Academic

So You Think You're Smarter Than James Madison, Eh? Well Why Not?

By Robert Justin Lipkin

James Madison, the so-called "father of the Constitution" was a bright guy. So were all the founders bright guys: George Washington, John Adams, Thomas Jefferson, Ben Franklin, Alexander Hamilton, James Wilson, and so forth. The Constitution they composed was perhaps the best they could do at the time. I say "perhaps" because James Madison was appalled by the document that emerged from the Constitutional Convention. For Madison, the Constitution proposed gave too much power to the fractious, quarrelsome, and petty leaders of the states. But though woefully disappointed that the states retained too much power, Madison went on to become an effective spokesperson urging ratification. And it was the very same failure to strip the states of power at the Constitutional convention that became Madison's cudgel which he used to rout the anti-ratification forces by insisting that the Constitution preserved states' rights. Indeed, in the Virginia Constitutional Convention, where Madison and Patrick Henry were the key leaders of the pro- and anti-ratification forces respectively, Madison rebuffed Henry's complaint that the states were slighted in Philadelphia. In short, Madison's disappointment that the Constitution failed to create a strong central government was the very reason he urged Virginians to ratify the document.

In particular, Madison sought a congressional veto over state legislation but he lost this battle. Consider Gordon Wood's depiction of this incident.

Madison was . . .  deeply disheartened and convinced that the Constitution was doomed to fail. Indeed, just before the convention adjourned, he told Jefferson that the new federal government would accomplish none of its goals. The Constitution, he said, 'will neither effectually answer the national object nor prevent the local mischiefs which every where excite disgusts against the state governments.' This extraordinary statement gives us some idea of how little the final Constitution resembled his original intentions.  Gordon S. Wood, Revolutionary Characters: What Made the Founders Different 160 (2006).

Keeping this in mind let me reiterate a proposal for regularizing constitutional change. Keep in mind Jefferson's pronouncement that the earth is for the living not the dead, and recall his insouciant remark that a little rebellion now and then was a healthy feature of a republican democracy. For Jeffersonians--who virtually controlled the presidency from 1800 through the 1830s--the Revolution of 1800 changed the stewardship of the fledgling nation from the Federalists--the party of the Constitution--to the Jeffersonians--the party of the Declaration of Independence. If the nation could change so drastically then, what's wrong with regularizing constitutional change now? Accordingly, why not call a constitutional convention with one goal to vote up or down a proposal to regularize constitutional evolution. Let's say every twenty years, Americans will be asked to re-ratify the Constitution or its central Articles and provisions. Those Articles not receiving the necessary votes will be replaced with constitutional text acceptable to the current generation.

There's no doubt regularizing the process of constitutional change is not risk free. The best we can do is to put in place a process that responds to deliberative change. That's precisely the process we do not have now. Robert Bork once said that except of course, where the Constitution explicitly constrains the majority, those who seek to prevent the views of the majority from prevailing are simply frightened of democracy. Are we frightened by democracy? Do we trust our political convictions sufficiently to believe that they can prevail in a deliberative forum? If not, what form of government suits us best? Certainly not republican democracy. Constrained democracy makes it possible for the bad guys--whomever they may be in any given situation, conservatives, liberals, or progressives--to prevail. No institutional device designed to prevent one's opponents from winning at least sometimes is possible in a free society. Is there any way prevent this? Sure, monarchy, political aristocracy, theocracy, or dictatorship can prevent one's opponents for winning, but at what price? Fear of losing political and constitutional battles and institutionalizing that fear in one's constitution is the first step toward abandoning democracy. Isn't that sufficient reason to start down a path for regularizing constitutional change?  In a republican democracy there can be no guarantee that the views of "honorable people" and "the highest intentions" will prevail. Why? Because in a free society no one can guarantee that any particular view will (or should) win the day. Moreover constitutional change of fundamental values is excruciatingly difficult no matter what your politics. If you oppose abortion, the right view has been thwarted for over thirty years and millions of babies have been killed as a result. For opponents of the War in Iraq, the presidency has become a soft dictatorship. We are unable to extricate ourselves from what many believe to be an unwinnable war or to protect the civil liberties that the administration has threatened. Why regularize change? Among the countless reasons stand two prominent ones: (1) The two-party system, indeed, any party system is contrary to the explicit convictions of the founders and crushes points of view unacceptable to the reigning Republican-Democratic Party. (2) American republican democracy has become transmogrified into a polity where political, economic, and religious elites control public policy. Ordinary citizens are virtually left out of the democratic process. For more reasons supporting the contention that, like the Liberty Bell, our Constitution is broken click here.

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Full post as published by Essentially Contested America on January 11, 2008 (boomark / email).