Taming the Modern

Dennis Hale & Marc Landy

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A recent headline in the New York Times declared: "The Constitution Is Broken and Should Not Be Reclaimed." The statement — which appeared above an op-ed written by two Ivy League law professors — is a hyperbolic version of a view that has become increasingly prominent in the writings of not only academics, but journalists, commentators, and politicians. They deem the Constitution not only "broken," but also "undemocratic," "paralyzing," and "obsolete." They demand changes to key elements of the Constitution, including the Electoral College, the Senate, the amendment process, the presidential veto, and the lifetime appointment of Supreme Court justices.

We have heard these complaints before. One of the most common criticisms of the Constitution — that it is an 18th-century document attempting to govern a modern state — was leveled by Woodrow Wilson in the late 19th century. But this view is based on a misreading of history. In many ways, 18th-century America was already a modern state. The Constitutional Convention represented the first effort to reconcile the problems of modernity with the creation of a free government.

MODERN STATES

Pre-modern societies, varied as they came, had some features in common with one another that distinguished them from modern ones.

In pre-modern societies, laws were handed down from on high; the people had little if anything to say about how they would be governed. Rulers came and went without the consent, or sometimes even the knowledge, of their subjects. Hierarchies were natural; social mobility, though not unknown, was rare. Most people lived and died in or close to the place they were born. Nearly all of them were as poor at death as they had been at birth.

America was different. Even before American independence, Britain's North American colonies were open to immigrants of all classes. With the obvious exception of slavery, the nation's population was not rigidly stratified; Americans, unlike Europeans (including the British), were not fixed in the rank into which they were born. Americans may not have invented merit-based achievement, but America was the first place where this promise was widely fulfilled.

America was also a commercial country. It was a place where business was considered an honorable profession, not something to be shunned as unworthy of a gentleman. Within a few generations, this spirit of enterprise would transform the colonies into an economic miracle.

That same spirit generated a restless ambition that, even before the Revolution, was drawing colonial Americans farther and farther west, creating a society of independent merchants, mechanics, and farmers unlike anything seen in Europe. This independence translated seamlessly into America's governing institutions: From the beginning, Americans largely governed themselves. They voted on their own taxes, made their own laws, and organized their own town and colonial governments. Such practical experience taught the colonists that self-government was not a distant dream, but an everyday reality.

America was modern before America was a nation. And before it was a nation, America was hard to govern.

MODERN PROBLEMS

Establishing a republic in a modern society is a calculated risk — one well worth taking, but only with the proper precautions and a heavy dose of sobriety. And sobriety begins by acknowledging those aspects of modern societies that pose political challenges but are nonetheless inescapable. These include size, diversity, commerce, individualism, and the reemergence of an ancient problem in a new guise: the tyranny of the majority.

Prior to the American founding, republics had been small. They were either city-states, as in ancient times, or very small countries, like Switzerland and the Netherlands. Switzerland was only one-third the size of Virginia; there was no hope that Americans could be governed like the Swiss.

America was a large country well before the Constitution was ratified, stretching almost 1,500 miles from Maine to Georgia and as far west as what is now Ohio. There was no example in history of such a large country being governed in a free manner. China, Russia, the Roman Empire — these were the models available for anyone contemplating the government of a large population. Yet to the founders, these models were unacceptable: The inhabitants of such empires were subjects, not citizens.

Those involved in the debate over the Constitution knew the size of the republic they had set out to establish posed a problem. Alexander Hamilton confessed at the convention that he was "much discouraged by the amazing extent of Country." The framers also knew that the country would be much larger in the future. How it could be governed when it had grown further was a matter of grave concern.

In addition to its considerable size, America was also highly diverse, and in several different ways. Although the earliest settlers on the North American continent were English, they were soon joined by immigrants from across Europe, who brought with them their unique histories, knowledge, skills, languages, and ways of living. What was more problematic than ethnic or cultural diversity, however, was religious diversity.

A diverse range of sects — from Quakers and Baptists to Presbyterians, Methodists, Catholics, and Jews — were spread throughout the colonies. Some states had established churches: In Massachusetts, it was the Congregational; in Virginia, it was the Anglican. Many states could be described as mostly of one or another Christian denomination — but not exclusively so.

Religious conflict was a natural result of this diversity, and it would be a mistake to characterize early America as a tolerant place; its tolerance was largely an (often grudging) concession to necessity. Illustrative is the Maryland Toleration Act of 1649, which provided an almost comically long list of insults that would be forbidden, including "heritick, Scismatick, Idolator, puritan, Independant, Prespiterian popish prest, Jesuite, Jesuited papist," and several others. Clearly, Maryland was not a tolerant place, or this legislation would not have been necessary.

With the diversity of talents the immigrants brought to the colonies matched to the natural resources of the continent, it was not surprising that a rich and varied commerce would develop relatively quickly. Those who chose to risk their lives in a journey across the North Atlantic were hardly typical in outlook; even those who emigrated for religious reasons were bolder, more adventurous, more enterprising than those left behind. And what they found when they arrived was a social and natural environment teeming with commercial possibilities. But these possibilities were a source of concern to many Americans.

Some of them worried about indulgence. Early Americans, most of them God-fearing Protestants, condemned vanity and selfishness. The Puritans in particular forbade "ostentatious" displays of wealth, requiring homes and clothing to be simple, even austere. These religious folk were present at the creation of a new world of commerce, banking, and international trade, all of which generated increased wealth and, in turn, tension between a more traditional Christian outlook and the attitude inspired by a rapidly growing economy. Some of the founders themselves expressed concern over the rise of materialism in the wake of America's commercial success: John Adams, for one, worried about the growing demand for what he referred to as "fripperies," like silver buckles and gold-topped canes. But even before the constitutional debate, the objection to fripperies was becoming a minority pretention.

Others were wary of vicious market competition disturbing the body politic and making relations between citizens more contentious than necessary. Many Americans did not want to believe this; the "celebrated Montesquieu" had coined the term "sweet commerce" to describe how commercial relations fostered good manners, tolerance, understanding, and peace, while Adam Smith had extolled the virtues of a competitive market. But the 1780s had revealed another side of commerce, with some states taking it upon themselves to ruin the commerce of their neighbors. Carl von Clausewitz once said war is politics by other means; Americans soon learned that, under certain circumstances, commerce could become war by other means.

One of the most striking characteristics of 18th- and 19th-century America was the presence of what Alexis de Tocqueville described as "a recent expression arising from a new idea." Individualism — which he defined as "a reflective and peaceable sentiment that disposes each citizen to isolate himself from the mass of those like him and to withdraw to one side with his family and his friends" — was the result of several characteristics that made America so different from Europe, chief among them the widespread availability of unregulated land. As older rules governing the conveyance of property — such as primogeniture and entail — began to disappear, land changed hands frequently. This made it relatively easy for individuals of modest means to own land — and to withdraw from public life.

Individualism is often lauded as a virtue among Americans today. Tocqueville, however, observed that it could be a curse as well as a blessing:

[I]ndividualism, at first, only saps the virtues of public life; but, in the long run, it attacks and destroys all others, and is at length absorbed in downright egotism. Egotism is a vice as old as the world, which does not belong to one form of society more than to another: individualism is of democratic origin, and it threatens to spread in the same ratio as the equality of conditions.

Tocqueville coined another term to refer to the fifth problem that modern states confront. Every system has its characteristic flaws: that of aristocracy is arrogance; that of popular government is "tyranny of the majority." James Madison, too, recognized this problem in Federalist No. 10, describing it as "the superior force of an interested and overbearing majority." Early state legislatures were especially prone to being overrun by such forces; the results included bad laws, frequent changes in the laws, bankruptcy, and interstate commercial battles. These failures seemed to indict not only the legislatures, but democracy itself.

Tocqueville was concerned with the immense power of the majority over not only political institutions, but public opinion in general. To depart from the opinion of the majority might place the individual in a dangerous position: one person among many, with nowhere to turn for protection from the majority. Tocqueville wondered how this dilemma would affect freedom of thought and action. His fears were to some extent allayed by the freedom Americans enjoyed to form associations of various kinds, which magnified the power of the lonely individual and gave him confidence to stand against the herd. Nevertheless, the power of the majority over public opinion would remain a constant threat to America's stability.

TAMING AMERICA

Over the five generations between the earliest English settlements and the Constitutional Convention, Americans learned many lessons about human nature and the nature of government. By the time the framers set out to amend the Articles of Confederation in 1787, they understood that a sound popular government must rest on two things.

The first is a solid understanding of human nature as it is, not as we would wish it to be. In 1789, French revolutionaries would famously try to transform not only their government, but human nature itself — with disastrous results. Lacking the American colonists' wealth of experience in self-government, the French could hold the most wildly fanciful ideas about how human beings operated politically. They could imagine recreating the world from scratch.

The American framers never imagined that such a thing was either desirable or possible. They knew human beings are a mixed bag of virtue and vice, and that a free government cannot be based on the assumption that humans are perfectible. As Madison would later put it in Federalist No. 51: "If men were angels, no government would be necessary."

The framers also understood that a sound government must rest on an understanding of the particular qualities of the particular people to be governed. To paraphrase the late Donald Rumsfeld, you make a constitution for the people you've got, not the people you wish you had.

The framers accepted certain permanent facts about America: that the country was not going to shrink; that its population would become more, not less, diverse; that Americans would continue to be independent, rambunctious, and skeptical toward authority; and that the threat of majority tyranny would exist so long as America remained a democracy. Madison and his colleagues recognized these tendencies as conditions — that is, part of the fabric — of life in America; they could not be changed without fundamentally changing America itself.

Of course, what cannot be changed can be tamed. So how did the framers tame America?

To begin, they addressed the problems of size and diversity by pulling off a seemingly impossible trick: They created an imperium in imperio — literally "a sovereign inside a sovereign." They called this structure "federalism."

Under America's federalist system, both the national government and the states would be sovereign. While the national government would hold the powers assigned to it through the Constitution, the states would retain the police power, or the authority to regulate the health, welfare, and morals of the people. In other words, states were left responsible for education, public welfare, family law, and many other aspects of policy that are best managed as close to the people as possible. As a result, state laws will vary according to important differences in their political cultures, local economies, and particular histories.

And in fact, states have historically adopted very different laws regarding such issues as marriage and divorce, public schools, driving, guns, and gambling. Federalism allows for a variety of laws that is more consonant with the diversity of local opinion and local needs than can be found in large non-federal states.

The framers were also aware of the problems that commercialism and individualism posed to America. But they recognized that Americans would never take a vow of poverty; indeed, most Americans saw commerce, despite its difficulties, as the key to abundance, and abundance as the key to a better way of life. Nor would Americans relinquish their individualist streak. The best the framers could do would be to curb the excesses of commercialism and individualism through moral and civic education.

Of course America, being a modern state, was also diverse. Assigning authority over the nation's education to the federal government, with its one-size-fits-all approach, would undoubtedly lead to conflict. Again relying on federalism, the framers left moral education to the people themselves, through their control of state and local governments, as well as to the private order. Families, churches, civic associations, public schools — these were the institutions where the effort to teach republican morality would take place. Young citizens would learn the value of industry and the folly of greed. They would be taught not just to obey the law, but to take part in the making of laws, through active participation in the life of a democratic community.

The Constitution's most obvious safeguard for federalism is the 10th Amendment, which states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Two other critical safeguards include the Senate, which gives all states equal representation regardless of their size or population, and the Electoral College, which guarantees that presidential elections will be the sum of individual state elections, thereby preventing what many critics (unwisely) wish for — a national referendum decided by a simple national majority. Thanks to the Senate, Texas's voice doesn't drown out Rhode Island's. And thanks to the Electoral College, anyone wishing to become president will have to make his case in Michigan and Georgia as well as in New York and California.

The Constitution addresses the last problem that plagues modern states — tyranny of the majority — by imposing limits on American democracy. Many modern critics of the Constitution believe they are delivering shocking news when they reveal this fact. But none of the delegates to the Constitutional Convention were surprised at all. To them, the word "democracy" conjured up images of mobs burning Tory homes during the Revolution, or Oliver Cromwell's Commonwealth, which seemed to be nothing more than a continuous civil war. A free government restrains those who hold power, even when they are the people themselves. The people, after all, can be as willful and arbitrary as the maddest of monarchs. Those who deny this are not to be trusted.

PARCHMENT AND PIETY

Critics of the Constitution dislike all of this. They appear to wish for a government where the majority of the moment will rule, perhaps believing that this majority will always reflect their point of view. Such is the motive behind current efforts to abolish the Senate, and to persuade state legislatures to pledge that their state's electors will vote for the presidential candidate who has won the national popular majority. In this way the critics are like everyone else; they would love to have their way all the time. Alas, the Constitution stands in their path.

That's what it is supposed to do, because no honest friend of republican government believes that the majority never makes a mistake, even when he is part of it. What the Constitution requires is deliberation. No form of government can guarantee good results, but the Constitution places hurdles in the way of action to force legislators and citizens to think carefully, exercise prudence, consider alternative ideas, and pay careful attention to critics.

The Constitution's detractors don't understand that stifling significant minority opinions, especially when they are geographically based, is dangerous. Suppression of minority opinion fuels alienation. We hear a lot about polarization these days, but polarization is largely a response by part of the electorate to the reality that the mass media and the nation's major cultural and educational institutions are largely controlled by, or operate for the benefit of, a very different part of the electorate.

Of course, the constitutional checks on government power per se are not enough to deal permanently with these dangers. What has made the difference is the respect for the constitutional order, and loyalty to the Constitution itself — which lawmakers and the president swear to protect and defend. Notice that it is not the country that they swear to defend, but the Constitution. This is unlike any other modern nation, whose executives swear to defend the country itself from all enemies, foreign and domestic.

It may be disquieting to realize that the only things standing between loyalty and disloyalty of our elected rulers are words on paper. But reverence for the Constitution is the source of this loyalty. It is reverence, not simply utility, that makes the Constitution work. The most severe test of this reverence was the Civil War, when the seceding states rejected the Constitution. The Confederacy was defeated only because the majority of Americans insisted on preserving the Constitution and the Union it created.

Such reverence was strong enough to survive the deaths of hundreds of thousands of Union soldiers. Surely it will survive the contempt of the nation's progressive law professors and the New York Times.

Dennis Hale and Marc Landy are professors of political science at Boston College and the co-authors of Keeping the Republic: A Defense of American Constitutionalism (University Press of Kansas, 2024).


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