James MacGregor Burns’ Transformative Constitutionalism

Virtually everything that James MacGregor Burns—who died on Tuesday at the age of 95 and who is rightly being honored as one of the greatest political scientists of his time—wrote about the Constitution was wonderfully provocative, incisively argued and totally wrong. He was perhaps the leading Constitutional critic of his era, a vital service, even if Burns sometimes performed it, as in his critiques of separation of powers, in demonstrable error. He was a Progressive, both a student and an advocate of what he called “transforming leadership” and a critic of institutional mechanisms that inhibited it.

Perhaps best known among students of American political thought for his critique of separation of powers in 1963’s The Deadlock of Democracy, Burns—then frustrated by the Senate’s obstruction of civil rights legislation he thought to have been publicly endorsed in the 1960 presidential election—believed he had caught James Madison in a mistake. That is hard to do, and Burns’ effort, while innovative, stumbled.

The attempt was this: If Madison, as he claimed, solved the problem of the abusive majority in Federalist 10—and this without relying on institutional blocking mechanisms—why did he need the added security of the separation of powers, which, to the extent it was unnecessary, was also gratuitously undemocratic? Fifteen years later, George W. Carey decisively answered that Madison was not trying to solve the problem of an abusive majority through the separation of powers, he was trying to solve the problem of a tyrannical government—something the Founder explicitly stated in Federalist 51 that he regarded to be a different problem.

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Time to Demote the Separation of Powers?

I’ve just finished F.H. Buckley’s excellent new book The Once and Future King. I’m reviewing the book for another outlet so I won’t repeat myself here, but here’s the short version: Professor Buckley has identified a key weakness in the American system of government, but perhaps has misidentified its roots. Regardless, I think that his book is very important for thinking about a way out of our present gridlock and dysfunction.

Here I would like to take up and challenge one of the most controversial parts of Buckley’s argument.  

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To Love America Well

With this I end with thanks a month-long stint as a Law and Liberty blogger. It’s been great fun, even with the distractions that came from pushing my book, The Once and Future King: The Rise of Crown Government in America.

The book’s thesis is that, from an admirable patriotism and a less attractive ignorance of history, American libertarians do not adequately defend liberty.

We are all patriots first and philosophers second—and that is just as it should be. For American theorists, patriotism means elevating people such as James Madison to the pantheon of political philosophy. The British have Hume and Burke, the French have Rousseau and Tocqueville—and the Americans have Madison and Hamilton. To be sure, they’re not mediocrities. But then they’re not the people who made the deals that produced the Constitution, or whose beliefs informed its content.

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A Laurel for the Executive Brow

AUMFA year has now passed since President Obama pledged, in an address at the National Defense University, to “engag[e] Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.” It has been neither refined nor repealed, and neither Congress nor the American people—I’ve checked my messages—has been engaged on the topic.

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In which I review a book I won’t read

So there’s yet another biography of Madison out, and this one is by Lynne Cheney. I might have bought it for the author, not the book’s subject, as it’s hard to see this sort of thing as much more than a display of patriotism. The French have Rousseau, the Germans Kant, the British (or Scots) Hume. The Americans have Madison, and must make the most of him, even if he is not much read outside of their country. One of the Philadelphia Convention’s turning points came on July 17, when Gouverneur Morris argued for an elected president on a theory of…

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From a Parliament to Proconsuls

The White House staff is reported to have concluded after an internal review that the United States does not have a parliamentary system. The lesson deduced from this insight is evidently that we have proconsuls instead, but in neither case is a regime of separated powers treated as more than an inconvenience. This is to be “a year of action,” after all, and Press Secretary Jay Carney bottom-lines it for us: the president will “work with Congress where he can and … bypass Congress where necessary.”

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Judicial Arrogance, and Ignorance, in Utah

There are stronger constitutional arguments on both sides of same-sex marriage than any disputants are willing to acknowledge. But the particular manner in which U.S. District Judge Robert J. Shelby reached his decision, announced Friday, overturning Utah’s state constitutional amendment defining marriage heterosexually is a tangle of faulty reasoning and judicial arrogance that will disserve the cause he aims to advance.

The first clue that something is amiss is revealed in the stunning—well, maybe not; but still—error of basic civics on the opinion’s seventeenth page: “When the Constitution was first ratified, [citizens’ fundamental rights] were specifically articulated in the Bill of Rights and protected an individual from certain actions of the federal government.”

That claim—coming here from a federal judge—would cost a freshman points on a blue-book exam. Any student of introductory American government knows the Constitution was ratified over explicit objections that it did not contain a Bill of Rights and on its Framers’ specific insistence that including one might weaken the edifice they had constructed.

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How I Learned to Stop Worrying and Love the Nuclear Option

The Senate occupies a unique place as the fulcrum of the constitutional order. The filibuster does not occupy a unique place as the fulcrum of the Senate. The course the body took Thursday—which limited the use of the device in presidential nominations—will be added to the growing list of precedents to be avenged in due course, but the filibuster should not be inflated to quasi-constitutional status it does not, and probably ought not, enjoy.

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The Myth of Constitutional Science

Kevin D. Williamson has posted an excellent takedown at National Review of a National Journal assault on the Constitutional regime. This latter piece, a polemic by Alex Seitz-Wald, argues that the founding document, while innovative in its time, no longer reflects humanity’s best constitutional erudition. Williamson’s critique is definitive—he notes, among other points, that the regime is not defective simply because it has failed to produce results in accordance with a critic’s proclivities—but I would amplify one point. Seitz-Wald argues for a sort of latter-day constitutional technocracy arising from science and divorced from experience that describes neither what happened at Philadelphia nor that for which any political society ought to wish today.

Seitz-Wald writes: “What was for the Founders a kind of providential revelation—designing, from scratch, a written charter and democratic system at a time when the entire history of life on this planet contained scant examples of either—has been worked into science.” Actually, the entire history of planetary life contained the British constitution, which the convention delegates much admired, and, more important, upwards of a century-and-a-half of uniquely American experience with self-government from which constitutional institutions evolved.

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The Beard Thesis and the Seinfeld Defense

In this, its centennial year, Charles Beard’s 1913 An Economic Interpretation of the Constitution of the United States retains its hold on both the publication market and, at least in certain circles, the popular imagination. Its claim that the Founders were possessive aristocrats out to protect the property of the privileged has, to be sure, been demolished in the scholarly literature, most notably by Forrest McDonald. But it may be time for those who respect the Framers to acknowledge at least one deep vein of truth in Beard’s thesis and reply with an even deeper one. Call it “the Seinfeld defense”: Yes, they wanted to protect property—not that there’s anything wrong with that.

The idea that the Founders had to be redeemed from Beard’s charge has so framed the response to the Progressive historian that the charge itself has been too little examined. But while Beard’s assessment of the personal economic stakes of the Philadelphia delegates was, as McDonald and others have shown, mistaken, his deeper point cannot and indeed ought not be dismissed: One purpose of the Philadelphia project was the protection of property.

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