The American Founding: Classical or Modern? (Part 2 of 2)

The answer is: Both. Understanding how the Constitution represents a blend of classical and modern thought is a reason for fellow citizens to revisit rather than blindly reject the Constitution.

“Law is reason without passion.”
—Aristotle, The Politics

“Reason…is the voice of God.”
—Rev. Samuel West, sermon titled “On the Right to Rebel Against Governors,” 1776

We concluded the last essay with the twofold observation in Federalist 49: First, the passage of time facilitates a deepening respect or even veneration for the Constitution. Second, without veneration for the fundamental law, even “the wisest and freest governments would not possess the requisite stability.”

The question is: Why does “stability” require “veneration” for the law, or at least veneration for the fundamental law, i.e. the Constitution?

Free government—which in the post-classical, Christian world means a government of enumerated and limited powers that is authorized by the consent of the governed—requires citizens to acknowledge the superiority of the political law, the highest in the United States being the Constitution.

Yet, that same law is something they made. Will people look up to, respect, and obey something of their own creation? Think of ancient tribes who crafted idols out of precious metals and then worshipped them as gods. Did the people really revere mere statues forged from their own gold, silver, or bronze? And, if people don’t actually revere or respect an idol they made, why will they revere or respect a constitution they made?

Further, if the Constitution is merely an expression of We The People’s will, or the fleeting passions and feelings of the people, then the will and passions and feelings of the people can easily be confused as the standard for what is right. It is easy for self-governing people to assume whatever the people want—whatever the people demand—must be right, must be just.

And, if justice is defined by the will and passions and fleeting feelings of the people, how does one judge between a willful faction that ratifies and upholds the Constitution, versus a passionate faction that undermines and destroys it?

Both are equally expressions of willful passion. Why is one expression of will right and another wrong?

Will Of The People ≠ Reason Of The People

The answer is to show that the Constitution is the embodiment not simply of popular will, but of a good will, a reasonable will. The goal, in other words, is to demonstrate that the Constitution rests upon reason, that the Constitution was designed according to reason. This means that the goal for Publius, writing in The Federalist Papers, is not so much to show that the Constitution reflects the will of the American people, but rather to shape American public opinion in support of the good and reasonable Constitution.

The goal is to shape American public opinion in support of the wisely-designed, good, and reasonable Constitution.

Blind devotion to tradition is blindness to the distinction between what is good and what is bad within a tradition. But if the Constitution is eminently reasonable, and therefore good, and it is allowed to become old with the passage of time and part of our tradition, then veneration for the good and veneration for tradition become united. Love of what is good, love for one’s own, and love for what is old and traditional, come together.

The entire discussion in Federalist 49 of the need for “veneration” points to the permanent problem of republicanism. For self-government to be identical with good government, self-government would need to be perfectly rational government. The people who govern themselves would need to be perfectly rational, perfectly virtuous beings. According to Publius, this could only be expected in something even more impossible than Plato’s doctrine of philosopher-kings:

In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other [real] nation, [even] the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.

Here we see in The Federalist Papers a thoroughly classical understanding of politics and human nature: “Enlightened reason” is capable of inculcating a “reverence for the laws” in a “nation of philosophers.”

But no such nation ever has or ever will exist. The United States is not a nation of philosophers. No country is or ever will be a nation of philosophers.

In every real, actual nation, comprised of ordinary, non-philosophic, political men and women, reason alone will not suffice. Man by nature is a mixture of reason and passion, with passion often frustrating reason.^[1] Therefore, as Publius suggests, even “the most rational government”—even a wisely-designed, reasonable Constitution—will find it advantageous to have the “prejudices of the community on its side.”

This, however, does not exhaust the reasons why Publius opposes frequent recurrence to the people for constitutional questions in Federalist 49.

“The greatest objection of all,” he argues, is that “the decisions which would probably result from such appeals [to the public], would not answer the purpose of maintaining the constitutional equilibrium of the government.” The explanation is that a constitutional convention is not well-suited for the purpose of judging the merits of claims to power between governmental branches.

As Publius explained earlier in Federalist 48, it is the legislature that most threatens the “constitutional equilibrium of the government.” “The appeals to the people therefore would usually be made by the executive and judiciary departments,” writes Publius. Any new convention would, in the end, be performing the function of a trial, with the judicial and executive branches on one side, the legislature on the other, and the people sitting as judges via their elected delegates.

Publius then raises a simple question, “Would each side enjoy equal advantages on the trial?” The answer: No.

There is a certain “equilibrium” set within the constitutional separation of powers that would be damaged with constant appeals to the general public. As Publius indicates, the judiciary is too few in number and too removed from the community, while the executive tends to be the object of great jealousy and controversy.  Yet, the legislative branch is in many ways the most powerful, the most influential, because it lives among the people, is more connected by blood and friendship, and already functions as the representative voice of the people within our constitutional order. 

If frequent constitutional conventions were to be called, it is likely those already in legislative offices or their friends and allies would be leading the convention.

“The same influence which had gained [the legislators] an election into the legislature, would gain them a seat in the convention,” Publius argues. Members of Congress would be the judge in their own case: “The convention in short would be composed chiefly of men, who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them.”

According to John Locke, judging in one’s own case is the very definition of the state of nature, a state ruled by passion, violence, power, and sheer will.^[2] Frequent constitutional conventions, then, would actually be a regression from civil society back to the state of nature.

By questioning the ability of the public to reason about such things, Publius completes his rejection of Jefferson’s proposal for frequent appeals to the people. Even under the most favorable circumstances, Publius argues, the people would still be too partisan to judge properly:

[The decision of the people] would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very men who had been agents in, or opponents of the measures, to which the decision would relate.

Publius here is pointing to the limits of the capacity of the people to rule themselves rationally. When the people themselves deliberate either en masse or via delegates, they are not really governing themselves, most of the time. The people in large numbers, or in mobs, are less inclined to deliberation and rational reflection; they are not good at judging.

Instead, their opinions tend to be made by parties, or “persons of distinguished character and extensive influence in the community,” and their attachment to these “distinguished” individuals itself is not wholly rational, it is rooted in large measure in their prejudices and passions that often seek celebrities they worship as idols.

Hence it is “the passions,” Publius concludes in Federalist 49, and not “the reason, of the public, [that] would sit in judgment.” But for government to be good it must be rational. It is “the reason of the public alone that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.”

Reason Ruling Over Passion

This arguably is the central thesis of the political science of The Federalist, which is also an eminently classical theme: To have reason ruling over passion, to the extent possible, within a political regime.

Republicanism alone is not identical to good government. There have been many republics. None, prior to the American Founding, were good, simply. Most republics throughout history were weak, unable to defend themselves against warring and conquering empires, and virtually all of them were subject to violent internal civil discord, including civil wars.

The goodness of a government is directly proportionate to its rationality. The challenge, therefore, is to mix the republican principle—government authorized by the people and featuring representation and separation of powers—with the rule of reason.

In a republic, the greatest threat to the rule of reason are the fleeting feelings and passionate will of “the public.” As Publius asks in Federalist 6:

Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities?

And in Federalist 63, Publius points to ancient Athens as an example of a self-governing people who suffered “bitter anguish” because they did not institutionalize any kind of “safeguard against the tyranny of their own passions.”

Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.

Let us never forget that the same Athenians, moved by angry passions, who ordered the execution of Socrates, later erected statues honoring him. These are the kind of fickle, inconsistent, and contradictory behaviors that result from popular passions and emotions among the people absent the rule of reason.

The public, therefore, must be distanced from their own government. Or rather, reason must ultimately rule the passions of the public, but must do so through government. Hence government controls the passions of the people—the criminal code being perhaps the best example—but the government itself should be controlled or ruled by the reason of the public. The people can exercise the rule of reason by adopting a reasonable Constitution that governs the government.

Contrary to the French Declaration of the Rights of Man and the Citizen, for example, which locates sovereignty and all political right in the “general will” of the people, the political science of The Federalist locates the sovereign source of law in reason. In this decisive respect, the esoteric core of The Federalist Papers and Plato’s Laws are one and the same.

Reason—not popular will—is the real legitimizing ground of law. Reasonable laws are legitimate and good because they are reasonable. Unreasonable laws—including unreasonable and unjust laws that are wildly popular among voting citizens—are not laws, strictly speaking.

The “reason of the public” is manifested not in unprincipled majority will, but in expressions of that will that are good and reasonable. A people who “ordain and establish” a constitution featuring limited and separated powers demonstrate their own reason precisely by acknowledging the limitations of their reason and therefore reasonably limiting the powers of their own government.

Federalist 49 offers the best representation of the unique character of the American Founding, bringing together ancient and modern thought to promote the most just government attainable through the consent of the governed.  

Federalist 49 also argues directly on how to maintain that rule, ultimately transforming the concept of the constitutional founding into constitutionalism, lasting, enduring rule of law. It offers a deeply insightful concept of how to maintain a reasonable, just, self-governing society of human beings who are often tempted to injustice by their passions and feelings.

Publius’s arguments, therefore, are relevant and important not merely for the constitutional republic of 1787; they are relevant and important for us today as well. We are no longer attempting to found a constitutional republic. We are not law-givers in the way the Americans of 1787 were. Rather, our task is different, perhaps more difficult: In an age when we have largely forgotten the principles and political science of the Founding, we are engaged in the political and moral battle to preserve constitutional self-government as a way of life, and as explained to us reasonably by a law-giver with a classical name—Publius—in a book titled, The Federalist Papers.

Should you want to re-read parts of this essay and perhaps share with others, I, your humble author, would be most appreciative.

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^[1] Aristotle, The Politics, 1287a25-33

^[2] Locke, Second Treatise of Government, ch. II.