Constitution 101: A Lesson for Donald Trump

 
 

The American Founders understood that good government requires judicious “rigging.” Such rigging is only “crooked” if one wrongly assumes that consent alone is a sufficient condition for justice.

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Donald Trump has warned that there might be violence if he is not selected as the Republican presidential nominee. Referring to the rules of the convention, he recently said, “It’s a rigged system, it’s a crooked system, it’s 100 percent crooked.” Trump is correct that the system is rigged, but that doesn’t necessarily mean it is crooked. His failure to appreciate this difference reflects a troubling misunderstanding of constitutional government.

In its idiomatic sense, “rigging” denotes a deceptive and unfair manipulation of the rules of a game in order to promote one’s private advantage. But in its original meaning, the word “rigged” refers to the rigging on a ship—the apparatus that harnesses and directs the power of the wind. Wind power is natural, but without artificial rigging that power is useless, even dangerous. Similarly, free government—a word that comes from the Latin gubernare, meaning “to steer”—rests on the consent of the governed, but constitutional “rigging” is required to harness the power of consent and direct it to the ends of justice and the common good. This is the guiding idea of the American Founders, and although it has been obscured by decades of abuse, it remains a necessary condition for free government.

Americans who study the Federalist Papers for the first time are often surprised by three things. First, although the writers of The Federalist Papers believed in government by consent, they thought pure democracy was a bad thing. Second, they did not seek to conceal this belief from the general population of citizens, but instead sought to persuade citizens of its truth. Third, those citizens were persuaded, and voted in favor of a system that explicitly restrained their own democratic power.

The Dangers of Pure Democracy

The Federalist Papers consist of eighty-five essays written by Alexander Hamilton, James Madison, and John Jay. Working to promote the ratification of the Constitution, they published the essays in several newspapers in 1787-17p88 under the pseudonym “Publius,” in a nod to one of the co-founders of the Roman Republic. The use of pseudonyms was a convention of the time whose primary purpose was to focus readers on the merits of the arguments rather than on the persons making the arguments. Clearly, the authors shared a common conviction that human reason is fragile and requires support for its proper exercise. This conviction is reflected in the opening paragraph of the Federalist Papers:

It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. [Emphasis added]

These remarks, written when the vast majority of the world’s population was subject to despotic government, have lost none of their relevance today, when free government seems more fragile and threatened than ever before. We are reminded that government by “reflection and choice” is not simply a natural or necessary thing, but a rare achievement that, once lost, cannot easily be recovered.

Publius identifies the primary threat to free government in Federalist 10: faction. Faction consists of

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 the other citizens, or to the permanent and aggregate interests of the community.

By alluding to the possibility of majority faction, Publius reminds his readers that consent alone (i.e., pure democracy) is not a sufficient condition for just government. Indeed, majority faction is the greatest threat: “When a majority is included in a faction, the form of popular government . . . enables it to sacrifice to its ruling passion or interest, both the private good and the rights of other citizens.”

Publius is echoing here the principles of the Declaration of Independence. Although governments derive “their just powers from the consent of the governed,” governments exist to secure the “self-evident” and “unalienable rights” of the citizens, and to promote “their safety and happiness.”

The difficulty arises from the fact that faction is not caused by special interests, corporations, or big government. Rather, “the latent causes of faction are sown into the nature of man.” Human reason is fallible, and the will is liable to corruption by passion and self-love. The great challenge of free government, therefore, is to design a constitutional form that reconciles consent with proper and just ends of government. “To secure the public good, and private rights, against the danger of [majority faction], and at the same time to preserve the spirit and form of popular government, is then the great desideratum.”

Consent, Justice, and the Common Good

The Founders’ primary response to this “great desideratum” is a written constitution with three primary parts: republicanism, federalism, and the separation of powers. These parts can be understood as a kind of filtering mechanism for making consent compatible with justice and the common good.

First, they provided for a republican form of government, in which citizens choose their rulers. Notably, they did not design a system of direct democratic rule. The main purpose of republicanism is “to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interests of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations.”

Clearly, the Founders were not merely trying to prevent bad government; they also desired to provide for good government. Publius puts the principle this way in Federalist 55:

The aim of every political constitution is, or ought to be, first, to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous, whilst they continue to hold the public trust.

And in Federalist 70 he writes: “a government ill-executed, whatever it may be in theory, must be, in practice, a bad government.”

The Founders were of course well aware that representative government alone is not sufficient to prevent bad government and to provide good government. Therefore they also provided “auxiliary precautions” (Federalist 51) such as federalism and the separation of powers to check the abuse of power. Federalism divides political power between a national government, “whose jurisdiction extends to certain enumerated objects only,” and a plurality of smaller state governments that possess “a residuary and inviolable sovereignty over all other objects” (Federalist 9). As to the separation of powers, Publius writes in Federalist 47 that “No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty” than the fact that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

Other Federalist Papers go into great detail explaining the reasons for the different qualifications, modes of election, duration of office, and enumerated powers of the different branches of government. And those reasons reveal the extraordinary reflection behind our constitutional “rigging.”

Virtue, Democracy, and the Limits of Our Rationality

But the mainspring for our Constitution rests beneath the surface. It is something that no written constitution can provide, but something on which every free government depends: virtue. When Publius asks what will prevent citizens from manipulating the constitutional rigging for their own private advantage, Publius answers (in Federalist 57): “Above all, the vigilant and manly spirit which actuates the people of America; a spirit which nourishes freedom, and in return is nourished by it.” If this spirit ever becomes “debased,” he writes, “the people will be prepared to tolerate anything but liberty.”

The Founders knew that free government is impossible without sufficient virtue in the people and in the rulers. Those necessary virtues include prudence, moderation, courage, and justice. They also involve self-knowledge and self-restraint. And it is one of the most important tasks of the statesman to exemplify those virtues and to instruct others in their practice, as the Founders did to an exemplary degree.

A great illustration of this kind of statesmanship occurs in Federalist 49. There, Publius considers a proposal put forward by Thomas Jefferson for frequent constitutional conventions to remedy constitutional abuses. Publius concedes that “the people are the only legitimate fountain of power,” but he rejects the conclusion that a direct appeal to the people is the suitable remedy for abuses of the constitution. “All governments rest on opinion,” he writes, and

As every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possesses the requisite stability.

But why should a regime based on “self-evident truths” (i.e., reason) require veneration, a disposition more directly related to religious faith? Publius explains:

In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.

Here Publius is doing more than merely responding to an argument. He is teaching American citizens to recognize within themselves the limits of their own reason, and of the non-rational (though not irrational) supports that reason requires for its own proper work. In teaching democratic citizens the truth about themselves, he is exemplifying the kind of statesmanship that free government requires.

In sum, the American Founders understood that free, rational, good government requires judicious “rigging.” Such rigging is only “crooked” if one wrongly assumes that consent alone is a sufficient condition for justice.

The point is strengthened by the fact that the Republican party is not a democratic government. It’s a political party, with its own internal principles, rules of governance, leadership, and goals. Like any American citizen, Trump is welcome to join that party and promote his own view of where it should go. But American citizens should ask themselves this question: How is a man who denounces the deliberative rules of the Republican Party as an unjust obstacle to the democratic will (despite the fact that he has only 39% of the popular vote) likely to treat constitutional limits and the rule of law if he is elected to office?

Nathan Schlueter is Associate Professor of Philosophy and Religion at Hillsdale College.

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