When questioned recently about the administration’s Ebola response, President Obama’s exasperated White House press secretary, Josh Earnest, proclaimed to a reporter: “I guess you can take that up with James Madison.” Earnest, in his attempt to express the evolving nature of governance in a federated republic, correctly affirmed Madison’s central role in the debate, and directed the thoughtful citizen to appreciate original understandings of power.
The Massachusetts Constitution’s Declaration of Rights says, in its conclusion, that:
In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.
That constitution, providing for a lower house, a Senate, and a governor armed with a (qualified) veto was, in many ways, the model for the federal Constitution drafted a few years later.
That drip-drip-drip sound you hear is condescension falling from the mouths of skeptics appalled that such as Lynne Cheney, who does not even hold a tenured position on a university faculty and whose hands are sullied by the actual practice of politics, to say nothing of the side on which she has practiced it, and whose previous writings have not always sounded the depths of profundity, has now dared without so much as the permission of a double-blind peer-review process to produce a sober, scholarly biography of James Madison and, what is worst of all, with a prestigious trade press.
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.
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.
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.
A 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.
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…
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.”
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.