Law professor Adam J. White has written a powerful message about our dangerous, even frightening, times using the words of John Jay, Alexander Hamilton, and James Madison in The Federalist Papers (1787-1788). Additonally, White writes eloquently about the necessity of good behavior and practices without mentioning a single officeholder in the 21st century. Not a signle name or reference to any office in the land. If this is a (fair & balanced) defense of a constiituional democracy, so be it.
[x The Atlantic]
A Republic, If We Can Keep It
By Adam J. White
TagCrowd Cloud provides a visual summary of the blog post below
In the days leading up to the Senate’s impeachment trial, some people hoped that Chief Justice John Roberts, presiding over the trial, would use his position to send a strong message to the senators on what the Constitution requires of them. He had, in fact, already sent such a message, just weeks earlier, on what the Constitution requires of all Americans. On December 31, in a letter accompanying his annual report {PDF] on the work of the federal courts, Roberts called on federal judges—and everyone else—to invest themselves in the preservation of constitutional democracy.
“Each generation,” he wrote, “has an obligation to pass on to the next, not only a fully functioning government responsive to the needs of the people, but the tools to understand and improve it.” For Roberts, this requires civic education—and something more fundamental than that, too.
He illustrated his point with a founding-era episode involving the nation’s first chief justice, John Jay. After Jay committed to joining Alexander Hamilton and James Madison in writing essays in defense of the proposed constitution, Jay was seriously wounded by a mob of New Yorkers who had been whipped into a frenzy by rumors of grave robberies. Jay’s wounds derailed his involvement in our nation’s greatest work of political philosophy, The Federalist Papers. “It is sadly ironic,” Roberts wrote, “that John Jay’s efforts to educate his fellow citizens about the Framers’ plan of government fell victim to a rock thrown by a rioter motivated by a rumor.”
The connection between Jay’s day and ours is clear: “In our age,” Roberts wrote, “when social media can instantly spread rumor and false information on a grand scale,” there is even greater danger that political passions can turn us against one another, or against constitutional government itself. He emphasized judges’ particular role as “a key source of national unity and stability,” but his deeper point was that those values are needed among more than just judges.
His letter invoked Jay, Hamilton, Madison, and John Marshall, but his ideas called to mind another Founding Father: Benjamin Franklin, who, on leaving the constitutional convention of 1787, supposedly told a curious passerby that the Framers had produced “a republic, if you can keep it.”
What does it take to “keep a republic”? Nearly two and a half centuries into this experiment in self-governance, Americans tend to think that they keep their republic by relying on constitutional structure: separated powers, federalism, checks and balances. But constitutional structure, like any structure, does not maintain itself. Each generation has to maintain its institutions and repair any damage that its predecessors inflicted or allowed. This task begins with civic education, so that Americans know how their government works, and thus what to expect from their constitutional institutions.
Yet civic education alone, though necessary, is not sufficient. For civic education to take root and produce its desired fruit, the people themselves must have certain qualities of self-restraint, goodwill, and moderation. Because those virtues are necessary for the functioning of a constitutional republic, they are often called civic virtue, or republican virtue. This is not morality writ large, but something more limited and practical. As the late Irving Kristol argued in an essay 45 years ago, republican virtue is fundamentally the virtue of public-spiritedness as the Founding Fathers knew it:
It means curbing one’s passions and moderating one’s opinions in order to achieve a large consensus that will ensure domestic tranquility. We think of public-spiritedness as a form of self-expression, an exercise in self-righteousness. The Founders thought of it as a form of self-control, an exercise in self-government.
Kristol further described this in terms of “probity, truthfulness, self-reliance, diligence, prudence, and a disinterested concern for the welfare of the republic.” A cofounder of the policy journal The Public Interest, he understood that in a republic there is such a thing as the public interest apart from—and perhaps at odds with—one’s own personal interests, and thus it requires citizens to restrain themselves in the slow, deliberative workings of constitutional and civic institutions, and even in their interactions with one another, as Roberts emphasized in his letter.
As it happens, Roberts is not the only justice returning to these themes. Last autumn, Justice Neil Gorsuch published A Republic, If You Can Keep It (2019), a collection of essays, speeches, and judicial opinions in which he elaborates on his sense of the Supreme Court’s proper place in constitutional government, and in the country more generally. Many of the book’s themes—originalism, textualism, and the structural Constitution—are familiar to lawyers and the broader public. But Gorsuch, like Roberts, goes beyond familiar structural arguments and calls for civic education and civility, reminding Americans that the Constitution’s structure is not self-preserving.
For Gorsuch, civic virtue requires civility. His book highlights the example of his own court. The justices are able to argue and disagree so vigorously in their judicial opinions only because they work so hard to foster a spirit of community with one another: “We eat lunch together regularly and share experiences and laughs along the way,” he wrote, “and whenever we gather for work, no matter how stressful the moment, every justice shakes the hand of every other justice.”
The spirit of community among nine justices is not so easy for the country as a whole to replicate. “My worry,” Gorsuch warned, “is that in our country today we sometimes overlook the importance of these kinds of bonds and traditions, and of the appreciation for civility and civics they instill.” In a time when many “people are actually calling for an end to civility,” when people believe that “more anger is needed [because] the stakes are too high and the ends justify the means,” Gorsuch urged that for “a government of and by the people” to work, the people themselves need “to talk to one another respectfully; debate and compromise; and strive to live together tolerantly.” While the “essential goodness of the American people is a profound reservoir of strength,” it “cannot be taken for granted”; it “need[s] constant tending.” In an era of fractured politics, the blessings of freedom come “with the duty of having to listen to and tolerate other points of view,” because “democracy depends on our willingness, each one of us, to hear and respect even those with whom we disagree.”
By emphasizing civility as a measure of one’s self-restraint, rather than a blunt demand for our opponents to restrain themselves, Gorsuch avoids the mistake of making civility a phony substitute for civic virtue. As David Brooks observed recently in these pages, describing the thought of the late Gertrude Himmelfarb, Irving Kristol’s wife, “A great deal … is lost when a society stops aiming for civic virtue and is content to aim merely for civility.” Gorsuch’s book calls for civility not to stifle disagreements on public matters, but to facilitate them.
These are themes that the Constitution’s framers knew well. Madison, for example, understood how much of his constitutional vision depended on republican virtue, and he wrote about it. But those writings have been overshadowed by his more famous quotes, on the need for constitutional structure to guard against mankind’s vices. “If men were angels,” he observed in “Federalist No. 51,” “no government would be necessary.” For people who aren’t angels, republican government relies on constitutional checks and balances, which redirect certain vices toward the public benefit: “Ambition must be made to counteract ambition,” he argued, and liberty is safer when one ambitious branch of government counteracts another.
But to say that constitutional government does not need people to be angels is not to say that constitutional government requires no virtue at all. Madison himself warned against assuming otherwise. In “Federalist No. 55,” facing critics’ predictions of corruption in Congress, he observed that while “there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust,” there are also “other qualities in human nature which justify a certain portion of esteem and confidence.” But then, setting optimism aside, he warned:
Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.
This was blunt. Madison knew that the Constitution could not be sustained if the country did not first sustain certain virtues of self-restraint among those who administer the government, and among the people who choose them.
Such themes resonate throughout The Federalist Papers, often explicitly, but often implicitly in Hamilton’s and Madison’s discussions of constitutional structure. Madison’s description of Congress is a good example of the latter. The Framers divided the legislative branch into two houses, requiring deliberative processes within each house to pass a bill in each; and then a deliberative process between the two houses to settle on a bill that both could pass; and, finally, a deliberative process for the president to sign their bill or for congressional supermajorities to overcome his veto. This process is possible only if the participants are capable of deliberation, persuasion, compromise, and consensus. It requires a patient willingness to abide by procedures and rules even when they do not deliver one’s own preferred outcome in a given legislative fight—lest the legislative process devolve into total war, with political factions “destroying and devouring one another.”
Other branches of government, designed differently for different types of action, require virtues of their own. And on these points, Hamilton and Madison made the arguments for republican virtue much more explicit. Take, for example, the seminal discussion of judicial power in “Federalist No. 78.” Hamilton argued that judicial independence is necessary because constitutional government requires judges of a particular temperament, judges whose deep learning in the law makes them willing to “be bound down”—more accurately, to bind themselves down—“by strict rules and precedents.” It requires judicial self-restraint.
And even in recognizing that judges will sometimes need to declare statutes unconstitutional, Hamilton urged that they should exercise this power with restraint and moderation, nullifying statutes only when there is an “irreconcilable variance” between the statute and the Constitution—that is, to first try to reconcile the variance, to find a “fair construction” that lets both the statute and the Constitution stand. Hamilton’s judges are moderate and self-restrained, striking down statutes as a last resort, not a first one.
Hamilton’s view of judicial self-restraint echoes Madison’s own explanation, in “Federalist No. 37,” that written laws’ inherent vagueness will often require time for legal meaning to be “liquidated and ascertained” through “a series of particular discussions and adjudications”—a process that is impossible if all legal ambiguity must be resolved immediately by the first judges to hear every legal question. In other words, “Federalist No. 37” and “Federalist No. 78” recognize that the judicial branch itself must exercise a measure of patience.
The necessity of virtue and self-restraint comes through even more clearly with regard to the presidency. The Constitution contains express provisions for presidential self-restraint: The president swears an oath to “faithfully execute the Office of President of the United States,” and he bears a constitutional duty to “take Care that the laws be faithfully executed.” By these vows the president is bound to enforce not just the statutes that he likes but also the inherited statutes that he dislikes, so long as the statute is constitutional.
Defenders of presidential power—recently Attorney General William Barr, in his address to the Federalist Society—often quote Hamilton’s discussion, in “Federalist No. 70,” of the Constitution’s need for “energy in the executive.” But advocates for presidential energy should focus on both the president’s powers and on the president’s duties, and the ends to which presidential power is supposed to be directed. Hamilton championed energy in the executive not for its own sake but for “the steady administration of the laws” and “the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.” Rooted in the right republican virtues, a president’s energy reinforces our constitutional system; unmoored from those virtues, a president’s energy destabilizes it—or worse.
Hamilton made these points even more bluntly elsewhere. In “Federalist No. 68,” he argued for choosing the president through an electoral college, rather than by parliamentary election or direct democracy, in order to maximize the odds of electing presidents with “the requisite qualifications”—not men with “talents for low intrigue, and the little arts of popularity,” but “characters pre-eminent for ability and virtue.”
Perhaps Hamilton’s subtlest argument for republican virtue in the presidency is found in his famous essay on the judiciary, “Federalist No. 78.” Here, in his discussion of the judicial branch’s relative weakness, Hamilton observed that the courts “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” That is, the Constitution gives presidents at least some legitimate authority not to enforce judicial decisions with which they disagree, if only when necessary for presidents to carry out their constitutional duty to “take Care that the Laws be faithfully executed.” But Hamilton’s balance of judicial and presidential power is sustainable only if presidents restrain themselves from disregarding judicial decisions whenever they feel like it; presidents’ power can coexist with the Constitution’s judicial power and independence only if they use their non-enforcement power sparingly, if at all.
The executive branch’s need for republican virtue is not limited to the president alone. It extends throughout the administration that he oversees. In “Federalist No. 76,” remarking on the Senate’s role in the appointment of officers, Hamilton observed that to give the president unfettered powers of appointment would free him to staff his administration not from merit in the public interest but “from family connection, from personal attachment, or from a view to popularity.”
Constitutional government, by contrast, requires an administration staffed by the nation’s best servants, not by a president’s favorite friends. The steady administration of the laws requires an executive branch filled with officers who follow the president’s lawful orders but not before providing the constructive feedback that the president needs. Or, as Hamilton put it, constitutional administration requires officers who offer more than just the “pliancy to render them the obsequious instruments of [the president’s] pleasure.” Instead, constitutional administration depends on officers with both courage and fortitude, but also with the moderation and self-restraint necessary to follow lawful presidential orders with which they personally disagree.
Finally, the Constitution needs republican virtue not just in the three branches of government but also in the people whom the government serves and is accountable to. Long before Roberts wrote his year-end letter, Hamilton and Madison filled The Federalist Papers with warnings about “passions” that inflame public opinion and prevent reasoned deliberation. Hamilton introduced this theme at the very outset, in “Federalist No. 1,” presenting the Constitution’s ratification debates as an opportunity to see “whether societies of men are really capable or not of establishing good government from reflection and choice,” and to decide the debates not as a competition of narrow interests but with a view to “patriotism, to heighten the solicitude which all considerate and good men must feel for the event.”
Madison emphasized it, too. Recognizing that the public will always be impassioned by politics, he observed in “Federalist No. 49” that the process and structure of our federal government will help to transform the public’s passions into a less impassioned public reason, so the public’s “reason, alone” would “control and regulate the government,” while the government would control the people’s passions. But this approach presumes that an impassioned public is willing to be controlled. If the public persists in its impassioned state, it will eventually have the opportunity to overcome whatever limits the government tries to put on the impassioned majority. Only with the virtues of self-restraint urged by Madison and Hamilton in their time, Irving Kristol four decades ago, and Roberts and Gorsuch today, can the country avoid the national self-immolation that the Founding Fathers feared.
The justices can do much to advance these themes in public, by writing or speaking about them and by modeling them in their own work: in the way they conduct themselves at oral argument, and in the tone and style of their judicial opinions. But on this, as in all things, judges can do only so much to save the country from itself. For the country to relearn republican virtue will require heroic efforts by parents, teachers, clergy, coaches, and statesmen. Benjamin Franklin did not promise “a republic, if your judges can keep it.” He promised something far more challenging: “a republic, if you can keep it.” ###
[Adam White is a resident scholar at the American Enterprise Institute, where he focuses on American constitutionalism, the Supreme Court, and the administrative state. Concurrently, he is assistant professor of law and the director of the C. Boyden Gray Center for the Study of the Administrative State at the Antonin Scalia Law School at George Mason University. White previously practiced constitutional and administrative law, particularly in the regulation of energy and the environment, finance, and telecommunications. He was a research fellow for Stanford University’s Hoover Institution and an adjunct fellow for the Manhattan Institute. He started his legal career as a law clerk for Judge David B. Sentelle at the US Court of Appeals for the DC Circuit. White has written for The Wall Street Journal, National Affairs, Commentary, The Harvard Journal of Law & Public Policy, and the Notre Dame Law Review. He received a BBA (economics) from the University of Iowa and a JD from the Law School of Harvard University (MA).]
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