Remedial Constitutionalism?

In the four-year humanities course at Magdalen College of the Liberal Arts, we have been reading The Federalist, and are going on to read Tocqueville’s Democracy in America. Our seminar discussion of The Federalist was spirited, and kept on going after the class was nominally finished. I am delighted with my students.

But in the private study of my heart, I am not delighted. I read The Federalist, and I find the experience of reading to be profoundly saddening, as if I were returning to a city I once loved, that was once full of the human things, business and play, love and suffering, mirth and worship, but that has now fallen into the yellow leaf, with blacktop buckling, windows boarded up, much blame to go around, and no one wise enough or with heart enough to do anything about it.

My feelings are neither here nor there. What moves them is. I do not like to behold the decline of my native land. The Federalist compels me to behold it.

Decline? It would be easy enough to decry the state of our high schools and colleges, most of whose students would be quite incapable of making any sense of Alexander Hamilton and James Madison. The vocabulary is too extensive. The sentences are carefully constructed to deliver a precise meaning, and though that means they will often be long, they do not waste words. The general knowledge the authors appeal to might as well come from another galaxy: the rise of the Roman republic under Brutus the liberator; the restless ambition of Pericles, that led to the Peloponnesian War; mercantile Carthage and Venice; such writers on law and constitutions as Polybius, Coke, and Montesquieu; the history of England and of English and other colonies in the new world; international trade and its commodities; and insights into human nature that come from much practical observation and broad reading. 

It isn’t just that students cannot read The Federalist. Our rulers in government, education, mass media, and business also cannot, or do not, or will not, because they have abjured wisdom, which comes only by long and slow pondering upon the successes and failures of man, his glory and shame, his love, and his hate that sometimes goes under the name of love. They have burned The Federalist, as Ray Bradbury saw in Fahrenheit 451. You do not need a fireman and a torch for that. All you need is a populace—and its leaders—who gape at one fatuous soap opera after another; in other words, who follow the words and deeds of our entertainers and politicians.

It would be easy also to note that, more than 200 years after the fact, worse than the worst fears of the anti-Federalists have been realized. They feared that the states would become mere provinces or departments of the central government. We have worse: our municipalities are so. Our schools are so. A parade or a bakery becomes the site of constitutional warfare—as if a million-armed artillery machine should move in jealous vengeance against a boy with a pellet gun, firing at a pie-plate nailed to a tree. 

They feared that the judiciary would become tyrannical. Not in their most fevered nightmares could they have imagined that a handful of lawyers would become cultural archons, defining according to their class’ predilections what is or is not to be considered a marriage, or, more murderous, who is or is not to be considered a living human being. 

They feared that the president would become a loose cannon, waging war as he pleased, even though Congress alone has the authority to declare war; our Congresses have evaded the responsibility of such declarations, ceding to one president after another the vague go-ahead to wage war without real war, which has at best resulted in victory without real victory. 

They feared a standing army during peacetime. We have all kinds of standing armies during peacetime, ready to crush you under a steamroller if you dare to oppose the State that was to have been your creation, and is now your master. 

They feared that the congressmen would be distant from the people they govern. They could not have imagined the thousands upon thousands of bureaucrats who do most of the real legislating in this country—men and women whose names no one knows, and whose lines of authority only a careful and obsessive specialist can trace.

The “combinations” of power that Madison saw as pernicious are everywhere: judges legislate; judges execute their legislation, or compel, under great financial threat, governors and mayors and private citizens to execute it; the executive pursues policies that set statutory law aside (see the Rio Grande), and, what is more telling, everyone expects it to do so; the national government intrudes upon state business, city business, school business, and private business. 

Everything has been nationalized, which means that liberty and real culture have not a chance.

I’ve known these things for quite a while. The something new, this time around, was this. Madison and Hamilton and their allies and antagonists were serious men attempting, shortly after a long war that might have gone against them, to scrap one form of government and establish another, exercising all care to avert the incapacity of the former, without flying to a cure that would prove worse than the disease. One compromise after another had to be hammered out. Self-interest actuates most of us, most of the time; that is a plain and sobering fact. But self-interest had to cede to, or at least admit, a far-sighted appraisal of probabilities, based upon historical precedent and the invariable character of man, for securing the common good. 

It was an immense task. England, France, and Spain were watching closely. Could we now undertake a task so great? We need hardly ask that question. The most striking thing about our national behavior in the last year and a half has not been that we made this or that incorrect decision. It is that, in the face of a pandemic that was grave but was not the bubonic plague, we had no genuine and dispassionate weighing of one good against another, or one evil against another. I am not saying that we should have done thus or so. I am saying that we never managed to discuss whether we should do thus or so. 

When goods are incommensurable, or when they cannot be secured all together, or when you must buy one good at the price of a considerable evil of a very different kind, if you cannot in your chambers of Congress have people shut their mouths, sit, study, think, estimate odds, search for precedents, face bad consequences at every pass, and try to recommend a modus vivendi in a difficult time, then you might be better off having no official Congress at all, since you have none in reality.

I do not blame Congress for abdicating its responsibility, just as I would not blame a crippled man for not running a four-minute mile. Congress, I fear, cannot do the work of a Congress, for a variety of reasons, none of which is remediable. I wish it were true that incompetent people and institutions, intermittently aware of the incompetence, would sometimes retreat, and reconsider, and perhaps learn something. 

In our time, the incompetent merely extend their vague and foolish ambitions. They who cannot teach grammar pretend to teach “theory” that comprehends all of human behavior. So our national government, by no means just the Congress, showing itself incapable of dealing with a modest crisis of public health, will go on waving banners to itself, as more and worse troubles loom, from evils they have neglected to address or even to recognize as such. And the people—to judge by our signs and bumper stickers—are not much better.

About Anthony Esolen

Anthony Esolen is a Distinguished Fellow of the Center for American Greatness and a professor and writer in residence at Magdalen College of the Liberal Arts, in Warner, New Hampshire. Dr. Esolen is a senior editor for Touchstone Magazine and a contributing editor for Chronicles. He is a regular contributor to Crisis Magazine and the author of many books, including The Politically Incorrect Guide to Western Civilization (Regnery Press, 2008); Ten Ways to Destroy the Imagination of Your Child (ISI Books, 2010) and Reflections on the Christian Life (Sophia Institute Press, 2013). His most recent books are Reclaiming Catholic Social Teaching (Sophia Institute Press, 2014); Defending Marriage (Tan Books, 2014); Life Under Compulsion (ISI Books, 2015); Real Music: A Guide to the Timeless Hymns of the Church (Tan Books, 2016); Out of the Ashes (Regnery, 2017); Nostalgia (Regnery, 2018); and Sex and the Unreal City (Ignatius, 2020).

Photo: Caroline Brehman via Getty Images

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