Do We Need a New Constitutional Convention?
Reading The Federalist in the twenty-first century
Dec 29, 2015
15 Min read time
A discussion of the fear and inertia baked into U.S. politics.
Pages from a 1799 edition of The Federalist. / Library of Congress
When the country’s most prominent critic of the Constitution writes a commentary on the most famous defense of that Constitution, it is an event. When the publication of that commentary comes at a time when the system of government that Constitution provides is, by all accounts, under serious strain, it is an event very much worth noting.
Sanford Levinson’s An Argument Open To All: Reading The Federalist in the 21st Century is an engaging interpretation of the eighty-five original Federalist essays written in 1787 and 1788 by Alexander Hamilton, James Madison, and John Jay in support of the ratification of the new Constitution. For several decades now, in books such as Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (2005) and Framed: America’s 51 Constitutions and the Crisis of Governance (2012), Levinson has argued that nothing less than a second Constitutional Convention is sufficient to fix the original charter’s problems. In his new book, Levinson offers a close reading of each of the original Federalist essays in order to see what that classic tract can tell us about how government works more than two centuries later—or why, often, it does not.
In the following conversation, which has been condensed and edited for clarity, Levinson talks about what’s wrong with Elizabeth Warren’s claim that “the system is rigged,” the continuing centrality of fear to American politics and constitutionalism, and what Publius—the pen name Hamilton, Madison, and Jay used in The Federalist—would think of the 2016 presidential aspirants.
Kreitner: Why this book? And why now?
Levinson: The Federalist plays a curious role not only in the intellectual canon of American thought, but also the popular canon. We have tickets to Hamilton in December and I was listening to the soundtrack last night; part of Hamilton is his participation in The Federalist.
But one of the things I’ve discovered, as I teach a course this semester at Harvard Law School, is that very few people have actually read The Federalist in toto. In that sense it may be like the Bible or other canonical documents that are much more often cited or evoked than actually read. Moreover, when I ask my students what they have read of The Federalist, only one person in my class had read the book in its entirely.
Another reason is that my previous book, Framed: America’s 51 Constitutions and the Crisis of Governance, reflected my growing belief that the Constitution, as is true of most constitutions, is really more important because of the structures that it establishes than the rights it professes to protect. Over the years I’ve become more analytically sympathetic to Madison’s argument that rights protections tend to be what he called “parchment barriers,” rather than truly effective levies against the desires of politically established majorities to suppress rights. Courts have been less than vigorous in protecting most rights of truly unpopular minorities, but the structures that are established are never even litigated, because there’s not much to litigate about: What part of “two” can someone not understand with regard to how many senators Wyoming and California each get? Institutional structures like that really explain why we have the dysfunctional government we do much more than rights provisions.
So when I finished that book it occurred to me that there are a lot of interesting arguments in The Federalist, and the central question is not simply what they argued in 1787 as a defense of the Constitution, but rather what do we in the twenty-first century think when we read these arguments? Do we agree or do we disagree? That led me to the conceit of the book: so far as I know, nobody has ever really written one that tries to treat each essay equally.
The authors of The Federalist admit how they’re rigging the game. They talk candidly about their fear of popular passion, of mass democracy.
My view, frankly, is that The Federalist is not very helpful if your major interest is what law professors call constitutional interpretation. I don’t think there’s anything in The Federalist that will help you to figure out really and truly what the powers of the Congress are under Article I. But there’s a lot in The Federalist that raises important political questions that plague us today. These were smart people, so it’s not that you have to say they got it right, but as you grapple with why you might disagree with them in some cases, you learn something important about contemporary politics.
It seems to me that one function of the book is to look at social and political ills in the United States today—ills often thought of as departures from the intentions of the founders—and provide almost an alternative history by tracing them back to the design of the Constitution, using The Federalist as the most profound explanation of what they were up to and to show that the sources of such ills were actually there from the beginning. Is that a fair characterization?
One of the major problems in the United States today—wherever you are on the political spectrum—is the belief that the national government just is not capable of passing legislation that is responsive to the challenges we face. Obviously, Tea Party people and leftists have a different list of challenges, but I think that both are equally alienated in this regard. In fact, it’s really remarkable, if you look at the polling data, how little respect there is for Congress, and how little confidence there is in the national government. Part of it is the gridlock that’s built into the design.
If you read The Federalist, you realize that there was in fact significant suspicion of mass democracy and of legislation, so that, for the founders, it was really a feature more than a bug that the system was designed to prevent the passage of legislation. They were much more fearful of bad legislation than they were optimistic about good legislation, so if every now and then good legislation was prevented from passing, that was a cheap price to pay because we were able to block bad legislation.
I often hear people say, quite accurately, that our system was designed to prevent majorities from being able to get whatever they want. There’s a lot of truth to that. But that does mean that national elections increasingly are meaningless in the specific sense that an election will set the stage for the passage of a program. We’re going through this ridiculous ritual right now of asking what Ted Cruz’s twenty-two-point plan, what Jeb Bush’s eighteen-point plan, etc., are. If a Republican wins you may really get some legislation if there’s a Republican Congress as well; if Hillary Clinton wins, unless a miracle happens at the House of Representatives, no significant progressive legislation will be passed in the next four years—and everybody knows that. The main thing she could do is veto some legislation, presuming the Republicans keep the Senate, or make good appointments and push executive power for all its worth. If a Republican wins and the Democrats get back the Senate, which I think is reasonably likely, then even a Republican couldn’t do the worst kind of damage, because the Senate could block legislation.
Clearly, this is one of the things fueling the Tea Party’s fury in the House right now. A number of people, especially laypeople, are saying, “We voted for them, we got a Republican Congress, and they promised they would do things, and nothing has happened.” And that’s really quite right, from the perspective of the right wing. A liberal, in turn, could say, “We won big in 2008,” and in fact a few things did happen, but certainly not as much as we hoped for. It didn’t happen because Mitch McConnell was able to tie up the Senate. We got some decent legislation but much, much less than would have passed had the Democratic Party really and truly been in power.
So I think that’s a relatively accurate description of the political system we have and of the political system that was established in 1787: a system designed to prevent legislation, even with majority support. Reading a number of The Federalist essays helps you to realize what the ideology was behind the system, so then the question becomes: Do we agree with it or not?
I’ve become quite fond of this slogan that I saw during some of the Black Lives Matters protests: “The system isn’t broken. It’s fixed.”
There’s a lot to that. I’m generally somewhat disappointed with critiques on the left that refrain from connecting the dots. When Elizabeth Warren, who happens to be a good friend from when we were colleagues at the University of Texas, gives speeches on how the system is rigged, she’s absolutely right; the one and only caveat I would have is that the rigging began in 1787.
One of the things that has turned me into something of a crank is that there are so many people across the political spectrum who will talk about the game being rigged, about dysfunctionality, about gridlock, etc., and they never link it in any real way to the Constitution. The Constitution is supposed to be what will save us, rather than what it really is: the source of many of our ills.
I’ve written before that my favorite presidential election is the election of 1912, because you had three genuine constitutional reformers—Teddy Roosevelt, Woodrow Wilson, and Eugene Debs—and William Howard Taft, the Republican candidate, was a very able constitutional conservative. So you had a genuine debate about the Constitution, whether it was serving us well or not, and that decade, after Wilson’s victory, brought several really important constitutional amendments. People actually thought seriously about amending the Constitution. These days even political progressives never talk about the possibility of constitutional reform, except in the very specific instance of Citizens United (2010) and campaign finance. But, frankly, Citizens United can be fixed in three years: if Hillary wins and she’s able to replace Scalia and Kennedy with progressives, Citizens United will be overruled, that will be the end of that, and life will go on. But if one is upset about the way bicameralism works—the fact that, for instance, the small coal-producing states, led by Wyoming and West Virginia, manage to have a hammerlock on passing any significant climate-change legislation in the Senate—then litigation and the Supreme Court are really irrelevant. What you have to do is talk about the much more profound way that the system is rigged.
One of the things that’s refreshing in a way about The Federalist is that the authors openly admit how they’re rigging the game! They talk very candidly about their fear of popular passion, their fear of mass democracy, and how the Constitution is really designed to make it very difficult to pass legislation.
When one speaks with leftists about a new constitutional convention, one often gets the response that it would only enable the Donald Trumps or, I don’t know, the Huey P. Longs of the world to seize power. It’s basically an appeal to fear. I was struck in reading both The Federalist and your volume on it how often fear was appealed to—fear of foreign invasions, of domestic insurrections—and how distinguished a place fear has always held in our political life. It seems to be one of our oldest political traditions, the glue that has always held the thing together.
This is probably most clear in Federalist 41, with the comment that political leaders will do whatever it takes to preserve the country, that limits on political leaders will turn out to be mere “parchment barriers,” in effect. I write in the book about the use, not only by the Bush administration but also by the Obama administration, of the presumed imperatives of the war on terror in justifying all sorts of dubious actions by the national government; all of the them are made in the name, and I suspect sincerely, of protecting the nation.
Of course fear is a huge part of what is going on. When Dick Cheney talked about the importance of preventing even 1 percent probabilities of an attack, that’s what he was playing on. But, of course, that’s also what the other side plays on, and what I play on with regard to global warming, saying that if it happens it will be so catastrophic that we ought to do whatever it takes now to fend it off. Politics will always be based to some extent on what you fear and are trying to guard against.
From the age of about eight years old, whenever they are first presented with very basic notions of governance—with the Pledge of Allegiance, perhaps, as the teacher tries to explain what is “the republic for which it stands”—American children are very likely to learn that the greatest thing to fear is tyranny of the majority, and what we have to have is a political system to prevent that. What that translates into is a system that makes it very difficult for majorities to rule at all because you’re so fearful that they’re going to rule tyrannically. This is simply a fear-based view of politics that is injected into the veins of every American from a very early age.
Whether you talk to people on the right or the left, very quickly they’re going to express this great fear that the capitalized Other will capture control and just make our lives terrible. What I think is especially telling with regard to these arguments on the left is that the non-Leninist left, at least, has always claimed to be little-d democratic, having faith in the people, in an aroused populace. The Bernie Sanders movement is the most recent iteration of that. But I think you can’t, at one and the same time, say what the country really needs is an aroused popular politics where people really will get out into the streets and demonstrate and organize and also express this cold, abject fear of what might happen if we ever had another constitutional convention. If you really are so fearful of a new constitutional convention—as, I will say, almost all of my friends and family are—then I think that really translates into fear of little-d democratic politics. There are good reasons to be fearful, as you said, with the role of demagogues such as Donald Trump, or the ability to buy democratic politics through campaign finance. But at that point you find yourself saying, “Well then why should really have any faith in elections at all?”
This goes back to what you were discussing earlier, the institutional mechanisms in the Constitution that, you argue, have been more formative for American political culture than the rights provisions in the amendments. Where in The Federalist do you see evidence of a certain politics of fear woven into the fabric of the Constitution, and thus of the republic?
Well, Federalist 10 is certainly fearful of majority factions and is kind of obsessed with the issue of how to control a majority faction, which leads to the Madisonian project of extending the republic so you take in diverse interests. In theory, though, to solve that issue, he could have suggested having a parliamentary system with a country larger than just Virginia, and that would protect us against local factions from taking over, and at the national level we’d be much more pluralistic. But the more fundamental importance of Madison’s system is that it wasn’t simply about political sociology; it relied on this elaborate set of institutional checks and balances, or veto points, that were designed to make it very difficult, especially at the national level, to pass legislation.
The first several essays of The Federalist are all built on the fear of what we now call national security attacks: we have to unify, Publius says, because there are all these countries and Indian tribes who really don’t wish us well, and if we don’t unify behind a strong central government there’s going to be hell to pay. On the one hand, you have a number of essays—not coincidentally, they’re usually by Hamilton—expressing these kinds of fears and leading to the message that we need an all-powerful government; on the other, throughout the eighty-five essays, you also have the fear of a passionate majority and suggestions that we have to do whatever we can to make it difficult for majorities to take over the government and to rule. At times, these two appeals to fear can be in tension with one another.
On the international side of that distinction, I was surprised to find how often Publius appeals to a fairly Hobbesian view of international relations.
Certainly Hobbes is the most fearful of all political theorists, observing that life in the state of nature is going to be nasty, brutish, and short, unless we man together to do something about it. And you find this especially in the early Federalist essays.
When you read The Federalist in full you consider how odd it is that when the State Department or the American Bar Association ships copies of the book out across the world, they think that readers are going to get from it the importance of checks on power and the rule of the law. But if you read No. 6, if you’re China, you learn that you really ought to build a powerful navy. And if you read No. 41, or No. 23, you learn that you really ought to create a national government that can do whatever it takes to respond to those you fear.
What would a resurrected Publius think as he watches the Republican presidential debates?
Again, look at Federalist 10: the whole idea was that you would expect to find demagoguery at the local level, but Publius—in this case, Madison—thought that national leaders would be more temperate, more devoted to the public interest, more disposed to compromise for the public interest, more experienced in the ways of the world. It isn’t possible for me to believe that Publius would look at Marco Rubio and Ted Cruz and Rand Paul as Publian models of leadership.
In the political system I grew up in, John Kasich would clearly be the most attractive candidate on the Republican side. He has a genuine resume—I’d never vote him, but that’s irrelevant—he’s clearly a serious person, he is just the sort of person the Republican Party would have been delighted to nominate. Publius would probably have good words to say about Kasich in terms of background and disposition.
To look at Trump, to look at the rest of the crowd, to look at a bully like Chris Christie—I don’t think they would have overly impressed Publius.
December 29, 2015
15 Min read time