Tag Archives: founders

Doug Masson Quotes The Federalist

Doug Masson is a lawyer in Lafayette, Indiana, and one of the most thoughtful and erudite Indiana bloggers. He has a post on the Democratic primary that is well worth reading in its entirety–and with which I entirely agree–but I was particularly struck by this quotation from Federalist 68

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?”

The “desire in foreign powers to gain an improper ascendant…by raising a creature of their own to the chief magistracy of the Union.”

Whatever propaganda Republicans employ to dismiss the findings of the Mueller Report or denigrate America’s Intelligence operations, the evidence is overwhelming that Russia raised a creature of its own during the 2016 election. That evidence was recently confirmed by a bipartisan report from the Senate Intelligence committee, about which I will report more fully in due course.

As Doug says, Trump is “emotionally fragile, intellectually bankrupt, and utterly corrupt”.

He believes that the office of the Presidency is there to serve him rather than the other way around. His trading on public resources to induce foreign powers to meddle in our elections was exactly the kind of thing the Founders were concerned about when they wrote the Constitution.

Most readers of this blog have already joined me in my determination to “Vote Blue No Matter Who,” (I would personally cast my ballot for a potted plant if it was the alternative to Trump) but that doesn’t mean that most of us don’t have favorites in–and opinions about– the Democratic Primary. At this point in the process, I find myself agreeing with Doug’s analysis.

For my part, I don’t mind Biden, but I like Mayor Pete and Elizabeth Warren. I don’t have strong feelings about Bernie himself, but his online supporters have been fairly off-putting in a way that doesn’t seem nearly so common for supporters of other candidates. In a perfect world, I should be comparing policies, but Presidential campaigns are won or lost on the basis of personalities. The electorate says they care about policy, but when it comes time to vote, they mostly don’t understand the policies and have shaped their understanding of the policies to conform with their personality preferences. I may have better than average understanding of some of these issues, but ultimately, I don’t know enough about the ins and outs of federal laws, rules, and regulations to truly assess the candidates’ plans beyond a pretty superficial level. Nevermind the fact that whatever they propose will have to navigate the legislative process. I’m going to have to trust that the person will do the best they can and will generally make sound decisions.

I have previously called Bernie and Biden analog candidates for a digital age. Either would be immensely preferable to Trump, but I would prefer to see both of them as honored elder statesmen. I love Elizabeth Warren, but I worry that she would make a fairly easy target. Plus I’d hate to see her leave the Senate, where she has been such an effective voice for fairness.

And I really love Mayor Pete.

I’m ready to turn this country over to a new generation–to the people who will have to live with the results of the economic and environmental decisions they make, who grew up with and understand the immense impact of technology on everyday life, and who have the intellect and energy that the Presidency requires and that the current President so clearly lacks.

The men who wrote The Federalist and crafted our Constitution were young. I Googled it, and it turns out that many of the Founding Fathers were not yet 40 years old in 1776. The average age of the signers of the Declaration of Independence was 44 (Ben Franklin undoubtedly raised the average!), but more than a dozen of them were 35 or younger.

The impressive Jacinda Ardern of New Zealand was born in 1980 and elected at age 37, and Emmanuel Macron of France just turned 41.

On the other end of the spectrum, I’m Bernie’s age, and most days, I need a nap.

All that said–whoever emerges will have my activism and my vote. Whoever it is won’t have Russia’s.

 

If We Have To Keep The Electoral College…

Discussions of Constitutional originalism tend to illuminate the very different meanings that different people ascribe to that term.

I’m currently reading “We the People” by Erwin Chemerinsky, the Dean of Berkeley’s law school, and I will return to the subject of “original intent” and his (and my) take on it once I’ve finished the book. But today, I want to propose an “originalism” experiment for those of us who are critical of the current, undemocratic operation of the Electoral College.

Democracy, of course, wasn’t the point of the College. But then, neither was its use as a partisan tool advantaging a reactionary political party, which is what it has become.

There’s a pretty robust consensus that a constitutional amendment simply getting rid of the Electoral College is unlikely to succeed, at least for the foreseeable future. And since some of the College’s most ardent defenders are also proponents of “originalism a la Scalia” (a legal approach so flawed that even Scalia couldn’t consistently apply it), I think we should begin a movement to make the College operate as originally intended.

Article II, Section 1, Clause 3 of the Constitution provided the original plan by which the electors voted for president. (Electors did not originally vote for vice president. The President would be the person who received a majority of votes from the electors, and the person receiving the second most votes would become vice president. That changed with the emergence of political parties, a phenomenon necessitating the 12th Amendment.)

Individual electors were supposed to be selected by a vote of citizens on a district-by-district basis, and were supposed to exercise their independent judgment when casting their votes for President. Wikipedia shares the following quote from Alexander Hamilton, describing the Founding Fathers’ “original intent” with respect to the electors:

A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated [tasks].

Over the years, the “original intent” of the Electoral College has been ignored.

Rather than electors who have been chosen by their neighbors to exercise their informed judgment on behalf of the citizens who chose them (and presumably knew who they were, either personally or by reputation), we now have slates of faceless elector candidates pledged to vote for their parties’ respective candidates. Most states also have passed laws prohibiting so-called “faithless electors”–that is, electors who exercise independent judgment and opt to vote for a candidate who did not win that state’s popular vote.

Does anyone believe that a majority of electors possessing “information and discernment” and exercising “independent judgment” would have cast their votes for Donald Trump? (Or for that matter, that such electors would have confirmed Florida’s “hanging chad” results?)

So here’s my proposal: If we must keep the Electoral College, by all means let’s start a movement to assure that it operates in a manner that is consistent with the Founders’ “original intent.”

Reason and Its Rejection

The most formidable weapon against errors of every kind is Reason. I have never used any other, and I trust I never shall.

Give to every other human being every right that you claim for yourself–that is my doctrine.

To argue with a person who has renounced the use of reason is like administering medicine to the dead.

Persecution is not an original feature in any religion; but it is always the strongly marked feature of all religions established by law.

It is error only, and not truth, that shrinks from inquiry.

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A friend recently sent me these and several other quotes from Thomas Paine, and I was struck–once again– by how far we Americans have come from the insights of the Enlightenment and the basic, foundational principles and values that motivated so many of this country’s founders.

Last night, there was another debate among people aspiring to occupy the Oval Office, and anyone trying to evaluate their fitness for that position had to be appalled.

When did we lose sight of the essential role of reason in human affairs? When did we allow fear to overcome logic, distrust of “the other” to trump recognition of our common humanity? When did expertise and intellect become suspect, nuance and ambiguity a threat, moderation and intellectual modesty evidence of cowardice?

And the million-dollar question: can Americans recapture reason and sanity? Or is our country going to spectacularly self-destruct?

Hopeful Signs

On Thursday, I travelled to North Manchester, Indiana, to deliver the Constitution Day lecture at Manchester University, and I am pleased to report that the students I met were bright, engaged, and determined to make this country work again. (Granted, the ones who attend events of this sort tend to be self-selected–this lecture wasn’t required.)

I always want to apologize to young people for the mess my generation is leaving them, but they may be up to the challenge. Fingers crossed.

Anyway–I’m posting my talk below.

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The title of this talk is “Civic Literacy, Political Discourse and the Constitution.” The obvious question is: what do those things have to do with each other?

Let me begin with an observation; what we call the “political culture,”– the public conversation that citizens have with each other about the rules we live by– is the most toxic it has been in my lifetime. And I’m old. There are lots of theories about what has led us to this rather unfortunate place—from gerrymandering to tribalism to rapid social change—and during Q and A, we can talk about the way those elements and others have contributed to the political nastiness we see all around us. But I want to talk about a different villain. I think our inability to engage in productive civic conversation is largely an outgrowth of our loss of trust in our common social and political institutions—primarily, although certainly not exclusively, our government. Restoring that trust is critically important if we are to make our democracy work—but in order to trust government, we have to understand what it is actually supposed to do, and how those we elect are supposed to behave. We need a common understanding of what our constitution requires.  

Think about it: if I say this podium is a table, and you say it’s a chair, we aren’t going to have a very productive discussion about its use.

Now, let me be clear: there are plenty of gray areas in constitutional law—plenty of situations where people of good will can come to different conclusions about what the constitution requires. But by and large, those aren’t the things Americans are arguing about, and they aren’t the things I’ll be talking about today.

I study how constitutional values apply within our very diverse culture, how constitutional principles connect people with very different backgrounds and beliefs and make us all Americans.  That research has convinced me that widespread civic literacy—by which I mean an accurate, basic understanding of the history and philosophy of our country—is absolutely critical to our continued ability to talk to each other—to function as Americans, rather than as disconnected groups of people competing for power and advantage. My research has also convinced me that the civic knowledge we need is in very short supply. 

Let me share a story that may illustrate my concern. When I teach Law and Public Affairs, I begin with the way our particular legal framework limits what laws we can pass, and how “original intent” guides the application of Constitutional principles to current conflicts. I usually ask students something like “What do you suppose James Madison thought about porn on the internet?” Usually, they’ll laugh and then we discuss how Madison’s beliefs about freedom of expression should guide courts faced with contemporary efforts to censor the internet. But a few years ago, when I asked a college junior that question, she looked at me blankly and asked “Who’s James Madison?”

Now, it’s tempting to dismiss this as anecdotal–but let me share with you just a tiny fraction of available research. A survey by the Oklahoma Council of Public Affairs recently asked high school students questions about American government. Here are some of those questions, and the percentages of students who answered them correctly:

What is the supreme law of the land? 28%

What do we call the first ten amendments to the Constitution? 26%

What are the two parts of the U.S. Congress? 27%

How many justices are there on the Supreme Court? 10%

Who wrote the Declaration of Independence? 14%

What are the two major political parties in the United States? 43%

Who was the first President of the United States? 23%

Only 36 percent of the American public can name the three branches of government. Fewer than half of 12th graders can describe the meaning of federalism. Only 35% of teenagers can correctly identify “We the People” as the first three words of the Constitution. There’s much, much more. 

And it matters.

If you think about it, the choices originally made in the design of our constitution have shaped the way we define what is public and what is private, our beliefs about governmental and personal responsibility, and our conceptions of human rights. They frame the way we allocate social duties among governmental, nonprofit and private actors. In short, those initial constitutional choices created a distinctively American worldview.  If we don’t understand what those initial decisions were, or why they were made, or how they make America distinctive, we can’t fully understand the world we live in.

Constitutions are expressions of political theory, efforts to address the most basic question of any society—how should people live together? What should the rules be, how should they be made, who should get to make them and how should they be enforced?

In America, for the first time, citizenship wasn’t based upon geography, ethnicity or conquest, but upon an Idea, a theory of social organization, what Enlightenment philosopher John Locke called a “social contract” and journalist Todd Gitlin has called a “covenant.” That theory—that idea—was incorporated in our constituent documents: the Declaration of Independence, the Constitution and the Bill of Rights. The American idea should make us uniquely situated to thrive in a modern world where travel, immigration and economics are forcing diversification of even the most insular societies, because it based citizenship on behavior rather than identity—on what you do rather than who you are.

The American Idea reflected certain assumptions about human nature and accordingly, privileged certain values—values that need to be more explicitly recognized, discussed and understood, because they provide the common ground for our citizenship and they define our public morality.

Now, obviously, the founders of this nation didn’t all speak with one voice, or embrace a single worldview. All of our governing documents were the result of passionate argument, negotiation and eventual compromise. And as remarkable as the founders’ achievement was, as enduring as the bulk of their work has proven to be, the system they established wasn’t perfect, nor was it sufficient for all time. History and context matter.

Take that issue of “original intent.” There are those who believe that the role of the courts is to look only at the world the founders inhabited in order to understand what they intended, and to apply the rules as they would have been applied in that world. Such a view of the judicial function arguably misreads both history and the founders’ expressed intent. In any event, it’s impossible. Whose “original intent” are we supposed to apply? John Marshall’s? Thomas Jefferson’s? James Madison’s? And how are we supposed to know what they were thinking?

More to the point, constitutions are by their nature statements of basic principles to be applied to fact situations which may or may not be foreseeable at the time the principles are enunciated. Our inquiry, properly understood, must be to identify the principle or value the founders wanted to protect, and protect it to the best of our abilities in a rapidly changing world. The question isn’t: What did James Madison say about pornography on the internet? The question is: how do we apply this principle James Madison enunciated –the importance of protecting free expression from government censorship—to this new form of communication? 

The great debates between the Federalists and Anti-Federalists were about the proper role of government. That debate continues today. We have enlarged our notion of citizenship since the constitutional convention to include women, former slaves and non-landowners, but the framework remains the same. The overarching issue remains where to strike the balance between state power and individual liberty. 

The issue, in other words, is: who decides? Who decides what book you read, what prayer you say, who you marry, whether you procreate, how you use your property? Who decides when the state may deprive you of your liberty? How do we balance government’s duty to exercise authority and enforce order against the individual’s right to be secure in his person and free in his conscience? The founders answered that question by carving out, in the Bill of Rights, things the government was forbidden to do.

As I tell my students, the Bill of Rights does not give us rights. The founders believed we have “natural rights” by virtue of being human; the Bill of Rights was meant to keep government from interfering with those natural rights.

Today, we have groups on the political right who “know best” what books we should read, what prayers we should say, and whom we should love. We see groups on the political left endorsing “hate speech” legislation and censorship of materials they believe to be offensive to women or gays or others. Both groups want to use the power of the state to impose “goodness” on the rest of us. The problem is, they want to be the ones who get to define goodness. If they had even a rudimentary civic education, they would know that under the Constitution they are absolutely prohibited from doing so. In our system, individuals have the right to make their own political and moral decisions, even when most other people believe those decisions are wrong. 

The definition of individual liberty that emerged from the philosophical and scientific period we call the Enlightenment is sometimes called the Libertarian Principle: the principle that individuals have the right to make their own moral and personal choices—the right to “do their own thing”—until and unless they harm the person or property of someone else, and so long as they are willing to give an equal liberty to others. 

Now, we can argue about what constitutes harm, and when the majority, acting through government, is entitled to step in and keep people from doing something. But equality before the law means we can’t take the position that “Freedom is for me, but not for you.”   

We talk a lot about the rights of the individual, but what are the “rights” of the majority? How do we determine them? When we ask those questions, we immediately see that there are two very different answers possible. In a totally majoritarian system—the system too many Americans think we have—the rights of the majority at any given time are what the majority decides they are. In that kind of system, the only issue will be one of accuracy and definition: How can we be certain the votes accurately reflect citizen sentiment? Who has the right to vote? 

In a truly majoritarian system, voters would have the right to decide what books are printed and sold, which religious practices would be tolerated, how much authority the police could exercise, and so forth. The only limits to government’s power over individuals would be those approved from time to time by the voters, and those limits could be changed at any time by a subsequent vote. A truly majoritarian system would certainly reflect “community values” at any given time. It would also impose those values on those who do not share them. Holders of minority opinions, dissenters from the prevailing wisdom, would have no recognized or enforceable right to be different.

That sort of system is precisely what the founders feared: it’s a system that allows the majority to oppress those who are different or who hold different opinions or beliefs. It is what the founders meant by “tyranny of the majority,” and it isn’t the system the founders bequeathed us.

Under our Constitution, the rights of the majority are restrained by the operation of the Bill of Rights. The majority cannot use government to prescribe your prayer, to dictate your reading material, to arrest you without probable cause, or to treat you differently than your neighbor simply because you belong to a disfavored group. 

When people are ignorant of constitutional history, when they fail to understand that the central constitutional issue is the use and abuse of the power of government, they confuse support for constitutional rights with support for unpopular uses of those rights. The issue is who decides what books you read—not the merits of the books you choose. An insistence on a woman’s right to terminate her pregnancy is not the equivalent of a “pro-abortion” position—many women who oppose abortion nevertheless do not believe that government has the right to make that decision for individual women. An insistence on freedom of the press certainly doesn’t translate into approval of anything the press may choose to publish. A lawyer who represents a murderer is not “endorsing” murder. He or she is upholding the right of every citizen to the due process of law.

The central issue of civil liberties is the power of government—or the majority, working through government—to compel individual behaviors or infringe personal liberties. When people don’t understand that, when they don’t understand when government is empowered to impose rules and when it isn’t, when they don’t understand the most basic premises of our legal system, our public discourse is impoverished and ultimately unproductive. We’re back to arguing whether this podium is a table or a chair. 

In a country where, increasingly, people read different books and newspapers, visit different blogs, watch different television programs, attend different churches and even speak different languages—where the information and beliefs we all share are diminishing and our variety and diversity are growing—it is more important than ever that Americans understand their history and their governing philosophy. Our constitutional values are ultimately all that we Americans have in common.  

Governments are human enterprises, and like all human enterprises, they will have their ups and downs. In the United States, however, the consequences of the “down” periods are potentially more serious than in more homogeneous nations, precisely because this is a country based upon covenant, upon an idea. Americans do not share a single ethnicity, religion or race. Culture warriors to the contrary, we never have. We don’t share a comprehensive worldview. What we do share is a set of values, and when we don’t know what those values are or where they came from, we lose a critical part of what it is that makes us Americans.

At the end of the day, our public policies must be aligned with and supportive of our most fundamental values; the people we elect must demonstrate that they understand, respect and live up to those values; and the electorate has to be sufficiently knowledgeable about those values to hold public officials accountable. To put it another way, our ability to trust one another and our government ultimately depends upon our ability to keep that government true to our fundamental values, and we can’t do that if we don’t know what those values are or where they came from.

 In a country that celebrates individual rights and respects individual liberty, there will always be dissent, differences of opinion, and struggles for power. But there are different kinds of discord, and they aren’t all equal. When we argue from within what I call the constitutional culture—when we argue about the proper application of the American Idea to new situations or to previously marginalized populations—we strengthen our bonds and learn how to bridge our differences. When we allow powerful partisans to rewrite our history and distort the rule of law, we undermine the American Idea and erode the social trust needed to make our democratic institutions work.

So—to answer the question I asked at the beginning of this talk, civic literacy is knowledge of America’s history and constitutional system—and it is also the language through which we engage in productive discussion and debate about the issues that face us—the common ground upon which we meet as equal citizens. Without that shared ground, without civic literacy—without that common understanding of our nation’s foundations and commitments– we can have no dialogue, reach no agreement. Without it, we cannot sustain the nation.

And right now, civic literacy is in very short supply.

Thank you.