Federalism Research Paper or Presentation Assignment Instructions

The_Classical_Liberal_Constitution_The_Uncertain_Q..._----_Part_One._Preliminaries.pdf

Home >Government homework help >Federalism Research Paper or Presentation Assignment Instructions

The Classical Liberal Synthesis

THE CLASSICAL LIBERAL TRADITION of the founding generation prized the protection of liberty and private property under a system of limited government. That tradition also rejected the optimistic view that self-

interested individuals could through an ingenious array of private volun-

tary agreements preserve public order against civil strife. The determined

aggressor had to be suppressed by fi nes, imprisonment, exile, or even

death, if he could not be persuaded to cooperate by lesser means. Gov-

ernments, moreover, needed at the very least the powers of taxation and

eminent domain to obtain both fi nancial resources and particular assets

in order to maintain both liberty and political order against random vio-

lence and unregulated militias. Anarchy is not a viable option in the long

term. Power always enters to fi ll a void. The people who fail to form a

government, whether by custom, as under the British constitution, or

conscious deliberation, as with ours, will have rulers thrust upon them

who will not be to their liking. The preemptive strike by decent people in

search of what Justice Benjamin Cardozo once termed “ordered liberty”

offers the only path for beating back the obnoxious intruder.1

Yet by the same token, organized governments can easily turn, as

they all too frequently have done, into instruments of evil, precisely

because no ordinary person can stand up to government offi cials backed

by public force. Contemporary Americans tend not to worry about the

threat of insurrection or turmoil because our nation has happily mas-

tered the orderly succession of political power, a matter that was very

much on the minds of the Framers in Philadelphia who devoted much

effort to coordinating the actions of state militias and federal power to

Epstein, R. A. (2014). The classical liberal constitution : The uncertain quest for limited government. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from liberty on 2021-04-30 11:56:47.

C o p yr

ig h t ©

2 0 1 4 . H

a rv

a rd

U n iv

e rs

ity P

re ss

. A

ll ri g h ts

r e se

rv e d .

18 Preliminaries

guard against invasion, insurrection, disunion, and rebellion.2 Virtually

no one remembers this constitutional provision: “No State shall, with-

out the consent of Congress, . . . engage in war, unless actually invaded,

or in such imminent danger as will not admit of delay.”3 Note that the

clause does not specify, invaded by whom? But the best efforts of the

Framers’ all-star cast could not prevent a destructive Civil War over

the issue of slavery that was fi nessed but not resolved at the Constitu-

tional Convention.4 Our constant preoccupation with current events,

moreover, obscures the dismal record over most of recorded history of

the “simple” task of maintaining the security of the person and prop-

erty against private aggression, without inviting state-sponsored death,

imprisonment, and expropriation. Truth be told, most political efforts

to run the gauntlet between anarchy and tyranny have ended in disap-

pointment and disaster. The societies best able to navigate that narrow

channel are ever conscious of the lurking perils on both sides. Their odds

of success improve greatly if they greet warily any extension of govern-

ment power. Gerald Ford pithily explained why political power is always

a double-edged sword: “A government big enough to give you every-

thing you want is a government big enough to take from you everything

you have.”5 The Founders would have agreed.

This deep ambivalence toward state power is evident in the classical

liberal tradition. Its central Lockean premise, the evils of slavery not-

withstanding, was that governments were created by individuals who

were free, equal, and independent in the state of nature. The opening

passage in the Massachusetts Constitution of 1780 faithfully tracks this

synthesis:

Article I: All men are born free and equal, and have certain, natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquir- ing, possessing, and protecting property; in fi ne, that of seeking and obtaining their safety and happiness.6

The protection of these rights was said to rest in the words of the

Declaration of Independence. The basic message is, oddly enough, a

positive one. It assumes, correctly, that an institutional framework that

allows most people to act in ways that benefi t themselves and the larger

society through enterprise, loyalty, cooperation, charities, and thrift will

develop those positive personal characteristics that lead to fruitful social

interactions on matters political, social, and commercial. The classical

C o p yr

ig h t ©

2 0 1 4 . H

a rv

a rd

U n iv

e rs

ity P

re ss

. A

ll ri g h ts

r e se

rv e d .

The Classical Liberal Synthesis 19

writers assumed that this class of sociable behaviors was embedded in

human nature. Thus, “[one] recent review suggests that similarities

result from the existence of four basic sets of intuitions involving: (a)

suffering, harm, and violence; (b) reciprocity and fairness (including

revenge); (c) hierarchy, duty, respect, and related intuitions about the

social order and one’s place in it; and (d) purity and related intuitions

about chastity and piety.”7

This naturalist approach boosts the case for thinking that all social

organizations face much the same problems. Modern moral psychology

has given that point of view a big boost by stressing the dual norms

against the infl iction of harm and the reciprocity of exchange, as aug-

mented by a respect for authority and concerns with disgust. Thus, the

fi rst of these elements explains the persistence of the law of tort, and the

second the law of contract. The concerns about hierarchy make families,

private associations, and governments plausible, and the concern with

purity and chastity tie into what is commonly called the morals head of

the police power, in which the state was given, at least in the nineteenth

century, extraordinary latitude to regulate sexual behavior, gambling,

and other forms of sinful behaviors.

It should not, of course, be assumed that all individuals share all

these propensities in the same degree. Some have more of one trait

than another. Indeed it is precisely because enough people act on these

four intuitions that some form of durable social organization, while not

guaranteed, is at least possible. The stress on these four factors, more-

over, also serves as a useful reminder of the fragility of social relations,

which in turn makes it clear why, generally speaking, political theory

does not worry about the good guys. Rather, in its most accurate form,

it assumes a natural variation in the moral qualities and temperaments

of individuals. Its concern is how best to deal with the bottom tail of

the distribution—that minority of individuals, often tiny, who exhibit

powerful antisocial tendencies. Unfortunately, buying them off is worse

than useless, for rewarding bad actors surely encourages a long line of

fence-sitters to follow in their path. So political theory, not economics,

becomes the true dismal science as it works to fi nd some way to protect

the many from the aggression of the few.

Yet how is that mission justifi ed? One appeal that fi nds voice in the

Declaration of Independence is the “consent of the governed,” which

could not, of course, be individually and freely given. There are too

C o p yr

ig h t ©

2 0 1 4 . H

a rv

a rd

U n iv

e rs

ity P

re ss

. A

ll ri g h ts

r e se

rv e d .

20 Preliminaries

many people, some unborn, separated by time, place, and sentiment, to

fi nd any historical contract worthy of its name. But that obvious and oft-

repeated objection does not make social contract theory either empty or

idle. The unifying vision of classical liberal theory insists that all individ-

uals must somehow leave the state of nature, in which all rights of life,

liberty, and property are perpetually at risk. But how? Voluntary coor-

dination will not work when antisocial defectors could bring down the

entire structure. The fatal weakness of the modern hard-line libertarian

views, such as those advanced by the late Robert Nozick,8 is that they

cannot explain how states rightly gain the legitimacy and the resources

needed to prevent violence, enforce contractual promises, and supply

needed social infrastructure. The key to solving these problems lies in

the domestication of coercion. Government works best when it forces

each individual to surrender some of his or her own liberty and property

to government in exchange for greater security for those rights that are

retained. The grand social contract is no actual agreement, which is why

it is called “social.” But at every stage it is meant to produce the same

win/win outcomes, just like ordinary contracts, and to do so in settings

where huge numbers of individuals are forced to participate in this joint

social venture.

Given this conception, any individual who seeks unilaterally to

deviate from the sound social contract is either a menace or a freeloader.

He is the former if he is willing to use force. He is the latter if he refuses

to contribute his share to the joint defense, thereby forcing it on others.

On controlling force, consistency is key. Allow one to deviate, and all

will follow until the state unravels. State coercion for one’s own good is

not some code word for misguided paternalism. Nor is it a contradiction

in terms. Rather, it is the minimum condition for the public provision of

certain collective goods.

Fear of Faction

The ability to create a government that meets this objective is driven

by the need to control the dangerous human tendencies that do not

disappear even after civil society is formed. To the contrary, the anti-

social individuals in a state of nature can rely on guile, intrigue, and

coercion within the new political order. The modern rubric for analyzing

these problems is public choice theory,9 which asks how self-interested

C o p yr

ig h t ©

2 0 1 4 . H

a rv

a rd

U n iv

e rs

ity P

re ss

. A

ll ri g h ts

r e se

rv e d .

The Classical Liberal Synthesis 21

behaviors of both individuals and groups undermine public welfare

while playing within the imperfect rules of the political game. In the

crudest terms, each individual or faction will work overtime for a larger

slice of a smaller pie—leaving a smaller share of a smaller pie for every-

one else.

One constant danger is that the political structure may easily

unravel, even though all individuals do not fi t this selfi sh description.

Once some people work the political process for partisan advantage,

others will follow suit, if only in self-defense. The worst actors within

the system can dictate the tempo for all through rhetoric, coalition

building, committee hearings, horse-trading, agenda setting, and smear

campaigns. This rough-and-tumble process will yield some public-

regarding legislation, but frequently it will generate outcomes that sat-

isfy only narrowly partisan interests. James Madison used the term

“faction” to describe these risks in Federalist No. 10:

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.10

The breadth of Madison’s defi nition tracks the magnitude and per-

sistence of the problem. As Madison recognized, factions come in all

shapes and sizes, which is why either “a majority or a minority of the

whole” can be the dominant, i.e. prevailing, faction. These factions,

moreover, can organize along any natural fault lines: occupation, region,

race, religion, or sex. They can coalesce around any issue: war, tariffs,

or national expansion. Suffi ciently emboldened, adroit politicians can

broker deals across coalitions over unrelated questions by invoking the

time-honored principle “if you scratch my back, I will scratch yours.” In

the absence of any strong social or institutional constraints, a dominant

faction could use its voting power or political clout to confi scate the

wealth of the political losers, or, more subtly, to hobble their economic

activities with legal restrictions. Nor will the propertied classes, often a

minority in number, necessarily come out on top, especially if the vast

majority of the population is allowed to vote transfer payments to itself

from, as they are now called, the top 1 percent. That is why Madison

declaimed that people were “weary” of the “long chain of repetitions,”

in particular, of debtor relief statutes that necessarily compromised

C o p yr

ig h t ©

2 0 1 4 . H

a rv

a rd

U n iv

e rs

ity P

re ss

. A

ll ri g h ts

r e se

rv e d .

22 Preliminaries

“personal security and private right.”11 That problem has not dissipated

in today’s modern mortgage crisis, where we have seen repeated gov-

ernment efforts to prevent, without visible success, the foreclosure of

home mortgages in default, which undermines long-term credit mar-

kets by creating an involuntary wealth transfer from creditors to debtors

while simultaneously reducing the value of real estate once it is under-

water.12 The Federalist Papers knew how to accentuate the negative.

Unfortunately, this problem cannot be cured by requiring unani-

mous consent for political action. Let every political actor have a veto

right, and political paralysis will follow. The challenge, therefore, is to

develop some way to avoid the twin perils of paralysis and exploitation.

Madison’s own proposal, as outlined in Federalist No. 10, was woefully

inadequate. His optimistic claim was that the “extended republic”—i.e.,

the national government—provided adequate protection against the

operation of factions. Either he or Alexander Hamilton put the point

baldly in Federalist No. 51: “In the extended republic of the United States,

and among the great variety of interests, parties, and sects which it

embraces, a coalition of a majority of the whole society could seldom

take place on any other principles than those of justice and the general

good. . . .”13

This passage suggests that national governments with built-in

checks and balances are more impervious to factions for two reasons.

First, a national government attracts a higher caliber of men to run for

public offi ce, who in turn would be willing to resist factional temptation.

Second, the cost of organizing factions at a distance is higher than it is

at the state level. But Madison was unduly optimistic on both counts,

as he himself subsequently recognized. No political body is immune to

the risk of political intrigue. The relative performance at different gov-

ernment levels depends on such evanescent factors as the mix of people

and issues at any given time. Thus, once power migrates to the national

government, the political hacks will follow the scent to its new abode,

urged on by local electors who want their representatives in Congress

to look after the interests of the home state. (Back in 1787, state legisla-

tures wanted their appointed senators to take their cues from the local

politicians.) On the second point, the greater costs of organizing national

coalitions are often offset by the greater gains to be obtained. That said,

important questions over the proper division between national and state

C o p yr

ig h t ©

2 0 1 4 . H

a rv

a rd

U n iv

e rs

ity P

re ss

. A

ll ri g h ts

r e se

rv e d .

The Classical Liberal Synthesis 23

authority remain: uniform national laws work better for trade, but local

governments are better able to respond to variations in local conditions,

as with land use regulation. In the end, no single strategy can deal with

this hydra-headed problem. Redundancy and multiple safeguards are

needed at all levels of government, and the Constitution provides them.

Anti-Federalists and Republicans

The drafters of the Constitution, rightly then, did not take a sunny view

of political man. Their classical liberal concerns, moreover, forged the

common link between the Federalists who supported the new Consti-

tution and the Anti-Federalists who were united in opposition to it. As

the late Herbert Storing accurately stressed, theirs was a family squabble

“of men agreed that the purpose of government is the regulation and

thereby the protection of individual rights and that the best instrument

for this purpose is some form of limited, republican government.”14 That

agreement over ends, with disagreement on means, led the two sides

to join on the issue of the desirability of what Madison called in Feder-

alist No. 10 “the extended republic,” which embraced the entire United

States. The Anti-Federalists’ opposition to the Constitution depended on

their own paean to the small republic, which they thought was more

in touch with local interests, and thus more likely to inculcate the civic

virtue that allows citizens to resist factional temptations.15 They made

the same mistake as the Federalists in reverse, by underestimating the

possibility that local majorities could exploit local minorities for whom

the exit option is too expensive—a problem that plagues local land use

regulation to this day. Quite bluntly, no matter how the Constitution

parcels out tasks between state and national governments, the risk of

faction remains endemic. Both the Federalists and the Anti-Federalists

overclaimed for their respective national and local preferences. Their

disputes over system design do not square with modern political con-

ceptions. All sides of the debate couched their arguments in terms of

natural rights to liberty and property, and structural protections against

government abuse. None of the participants in this historical intellectual

fray were social democrats or progressives, let alone socialists.

Storing also notes that the Anti-Federalists shared the Federalists’

affection for limited and republican government.16 In his formulation,

C o p yr

ig h t ©

2 0 1 4 . H

a rv

a rd

U n iv

e rs

ity P

re ss

. A

ll ri g h ts

r e se

rv e d .

24 Preliminaries

the word “limited” is evident enough: the powers that are given to the

government are limited, so that it could not extend its reach into all

areas of human life. That understanding was part of Hamilton’s defense

of judicial review in Federalist No. 78: “The complete independence of

the courts of justice is peculiarly essential in a limited Constitution. By a

limited Constitution, I understand one which contains certain specifi ed

exceptions to the legislative authority; such, for instance, as that it shall

pass no bills of attainder, no ex post facto laws, and the like.”17 On this

issue, again, there was no intellectual divide between the Federalists and

their opponents.

The term “republican” requires more explication in light of per-

sistent confusion about its meaning. Historically, “republican” was a

sensible, if imperfect, response to the purifi ed and restrained form of

popular government, the sort against which Madison inveighed in Fed-

eralist No. 10: “The instability, injustice, and confusion introduced into

the public councils, have, in truth, been the mortal diseases under

which popular governments have everywhere perished.”18 Manifestly,

republicans opposed the monarchical, English-style regime. Historically,

however, a republic was also defi ned in opposition to a democracy, in par-

ticular a popular democracy, which to them connoted demagogic rule

by the masses, whose political power could easily trample on the very

rights of liberty and property that government was sworn to preserve.

Indeed, on this issue, Madison was far from alone, as other writers of

the time also chimed in on the dangers of wayward state governments.

At the Constitutional Convention, Hamilton was explicit: “The members

most tenacious of republicanism,” he observed, “were as loud as any in

declaiming agst. the vices of democracy.”19 Similarly, Elbridge Gerry from

Massachusetts spoke at the Constitutional Convention of “The evils we

experience from the excess of democracy.”20 As early as the 1800 presi-

dential election, earlier meanings had been transformed when Thomas

Jefferson defeated the Federalist John Adams as the candidate of the

Democratic-Republican Party.21 But in 1787 the terms “democracy” and

“republicanism” were used as opposites, not synonyms.

These concerns with popular democracy date back at least to Aris-

totle’s Politics, which lists democracy, along with tyranny and oligarchy,

as one of the three “perversions” of governments, whose “right”22 forms

are Polity (or the Republic), Kingship, and Aristocracy. The same fear

of popular majorities is also evident in much of the English historical

C o p yr

ig h t ©

2 0 1 4 . H

a rv

a rd

U n iv

e rs

ity P

re ss

. A

ll ri g h ts

r e se

rv e d .

The Classical Liberal Synthesis 25

writing in the pre-revolutionary period, when authors who opposed

monarchy were equally troubled with the dominant patterns of demo-

cratic politics.23

Historically, therefore, it is not just for stylistic reasons that the

Constitution says that the “United States” (not just one branch of it)

“guarantees to each state a republican form of government.”24 The fear

was that state governments could become monarchies or degenerate

into popular democracies, which the United States was duty-bound

to forestall, by the use of force if necessary. The risk of monarchy is

of course easier to guard against than the risk of democracy, for the

line between a desired republic and its degenerate democratic twin

is hard to draw in the face of the countless permutations of govern-

ment structures. But the Guarantee Clause does (or at least should)

call into question the use of popular initiatives and referenda on par-

ticular issues—the former allows individuals to propose legislation and

the latter allows them to vote on it—precisely because the classical the-

ory regarded reliance on direct popular decisions as the hallmark of

unsound democratic practice. Nonetheless, the point was lost on the

Supreme Court, which has deemed the Guarantee Clause nonjusticia-

ble,25 even though it obligates the United States and not just Congress

to make good on this guarantee.26

But whatever the historical ambiguities on this matter, the

Anti-Federalists did not embrace the now fashionable “republicanism”

that allows the government to demand personal sacrifi ce or even indi-

vidual valor in the service of some higher, overriding vision of com-

munity good.27 Apart from the fi rst three words of the Preamble—“We

the People”—the Constitution is utterly devoid of stirring aspirational

rhetoric. Rather, the term “republican” had a more modest offi ce in the

historical debates. Under a republican regime, only a legislature—one

whose members were always selected by complex procedures—could

pass laws. An important correlative was that deliberation was limited to

“res publicae”—literally, “public affairs.” Matters of war and peace fi t that

bill, as do the creation of systems of public roads and courts. But there

is nothing in the republican view of political deliberation that treated

individual decisions on what property to own, food to buy, jobs to offer

or accept, or wages to pay or receive as matters properly falling into the

public domain. Finally, the Constitution consciously refused to allow the

direct election of key public offi cials, as discussed further on.

C o p yr

ig h t ©

2 0 1 4 . H

a rv

a rd

U n iv

e rs

ity P

re ss

. A

ll ri g h ts

r e se

rv e d .

26 Preliminaries

Deliberation, Incentives, and Votes

None of these structural concerns meant that the Founders were

opposed to deliberation and debate among public offi cials or the public

at large. Deliberation is the hallmark of every private board of directors

for businesses and nonprofi t organizations alike. Without deliberation,

public bodies would be forced into making uninformed collective deci-

sions on matters of life and death that bind even dissenters. No nation

can declare war for only some of its people. The inability of a collective

body to fi rst ascertain and then express the often divergent desires of its

constituent members drives the need for extended deliberative processes

in corporations and other private bodies. The same requirements are

even more imperative in public bodies, where dissenters can no longer

exit the project by selling their individual shares. It would be inconceiv-

able for any effective system of political governance to function in its

absence. Never forget that the Constitution itself is the quintessential

deliberative doctrine. Hamilton opens Federalist No. 1 with a reminder

that the people of the United States had to ask themselves “whether

societies of men are really capable or not of establishing good govern-

ment from refl ection and choice, or whether they are forever destined

to depend for their political constitutions on accident and force.”28 (He

conveniently omitted the customary, but stable, English constitution,

which relies on neither.)

Nonetheless, the Framers did not think that participation and delib-

eration, either alone or together, were suffi cient to counteract the dan-

gers of faction, as many modern republicans are inclined to believe.29

The Framers’ skepticism was not misplaced. In political institutions, the

quality of leadership and deliberation is never constant. Hence Madison’s

famous observation in Federalist No. 10: “Enlightened statesmen will not

always be at the helm.”30 And even if they were, they must make hard

life and death decisions even under ideal institutional circumstances.

But it would be a mistake to assume that the only obstacles to effec-

tive deliberation are the inevitable fl uctuations in the quality of elected

offi cials or the inherent diffi culties of key policy choices. Now as then,

political speech is always a double-edged sword, which can be used to

infl ame as well as inform. Astute politicians will choose to infl ame when

it paves the path to their own electoral success. The IQ of public offi cials

of all persuasions always rises when they speak in private.

C o p yr

ig h t ©

2 0 1 4 . H

a rv

a rd

U n iv

e rs

ity P

re ss

. A

ll ri g h ts

r e se

rv e d .

The Classical Liberal Synthesis 27

Powerful forces account for the behavioral shifts. Political deliber-

ation never takes place in a vacuum. Private incentives thus infl uence

rhetoric. If confi scation and arbitrary imprisonment are permissible

options, deliberation could easily muster support for those ends. Witness

the recent (and indefensible) suspension of habeas corpus under the

Military Commissions Act of 2006, notwithstanding the serious doubts

about the constitutionality of the act entertained by its supporters.31 It

is false optimism to assume that public deliberation will routinely purify

discourse no matter what the rules of the game. That point became clear

to Madison in his role as Thomas Jefferson’s incoming secretary of state.

Madison was caught up in the venomous political dispute between the

outgoing Federalists and the incoming Republicans over the passage of

the Judiciary Act of 1801, which enabled the departing President John

Adams to appoint sixteen Federalist circuit judges and forty-two justices

of the peace two days before his term ended. That blatant court-packing

plan precipitated the litigation in Marbury v. Madison,32 which established

the power of judicial review, but not before much political blood was

spilled. “[O]verwrought Federalists ranted,” and “Republicans shrieked”

in a knock-down brawl that exhibited none of the elegance, restraint,

and decorum that Madison hoped to fi nd in an extended republic just

fourteen years before.33

This attitude toward deliberation had profound infl uences on

the Framers’ attitude toward voting. They consciously adopted highly

restrictive rules for selecting offi cials for various public positions. Today

we regard universal suffrage as one of the unquestioned pillars of dem-

ocratic theory. The Framers, however, rejected any such moral imper-

ative, as they sharply limited the opportunities for ordinary people to

participate in public elections. Only the House of Representatives had

direct elections, and in these elections the Framers did not insist on uni-

versal suffrage or indeed any uniform set of rules. Instead, fearful of

discord, they prudentially punted that question back to the states such

that the electors in each state “shall have the Qualifi cations requisite for

Electors of the most numerous Branch of the State Legislature.”34 No

aspiration for eternal justice here. State citizens who were shut out of

the franchise by a maze of local requirements—property requirements

and poll taxes, for example—found no helping hand at the federal level.

Similarly, our patrician Senate was chosen by the state legislatures, as

their check against national power, and its members sat for six-year

C o p yr

ig h t ©

2 0 1 4 . H

a rv

a rd

U n iv

e rs

ity P

re ss

. A

ll ri g h ts

r e se

rv e d .

28 Preliminaries

terms, as a check against their political accountability. Next, the presi-

dent was chosen by an Electoral College, whose members were chosen

in state elections. As the name suggests, at the time the College was

supposed to be a deliberative body, much like the College of Cardinals is

today. As Hamilton put the matter, the process had two stages, whereby

the “general mass” chooses the electors on the understanding that “the

immediate election should be made by men most capable of analyz-

ing the qualities adapted to the station, and acting under circumstances

favorable to deliberation, and to a judicious combination of all the rea-

sons and inducements which were proper to govern their choice.”35 Evi-

dently, the entire purpose of that indirect form of election was to mute

popular control over the selection of the nation’s most powerful offi cer.

Finally, members of the judicial branch were not elected at all. They

were nominated by the president and had to be confi rmed by a majority

of the Senate. The Framers consciously cut the House of Representatives

out of the loop when it came to choosing the judges and key offi cials to

whom the constitutional Framers looked to protect individual liberty

and private property.

On these matters of institutional structures, the Founders were pris-

oners of their own age. Their overt hostility to democratic institutions

has not stood the test of time in all of its particulars. The movement

toward near universal suffrage (prisoners and incompetents excepted,

for example) has proved inexorable. In 1870, the Fifteenth Amendment

prevented both the national and state governments from denying the

right to vote on account of “race, color, or previous condition of servi-

tude.”36 In 1920, the Nineteenth Amendment did the same “on account

of sex.”37 And last (and surely less consequential), the Twenty-Sixth

Amendment of 1971 did the same on account of age, for all persons

eighteen and over.38 In addition, the Seventeenth Amendment in 1913

shifted power toward the federal government by requiring the direct

election of senators, subject to a rule that stipulated: “The electors in

each State shall have the qualifi cations requisite for electors of the most

numerous branch of the State legislature.”39 Finally, in 1964, the Twen-

ty-Fourth Amendment abolished the poll tax in primaries and federal

elections only, in an obvious reaction to its sorry history in excluding

African-Americans from the electoral process.40

One worthwhile inquiry asks whether any of the constitutional lim-

itations imposed on the franchise should be regarded as proper today

C o p yr

ig h t ©

2 0 1 4 . H

a rv

a rd

U n iv

e rs

ity P

re ss

. A

ll ri g h ts

r e se

rv e d .

The Classical Liberal Synthesis 29

in light of the Framers’ widespread concern with the excesses of pop-

ular democracy. There are, of course, many reasons to impose serious

constitutional limitations on what citizens and their representatives may

do by simple majority. Nonetheless, the problem of faction is not solved

but only exacerbated if some citizens are wholly excluded from electoral

politics, even if they remain free to speak openly about those questions.

The exclusion of women (let alone slaves) from the franchise is wholly

indefensible on either republican or democratic principles, especially to

anyone who accepts the classical liberal baseline that all individuals are

free and equal in the state of nature. So much of what government does

affects the lives and liberty of all persons that it takes heroic arguments to

argue for the total exclusion of any group from the processes that deter-

mine the rules of the game. To be sure, keeping propertyless individuals

out of government may reduce the risk of debtor relief laws or outright

confi scation. However, it simultaneously increases the risk of petty leg-

islation that could explicitly block the ability of vulnerable people to

enter into various trades and professions. Universal suffrage helps mend

that diffi culty. At the same time, however, the broad franchise increases

the majoritarian pressures on the existing constitutional protections for

property and contract, both of which found their way into the United

States Constitution. So long as people tend to vote in their interest, the

few are at the mercy of the many within any electoral process.

This same cautious attitude toward voting is refl ected in the con-

scious obstacles that any bill must negotiate before it can become law.

One of those obstacles is that any new law must secure the approval

of both houses of Congress, whose members were selected in different

ways. The clear opposition featured even representation of states in the

Senate, whose members are chosen for longer periods of time, against the

more numerous House, whose members are elected for shorter terms.

The driving force behind this view was that errors of too much legislation

were of graver consequence than those of too little. This institutional

design made sure that the two houses could not easily get into sync on

the great matters of the day. Thereafter, legislation has to be signed by the

president, whose interests are often at loggerheads with the Congress,

which of course has the right to override the veto, but only if it can mus-

ter two-thirds of the vote of both houses, starting with the one in which

the bill originated.41 This complex process tends to reduce the volatility of

government decisions below that of the swings in public opinion.

C o p yr

ig h t ©

2 0 1 4 . H

a rv

a rd

U n iv

e rs

ity P

re ss

. A

ll ri g h ts

r e se

rv e d .

30 Preliminaries

Why Did Our Constitution Succeed?

This recital of the well-understood vagaries of the political process gives

rise to this question: how do we account for the Constitutional Conven-

tion at Philadelphia? Part of it was fortuitous. Enlightened men, none

of whom were chosen by direct election, were for the most part at the

helm. Indeed, it is highly doubtful that this nation of over 300 million

people could assemble a roster for a constitutional convention that could

come close to matching the one that met in Philadelphia over 220 years

ago. Proposals to redo the Constitution in order to bring it in tune with

the times would likely produce a grotesque and faddish document whose

half-life would be measured in years, not decades.42 But the confl uence

of two fortunate factors also helped make the Constitution the success

that it was. First, the Founders’ common political philosophy meant that

much of their deliberations were about means and not ends. Second, on

most issues, they operated behind a veil of ignorance, which, as John

Rawls so famously argued,43 sets up background conditions that make it

more diffi cult for anyone to act on parochial motivations.

Rawls’s basic theory is simplicity itself. Take any choice in which

all persons are similarly situated, such that everyone can win or lose

50 percent of the time. On those assumptions, the only way to advance

your narrowest interest is to pick that alternative offering the maxi-

mum social gain. By way of example, think of a potential trader who

has no knowledge whether he will be a buyer or seller in some market.

If selective restrictions on imports reduce the value to future buyers by

twenty but increase those of future sellers only by ten, then any person

(ignorant of his role) who votes for the restriction suffers a twenty-unit

loss half of the time and receives a ten-unit gain half of the time, for a

net loss of fi ve. So situated, that person’s private interest is to vote for the

socially desirable solution that rejects the import restriction. But once

future sellers can peek out from behind that veil at their own actual

prospects, they are likely not only to vote for the restriction, but also

to campaign on its behalf, as happened with the 1930 Smoot-Hawley

Tariff44 or the recent disgraceful ethanol subsidies, which at long last

are being challenged.45 The situation is still more diffi cult because the

defenders of trade subsidies and restrictions often fail to perceive that

they will lose on net, once indirect effects are taken into account, as

C o p yr

ig h t ©

2 0 1 4 . H

a rv

a rd

U n iv

e rs

ity P

re ss

. A

ll ri g h ts

r e se

rv e d .

The Classical Liberal Synthesis 31

surely happened with Smoot-Hawley. Within politics, both greed and

incomplete knowledge are hard to avoid. But a constitutional conven-

tion reduces both risks because delegates cannot tailor their views on

general provisions to suit their own perceived interests. At this point,

the incentives are better (though not perfectly aligned).

In this setting, the fi rmer the knowledge of history and general

social theory, the further back in time it is possible to go to attain the

ideal governance structure. It was therefore most fortunate that few

particular matters were before the Constitutional Convention, forcing

delegates to make more decisions from behind the veil. It is thus wrong

to condemn the Framers of favoritism to their own class, as Charles A.

Beard did in 1913, arguing for that mistaken position in his well-known

Economic Interpretation of the Constitution,46 which saw in the Constitution

a concerted effort of landholders to protect their own provincial inter-

ests. The Constitution contains little, if any, textual evidence of special

interest provisions that are tied to particular groups. The strongest evi-

dence, perhaps, of the Beard position was the willingness of the Fram-

ers to allow Congress to introduce economic protection against foreign

commerce and trade, but that regrettable position does not consistently

favor any particular interest group. Any effort to read into the Consti-

tution a simple confl ict between landowners and commercial traders

seriously underestimates the complexity of that relationship, for then as

now, it is as common to fi nd deep divisions on such large issues within

economic groups as across them.47 Steel producers may well favor tar-

iffs on steel imports, but such tariffs will be opposed by manufacturing

fi rms for which steel is an input in production. The most that can be said

against the Constitution is that it did not block the risks of economic pro-

tectionism, at least in the area of international trade. But it can hardly

be said to have fostered it for partisan advantage. And that mercantilist

attitude is in marked contrast to the strong efforts to create an internal

common market that operates free of various trade restraints, which is

refl ected in the tightly worded prohibition against state taxes on imports

or exports48 and the guarantees to citizens of one state of the privileges

and immunities, chiefl y related to trading, of another.49

To that general rule, there was one glaring exception. The impend-

ing struggle over slavery could not be circumvented in this fashion, as the

delegates from free and slave states alike knew of the gulf that separated

C o p yr

ig h t ©

2 0 1 4 . H

a rv

a rd

U n iv

e rs

ity P

re ss

. A

ll ri g h ts

r e se

rv e d .

32 Preliminaries

them going in, given that the abolitionist movement had gained steam

fi rst in England and later in the United States. But on this question,

their need to make a deal forced a regrettable three-fi fths compromise

whereby black slaves, who were denied the franchise, were each counted

as three-fi fths of a person for the purposes of allocating direct taxes and

members of Congress across the several states.50 Fittingly enough, Madi-

son, who knew better, did not seek to defend that awkward compromise

in his own words in The Federalist Papers. Coyly, he used the indirect

voice, as “might one of our Southern brethren observe”—who, being

only hypothetical, could not be forced to atone for his sins.51 The same

of course must be said about the delicately worded provision dealing

with slaves who escaped from their home states. The Fugitive Slave pro-

vision, which followed on the heels of the Northwest Ordinance, deli-

cately provided for the return at the insistence of his owner any person

“held to service or labour in one state” who escaped to another state.52

It is painfully clear that this provision cannot be reconciled with general

classical liberal principles.

On a more principled level, the veil of ignorance was fully removed

in the confl ict between large and small states over their respective pow-

ers in Congress. That dispute led to that most political of compromises

between the Virginia Plan, which contemplated two houses of Congress,

both based on population, but selected by different means (one by the

legislature and the other by vote),53 and the New Jersey Plan, patterned

on the Articles of Confederation, which had a Congress with a single

house where all states had an equal vote.54 The upshot was the Con-

necticut Compromise,55 which introduced the current set-up in which

Senate representation is by state56 and House representation by popu-

lation,57 with representation in the Electoral College equal to the sum

of both.58 There is no veil of ignorance here because the delegates from

each state knew their own interest and acted accordingly. But the com-

promise was in fact a victory for the small states, whose equal power

in the Senate on average means that specifi c appropriations tend to

redistribute wealth generated in populous states to programs benefi ting

smaller states.59 The result here is consistent with the general theory of

bargaining among coalitions. The smaller units who sign on to the deal

can extract a disproportionate fraction of the gains.

The remaining structural responses to the demands of government

were mentioned in the Introduction. These include the creation of a

C o p yr

ig h t ©

2 0 1 4 . H

a rv

a rd

U n iv

e rs

ity P

re ss

. A

ll ri g h ts

r e se

rv e d .

The Classical Liberal Synthesis 33

federal structure, the systematic development of checks and balances,

and the protection of individual rights. The structural limitations and

the protection of individual rights served a common end: to slow down

the response of government where the errors of moving too fast seem to

dominate those of moving too slowly.

C o p yr

ig h t ©

2 0 1 4 . H

a rv

a rd

U n iv

e rs

ity P

re ss

. A

ll ri g h ts

r e se

rv e d .