The Irony of Democracy

The American constitution is a unique document written in a unique time in World History. In 1787 the Revolutionary war heroes and their leaders could look back at the successful rebellion knowing that they had upheld the principles of Whig political philosophy that had been so vociferously discussed in the preceding decades. They could reflect that they were able to establish several state governments even as the revolutionary battles raged around them. Establishing a national government proved to be more problematic. Our legendary war heroes also knew that they had acted in a timely fashion for writers like Montesquieu in 1748

knew well enough that ruin was slowly eating away the foundations on which political structures rested in the West. . .
He did not look forward to a new age of Freedom but, on the contrary, feared lest freedom die out in the only stronghold it had ever found, since he was convinced that customs, habits, and manners-in short mores and morality, which are so important for the life of society and so irrelevant for the body politic-would give way quickly in any case of emergency.¹

Specialist vs. everyman

We have emerged onto a field of action in American politics where constitutional law is perceived to be in the hands of lawyerly aficionados who expound the law before a black robed tribunal, these learned sages, themselves being hip to the lawyerly legalisms issue profound pronouncements which are then descanted by newspaper pencils and media artists into epigrammatic prosody the American public can then digest at its leisure. This skepticism towards the Supreme Court is engendered first by an underlying alienation that ruling elites have lent to the whole process of expounding our constitution. The underlying assumption amongst this group is that one has to be versed in Montesquieu, Locke, Rousseau, and de Tocqueville to understand American politics, forgetting that American politics are being deconstructed. Philosophical discourse is necessary and will proceed from these pages as well. However, there is something else besides the lawyers pharisaic tales about the American sequence of events from 1787 to yesterday’s Supreme Court ruling that is particularly telling and revealing about the Constitution. That something else is found in Lincoln’s utterances not Locke’s and in Roosevelt’s rhetoric not Rousseau's. Finally, there is much that is good in the Constitution, however,

We will find much that is imperfect, mistaken, evil in its basic premises and historical development. . . [W]ho can imagine that our Constitution’s peaceful coexistence with injustice came to an end with Emancipation? We cannot remain comfortable with the status quo; the challenge is to build a constitutional order that is more just and free than the one we inherited.⁴

American politics moves in the warp of social threads laid down by the American people, where elites, speaking for the popular consensus have meetings like that of 1787 and emerge with documents and procedures to place confinement on the daily woof of American society that takes place as people go about their daily lives, as administrators move through tasks of resolving conflict and as legislators busily write laws to address emerging situations of a dynamic society and culture . This warp and woof framework, like that of a loom, is often perversely conflated and the results of the last election are taken to be a major endorsement elevated to a ‘Mandate’ giving license to rework constitutional understandings when the election really needs to be viewed as that which is just ordinary political routine. Attempts to turn election results into Higher lawmaking of the 1787 variety, have to be greeted with a great deal of skepticism. One election does not a mandate make.

In basic outline then this two part continuing drama of American politics and culture takes on the form of an ongoing play with occasional dramatic interludes between the main acts. Three major interludes have occurred including the Founding: in addition to the ratification process of the original constitution, another revolutionary period arose over issues that finally led to the violence of the Civil War. This second period of higher lawmaking drew on the earlier experience of Madison and Co. and was able to successfully incorporate rebellious persuasions regarding emancipation of the slave into law. Likewise, during the New Deal period, Roosevelt and his Congressional cohorts were able to write legislation (repeatedly winning elections in ’34 and ’36 that returned ever growing majorities of the Democratic Party) that resulted in Constitutional change that can only be classified as amendment simulations; this legislative lawmaking in the New Deal format then, in later years of the 20^th century became a process itself. The result is that we now look to the White House for a solution to virtually every problem We are now at the door of current complexity, media professionals notwithstanding, where headlines and thirty-second sound bites fail to explicate the ongoing process. Again, elites should beware of claiming election results to use the White House as an ideological clearinghouse in the FDR style . Mr. Roosevelt died in 1945 and his ghost does not travel through an ether like medium to guide current politicians and policy makers. In summary then; the process of higher lawmaking occurs at major revolutionary interludes where long-standing controversies are resolved (in the case of the New Deal, without open warfare) and the emergent process produces a major document or documents which are then the center of ongoing daily processes in government, politics, economics and the general society and culture. In other words society is recast into new structures. The key feature to note is the rebellious nature of controversy and conflict building in the society over issues (like slavery and trade) and the resulting outbreak of hostilities (like Shay’s rebellion) , elites then resolve the conflict by casting a new document (like the New Deal legislation).

The high road and the low road to law making

Hannah Arendt is the only author of note to discuss at length the processes of rebellion and revolution. Mounting a successful military campaign is a kind of victory; gaining electoral victory after divisive controversies have ripped the social fabric is another kind of victory. These victories though have to be balanced by lawmakers returning to the foundry of higher lawmaking and forging a new understanding of the situation which is an authentication of the whole historical process. Sometimes the two steps take place in rapid fashion as in the Revolutionary War period of 1776.

. . . the Americans would still have agreed with Robespierre on the ultimate aim of revolution, the constitution of freedom, and on the actual business of revolutionary government, the foundation of a republic. . . For in America the armed uprising of the colonies and the Declaration of Independence had been followed by a spontaneous outbreak of constitution-making, in all thirteen colonies. . .The importance of this development can hardly be over-estimated. The miracle. . . that saved the American Revolution was. . .that the colonists. . .victory did not end ‘with a multitude of Commonwealths, Crimes and Calamities. . . ;till at last the exhausted provinces [would] sink into slavery under the yoke of some fortunate Conqueror’, as John Dickinson had rightly feared. Such is indeed the common fate of a rebellion which is not followed by revolution. . .If, however one keeps in mind that the end of rebellion is liberation, while the end of revolution is the foundations of freedom, the political scientist at least will know how to avoid the pitfall of the historian who tends to place his emphasis upon the first and violent stage of rebellion and liberation, . . . to the detriment of the quieter second stage of revolution and constitution, . . . This temptation, which befalls the historian because he is a storyteller, is closely connected with the much more harmful theory that the constitutions and the fever of constitution-making, far from expressing truly the revolutionary spirit of the country, were in fact due to forces of reaction. . . so that. . the Constitution of the United States. . . is understood as the actual result of counter-revolution. The basic misunderstanding lies in the failure to distinguish between liberation and freedom; there is nothing more futile than rebellion and liberation unless they are followed by the constitution of the newly won freedom.⁵

Gaining an understanding politics, power, influence, rule of law, government, and society then starts with an appreciation of the struggle for liberation, which is always revolution achieved by intense struggle and how the foundation of freedom in done by establishing boundries or limits to the power of coercion as applied to the government. Laws, bills of rights, constitutions, all help do this but a dialogue with elites and potential power brokers is always important to keeping the lamp of liberty brightly lit. This somewhat limited function of constitution writing though has been viewed through a historical lens where revolutions of the last 225 years have seen constituions imposed on the masses by a totalitarian elite that seeks to defeat the true purposes of liberty. Constitutions are not algorithms where a concept or phrase is applied against the rules and a law or principle of governance can be cranked out.

Modern administrations in Washington, where constituencies are gathered together by a plebiscitary Presidency, should be especially observant of Arendt’s analysis. To take just one example, the "Reagan revolution" is a travestied use of the word revolution in which the word was deployed for its rhetorical power and connotations. The Republican administrations since then have also failed to be revolutionary in the same fashion as Reagan’s administration was uncreative in making constitutional law in the Arendtian fashion. The idea of continual revolution is untenable anyway. Sooner or later normal politics have to set in or we move into chaos. Finally, to grasp a snapshot of the whole situation we have Thomas Paine’s lesson "A constitution is not the act of a government, but of a people constituting a government." ⁶

The movement of power in American society from the Federal government to the average person, meets its first highly structured boundary in state government. As we have seen, there was a rush to write state constitutions in 1776 because in part, the colonists viewed themselves as having returned to a state of nature. As we have also seen, the failures of Congress to rule effectively under the 'idiotic' Articles, brought worry, consternation and outright rebellion to a head. We should remember that Congress offered no backbone to government or any restrictions to local rule under the Confederation-Madison was to labor long for a remedy to this situation during the conclave at Philadelphia. These shortcomings notwithstanding, the state delegations were thus fresh from the school of pragmatic problem solving and ready to arrive at solutions and compromises. When they did issue the final draft of the Constitution in September of 1787, they had a series of solutions to a set of complex questions. They needed a better set of answers to how the sate and national government were to fit together. And we owe much to these experimenters for the boldness with which they attacked their problems.

Back to the beginning

There is currently a sizable body of scholarly knowledge pertaining to the making of the American Constitution. One of the chief risks in applying this knowledge is discussed in Jack N. Rakove’s book entitled Original Meanings, Politics and Ideas in the Making of the Constitution. In a chapter entitled "The Perils of Originalism" Rakove remarks on the choices Americans were given after the publication of the document in the Pennsylvania Packet on September 19, 1787. He notes the manner in which students of Constitutional law analyze the document; the meaning of the actual words, phrases and the whole itself, the intention, of the authors and the understanding that American society came to have about the document at the time of ratification. Traps for the inobservant commentator exist at each of the above portals to Constitutional scholarship. Traveling through the portal of meaning we are met by some obstacles immediately, "We the People" should mean that literally; everyone is involved in this structure for governance that is being proffered, correct? Not. Often the literal words are couched in phrases or terms that are ambiguous; what would "commerce" mean to a legal writer today when, for example, the Internet is viewed against the backdrop of 18^th century trade and business?

If again, we take the intention portal to understanding the Constitution, we have to face the ultimate culmination in word smithing the world had yet seen or perhaps seen since. Single words were sometimes added or deleted only after much debate by the Philadelphians; i.e. the "make" vs. "declare" choice in the war-power clause.

Lastly, the understanding portal is very wide but becoming waylaid is again only too easy. We, at this remove in time from the authors casting, have to remember that the emergent comprehension as people discussed the Constitution did not flow through to a consensus of any one majority.

. . . the value of thinking rigorously about the separate elements of originalism is compounded by the different purposes that this theory may serve. If its purpose is merely to gain a general sense of what a term meant, or why a given provision was adopted, without treating its original meaning as dispositive, then it is permissible to slide promiscuously among these sources. . .But this latitudinarian attitude becomes less defensible if originalism seeks to provide something more that an informed point of departure for a contemporary decision. For the argument that the original meaning, once recovered, should be binding presents not only a strategy of interpretation but a rule of law. It insists that original meaning should prevail-regardless of intervening revisions, deviations, and the judicial doctrine of stare decis-because the authority of the Constitution as supreme law rests on its ratification by the special, popularly elected conventions of 1787-88. . .Where we look for precise answers the framers and ratifiers were still struggling with complex and novel questions whose perplexities did not disappear in 1788.⁷

The higher road to lawmaking then in the panorama of American History has involved special, deliberate sessions of the legislature in two instances: Reconstruction and New Deal, and a separate convention at the founding. How can decisions made at these purposeful moments be preserved without resorting to the extremes of originalism? How might the many headed monster of a popular majority that rides roughshod over any limitations of law be stopped from reworking the constitution based on a single election victory?

Modern Burkean thought

For those who see a two track system in place in American governance then, the Supreme Court is the umpire in disputes about exactly where the constitution must be invoked to repeal an established principle or to stay the course and hold on to a current understanding already embodied in daily practice by administrators. Those who see the every day workings of democracy as the only legitimate way of ordering governance have to make elaborate theories of exception to fit the rulings of the Supreme Court into their picture of liberal, constitutional democracy. Monist is the only term that accurately describes this school of thought and in opposition to that viewpoint the dualist sees the Supreme Court as a legitimate body, delegated by the Constitution to prevent the erosion of principles of heavily freighted with the weight of historical struggles. Often political elites realize electoral victory in a facile fashion then stage elaborate rituals with the apparatus supposedly speaking for We the People that actually are nothing but pontifical intonements of We the Politicians. For this reason, and we need to reexamine the place of the Supreme Court and indeed the placement of the legislature and the Presidency in the theory of a limited government.

Whenever the Supreme Court invalidates procedures or statutes in an honest attempt to protect fundamental rights, monists become alarmed and speak of counter-majoritarin and democratic difficulties with the principle of judicial review. Another school of critics, the rights foundationalists, is at home with the Supreme Court setting aside majoritarians and their roughshod style of riding over rights. They only wish the Court would use the Great Books of Western Culture approach to lawmaking by expounding on Kantian morality and Lockian rights of Mankind. The two schools have provided the dogmas of Constitutional debate over the past 70 years: democracy first, then rights second versus rights first then democracy second. By tracking on the dualist road though, we can have both democracy and human rights.

Still, a foundationalist would argue, the hurdles of higher lawmaking (winning majorities in several elections, or writing constitutional amendments) might be overcome and then what if...some terrible anti-rights phrases were added to the Constitution such that a state religion were established. We can only answer that we live in the hope that the darkness of that day will never occur. To that end we must further discussions of a dualist democracy where conflicts are resolved by traditions that can be successfully adapted to meet the current crises. "Thin ice you’re skating on there, Mr. Phenicie"- I can hear the critics rejoinder. "Why not rely on this other principle over here-legalist incrementalism?" To which I now turn.

Reform, the self styled Burkeans tells us, always occurs in incremental steps. No over arching theory is involved except that of stare decis . In a process of building, as a mason takes blocks to construct an edifice say, an edifice of constitutional law is built using decisions of courts and practical decision makers over centuries. The cultivation of an evolving moral comprehension is done by simply staying abreast of constitutional history. What one needs, say these common lawyers, to expound on the Constitution, is to steep oneself in the decisions of courts and one will naturally acquire a statesman’s wisdom in constitutional development.

Finally, the last thing Burkeans can tolerate are large popular movements that result in mass movements such as that seen in the issues surrounding Civil Rights or Ecological Conservation. Here the dualist enters into the fray with full preparedness to respond that mass movements are not always expressions of demagoguery. Occasionally (and qualities of statesmanship are needed here) traditional wisdom is challenged by passionate initiatives that derive legitimacy from the application of their deepening of the political dialogue and their expansion of the social and cultural horizons. These mass demonstrations of persuasion and influence may not necessarily always be tyrannical ravings but do often instead, produce constitutional change that, given the calmer moments of historical musings are seen to be valuable contributions to the country’s growing body of constitutional understanding. This paper has already indicated three such momentous happenings to which the Watergate crises could be added in antithesis rather than thesis.

The Burkean then, ignores Arendt’s analysis and prefers to set aside reform movements as aberrations in the historical process of constitution building. She sees them instead as deviant occurrences and ignores occasions where factual and reasonable review is valid historiography, recognition of legitimate change and assigning meaning to revolutionary change keeps professional historians employed. These annulments of whole portions of the legislative and constitutional landscape nonetheless, have to be accepted as part of life in a dynamic democracy where procedures have not always been played out "according to Hoyle". Perhaps the reason Burkeans dislike mass movements is the loose talk they invariably invoke about "freedom" "equality" or "quality of life". The Founding era was an age of generalist's supremacy and abstract words abound in the Constitution including 'welfare'. This disdain for the generalities of society and politics as opposed to holding with the specifics, leads to a disdain for 'The People' whose supposed sovereignty is invoked again in the Preamble. A follower of Burke though should at least look at what Burke had to say about popular galvanizations of the Democratic processes.and how the American revolution was one such process.

Incrementalism as a policy of writing and interpreting law and politics has much to say that is valid and we ignore this widom at the peril of falling into demagogic throes about change and establishing new orders. We can all build a better democratic civility by participating in events such as local school board elections, seeking election to the PTA and more profoundly by immersing ourselves in a dialogue with those around us. This dialogue could center around the upcoming cultural and social transformation and ways to place our energy into productive discussions with the rest of American society. Here, then in attempting to deepen and widen the evolution of political discussion the Burkean and the Dualist may join in accepting the accumulated wisdom of those who have gone before us and in this conversation with the past generation realize that we are not allowed to sweep away with disdain their accomplishment. For to do so would be to sweep away our own ability to survive.

In the continual dialogue with the past a complete revision of the usual Marxist interpretation must be accomplished before we can survey the fullnes of the struggle the American people have had to endure. The founding created a dialogue regarding equality, for example, that is epitomized by de Toqueville .Gordon Wood discusses the subject in a chapter entitled “Worthy against the Licentious” in The Creation of the American Republic. He notes the prevalence of writers who were seeing too much of a good thing as some members of the Revolutionary society rose above their station. Ideas about who properly could be assigned to higher office also concerned John Adams.

Most American leaders, however, were not opposed to the idea of social movement, for mobility, however one may have decried its abuses, lay at the heart of republicanism. Indeed, many like John Adams had entered the Revolution in order to make mobility a reality, to free American society from the artificial constraints Britain had imposed on it, and to allow “Persons of obscure Birth, and Station, and narrow Fortunes” to make their mark in the world. Republicanism represented equality of opportunity and careers open to talent. Even “the reins of state,” David Ramsay had said at the outset, “may be held by the son of the poorest man, if possessed of abilities equal to that important station.” Ramsay's qualification, however, was crucial to his endorsement of mobility. For all of its emphasis on equality, republicanism was still not considered by most to be incompatible with the conception of a hierarchical society of different gradations and a unitary authority to which deference from lower to higher should be paid. Movement must necessarily exist in a republic, if talent alone were to dominate, if the natural aristocracy were to rule. But such inevitable movement must be into and out of clearly discernible ranks. Those who rose in a republic, it was assumed, must first acquire the attributes of social superiority-wealth, education, experience, and connections-before they could be considered eligible for political leadership. Most Revolutionary leaders clung tightly to the concept of a ruling elite, presumably based on merit, but an elite nonetheless-a natural aristocracy embodied in the 18^th century ideal of an educated and cultivated gentleman. The rising self-made man could be accepted into this natural aristocracy only if he had assimilated through education or experience its attitudes, refinements, and style. For all of their earlier criticism of “The better sort of People” in the name of “real Merit”, few of the Revolutionary leaders were prepared to repudiate the idea of a dominating elite and the requisite identity of social and political authority. ⁸

A carefully structured society was needed then, and Wood goes on to outline the anti-Federalist's fears that arose out of the new Constitution's empowerment of the new elite. However at that time, as was to also occur in the Reconstruction era ideas on equality were hammered out although putting those ideas in place is yet the unfinished business of American Democracy.

The Bicentennial Myth

The underlying struggle in American politics has and always will be around widening circles of equality. A historical analysis of the concept of equality held at the time of the Founding (examining how that theory was actually put into practice),would show, based on voting rights, that political equality was only defined for a certain class of propertied, males of European descent. Gradually, property rules were weakened; with the ascent of Jacksonian democracy not state had property holding as a criterion for voting in general elections. In a brilliant description of the Civil War as a war of Revolution, Eric Foner in a book entitled Reconstruction, America's Unfinished Revolution, 1863-1877,shows that the struggle for extending the right to vote to the freed black, took the American democratic process through a new series of Constitutional change. Once again Americans had to reevaluate the founding document, determine what was in the document that needed to be brought forward and what was to be discarded as dross.

Understanding these important points in American History are the main parts of self -recognition; what meaning we attach in our daily lives to being an American. As we have seen in the discussion already, the significance of the 1787 event can hardly be over-rated when taken in a context of an ongoing debate. Important discussions about our society are framed in this understanding; Miranda v. Arizona, Roe v Wade; these are more than talking points for Americans as the go about their daily lives. But the closer we move to the Founding moment, the more reverent and somber the tone in approaching the actual texts of the elite group around Madison and the other attendees at the Philadelphia convention. And yet one cannot help but understand this elegiac attitude as one of mythos in the making after reading Rakove's or Foners exhaustive studies of revolutionary periods in American History. Throughout stressful periods of change that resulted in the constitution being changed, Americans have resorted to extraordinary methods to accomplish the ends of widening the base of equlity. The era surrounding FDR and the New Dealers was also one of profound change that was written into American history and deeply affected how Americans as a whole, viewed and discussed the constituion, their society and their hopes for the future.

The three act play of American History is thus Constitutional Founding, Reconstruction and New Deal. Self proclaimed guardians of the Founding myth see 1787 as the most authoritative time frame from which numerous quotes for law office history are drawn. Constitutional scenes and actors from later periods are ranked in diminishing order the further we go away from the enshrined period of 1787. This gives a false light on the ability of current actors in the drama to interpret the constitution. The founding myth is a storey or myth because the facts have been arranged by retelling. What if the retelling did not coincide with the stance Madison himself was obligated to take in debate that shone the spotlight on him when he was asked point-blank "Elucidate, Mr. Madison, and give us an insiders viewpoint. What should be done?" The scene is set in 1796 and the stage is the floor of the House of Representatives.
Let's take a trip back in time to 1795, the curtain rises and Chief Justice John Jay is bringing back a treaty with Britain that is a compromised attempt to bring an end to British harassment of neutral shipping.Word of the contentious nature of the compromise leaks out and a furious national debate breaks out and in the debate the question of ‘original intent' arises. Again, much of this is historical dross but there is much that pertains to contemporary issues of treaty ratification. When Washington requested funds to implement Jay's treaty a furious debate arose in the Congress. Questions about procedures that went to the root of Constitution law arose over whether treaty making fell to the province of the Congress. If so, and funds were needed should not the House judge the merits of the funds based on examination of the treaty making process and to do this a request should be made for Presidential papers surrounding the negotiations. Washington refused the request; however by the time that occurred the debate had moved on to what the Framers' intentions were.

A young congressman William Vans Murray, asks the point blank question with a rhetorical flourish:

If the Convention spoke mysterious phrases, and the gentleman helped to utter them, will not the gentleman aid the expounding of the mystery? If the gentleman was the Pythia in the temple, ought he not to explain the ambiguous language of the oracle? To no man's expositions would he listen with more deference.

Murray went on to say that since everyone there had such intimate experience with the founding perhaps the path for future generations could be made easier.

One hundred years hence, should a great question arise upon the construction, what would not be the value of that man's intelligence, who, allowed to possess integrity and a profound and unimpaired mind, should appear in the awful moments of doubt, and, being known to have been in the illustrious body that framed the instrument, should clear up difficulties by his contemporaneous knowledge? Such a man would have twice proved a blessing to his country.

Madison was forced to reply, but not in the way in which he would have preferred. He had been criticized in earlier debates, when in passing, he had inadvertently referred to his personal knowledge of the Constitutional debates, the record of which had been kept secret. He also wished to see his colleagues move past the point of constantly referring to the moment of Constitution inception as the normative procedure for deciding Constitutional issues.

But, after all, whatever veneration might be entertained for the body of men who formed our constitution, the sense of that body could never be regarded as the oracular guide in the expounding the constitution. As the instrument came from them, it was nothing more than the draught of a plan, nothing but a dead letter, until life and validity were breathed into it, by the voice of the people, speaking through the several state conventions. If we were to look therefore, for the meaning of the instrument, beyond the face of the instrument, we must look for it not in the general convention, which proposed, but in the state conventions, which accepted and ratified the constitution.⁹

What is clear today,then is that appeals to the magic moment of Constitutional inception are manifestly attempts to legitimize particular and narrow political ends. Currently, conservative factions are fighting a rearguard trench warfare against the constitutional change instituted in the 1930's as part of the New Deal. Since this rearguard action is only partially successful in small pieces of legislation (placing icons in front of Post Offices) and sporadic irrelevancies from the Supreme Court (Bower V Hardwick sustaining prohibitions against sodomy), this lack of team spirit serves only to cloud the issues of American politics.

Notes

1. Hannah Arendt, On Revolution, Penguin Books, New York, NY 1990 p. 116
2. Forrest McDonald, The American Presidency, An Intellectual History 1994 University Press of Kansas p.148
3. ibid, p.305
4. Bruce Ackerman, We the People, Foundations, Harvard University Press 1991 pg.5
5. Arendt, op cit pg. 141
6. The Rights of Man, part ii, chapter 4 "Of Constitutions"
7. Jack N. Rakove, Original Meanings, Politics and Ideas in the Making of the Constitution, Alfred A. Knopf Inc. 1996 pg.9
8. Gordon S. Wood, The Creation of the American Republic, 1776-1787,The University of North Carolina Press, 1998, pg. 481
9. The description of the debate over Jay's treaty is from Rakove pg. 362

	Loading... Free Web Hosting - Watch Free Movies Online - Watch Free TV Online - Free Domain Hosting Video Sharing Image Hosting Oil prices are rising daily. Use Local Gas Prices to patronize only the most affordable gas stations near you.