By ADRIAN VERMEULE
Review of An Argument Open to All: Reading The Federalist in the 21st Century, by Sanford Levinson
New Haven: Yale University Press, 2015
There is a brilliant essay by James Fitzjames Stephen -- that's almost a redundancy -- titled "The Federalist," published in 1864 and collected in the 3d volume of his Horae Sabbaticae. Stephen wrote:
"It is a common reproach against the Americans that, with so many opportunities, they should have produced so few books of real power or originality, nor is the reproach by any means unjust.... On the other hand, they have been faithful enough to the memory of the eminent men whom they did produce in former times. The few remarkable books which were formerly written in America have been made the most of, and have been constantly republished. The Federalist is one of the most important of these."
One hundred and fifty years after Stephen wrote, we are still talking about The Federalist. What if anything can justify this? Sandy Levinson's answer is that we should read The Federalist's collected papers not as "ways of understanding eighteenth-century thought," but rather as "insights into basic political reality, very much including that of the twenty-first century." Levinson proceeds to write miniature essays on every one of The Federalist's papers, relating them to current problems of constitutional law and politics. The resulting book is intentionally modular, excellent for dipping in and skipping about rather than reading straight through. Yet there is a thematic unity and point to Levinson's essays: Although professors of constitutional law in the United States are overwhelmingly liberal (in the political theory sense, and often in the low-politics sense), Publius is no liberal. As Levinson puts it on his very first page, Publius consistently "challenges one of the central premises of liberal constitutionalism - that government must be limited in its power in order to preserve the primary good of liberty."
Levinson's book is frankly presentist, rather than historicist; and this is an excellent answer to Stephen's question. The justification for more talk about The Federalist must be mining and export, rather than archeology. By archeology, I mean the attempt by professional historians and intellectual historians to recover the thought-world of the past and place it in rich historical context. The goal is understanding. Mining, on the other hand, tries to exploit the past for present advantage. It ransacks the past for what Jon Elster calls "exportable mechanisms" (Alexis de Tocqueville, The First Social Scientist) -- causal mechanisms that we can take out of historical context and make useful elsewhere. Historians do not like this but there is a place for exploitation as well as understanding, if the exploitation yields overall social benefits.
Levinson is persuasive that the subtle analysis of causal mechanisms, running throughout pages of The Federalist, is useful in settings that Publius never would have dreamt of. In that sense the mining enterprise promises to get us well beyond the stock debates over originalism, where it is assumed that the utility of The Federalist, if any, must be solely to help us understand the original public meaning of the Constitution of 1789. The mining enterprise suggests that even living constitutionalists of various stripes might find The Federalist useful as well, insofar as it contains excellent causal analysis and excellent precepts for institutional design and political risk management.
Ironically enough, then, given his professed aims, Levinson does a terrific job of intellectual archeology -- not his principal intention. Levinson recovers the intellectual world of Publius and frees it from various backward projections that pop up in current constitutional theory. The book is utterly persuasive in reminding us about what, or who, Publius is not:
- Publius is not a "classical liberal" in any sense recognizable to us today. Nor is he a Millian liberal, nor a free-market liberal of the Hayekian sort, and it goes without saying that he is certainly not a Rawlsian liberal. Rather Publius is best described as a welfarist with a conservative and elitist bent. The background music of Publius is the stability-loving, property-oriented elitist utilitarianism of certain strands of the Scottish Enlightenment, notably Hume, and also of Samuel Johnson. Publius is not arguing for the priority of the right over the good, nor is he skeptical about the existence of a "public good," defined loosely as "the permanent and aggregate interests of the community" (The Federalist #10).
- Publius is not a Diceyan rule of law fetishist. Publius sees law as a good servant and a bad master, to be violated or ignored if public welfare overall so requires -- although of course the enlightened elite welfarist will take into account that legal rules, such as the rules of property, have benefits qua rules, and that because law is a good servant it should not be needlessly abused.
- Publius is not a democrat, at least not in anything more than a Schumpeterian minimalist sense, in which the people at large retain a kind of residual power to select or de-select among elites who compete to govern them. But Publius is not a Schmittian decisionist democrat either. Publius believes in deliberation, not willful choice ratified by mass acclamation. The implicit picture throughout Publius is all-things-considered deliberation for the overall good, conducted by a select elite of gentlemen animated by the public interest.
If Levinson's book excels as intellectual archeology, it could have been more ruthlessly exploitative as a mining enterprise. Levinson does not give us a large number of exportable mechanisms, but many such mechanisms could have been unearthed. I will confine myself to one example.
Publius has a crystallized, well-formed view about the rule of law, dictatorship and emergency powers. Levinson treats this cluster-topic a bit flatly, through a standard opposition between the rule of law and perceived necessity. That is not wrong, and is included in Publius' argument, but it is not as subtle as Publius' actual view, which rests on a clever causal mechanism that has utility in many other settings.
Publius' clever mechanism is that excessive governmental power is itself the product of excessive constraint. It is an argument that tyrannophobia, the unjustified fear of governmental power and in particular executive power, perversely tends to bring about the very thing it greatly fears. Thus Publius does not favor the Roman dictatorship as an institution. (A recurring blind spot of the modern liberal is the assumption that all nonliberals must favor the dictatorship, if only in the deep secrecy of their illiberal hearts). Rather Publius sees the dictatorship as a distinctly second-best response to poor institutional arrangements. It is an unfortunate symptom of the excessive weakness of government, not of excessive strength.
Somewhat unfairly, let me begin before The Federalist, with a remark of Hamilton's at the convention. Arguing for a strong presidency and for ample powers vested in the national government, he warned that "establish a weak government and you must at times overleap the bounds. Rome was obliged to create dictators." Obliged, that is, because the ordinary consuls and other magistrates were too hemmed in by the Senate and by legal constraints. The ordinary law was like a straitjacket that had to be ripped apart to give the polity any freedom of action at all. Better to have a comfortable garment that allows flexibility while retaining its basic shape.
This is Publius' diagnosis of the debility of previous regimes, such as the Netherlands. The Stadtholder, the House of Orange, had to act illegally in extreme circumstances because ambient distrust, even tyrannophobia, subjected it to excessive constraints. Wrote Hamilton-qua-Publius,
[i]n critical emergencies, the States-General are often compelled to overleap their constitutional bounds. A weak constitution must necessarily terminate in dissolution, for want of proper powers, or the usurpation of powers requisite for the public safety. Whether the usurpation, when once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities. (The Federalist #20).
Madison-qua-Publius picked up this theme in The Federalist # 41 and added a twist, observing that the oscillating cycle of excessive weakness turning into excessive strength creates de facto precedents that in the long run reduce the effectiveness of constitutional government altogether. "It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions."
This dynamic of weakness turning to strength has high export value. For example, it illuminates and fortifies the claim, associated with Juan Linz for the study of Latin American presidentialism, that under certain conditions strong separation of powers is a risk factor for dictatorship. Supposing an antecedent public demand for economic and social reform, the problem with strong separation of powers is that the number and height of the veto-gates may cause the demand to remain pent-up for too long, producing in turn a demand for a Bonapartist executive who will sweep the veto-gates away with a strong right arm. Contrary to the rhetoric of "classical liberal" constitutionalism, the path to dictatorship runs through constitutional constraint, policy sclerosis, separated powers, and insufficient executive and governmental power, not through an excess or a concentration of power. It follows that the right precaution against dictatorship is to make constitutionalism a loosely-fitting garment, giving government ample powers adaptable to the vicissitudes of future crises, as Chief Justice John Marshall wisely observed in McCulloch v. Maryland (1819).
Stephen's essay on The Federalist deepened this theme, adding a further mechanism: excessive constitutional constraint, and rigid policing of the separation of powers, itself affects the motivation and self-conception of public officials, undermining their commitment to the overall public interest:
This doctrine [of the separation of powers], the result of the somewhat hasty and incomplete political and social theories of the eighteenth century, had immense practical consequences. By drawing a sharp clear outline round each man's sphere of authority, and round the sphere of the authority of the Government itself taken as a whole, it greatly diminished the moral checks upon power. Assume that a ruler is a mere agent for a limited purpose, and practically remind him of this by hemming him in on all sides with legal restraints, and he ceases to feel himself responsible for the condition of the country, and becomes, by the nature of the case, a party man, acting for the interests of his masters -- those, namely, who put him where he is. Deal with power simply as an existing fact, lay down no propositions at all about its origin, leave its precise extent undefined, and you not only provide a reserved fund of vigour which on great occasions may be capable of efforts essential to the preservation of the community, but you invest the holder of this authority with characteristics which, both in his own eyes and in the eyes of others, put him under moral obligations to the community at large, far stronger than the legal obligations which restrain a mere official, and far more wholesome than the moral obligations which bind a man to his party. (Horae Sabbaticae, Volume 3, p. 179).
Stephen is observing, in modern lingo, that extrinsic legal checks and internalized "moral" checks might be substitutes rather than complements; enhancing the former, by instituting a strong separation of powers, risks diluting or crowding out the latter. If the substitution effect dominates, the perverse result may be to "diminish" constraint overall.
All this is meant to illustrate the sort of exportable mechanisms that are not plentiful in Levinson's book. But this is to complain that the book does not do even more, when it already does so much. What it does do well is mainly archaeological, and thus may not be in service of the goal that Levinson set himself; but who cares about authorial intentions? Whatever its original motivation, the book is illuminating about Publius. It is thus squarely in the ongoing tradition of "faithfulness to the memory of eminent men" that Stephen identified, rather condescendingly to be sure, as a strength of American intellectuals.
Posted on 3 December 2015
ADRIAN VERMEULE is the John H. Watson Jr. Professor of Law at Harvard Law School, and an editor of The New Rambler Review.
