration, to one degree or another, the articulation of goals that are essentially binding commitments. Focusing almost entirely on its second paragraph, which begins “We hold these truths to be self-evident,” the proponents of this interpretation look upon the Declaration as specifying the basic values and goals that, in effect, constitute the yardsticks by which to measure the “progress” of the nation, its people, and its political institutions. Those who hold this view often write as if the Declaration marks the very beginning of the American political tradition.

And what of the Declaration’s meaning? Generally speaking, the meaning one assigns the Declaration will depend on the status one accords it. Those who fit it into the broader context of the American tradition and take into account the historical circumstances surrounding it are inclined to view it against the background of “one people” declaring independence, with the famous paragraph beginning “We hold these truths” basically reiterating the standard contractual theory the terms of which, as Jefferson intimates, had become part of the political culture. Some point out that Locke’s contractual theory meshed nicely with the Protestant covenantal tradition. In any event, viewed from this perspective, the Declaration clears the path for the majority to establish a government most conducive to its well-being. Moreover, in this account, the tradition is seen as continuous, with no serious break between the Declaration and the Constitution.

Those who treat the Declaration in an ahistorical fashion are inclined to read it in a markedly different and more expansive way, typically as an expression of fundamental and eternal truths. Those adopting this position not only embrace the underlying premises of Lincoln’s Gettysburg Address but in some ways move beyond them. In claiming that “fourscore and seven years ago our fathers brought forth on this continent a new nation,” Lincoln sought to establish July 4, 1776, as the birth date of the nation. Furthermore, in asserting that this “new nation” was “conceived in liberty and dedicated to the proposition that all men are created equal,” he lent weight, whether he intended to or not, to the position—promoted by many critics and students of the American system over the decades—that securing equality is among the nation’s most basic commitments. He also implied that the degree to which this commitment and others derivable from the Declaration are realized constitutes the supreme measure of the success and worthiness of the institutions created by the Constitution.

Understandably, differences exist over the range and nature of these commitments. America’s presumed commitment to equality, for instance, has been understood in different ways. A specific and limited understanding of equality was advanced by the abolitionists who, in the decade immediately preceding the Civil War, used the “all men are created equal clause” to advance their cause. The equality mentioned in the Declaration, in their view, stemmed from the proposition that in the state of nature men are equal, that no man is superior to another. From this flows the belief that legitimate government, one based on the consent of the governed, comes about through a compact between equals. And, since no man is the master of another, it follows that all should enjoy equal rights and treatment by the institutions of government. In these terms, then, slavery is totally at odds with the political morality of the Declaration, and with the passage of the Civil War amendments—the Thirteenth, Fourteenth, and Fifteenth—the constitutional system took a gigantic step toward living up to the basic ideals of the nation.

But a far more expansive understanding of the Declaration’s goals is held by many students of the American political tradition. For them, democracy is primarily government “for the people,” not necessarily “by the people.” Like Croly and Parrington, they hold that the commitments of the Declaration apply to virtually every aspect of society and individuals’ ways of life. These commitments, in other words, bear a close relationship to those that inspired the French Revolution. They include, but are by no means limited to, the encouragement of self-sacrifice for the good of the wider community, the discouragement of acquisitiveness in business and the professions, and the promotion of policies that reduce great disparities of wealth, ensure the availability of meaningful work, and guarantee decent wages and living standards. Though the particulars may vary from individual to individual, those who accept Lincoln’s understanding of the founding and hold an expansive conception of our national commitments judge the emergence and development of American democracy or republicanism from a teleological perspective, that is, according to the degree to which the political system has lived up to the promises derived from the Declaration. In recent decades, this teleological understanding, no doubt inspired by the Declaration’s emphasis on “unalienable Rights,” has focused on the protection and advancement of individual and minority rights—economic, political, social—as important measures of the success of the constitutional order.

In this regard, the addition of the Bill of Rights shortly after the ratification of the Constitution is generally perceived by those who embrace this teleological outlook as a conscious effort to advance the democratic “spirit” of the Declaration. It is commonly said or implied that the more important rights in the Bill of Rights not only go a long way toward bringing the Constitution into line with the goals of the Declaration, but also that they are far more important in securing the ends of the Declaration than is the Constitution. While such an interpretation is understandable from the teleological perspective, students familiar with the circumstances surrounding the adoption of the Bill of Rights are inclined to dismiss it. Madison, who can legitimately be regarded as the father of the Bill of Rights, had to walk a fine line in getting the first Congress to agree to what are now the Constitution’s first ten amendments. On the one hand, the Federalists opposed the addition of rights for two main, interrelated reasons: first, they thought that adding provisions against abuses that the national government had no power to commit would clearly imply that the Constitution had established a system wherein Congress possessed plenary powers, rather than simply delegated powers; and second, they believed that enumerating certain rights would disparage those not enumerated. Madison, keenly aware of these arguments, sought to dispel any such illusion through what are now the Ninth and Tenth Amendments.

On the other hand, the Anti-Federalists—the principal proponents of additional rights during the ratification struggle—sought above all the specification of “rights” that would weaken the national government (e.g., a requisition process for direct taxation; confining the national government to the exercise of “expressly” delegated powers; greater state control over national elections). The notion of advancing the goals or ideals of the Declaration was far from their intention. But Madison offered up rights that would not, in his words, “endanger the beauty of the Government in any one important feature, even in the eyes of its most sanguine admirers.” His efforts were clearly intended to garner greater support for the new Constitution without adding provisions or rights that would in any way weaken the new government.

Taken as a whole, the teleological approach is clearly at odds with that position which views the Declaration as both compatible with the Constitution and as part of the broader American experience that stretches back to the earliest settlements. This latter perspective emphasizes the development of democracy or republicanism in terms of the institutions or processes by which decisions are made rather than their content. Far from seeing egalitarian ends at the center of the founders’ understanding of democracy—or, for that matter, as central to the American experience prior to the Revolution—this approach sees popular government, tempered by the need for ordered liberty and the rule of law, as constituting the heart of the American tradition. For this “procedural” school, the Constitution, understood as an “ordering” document that balances these concerns, best embodies the ideals of American democracy.

To read more, go here to purchase A Student’s Guide to American Political Thought.

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