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A Love-Hate Relationship with Publius

For those wondering whether Sanford Levinson, the distinguished constitutional provocateur who has called the Founding document “undemocratic” and called for its radical reform, harbors hostility toward the political theory that established our nation, his book An Argument Open to All: Reading The Federalist in the 21st Century is his answer.

It is not that he loved Publius less, but that he loved democracy more.

An Argument Open to All, an essay-by-essay reply to The Federalist, is in many ways a love letter to Publius—the kind that a spouse in a marriage of lasting standing might write. It visits and revisits long-running arguments, and if it is occasionally overeager to call attention to overt flaws, it is also delightfully aware of hidden charms.

Levinson disclaims any attempt to recover an original meaning of the U.S. Constitution for purposes of equipping judges with it. Rather, he is “interested in whether The Federalist speaks to us today, as members of the American political community or, for that matter, as a foreign reader who has been led to believe in the potential importance of The Federalist.

He begins with Federalist 1’s famous call for a regime based on “reflection and choice,” writing that the current generation ought to think in these same terms:

Can we as Americans—or anyone living elsewhere in the world—make informed and reflective choices about what is necessary for “establishing good government”? Or are we trapped by contingencies of “accident and force”—including what political scientists call the “path dependence” generated by prior choices—that make a hollow mockery of claims to political autonomy?

Levinson celebrates Publius as a “child of the Enlightenment,” and he repeatedly emphasizes these strands in The Federalist. In the chapter on Federalist 9, he sees “the Enlightenment optimist peer[ing] out at us” in Publius’ claim that “the science of politics” has been improved. Publius “confidently (and probably correctly) thought that his generation knew more than the greatest thinkers of antiquity, not least because, as Isaac Newton wrote in a 1676 letter to Robert Hooke, ‘If I have seen further it is by standing on ye sholders [sic] of Giants.’”

As Levinson elsewhere recognizes, Publius’ thinking on this question is complicated. Publius is clearly affected by the Enlightenment but cannot be understood as an abstract philosopher. In Federalist 6, he declines to “set at defiance the accumulated experience of ages”; in Federalist 15, he calls experience “the best oracle of wisdom.”

It is significant, then, that Levinson says he finds the most inspiring passage in The Federalist to be that which, in the 14th essay, praises the American people for not allowing “a blind veneration for antiquity, for custom, or for names to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience.” He believes, in fact, that this inaccurately describes our contemporary condition—that our reverence for the Constitution today is the product of just that sort of blind veneration. He therefore asks:

Do we really want our children—and the adults they will turn into—to believe that they must submit to decisions made in the past, however admirable those making the decisions might have been in many ways? . . . So we must ask ourselves if it was only Publius’s generation that had a duty to improve the institutions of American governance in order to perpetuate its central goals, as set out in the Preamble. If this seems to be a dubious proposition, then we must be willing to honor their example not by mindless adherence to their own decisions of 1787, but by standing in their shoes (or on their shoulders) and asking what improvements are necessary in our own time.

Yet there are tensions on this score within The Federalist, which alternates between, on the one hand, defending its own project of constitutional reform and, on the other, justifying why in future, reforms should not be undertaken lightly. Perhaps most notably, Federalist 49 calls for “veneration” of the Constitution such that citizens will be habituated to respect it in what seems like Aristotelian fashion. Levinson’s chapter on Federalist 49 correctly recognizes this tension. It is entitled “‘Veneration’ versus ‘Reflection and Choice,’” and Levinson, like Garry Wills and others before him, is clearly troubled by what he reads there, so much so that he seems to want to make excuses for it.

Perhaps, for example, “Publius was addressing the kind of political psychology necessary in the first generation or so of a new constitutional order.” Or perhaps he just “overspoke.” In any event, his sin is evident: Publius stands at odds with “the very possibility of democratic decision making, at least if democracy is assumed to have much to do with government ‘by the people’ and not only ‘for the people.’”

With respect to this last characterization, Levinson is right: Publius is indeed hostile to direct participation in government. For him, the right to self-government is vindicated through the election of representatives, whose job it is to regulate, channel and, where necessary, to control the public passions such that the genuine, long-term interest of the people prevails.

The author of Our Undemocratic Constitution (2006) knows this. It is the source of his quarrel. The question is whether Levinson is sufficiently attentive to the distinctions that are so important to Publius. In responding to Federalist 22, he seems genuinely surprised to discover an endorsement of majority rule: “Whether or not Publius is a twenty-first-century democrat (which he certainly is not), it is illuminating to realize that he could, at least on occasion, be a vigorous proponent of majority rule.”

One is tempted to respond: What are the occasions on which he is not? Publius ever and always supports the right of majorities ultimately to prevail once they are settled and deliberate rather than impassioned. Yet Levinson is concerned about the exclusion of passions from politics. Not only is Publius “an adamant opponent of direct democracy,” says Levinson in his chapter on Federalist 83, but “he is no great friend even of much representative democracy, insofar as it reflects popular ‘passions’ instead of reasoned deliberation.” In an earlier chapter, Levinson expressed his concern that:

Our abstract commitments take life only when joined with passion. To commit oneself to subdue passion—or to venerate what has been handed down because of lack of confidence in one’s own capacity, or the collective capacity of one’s fellow citizens—is to accept a desiccated notion of citizenship, and ultimately of life itself.

Levinson specifically mentions Martin Luther King, Jr.’s “passion for justice.” This kind of constructive passion, though, is not what Publius appears to mean by the term. He means the kind of unreasoning emotion that overtakes mobs and tramples rights.

The author’s claim may be that Publius is insufficiently attentive to the distinction between constructive and destructive passions. But it is also fair to note that passions tend to be constructive only when they have a specific and time-limited object such as the American Revolution or the civil rights movement, not as an ordinary force in politics.

Still, whatever flaws this book may contain are offset by its unearthing of hidden gems. Few seminars on The Federalist spend much time on Publius’ analysis of the Dutch confederation. Levinson discovers in it occasion to remark on the fact that it is occasionally necessary, but far more often dangerous, for republics to break laws.

Throughout, though, his overriding concern is democratizing the regime through a constitutional moment comparable to 1787. Anything less than an embrace of a contemporary “Publian moment,” in his phrase, would represent a “desiccated notion of citizenship” in America today.

Yet this may overstate how Publian the Publian moment was. Even the Constitution of 1787 did not represent a total revolution of American political institutions. There are few of its features that are wholly innovative and that cannot be traced to earlier colonial forms. Publius is, moreover, hostile to constitutional reforms based on overheated rhetorical appeals to democracy and the rights of the people.

We are in the early days of a populist presidential administration elected on such appeals. Not only that, several U.S. states whose politics are not generally hospitable to Levinson’s have passed resolutions calling for an Article V convention. Does their having done so chasten his ambitions for less mediated popular rule?

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