In response to: The Constitutional Liberty of the Antifederalists
Gordon Lloyd persuades us to arm our resistance to bureaucratic, total government today by appealing to the Antifederalists of the founding era. “The constitutional impediments to the completion of the Progressive national democracy project actually rest on promoting the Antifederalist rather than the Federalist features of the Constitution and Bill of Rights.” Presumably, Lloyd means this as a necessary not a sufficient condition for a successful resistance. The advocates of the Administrative State, whom I join him in labeling as Progressives, have brought about “a perversion of the good government-good administration teaching of The Federalist” and its understanding of “national democracy.”
Lloyd argues as Americans should, using political history and political philosophy to understand contemporary political life. This is a wise “recurrence to the fundamental principles” that the founders spoke of. Apparently he wants to say, with Jefferson, “We [friends of liberty and republican government] are all federalists, we are all antifederalists.”
When he and I were students, Martin Diamond recounted the Isadora Duncan fallacy: Uniting her dancer’s body with George Bernard Shaw’s brains would produce the perfect child. He responded that the child might have his body and her brains. In calling for the rightful place of the Antifederalist as part of our legacy of constitutionalism, we need to keep in mind this story.
In a succinct survey of Antifederalist scholarship, Lloyd explains why each leading school fails to help us on either the history or our contemporary struggle. He notes that the Antifederalists were right to suspect uniformity of legislation (see Tocqueville’s early fears of the logic of bureaucracy) and advocate instead federalism; to reject a fawning court around an “Imperial President” and insist on a Bill of Rights; and, perhaps most important for Lloyd, to oppose delegated government or bureaucracy in favor of trust in the people. Thus, “delegated powers can easily become delegated government”—as in the Administrative State.
More problematically, Lloyd maintains that the collapse of Congress and the undoing of the separation of powers resulted from a mounting assault on it from The Federalist through Woodrow Wilson and Franklin Roosevelt. When his teacher Willmoore Kendall wrote the penetrating essay, “The Two Majorities,” it made sense to describe the Congress (especially the House) as the “red” branch of government, the executive as the “blue.” While some of that pattern abides, overall the Congress is collectively red—it has become the core of the Administrative State, as its primary post-Great Society function has been redistribution of resources and micromanaging the bureaucracy it has created. As John Marini has shown, the Progressives undermined Congress by assailing politics as the rule of party bosses and advocating their replacement by scientific experts. Progressive political science attacked Madison’s warnings about political power generally and promoted contempt of an individual rights-based politics. With his redefinition of rights, backed up by a more powerful centralized executive branch, FDR would complete what Wilson started. Thus, contrary to Lloyd’s reading of the American political tradition, Progressives’ attack on Congress actually opposes that of The Federalist. So where do we turn for the revival of republican virtue that Lloyd finds in the Antifederalists?
Antifederalist warnings about keeping power from being abused “culminated in their insistence on a Bill of Rights which they saw as the ultimate ‘auxiliary precaution’” and example of Madisonian “inventions of prudence” (from Federalist 51). But don’t we need, at our present juncture, a full-blown Bill of Rights—what the Declaration of Independence was to the Constitution? That is, rather than a Bill of Rights that is a kind of afterthought to the original Constitution—superfluous and even dangerous in Hamilton’s view—don’t we need a reaffirmation of the original meaning of a Bill of Rights, as in the Declaration or, for example, the preface and Article I of the Massachusetts Constitution of 1780? From such a document we can fully appreciate the meaning of citizenship in a republic. Republicanism requires citizen qualities even more than institutional ones.
At any rate, institutions cannot substitute for virtue, though they can of course encourage the qualities needed for self-government. Institutions could give great men and women an opportunity to display their virtues. America’s battle is not one “between ancients and moderns…. It is a new world battle over how best to preserve liberty.” But the weapons wielded in the New World correspond if not identify with old world disputes. Tocqueville maintains that “The idea of rights is nothing other than the idea of virtue introduced into the political world.” For him the “modern” idea of rights can be another mode of the “ancient” quality of virtue, the only political idea “more beautiful.”
In the same way, “ancients and moderns” properly understood is no more an absolute divide than Federalist and Antifederalist, as two discrete parts or phases of the American founding. These are two emphases in thinking and acting about fundamental questions, ultimately controlled by prudence, taking into account the assumptions and experiences of the times. Likewise, happiness remains the object of human life, in Aristotle and in Locke, and while it may appear different initially in “ancient” and “modern” political philosophy, in essence it remains the same.[i] Of course, in western civilization, once the notion of virtue is introduced, it cannot be fully understood without reference to Scripture. Hence Tocqueville emphasized the crucial place of the mores, that peculiar combination of enlightenment and religion in the making of America.
Enhanced, fully flourished rights produce a republican citizenry. Of course the Declaration of Independence is the real Bill of Rights in the tradition of the English bills of rights. See the first two articles of the Massachusetts Constitution of 1780, drafted by John Adams and a model for State Constitutions throughout the 19th century.
Art. I.—All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.
II.—It is the right as well as the duty of all men in society, publicly, and at stated seasons, to worship the SUPREME BEING, the great creator and preserver of the universe….
Subsequently, Article XVIII calls for “A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality” as “absolutely necessary to preserve the advantages of liberty, and to maintain a free government.” For the republican, essential duties follow from men’s natural rights—as the Declaration makes clear in requiring overthrow of a tyrannical government.
But we don’t need to rely on the State constitutions to appreciate our Federal and Antifederal roots. Just note Madison in The Federalist:
#14: In praising the State constitutions (which of course he’s trying to supersede) he refers to the “fellow-citizens” of America as “the mutual guardians of their mutual happiness.”
#55: “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.”
#57: “The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society, and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.”
Such republican rhetoric and concepts are a part of general teaching of free government. “Inventions of prudence” means that prudence needs to keep re-inventing itself, innovating, as well as preserving. It goes well beyond structures such as separation of powers and federalism.
The late John Wettergreen clarified the issue in a rejoinder to an eminent historian of the founding period: “Republicanism is a chicken word for socialism.” (I’m told Wettergreen actually used a stronger phrase originally.) After all, hadn’t Gordon Wood declared republicanism to be “essentially anti-capitalistic,” in contrasting the self-seeking individualism of the Constitution with the communitarian unity of the Declaration?[ii] All the classical language of liberty can be twisted into their opposites unless the abiding and underlying—nature—is the basis of argument that resists willfulness.
President Obama, when he speaks of our obligations as citizens, as in his Second Inaugural and 2012 campaign speeches, and Gordon Wood, when he invokes republicanism, are reading from the same anti-liberty script that establishes a new ruling class or oligarchy of intellectuals and administrators, a caricature of the established church and privileging of Harvard in the Massachusetts Constitution. When the Progressives speak of citizens, republics, or patriotism, they mean the end of individual rights. Contrast Madison’s analysis that faction could be eliminated by destroying liberty or producing a uniformity of opinions, passions, and interests. (Of course moments of patriotism do produce a rough, often essential uniformity.) Progressive ersatz republicanism can even co-opt gun rights. Cass Sunstein in his Second Bill of Rights advocates a republican interpretation of the Second Amendment which turns out to be not a protection of the right to bear arms but a seduction to accept greater state regulation of everything.
The Antifederalist goal of a Bill of Rights might find itself corrupted into a Rooseveltian “Second Bill of Rights”—unless the natural rights basis of these rights is articulated and defended, guiding us back to the original meaning of republican government. In this struggle let us be inspirited by a major Antifederalist: “The fickle and ardent in any community are the proper tools for establishing despotic government. But it is deliberate and thinking men who must establish and secure government on free principles.”[iii] It could scarcely be said any better. Defenders of liberty are indebted to Gordon Lloyd for his “recurrence” to the Antifederalist fountains of natural rights statesmanship.