wsj.com
Our politics has changed irreversibly since the founding, yet the Constitution has survived. Might that be because it rests on eternal truths?
Sanford Levinson, a constitutional law professor at the University of Texas, is a frank and cheerful man of the left. The title of his 2006 book, “Our Undemocratic Constitution,” tells you where he stands. Now he moves to a “full and fearless critique” of “The Federalist,” the most authoritative defense of our Constitution when it was being ratified in 1787-88—and as it remains today.
Mr. Levinson wants to imitate what he calls the “radicalism” of Publius, the pseudonymous author of “The Federalist,” and, turning Publius against himself, do to the Constitution what Publius did to the Articles of Confederation preceding it. “Publius” gives a contrived unity to the three concealed authors who actually composed “The Federalist”— Alexander Hamilton, James Madison and John Jay—and Mr. Levinson respects their reserve, directing his objections always to “Publius,” thus somewhat concealing his bold desire to replace them. But he does not hide his own opinions, and he writes in good humor, with a civil respect for his adversary. The 21st-century readers to whom he appeals will be instructed even if they do not agree, for Mr. Levinson knows his subject and raises a host of relevant issues. Conservatives, however, will have to do their own thinking unprompted.
Taking nonexperts in hand, Mr. Levinson offers a tour of “The Federalist,” examining in turn the arguments of each of its 85 essays. Are they true today in our current circumstances? Are they true at all?
Mr. Levinson identifies three new circumstances: party government, Big Government and increasing democracy. Party government normalizes the partisanship that Publius naively supposed would not characterize the Constitution and that he rather hypocritically deplored as if he were not partisan himself. Mr. Levinson is scornful of the expectation in “Federalist” No. 77 that the executive branch would be, as he says, largely free of “partisan juices.” He sees a partisan elite concealed behind a veil of impartiality that Publius promises for the federal government.
AN ARGUMENT OPEN TO ALL
By Sanford Levinson
Yale, 350 pages, $38
Yale, 350 pages, $38
Second, today we practice Big Government, even if our belief in it does not match our acceptance of it. The “compass of legislation,” which Publius thought would be harmlessly restricted, especially in the federal government, is now grander than even the Constitution’s opponents feared. Mr. Levinson notes that Publius expected state legislators to serve simultaneously in the U.S. Congress—so much did Publius underestimate the work of either occupation.
A third new circumstance is the increasing democracy we have seen since the founding, a development that has voided most of the constitutional precautions against direct election of the president and the Senate. More democracy came quickly thanks to Thomas Jefferson’s presidency, then Andrew Jackson’s, and in time thanks to the Progressive movement. The first two new circumstances can be placed under this third one, as parties were formed to bring government closer to the people and the benefits of Big Government were advanced to serve the people.
Mr. Levinson is a fan of all three of these developments, and he sums up his book as a denial that “The Federalist” is a “fount of wisdom” or an “infallible guide.” Our politics has changed irreversibly since the founding, and in his view the Constitution should follow, rather than guide, our politics. For all his careful appreciation, he attacks “The Federalist” and the Constitution it defends. He believes that America needs a new one, as in 1787. Yet somehow the Constitution has survived these important changes. Might that be because it rests on certain political truths that do not change? The Federalist itself makes no reference to the century in which it was written, as if that were a condition of its validity. The most fundamental difference between Mr. Levinson and Publius is that Mr. Levinson believes truth is relative to history; Publius does not. For Mr. Levinson, true to today is as true as one can be.
Publius offered two great innovations in political science and in the tradition of republican theory. These were the principle of “extending the sphere,” declaring that a large republic was safer than, and just as republican as, a small republic; and the notion of “auxiliary precautions,” by which republican government would control itself through the separation of its powers. Both were aimed at the principal defect of all previous republics: the propensity to faction or to tyranny in a popular majority.
Mr. Levinson praises Publius’ departure from conventional republican belief and exults at his rejection of “blind veneration for antiquity.” But he wants to extend the logic of “extending the sphere” to say that a large republic should be part of an unspecified “world order.” He dismisses the reasonable veneration that Publius argues for. In the words of “Federalist” No. 49, even the “most rational government” will want to “have the prejudices of the community on its side.” A more logical world order, to put it mildly, lacks this advantage.
The separation of powers rests on the importance of ambition, for in a famous phrase of Publius’, “ambition must be made to counteract ambition.” The Constitution sets up a contest for supremacy within government in which ambitious individuals will vie with one another and thus serve as a check on the ambition of government as a whole. But Mr. Levinson thinks it unrealistic to suppose that ambition can ever be public-spirited, because it is always tainted with what Publius himself referred to as “love of fame.” For Mr. Levinson, every action is either selfish or selfless; there is no way that a person can be both for himself and for the common good. For him, ambition is just another selfish interest.
Mr. Levinson, however, is himself ambitious for the common good. Publius says that the Constitution is a test of the power of “reflection and choice” and speaks of “all men of reflection” as if they belonged to a special class. Mr. Levinson surely belongs to that class, but somehow one doubts that future Americans will think him to be quite so politically savvy as Publius.
Mr. Mansfield is a professor of government at Harvard University and a senior fellow of Stanford University’s Hoover Institution.
