In
trying to reinvigorate the reputation of federalism among scholars, Daniel J.
Elazar took it upon himself – and shared with secondary classroom teachers – to
offer a review of the overall qualities that were common among the founding
fathers. His focus was on those who
wrote the US Constitution and their efforts at the Constitutional
Convention of 1787. As a summary, he
highlights a set of those qualities:
1.
The
Constitution was written by a committee.
2.
It
was written as a political document, not a legal contract.
3.
As
such, its terminology reflects current fashion as well as precise usage and
strives for ambiguity where it was deemed politically necessary to do so.
4.
The
framers of the Constitution draw upon more than one major source of ideas for
their understanding of federalism.
5.
The
Federalist [Papers
by Madison, Hamilton, and Jay], valuable as it is as a work of political
thought and exposition of the Constitution, is not the whole commentary on the
subject.[1]
This
posting reviews these elements of an overall argument that can be stated by the
title from which these qualities are taken.
That is: “How Federal Is the
Constitution? Thoroughly!”
The
first element wishes to emphasize that, contrary to the common ascription that
James Madison is more or less the “founder” of the Constitution (one hears that
the convention invented Madisonian democracy), the resulting compact was truly
the product of a very talented committee.
And, as a disproof of the opinion that nothing good can emanate from
committees,[2] the
participants of this one represented disparate elements of American society of
that time. Yes, that was an elite group
of Americans, but from a broad range of interests found in the nation’s social-economic-political
environment of the late 1700s.
As such, there was a cry for a strong
central government to replace the confederacy in place in the person of
Alexander Hamilton, but at the other end there was those who wanted to maintain
a weak central government and defend prominent state power as was already in
place under the Articles of Confederation. This was, for example, argued by George Mason
who sought to merely tweak the Articles.
With a cursory review of the stated
positions of the various participants, one can readily recognize a wide variety
of opinions among them. This fact
bolsters the accomplishment they were able to achieve by agreeing to the
Connecticut Compromise that will be reviewed in a future posting by explaining
that compromise’s federal character.
Given the fact that the founders were
predominately lawyers, there were exceptions.
That is of the 55 participants, 13 were not lawyers and that included
its president, George Washington. But
one common descriptor of them was that they were all politicians. And as such, they, in participating in this
exercise, were not thinking in black-and-white legalistic terms, but in “what
is possible” political terms.
The aim was to fix what ailed the Articles
and the resulting instrument had to be sufficiently ambiguous so as to be able
to muster sufficient support to gain approval from this varied group of men. And when one considers this quality a bit of
extra thought is hopefully beneficial.
That is, one needs to consider what the function of a national
constitution is, and to a lesser degree, of a state’s constitution.
In this blogger’s opinion,
constitutions serve as an intellectual meeting place. That is, a thought-out mental place in which
whoever draws up the document has to find a compromised position. That position is between the political
culture of a people (including their espoused values, attitudes, and
dispositions) and the realities of everyday governance and politics – what some
change theorists call their theory-in-use.
Consequently, as was the case at the Constitutional Convention,
ambiguous language, judiciously used, softens the inevitable disagreements and demurs
to the subsequent practitioners of the designed governmental structures and
processes what the founding document establishes.
This view goes directly against the
school of constitutional thought known as “original intent” for the simple
reason that there was no single original intent in all cases, but instead there
were intents harbored by the various participants. What this logic would say is that a
constitution is indeed not originally a legal document. It is instead a compact – even if, through precedent
forming court decisions, it is solidified as a functional legal document by its
application, not by its writing.
Admittedly, this is a nuanced view of
a constitution and one that secondary students might find hard to understand,
but, after all, the primary aim of the founders was not to make life easier for
secondary students. It was to meet the
political challenges of their time and of subsequent generations.
To return to Professor Elazar’s
thoughts, he comments,
The business of the members of the
convention, then, was the business of politics, the judicious mixture of
fidelity to principle and felicitous compromise. Artful use of language is a major means of
combining the two. Thus the language of
the Constitution is crystal clear where possible and ambiguous where necessary
and the document must be read in that spirit.
Nevertheless, until our own generation, one of the things of which there
was no doubt was that the Constitution articulated a truly federal system of
government.[3]
Does that mean anything goes when it
comes to interpreting the document? Of
course not, it has, in all cases, definite conceptual guardrails, limits as to
how wide interpretations can be, and in many cases, it specifically denotes constitutional
designations as in there is only one president at a time.
And
that leaves the fifth element identified above, qualifying the role The
Federalist Papers played in describing and explaining the Constitution. This blogger has a few thoughts regarding
this element. First, reliance on this
book to give one insights as to what the Constitution prescribed and why
it prescribed them reflects a heightened function for this collection of
essays. This also goes for the collections
of writings from the Anti-federalist group who advocated against the
ratification of the Constitution.
Collectively, the common opinion is
that these writings were mostly, if not exclusively, the product of three
sources: classical education and its
reliance on ancient Greco-Roman philosophers, Hobbesian-Lockean social contract
political science, and the writings of the Enlightenment thinkers. Elazar and, humbly, this blogger, question
this judgement. Yes, these sources had
their influence on the founders, but more was at play and one can argue that
the Biblical-Reformed-Puritan tradition had its effect on not only the
structure of the new government – its constitution (with a small “c”) – but its
projected aim at establishing a federated people.
And reviewing this last element will
be the topic of the next posting.
Obviously, for those who follow this blog, there lies the main point of
this exercise; that is to make the case that the Constitution does not
establish so much a contractual relationship among the American people, but a
compact-al arrangement in which a partnership is set up.
That partnership being federated,
relies on a strong sense of being able to sustain meaningful levels of
cooperation, collaboration, and community within the various levels of the
resulting union from localities to the national setting. Despite varying levels of acceptance of that
federation, the Constitution insists that to meaningful degree, the
partnership needs be respected.
[1]
Daniel J. Elazar, “How Federal Is the Constitution? Thoroughly!,” in a booklet of readings, Readings for Classes Taught by Professor
Elazar (1994), prepared for
a National Endowment for the Humanities Institute. Conducted in Steamboat
Springs, Colorado, 1-30, 3-4.
[2] A common refrain by those who support a more natural
rights view is to argue that only vested individuals can accomplish anything
meaningful. For example, the novel, Fountainhead,
by Ayn Rand disparages committees of any kind.
[3] Elazar, “How Federal Is the Constitution? Thoroughly!,” 4-5.
