If Not the Hand of Providence, Then Timeless Political Principles

Should our 232-year-old United States Constitution still be binding? For the last few years, progressives increasingly have begun to answer with an emphatic “No!” The most visible such criticism of our fundamental law is the attack on the Electoral College, which provides for indirect election of the president by electors who, if the truth be told, represent the states far better than the popular vote of the people.

Progressives believe that democracy demands a majority of the popular vote select the president, rather than a majority of the Electoral College, which latter body, after all, reflects political subdivisions and geographical areas as much as it does the will of the majority.

Some have argued (dubiously, as a matter of history, but with rhetorical power) that the Electoral College, insofar as it is a manifestation of states’ rights, is a remnant of slavery, and should be jettisoned for that reason.

Still others, including the late Supreme Court Justice Thurgood Marshall, have maintained that the entire document, ratified in 1789, is fatally flawed because it was, after all, the product of 55 white men, many of whom were slaveholders, and it did little to protect the rights of women and minorities. This has changed, of course, though the amendment process, but somehow the Constitution’s critics have little regard for the fundamental alterations that the Reconstruction and Progressive-Era amendments made in the original constitutional structure.

Persuading the Unpersuadable

What then can be said about the Constitution to rebut its critics? The most obvious is that if it is flawed, it is at least amendable. But such alterations require difficult supermajorities (two-thirds of each house of Congress and three-quarters of the state legislatures). This difficulty accounts for the fact that there have been fewer than 30 amendments in the more than two centuries the Constitution has endured. Given our dramatically divided polity, the possible passage of any amendments at this time in our history is low. This argument in favor of the Constitution will not persuade many.

The original framers, Benjamin Franklin in particular, thought they could discern in the crafting of the Constitution the hand of Providence. But an appeal to divinity is also not particularly persuasive in our benighted secular age.

It is equally difficult to persuade progressives and other Americans that there are any timeless political truths, but clearly the defenders of the Constitution believed that what they regarded as the newly emerging science of politics offered precisely that, and the Constitution was written to take advantage of just those insights.

The most important of these enduring principles was that the most basic duty of government was to prevent the accumulation of arbitrary power, because the framers understood the dictum eventually made famous by Lord Acton, that power corrupts, and absolute power corrupts absolutely.

Essential Checks and Balances

The Constitution, then, is replete with structural means of checking arbitrary power, such as, for example, the Electoral College, which, recognizing the arbitrariness even of a popular majority, imposes an indirect check by geographical dispersion and decentralization.

All of our school children used to be taught about other “checks and balances” in the Constitution, such as the presidential veto over congressional legislation, the impeachment power over executive and judicial branch officials, and the judicial power to reject unconstitutional legislation. This last is not explicit in the Constitution, but clearly implied, as Hamilton pointed out in the famous Federalist 78.

As early as Aristotle, human beings recognized that good government depended on a balanced constitution. But until Montesquieu, in the 18th century, it was generally thought that balance was secured by incorporating the different orders in traditional society⁠—the one, the few, and the many (the king, the aristocracy, and the people) into the government. Montesquieu suggested that this balance could be achieved as well by separation of governmental powers, and by ensuring that the three governmental branches⁠—legislative, executive, and judicial⁠—did not usurp the functions of each other.

Indeed, as Alexander Hamilton observed in Federalist 78, Montesquieu particularly warned that a failure to separate the judicial function from the legislative was tyrannical⁠—because arbitrary⁠—and thus the framers and current conservatives’ understanding that judges should interpret, but not make law.

The only way to ensure that, of course, as Justice Neil Gorsuch has demonstrated in his recent book, and as Antonin Scalia always maintained, is for judges to interpret the Constitution according to its original understanding, rather than arbitrarily seeking to alter it to satisfy their personal policy preferences or to meet purportedly urgent needs of the times.

Recovering Federalism

The other basic limitation on arbitrary power in the Constitution is that the central government, as the 10th Amendment clarified, is supposed to be one of limited and enumerated powers, with everything else left to the state and local governments or to the people themselves. This is the now sadly neglected but vital principle of federalism.

Federalism’s central notion is that for most matters, the best government is the government closest to the people, because it will be most responsive to their needs, and that means that most decisions should be in the hands of state and local rather than federal authorities. So it is that the law of contract, the law of torts, the law of property, and even the law of business associations remains primarily a state concern, although the federal government increasingly has been encroaching in all of these areas.

Given the genius of the manner in which the Constitution applied these ideas of separation of powers and federalism, and given the manner in which the Constitution was ratified by the 13 original and diverse states, it is not difficult to understand how some contemporaries could believe that this was accomplished by divine intervention. Even if this were not true, it is undeniable that the framers were shrewd historians, astute political scientists, and wise students of the human condition. They had the benefit of watching relatively pure democracy and arbitrary power in action both from seeing the mismanagement of the English Parliament, and by observing questionable behavior in the unrestrained state legislatures in the years immediately following the American Revolution.

James Madison summed this up in Federalist 10, when he explained that the federal Constitution, with its circumscription on the power of the state legislatures to interfere with existing contracts or to create currency would be a means of avoiding “a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project.”

Given that a number of the 2020 Democratic presidential candidates have announced their support for just such “wicked projects,” the timelessness of Madison’s concern still rings true. Far from irrelevant, the Constitution, the aims of its framers, and the inspiration for the document are as vital today, in the political choices before Americans, as they were in 1789.

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About Stephen B. Presser

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, and the author of “Law Professors: Three Centuries of Shaping American Law” (West Academic Publishers, 2017). In the academic year 2018-2019, Professor Presser is a Visiting Scholar in Conservative Thought and Policy at the University of Colorado, Boulder.

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