July 1, 2019: Confronting the Constitution. Part 5: Utilitarians vs. the Founders. Who was right?

In Joseph Hamburger’s contribution to Confronting the Constitution he looks at debates between the 18th century British utilitarians of Jeremy Bentham, James Mill, John Stuart Mill, and John Austin vs. builders of the US Constitution. [1] The utilitarians had great respect for the new Constitution and its creation, but they also had withering criticisms. None of them a secret as The Federalist papers (1787-88) explicitly condemned utilitarians in their written arguments, while utilitarians labeled its authors foolish and ignorant.

It helps to keep in mind the context of the times. Europe was sky high on the new science of Isaac Newton. His method applied to the natural world also penetrated the human realm with a froth of new thinking about a “science of politics.” The Renaissance preceding this Enlightenment had rediscovered and made widely available the findings of Greece and Rome with historic reference to universal human nature. And the Enlightenment itself was frequently hostile to all forms of authority, especially religion as represented by Voltaire and Paine. The utilitarians were more enamored with these movements than the Founders who, while products of the Enlightenment and uniquely crafted by the same forces, where able to retain an even strain between the power of popular fashions and a more practical approach. Religion, for example, would not be crushed by the Founder’s Constitution, but made a right, albeit a right to an opinion, as no religion could among all the others be considered a fact supported by the State.

“North America was ‘one of the most, if not the most enlightened, at this day on the globe,’” claimed Bentham. [2] While, as individualists like me now recognize, Bentham also portentously regarded the US as “unhampered by the weight of tradition.” [3] Tradition had been suffocating for the new individualism and Bentham wanted it ended, that “dead hand of the past… from savage and stupid ages, [that made people] slaves of custom… in the infancy of reason.” [4] Likewise, Bentham dismissed the establishment of traditions through the Constitution’s principles and institutions. Instead he suggested a complete set of statue laws to Madison in 1811, to free the US from “perplexity and plague.” After five years unanswered, Madison replied, No thanks.

Contrary to Alexander Hamilton’s remark that if men were angles, there’d be no need of governance (meaning constraints on the populous and government), “utilitarians were opposed to the very idea of constitutional limitations… It was the character of a sovereign body to be incapable of legal limitation.” [5] “Sovereign” here meaning something like a parliament of Plato’s philosopher kings. Good luck finding one of those. According to Hamburger, utilitarians had “a powerful faith that a science of legislation could be developed,” where Bentham wanted to “play Newton’s role for a science of law.” [6]

It’s ironic that while the utilitarians believed popular power must be checked by a forceful sovereign, they also envisioned an almost unlimited freedom of the people—so long as people behaved in accordance with what I’ll loosely term a scientifically perfected behavior. On the other hand, for the Founders that check was between the people themselves and their self-interests. According to The Federalist, “There is a degree of depravity in mankind which requires a certain degree of circumspection and distrust… But [and here we see separation from dogma] the supposition of universal venality in human nature is little less an error in political reasoning than the supposition of universal rectitude.” [7]

For the Framers, an iron fist sovereign carried with it an inference “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.” [8] The Constitution would appeal to our better natures. And yet, the system our Founders built is one of a ceaseless expansion in liberty, crippling our better natures. Ours is now a nation where the self-restraint of virtue for a no-longer-existent common good is an obstacle to not only liberty itself, but the market. Where religious teachings of modesty are obstacles to consumer spending, and ethical treatment of animals or the environment impose production costs that restrain profit. In America, virtue is as dead as the communities from which they emanated. Instead, we have the NASCAR “community,” the latest mass murder “community,” or of all the laughs, the Internet “community.” As Aristotle said, a community is not merely a common location that people occupy to ease exchange, which is exactly how Americans define it. With this evolution our current administration with its tens of millions of supporters indicate “that there is not sufficient virtue among men for self-government.” Could it be social disconnectedness is what utilitarians sought to avoid by cohesion of a forceful sovereign?

Apparently not. For Bentham, communities are no less oppressive than their traditions, while Tocqueville’s slightly later analysis warned of the “unwholesome condition of isolation that left individuals without attachments to others and to larger communities.” And when this happened, he said, “a society was ripe for despotism.” [9] (Hmm… Fast forward to the 2016 election.) For John Stuart Mill, tradition composed of “religion and the expectations of one’s peers in associations and other groups were oppressive and, in the case of custom, despotic. For Tocqueville these were things that would serve as obstacles to tyranny… What for Mill was an ideally free society was Tocqueville’s nightmare.” [10] The utilitarian’s sovereign was intended to maintain order among disconnected island-individuals—laws alone, not sentiments. It appears the utilitarians would have only accelerated our social / spiritual decline.

The utilitarians also protested the Founder’s separation of powers. Utilitarians warned that with a tripartite system two of the three would combine to dominate the third. As we’ve been recently reminded, this remark might imply the utilitarians failed to notice that 3 could be 4 branches given a bicameral Congress. With a Congress divided between House and Senate, collusion between Congress and the Executive was frustrated by the 2018 vote, thus allowing corruption to be addressed, including potential impeachment expressly provided by the Constitution because so much damage can be done between elections. However, as it turns out the utilitarians did recognize bicameralism and dismissed it because “it caused a delay and checked the power of the more democratically elected House.” By now it might seem the utilitarians were making the Founders case for them. Delays were for the purpose of allowing reason to rise above dangerous passions hardwired into human nature. And who would not want a check on the most populist branch of government? Under the utilitarian’s system the nation would be whipsawed from one idiotic passion to the next.

The judges weren’t safe either. For utilitarians, the power of legislative annulment transferred “a portion of the supreme power from an assembly from which the people had some share in choosing, to a set of men [they didn’t chose].” [11] But rather than create another body subject to the people’s capricious will, the Founders wanted an unelected group steeped in legal philosophy and practice to stand outside the usual fray, with reasoned contemplation unencumbered by political machinations.

Lastly, utilitarians considered the Founder’s checking mechanism of varied self-interests as sinister and divisive. As an example, and harkening back to the ancient’s small republic, John Austin claimed the Reformation was “an evil to mankind” as it popularized theological questions and made people quarrelsome. For utilitarians, stable society seems to have depended on making human political thought robotically uniform. While the Founders saw our race as a spectrum from rational to ridiculous. From those of “reason and good sense” to those with “the most frivolous and fanciful distinctions…sufficient to kindle…and excite their most violent conflicts.” [12] Consequently, “They wanted effective but also republican government, liberty but also stability, energy in the executive…but due dependence on the people.” [13] The Federalist acknowledged their solution was an imperfect contrivance and improvisation. One should not be surprised their solution was forced to adopt “deviations from that artificial structure and regular symmetry [of the utilitarians] which…might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination.” [14]

While understandable with hindsight, utilitarians were overly idealistic about embracing the new science, especially in personal human behavior. Their system of governance seems likely to be short-lived, arriving sooner to where we are now. Utilitarian arguments only strengthen the Founder’s case. The Founders instead accepted human flaws to create a system of, by, and for unstable humans. A system that unleashed human potential like never before in the history of our species. It was also a system that would destroy itself as we’ll see in future posts when we look at Patrick J. Deneen’s alarming work, Why Liberalism Failed. [15] As it turned out, the Founders handed us a time bomb.

Until next time, September 2, 2019.


[1] Allan Bloom Ed. Confronting the Constitution, AEI Press, 1990.
[2] ibid, pg. 235
[3] ibid, pg. 235. Italics added.
[4] ibid, pg. 242
[5] ibid, pg. 236
[6] ibid, pg. 237
[7] ibid, pg. 243
[8] ibid, pg. 243
[9] ibid, pg. 253
[10] ibid, pg. 255
[11] ibid, pg. 241
[12] ibid, pg. 244
[13] ibid, pg. 248
[14] ibid, pg. 248
[15] Patrick J. Deneen, Why Liberalism Failed, Yale University Press, 2018
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Published on July 01, 2019 08:44
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