By Charles C. W. Cooke
Thursday, December 03, 2020
Most countries don’t have an instruction manual. But,
then, most countries don’t need one. In its brilliance, in its longevity, and
in its dual role as outline for legitimate government and incubator of
well-considered ideals, the United States Constitution is unique. At many
points in history, nations have elected to rewrite their rulebooks, but rarely
have those who were charged with the task thought so seriously and assiduously
while doing so. Critics of the American settlement sometimes sneer that its
champions believe it to be “perfect.” We do not, although the Burkeans among us
may believe that it is superior to anything that might realistically replace
it. But we do believe that it is the product of genius and of deliberation, and
that it ought to be taken seriously as a result. Contrary to what you’ve likely
been told by our new class of Jacobins, the Constitution is not arbitrary, it
is not a “big lie,” and it is not a self-interested prophylactic that was
designed and sustained by the ruling class. It is a masterwork of practical
application and moral philosophy. Yes, it contains compromises, but they are
mostly compromises born not of grubby self-dealing or contingent circumstance
but of sustained argument. Those arguments remain instructive. Better still,
they remain persuasive.
Those looking for information about why the Constitution
says what it says will find a treasure trove waiting for them in the archives.
There is a well-organized set of notes from the Constitutional Convention, a
less well-organized assortment of briefs from the subsequent fights over
ratification, and the reams upon reams of newspaper commentary that was
designed to illuminate, to obfuscate, and more. But the jewel in the crown is
undoubtedly The Federalist Papers, an 85-entry compilation of
contemporary missives that comprises the work done by James Madison, Alexander
Hamilton, and John Jay to convince their fellow Americans that it was worth
junking the existing Articles of Confederation and adopting a new constitution
in its place. It is a tour de force that, among other things, helps us to
understand why the American order — a mixture of humble mists-of-time
traditionalism and elastic classical liberalism — ended up as it did.
Much hay has been made of the fact that the charter that
Madison, Hamilton, and Jay were hawking was devised in secret by a small,
self-selected group of men who had not in any meaningful sense been recruited
to redraft the republic. From time to time, one even sees the process described
as a “coup.” And yet the mere existence of The Federalist Papers remind
us how flippant a characterization this is. As the authors make clear from the
outset, ratification of the new constitution was by no means a given. The task
of the project, Hamilton explains in Federalist No. 1, was “to give a
satisfactory answer to all the objections which shall have made their
appearance, that may seem to have any claim to your attention.” Those
objections were real, taking their most potent form in a series of eloquent
counter-arguments — known today as the Anti–Federalist Papers — that
would prove convincing enough to the public to guarantee that ratification
would be conditioned on the adoption of the Bill of Rights, which neither
Hamilton nor Madison considered necessary, given that it seemed to contradict
the enumerated-powers doctrine. The question before the people, Hamilton
proposed while introducing the effort, was whether Americans would enjoy a form
of “good government from reflection and choice, or whether they are forever
destined to depend, for their political constitutions, on accident and force.”
And, as he was at pains to confirm, the only “force” available to him and his
colleagues flowed directly from the nibs of their pens. The charter for which
the trio was proselytizing may indeed have been written by a cabal. But its
adoption would be debated by everyone.
Ultimately, the authors of The Federalist Papers
prevailed — either directly, by influencing those who read them, or, more
commonly, by influencing other writers who echoed their arguments around the
new country. Were that the project’s sole legacy, it would have represented a
smashing success — perhaps the greatest marketing exercise in history. But it
has turned out to be much more than just that. Within a year of
ratification, it had become apparent that, as a set of explanatory strictures, The
Federalist Papers could prove key to the maintenance of the new order — a
maintenance that, given the recent experience with the Articles of
Confederation, was by no means guaranteed. And so they have continued to prove.
Thomas Jefferson hoped that the new Constitution would continue to mean what
it meant when it was ratified and thereby avoid transmutation into “blank paper
by construction.” Jefferson’s wish has not always been granted, but, when it
has, The Federalist Papers have played a foundational role in the
preservation. Originalism is in part a historical exercise, and it relies for
its integrity upon our having enough contemporary explanations, arguments, and
definitions to put the matter of the Constitution’s binding meaning beyond a
reasonable doubt. There is no better compendium of such explanations,
arguments, and definitions than The Federalist Papers. Want to know what
a word meant back in 1787? To learn the broadly understood intent and scope of
a particular provision? To know what the authors and their allies explicitly
did not mean — even what they resented being told they meant? To
understand federalism or counter-majoritarianism or separation of powers?
There’s a set of papers for that.
The fight for the original public meaning of the Constitution
is, at root, a political fight. Whatever the truth, and whatever writings we
have, it will remain the case that if the people do not want to keep their
highest law, that law will eventually be discarded. But it’s a lot tougher
simply to make up that meaning when the guys who wrote and defended the thing
are on record with clear, concise, and definitive explanations of their own. It
should be no surprise, perhaps, that, next to the Constitution itself, The
Federalist Papers have been the most commonly cited source by the Supreme
Court since it began pronouncing on questions of constitutional interpretation.
We would be better off if the other branches paid as much attention as do the
courts — and if the citizenry followed suit. There’s an education in those
documents — for those who choose to take it.
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