This essay was authored by Bruce P. Frohnen for Nomocracy in Politics. Professor Frohnen is a Nomocracy in Politics Contributor.
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions (James Madison as Publius, Federalist 51)
This passage from Federalist 51 is often quoted. Unfortunately, it generally is quoted, or at least understood, only in part. For, in his defense of the Constitution, here, Publius is not merely defending the mechanisms put into that document then adding a bit of meaningless flattery about “the people.” He is, rather, setting forth the necessary elements of constitutionalism and, with it, limited government. And those elements include both political machinery and human virtue.
The whole point of a constitution is to restrict the actions of the rulers. We protect ourselves from violence and other forms of oppression by setting down rules for governing. The most obvious problem with this entirely rational attempt to tie down rulers through the use of constitutions is that the “rules” may be ignored. This is the problem of “parchment barriers” so memorably laid out in the Federalist Papers. Mere statements of the powers of governors, and their limits, may mean little or nothing to people in power who are determined to have their way, whether for their own personal gain, or to procure some good for the faction they serve.
The mechanisms of our Constitution were intended, from the start, to stand in for higher motives. The checks and balances of the Constitution serve to make ambition counter ambition by pitting the President against Congress, the Supreme Court against the President, and so on. There is no facile assumption that people in power will use that power as they ought. The separation of powers is intended to prevent any one person or group from being able to combine the powers to enact, interpret, and execute legislation (the definition, for Publius, of a tyrannous regime). It will succeed when and to the extent that Congress, the Supreme Court, and the President all are willing to fight to “protect their turf” from incursions by the other branches, defending their own power and, in the process, protecting the people from arbitrary government.
In much the same way, Publius argues that republican government will manage the problems of faction in an extended republic like the United States because the multiplicity of groups seeking to further their own interests at the public expense in most instances will prevent formation of any majority faction. In this way the diversity of interests, selfish as they may be, will empower representatives who have no particular, personal or political connection with a specific policy to judge what choice would be in the general interest. Publius thus shows how the mechanics of the Constitution can work with the self-interested nature of man to prevent usurpations of power and oppressive policies.
Unfortunately, most analysis of Publius, our Constitution, and constitutionalism in general, stops here. Constitutions protect against tyranny by preventing the accumulation of arbitrary power in any one set of hands. And they accomplish this goal by playing self-interested political actors off against one another. In effect, ordered liberty is maintained through the application of a kind of Machiavellian calculus, whereby individual self interest is guided by the invisible hands of institutional connections to produce the common good.
In an important sense, such a view of constitutionalism is a good thing. It protects us and our form of government against those who would demand that men be angels. Such utopianism, any conservative knows, inevitably leads to abuses of power as rulers seek to “correct” the facts of our fallible, human nature through schemes of education, reform, and, in the end, extermination of those who lack the virtues demanded by the rulers’ own “benevolent” fantasies.
But we should not forget that utopianism has its equally damaging opposite in a kind of political nihilism that results from failing to recognize the positive aspects of human nature, and of their necessity if we are to maintain limited government. Thomas Hobbes wrote in the seventeenth century of the bestial nature of the individual, of our natural state as “solitary, poor, nasty, brutish, and short,” and of the consequent necessity of a kind of terrestrial god who could overawe the people, controlling all of public life, including religion, and leaving individuals free only by its silence. Often seen as an important source of modern liberalism, Hobbes’s philosophy is based in human brutishness, and ends with political absolutism because it rests so firmly and exclusively on the role of force and the threat of force as the means by which selfish desires may be held in check. Their nature consisting of matter and motion, Hobbesian individuals are driven by their appetites into conflict with one another, leaving only fear and self-interested bargains as the basis for peace, and requiring an ultimate social contract to establish an absolute sovereign backed by force as the sole protection against a war of all against all. Such a system theoretically leaves room for bargains that limit the power and role of the rulers in the lives of the people. But it provides no means by which the people may protect themselves against violations of that power. This is so because Hobbes’s system explicitly rejects, not just revolution (an extreme method, to say the least), but the very kinds of mechanisms on which constitutionalism relies. The sovereign being is an ultimate authority, it cannot be controlled, checked, balanced, or separated in its powers. ON this view, individuals who limit the sovereign would themselves become sovereign, and so would be freed from constraints on their appetites, and the war of all against all would return.
Constitutionalism, then, rests on recognition, not only of the dark side of human nature, but also of the person’s capacity for virtue. The government may be limited by a people that is “sovereign” only in the very indirect sense of being able, by following a deliberative process intended to establish broad consensus, to make amendments to the Constitution itself. In practice, the governors rule, not under any personal, individual or collective authority, but under law. And that law includes constitutional mechanisms intended to maintain the separation of powers and to prevent the depredations of faction.
Dependence on the people must be the primary control on the government because no mechanism can operate independently of human nature—it can serve only as an auxiliary precaution. If the nature of the relevant persons is sufficiently vicious, it will override all the incentives and disincentives any constitution is capable of applying. In the United State Constitution the people are expected to exercise a certain amount of virtue in choosing “fit characters” as their representatives in government. That is, the people are assumed to have sufficient virtue to recognize and elect persons who themselves possess sufficient virtue to maintain our system of government. Perhaps most important, those who hold office must recognize that they have a duty to uphold and follow the mechanisms laid out in the Constitution. Willmoore Kendall and George Carey first identified the virtue necessary for constitutionalism as “constitutional morality.” This constitutional morality is no set of theological convictions or habits; it does not explicitly demand any particular conception of the human good beyond recognition of the duty to uphold the Constitution. It is not some high virtue of the saint. But this lower virtue is essential for constitutional government to survive.
Luckily for the student of politics, though unluckily for our republic, we can see in our own constitutional history the manner in which a lack of constitutional morality can undermine the constitution. Our constitution is no longer a functioning document in the sense that its rules are no longer generally followed. And the reason for this is simple: those in positions of power no longer believe that they are bound to follow the limits and procedures laid out in the Constitution. Indeed, many of them openly reject the Constitution’s demands as old-fashioned mechanisms producing “gridlock” when what we need is yet more governmental action.
Institutionally, the most prominent falling away from constitutional morality has been the decision by members of Congress to abdicate their role as the makers of law. The Constitution explicitly grants to Congress the law making power. Today, however, Congress leaves to the President the making of laws through Executive Orders far exceeding their constitutional role as rules of internal administration within executive agencies. Congress also leaves to the President, or his agency heads, the making of laws, constrained only by vague “enabling legislation” that merely sets goals (e.g. “ensure that workplaces are safe”) and leaves the “details” involved in formulating actual rules of conduct to an administrative “process” overseen by occasional legislative committee hearings. Finally, Congress allows the courts to make law by failing to impeach and remove judges who legislate from the bench, or to remove the courts’ jurisdiction from areas where they abuse their judicial discretion. In all these areas members of Congress have chosen to abdicate their central responsibility to make law. The reasons for this abdication are twofold: first, to make law as the Constitution demands (writing proper, fully-detailed laws, then passing them as required) would be too difficult, given the breadth and complexity of policies it wishes to enforce; second, Congress’s new role as, in essence, a vast ombudsmen’s office helping constituents deal with the bureaucracy guarantees members’s re-election to an extent unthinkable in the previous era of Congressional law making.
Of course, members of Congress state, and perhaps even believe, that they are acting as their constituents and public duties demand. But they clearly have lost the practice and even the conception of constitutional morality. Indeed, even in the semi-legislative process in which they sometimes engage, they have abdicated their role as arbiters of the public good by short-circuiting serious deliberation. Rather than submitting interested legislation to an up-or-down vote in which disinterested members might judge what is demanded by the public interest, members cobble together vast “omnibus legislation” whereby each gets his or her own projects funded, in exchange for funding the projects of others. The result, not surprisingly, is runaway spending, waste, and simply bad policy.
Whether constitutional morality, and with it a Constitution protecting limited government, was lost in part through the loss of deeper, more religious virtues is a subject for another time. That our loss of limited, constitutional government has its roots in the loss of virtue among the people, who increasingly demand goods from the government that cannot be provided within the limited government established under our Constitution, seems sadly obvious.