September 3, 2018: Confronting the Constitution. Part 2: Government of, by, and for unstable humans

In Confronting the Constitution, David F. Epstein offers his chapter, “Political Theory of the Constitution.” [1] Here we see what range and depth the Founders explored in their mission for the best form of governance. A government guided by self-evident truths about human nature, natural rights philosophy, and the purposes of government arrived at by the power of reason. “The obstacles of prejudice and partiality,” writes Epstein, “did not persuade the Founders that establishing government by consent was impossible, only that it was difficult. [They feared] that a failure to agree on a government at that time would lead to disunion, anarchy, and eventual usurpation… [Success] appeared fragile and fleeting.” [2] It was a government, in Epstein’s reminder of Solon, which was not the best government they could devise, but the best government the people would accept.

In creating a governmental structure populated with unstable humans in service to unstable humans, the Founders set out to use human nature for and against itself in proper measure for each office and their arrangement. While a marvelous balancing act, Epstein warns that without reference to underlying principles, Constitutional institutions can easily be debased, vilified, or disposed of. [3]

Recall, these men were scientists or heavily influenced by European Enlightenment on the heels of Isaac Newton’s scientific revolution. [4] Their philosophic differences were devoted to reason, not tribe. Each had good and bad ideas, but their quest for truth produced practical solutions that satisfied their purpose in the end. It’s informative to note their kind of thinking is practiced today almost exclusively by science, engineering, and the practical arts of medicine and law. [5]

Epstein delineates the logic when it still applied to politics. He begins with the abstract and not entirely accurate “state of nature” hypothesis of self-preservation, where each person takes the law into their own hands. (Notice how our Stand Your Ground laws return to this.) Hence, social instabilities of “dissensions and animosities.” [6] But if self-preservation is of primary importance, the necessity for order and control makes a need for governance obvious. With the Declaration’s enunciation of equality for all men (see last line, first paragraph) and their inalienable rights, government’s purpose is then “to secure these rights.” [7] Foundational to all of it is the source of government’s legitimacy as just powers derived from the consent of the governed. But as James Madison put it in the 1787 debates, “You must first enable the government to control the governed; and in the next place oblige it to control itself.” [8]

But before that, they had to pay for it. If individuals were going to form a new society, surrendering a portion of their liberty once used to defend themselves, this society’s government, as an enforcer of their rights would need tools to secure them. Laws created, enforced by police, decided by courts all cost money, and that means taxes. “The necessity of taxation alone,” writes Epstein, “means the right to property is not immune to political decision [imposed upon it].” [9] (Take that, conservatives.) And since taxes mean there must to be something to tax, the Founders sought prosperity for all through protection of rights to “honest industry,” not to coddle the wealthy. [10] (Take that, liberals.)

Once paid for, the problem was not only to select but attract meritorious individuals to office. Provide opportunity and motive by catering to human nature, but be careful about it. One motive was the ambition that loves office or honor. Despite this salute to the ancient virtue of honor, “Even Montesquieu suggested virtuous men do not entirely forget themselves.” [11] And as Madison said, “If [patriotism] be the only inducement, you will find a great indifferency in filling your legislative body.” [12] More likely “the love of fame… would prompt a man to plan and undertake extensive and arduous enterprises for the public benefit…” [13] To control that love of fame, “The Constitution,” says Epstein, “not only grants powers [to those recruits] but arranges offices so as to encourage those powers to be used well.” [14] The Founders wanted virtue, but didn’t count on it, preferring to manage self-interest instead.

But how should these representatives be chosen? Should they be selected via indirect elections, for refinement and grasp of governance by knowledgeable electors—at the risk of cabals and horse trading? Or direct elections by frequently ignorant masses, selected from a more accurate representation of the people? The solution was a mix. The House as unrefined populist representatives as witnessed today, and the Senate, which used to be distinguished, though more debased with time. [15]

For the Congress and Executive our Founders believed the people could better control by reward and punishment the personal motives of representatives through elections, rather than hope to “elevate men who do not think of themselves at all.” [16] Though as one Anti-Federalist observed, most elected representatives will be complete strangers to electors. Only those locally familiar in small republics (states) can be properly judged. But Federalists, and ultimately the Constitution, argued otherwise. Resemblance between representative and represented is not so important as the represented being able to choose, second-guess, and depose their representatives. Better that power be in the hands of those likely to be jealous rather than friendly with those elected.

But what the people could do was limited as well. While they would choose from these recruits and judge the outcome of their polices, the people would not create policies. “A noteworthy feature of the new Constitution was its total exclusion of the people in their collective capacity for any share in government [in its direct creation of laws].” [17] That’s the representative’s job, and leaves the people alone to pursue their productive interests.

“The Founders did not bend much effort to conform the principles, morals, and manners of citizens to our republican form of government,” writes Epstein. [18] Because they built one to accommodate “human nature in a rawer, purer form,” one more enduring than what was strived for in strict virtuous republics of old. [19] “Virtue, they judged, was too corruptible to be the main foundation [of government].” [20] Elections were the most obvious way of interesting representatives in preserving the rights of the people.

Though elections could not secure the people in every instance. Corrupt representatives might engage in “harvest as abundant as it was transitory,” [21] employ “concocted deceptions that an inattentive people fail to detect,” [22] or baldly usurp powers. And as John Locke puts it, “for the same Persons who have the power of making laws, to have also in their hands the power to execute them, whereby they exempt themselves from Obedience…is contrary to the end of Society and Government.” [23] So the rule of law would be divided in its execution among the 3-branches of Congress, Executive, and Judiciary.

But even this can be abused by the encroaching nature of power. Witness America’s Executive today as it lauds over a compliant legislature betraying their Constitutional oath to check the president. Hence, the Founders added supplemental separations: the bicameral legislature (each house checks the other), Executive veto over Congress, which can fail if Congress is united enough, impeachment for any public official, and judicial review (see revocation of Trump’s first two Shia Muslim bans [24]).

Judicial review is done with a twist: by deliberation of judges not elected, so not directly subject to the people’s popular, often passionate, will. “Indeed,” reports Epstein, “the people’s original intent can even be enforced against their own later inclinations…” [25] Which implies the written Constitution meant something fixed. (Is this support for originalism?) James Madison and James Wilson even proposed a veto power for the Court, but it was defeated on “grounds that it would make statesmen out of judges, corroding their impartiality,” and role as interpreters of law. [26]

“The Founders expected the president to defend his power because he is ambitious, not because he understands or loves the Constitution.” [27] Hence, judicial review was not merely another competitor in power, but an enforcer of primary law. Yet again, this technique fails to corner every offense. Presidential powers exist that do not depend on legal guidance or judicial review. “As commander in chief of the armed forces, he could suppress an insurrection…” [28] Those killed have no legal recourse. “Corruption or treachery could be quite consequential in the time before the next election, and he might corruptly contrive his reelection, even his initial election.” [29] (Recall, this book was written 28 years ago about insights 202 years before that.) For such cases, control by election is after the fact. So impeachment allows an auxiliary precaution against slow and vulnerable elections without resort to “the Right of Revolution,” thus channeling passions of the people with a rational option. [30] Impeachment gains force by focus on one person. He cannot reasonably blame a council (though we’ll expect it). And to avoid a president beholden to a Congress that can impeach the Executive, the Founders divided this process between the House (impeachment), Senate (conviction), and the Supreme Court’s Chief Justice presiding.

How would all this be tied together to protect people’s rights in an effort to stabilize unstable humans? Anti-Federalists believed the people’s interests would best be secured by small-republic state institutions to defend against national encroachment. But impotence of the Articles of Confederation showed Federalists that states could not be corralled even to pay their own bills. “By denying states the power to issue paper money, impair the obligation of contracts…and allowing the national judiciary to enforce those prohibitions, the Convention reflected Madison’s view that the nation should protect individual rights against the states.” [31] Not the other way around. Natural rights and resulting stability would serve the purposes of prosperity, once again revealing prosperity’s practical utility. The Founder’s structure would encourage “Public attachment by a train of prosperous events,” gaining the people’s trust and thereby consent to federal powers. [32] The enjoyment of rights and prosperity would be “a valuable crutch for government that protects those rights.” [33]

The Constitution is a blend between two opposing political theories: autonomous small-republic state governments as obstacle to national overreach, and a central authority whose components are checked and balanced in arrangements of a large-republic. Though as Epstein cautions, among many other distortions, the state / federal equilibrium has been imbalanced by the 14th Amendment’s 1868 expansion of federal powers in response to Civil War, and by the 1913 17th Amendment that makes senators popularly elected, edging the Senate closer to the populist House.

When Benjamin Franklin was asked, “What have we got, a Republic or a Monarchy?” he replied, “A Republic—if you can keep it.”

Until next time, November 5, 2018.



[1] Allan Bloom Ed., Confronting the Constitution, AEI Press, 1990. According to this George H. W. Bush era 1990 text, “David F. Epstein is a deputy director of net assessment, Office of the Secretary of Defense. He has taught political science as a member of the Graduate Faculty, The New School for Social Research, and is the author of The Political Theory of The Federalist..” Beyond that, he appears invisible.
[2] ibid, pg. 128
[3] We see this in our most recent election, amplified by America’s absence of civics education. From political Right-wing vilification of constitutional guarantees to a free press (what Edmond Burke called the Fourth Estate), to cries from the Left for apportionment of Senate seats by population in response to Trump’s cabinet appointments. Regardless of population, each state gets two Senators, tilting in disproportionate favor to small states, diluting the voice of large ones. The Founders tangled with this question, prioritizing the two seat model because it protected the rights of minority states from majority abuse. Isn’t it precisely this idea championed by our modern Left? This Connecticut Compromise was seen by some Founders as protection of minority population states, while others saw it as a “triumph of extortion by the small states.” Ibid., pg. 117
[4] Ben Franklin is credited with founding electrical sciences. Thomas Jefferson was a naturalist and inventor. Alexander Hamilton, James Madison, and Jon Jay enrich their Federalist Papers with good governance analogies to science. John Locke, who from Jefferson inherited the delineated rights for his Declaration, was a chemist.
[5] Scientific thinking engaged in by the Founders is now rare in politics. While science and its technology are the basis of wealth creation, science is a frequent annoyance to business when it finds negative outcomes of various products, processes, etc. Excluding Trump and Bush-2, the EPA is an example of science obstructing the dollar’s desire for profit over environment.
[6] Bloom, pg. 78
[7] ibid., pg. 78
[8] Federalist 51
[9] Bloom, pg. 84
[10] ibid., pg. 84
[11] ibid., pg. 96
[12] ibid., pg. 96
[13] ibid., pg. 97
[14] ibid., pg. 93
[15] Further examples can be found in actions of Senate Democratic Majority Leader, Harry Reid of Nevada, when in 2013 he and the Democrat majority reduced confirmation requirements from 60% to a mere majority. Republican Majority Leader Mitch McConnell of Kentucky now confirms Trump loyalists without check from Democrats. Mitch McConnell and Senator Chuck Grassley of Iowa also violated their oaths to the Constitution by their denial of confirmation proceedings for Supreme Court nominee Judge Merck Garland in 2016 because it was a “contentious election year.”
[16] ibid., pg. 97
[17] ibid., pg. 94
[18] Bloom, pg. 98
[19] ibid., pg. 98
[20] ibid., pg. 98
[21] Federalist 72
[22] Bloom, pg. 106
[23] John Locke, Second Treatise, Peter Laslett Ed., revised edition, New American Library, 1965, pg. 410
[24] Note that Trump’s so called “Muslim ban” was in fact a Shia Muslim ban. Only Shia countries were on his list. No Sunni countries were included. Trump established 8 new businesses in Saudi Arabia during his campaign, has a golf course and resort in UAE, and does business in Lebanon, all home to 9/11 hijackers that killed almost 3000 people in the US. No Shia countries have killed Americans on US soil.
[25] Bloom, pg. 109
[26] ibid., pg. 110
[27] ibid., pg. 110
[28] ibid., pg. 110
[29] ibid., pg. 111
[30] Wikipedia on Right of Revolution .
[31] Bloom, pg. 120
[32] ibid., pg. 100
[33] ibid., pg. 100
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Published on September 03, 2018 09:45
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message 1: by Pat (new)

Pat Rolston Outstanding analysis and I hope the author, Brett Williams, continues to provide such essays for consideration.


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