The Preamble to the Constitution has an important but limited function in constitutional interpretation.
“The king is dead. Long live the king!” This seemingly contradictory proclamation made upon the death of a monarch encapsulates the theory of the “king’s two bodies.” The medieval concept differentiated between the king as a physical human being, mortal and capable of error, and the king as the body politic, “a Body that cannot be seen or handled, consisting of Policy and Government, and constituted for . . . the Management of the public weal,” as Elizabeth I’s lawyers put it. Upon the death of the old monarch, this public body immediately took residence in the new king, along with his physical presence.
In his recent book, Compromise and the American Founding: The Quest for the People’s Two Bodies, Alin Fumurescu argues that the notion of “two bodies” extends far beyond the age of kings. Assistant Professor of Political Science at the University of Houston, Fumurescu makes a strong case that the American founding—stretching from the Puritan settlements to the Civil War—can be understood as an extended working out of two rival conceptions of “the people” which reflect these same conceptions of the king.
The People’s Two Bodies
The first body corresponds to the physical body of the king: the people conceived of as a collection of equal individuals, united for their own interests and moving, as Locke put it, “whither the greater force carries it,” i.e. by the majority. This body generally reflects liberal social contract theory. Because of its reliance on majority rule, this is generally what we mean when we refer to the majority or the many (contra the elite) as “the people.”
The second conception sees the people as a “corporation, hierarchically structured, ruled by reason for the sake of the common good.” This is the more classical conception of a people as a whole greater than and, in some ways, more important than the parts that make it up. This unified, corporate body relies for guidance not on the majority but on a natural aristocracy, capable of seeing beyond individual self-interest.
Fumurescu’s thesis is that the development of American politics from the Puritans to the Civil War can be understood as a centuries-long grappling with these two competing, but equally essential, conceptions of the people. Ultimately, some sort of balance between these two was necessary to prevent either one from straying into dangerous territory. The corporatist conception of the people always threatens to devolve into “unchecked power” and rule by corrupt leaders; the liberal conception of the people threatens to devolve into a “licentious mob.” We see this most clearly in the Constitution’s ratification debates, in which Federalists worried about mob rule, while Anti-Federalists worried about an unchecked ruling class. Each seized on a different conception of “the people.” Understanding this balance helps us to weave together many partially correct narratives about the founding.
A balance between these two conceptions was reflected in the Puritan covenantal theories. They conceived of the people as having been formed by an agreement among free and equal individuals. That same group of individuals was seen as capable enough to choose their leaders, but when it came to actual governance, the corporatist conception of the people took over. The people were expected to choose from among themselves the natural aristocrats whose task it then became to guide the unified ship of state. John Winthrop captured this dual conception in addressing the people in his Little Speech on Liberty: “It is yourselves who have called us to his office, and being called by you, we have our authority from God.” While acknowledging the right of the many to choose their leaders, he nevertheless sees it as a natural, divinely-sanctioned rule that the best should govern the polity.
The American people, he argues, never lost this dual character, though from time to time one version gained prominence over the other, or the relationship between the two shifted. We can therefore follow this story of the people’s two bodies to help understand the underlying sense of political identity behind colonial charters, the Revolution, the formation of state constitutions, the adoption of the Constitution, and the various attempts to compromise as the Union headed toward civil war.
The connection between these two bodies and the book’s other main theme—compromise—is not as simple as one would like (though good, historically sensitive accounts rarely are). Despite its titular priority, compromise almost seems to be the secondary theme of the book. It’s not entirely clear why or if these two ideas must be examined together, and their relationship to one another can sometimes be foggy.
The liberal conception of the people is founded in a compromise between competing interests (the social contract), but compromises made in the process of governance are fleeting and difficult to maintain, given the shifting nature of democratic majorities and the inherent inequality between a majority and a minority in democratic societies. This version of the people is born in compromise but prevents future ones.
The corporate conception of the people is a bit more difficult to pin down. At one point, Fumurescu says that “under republican premises [which are characteristic of the corporatist model], compromises are difficult to arrive to, yet once the agreement takes place, chances are they will be long lasting.” One could see how the corporatist model makes internal compromise more difficult because it seeks a consensus, “concurrent majority” which can speak for the entire society taken as a whole. Compromise with those outside of the perceived “people,” moreover, is even more difficult as it is seen as a foreign threat to unity. Elsewhere, however, he states that this model “naturally promotes consensus and compromise” because it sees “the people as a proper political body for whose health all parts, large and small, ought to be tended to.”
Generally, he presents the corporatist model as making internal compromises more likely, but compromises with outsiders less likely. We might elaborate and note the extent to which the corporate conception of the people—and its ability to promote internal compromise—may depend on the existence of commonalities and shared community bonds. These may be similarities of interests and way-of-life, or the less immediate “mystic chords of memory” which bind a people together.
A good example of how the conception of the people relates to its ability to compromise is Fumurescu’s treatment of the American revolutionaries. The Revolution, so often explained in simplistic social contract terms (which do not remotely fit the historical reality), was actually spurred on by a shift in the corporatist conception of the people, which made compromise with Parliament less likely. Each colony, as its sense of unity increased, became less inclined to allow the “outsiders” in London to have a say in internal governance. “Unsurprisingly, the more homogenous the colonial identity, the less the colonists were willing to compromise with the metropole,” he notes, specifically pointing to the belligerent attitudes in Virginia and New England, both of which had seen the development of strong colonial—and American—identities.
Given the power of this conception of the people, the questions of the 1760s and 70s were more about who rightfully governs the people (a question having to do with the “political contract” between king and people) than they were about the creation of a new people (having to do with the liberal social contract). This can explain how the colonists adopted the royalist tendencies outlined by Eric Nelson, only to immediately discard them in 1776 once the king “unkinged himself” by failing to promote the good of the people. The corporate peoples were not disbanding to create a new nation, but were demanding a new hierarchical order of governance as a result of the perceived failures of the old one.
Communities of Communities
Layered on top of this conception of the people’s two bodies, of course, was the other—more obvious—debate about whether there was a single, united “American people” at all, or whether there were not several different “peoples” of each colony and state. (This idea of a “community of communities” even extended down a further level, as some early state constitutions “continued the colonial practice of representing corporate people instead of individuals—towns in New England, counties, or both counties and towns elsewhere.”)
The 1643 “New England Confederation,” which Fumurescu argues is unjustly ignored, as well as the 1777 Articles of Confederation took a corporatist view of the people of each colony/state, thus seeing each state as equal and deserving of equal representation (though he does insist that the seeds of a corporate American people might be seen in the Articles). The Constitution, he argues, brought about a “major change” to this understanding.
Fumurescu emphasizes the attempt by some to forge a national “people” when adopting the Articles of Confederation, but ultimately sees that document as representing a “community of communities,” a social contract—but one between free and equal communities rather than individuals.
He presents the Constitutional Convention as a fulfillment of the aborted nationalist hope. The famous compromises in Philadelphia were made possible, at least in part, because the delegates (at least those that would become Federalists) embraced a national identity that valued compromise for the greater good. As little known delegate William Pierce remarked, “tho’ from a small State he felt himself a citizen of the U.S.” With a national attitude, compromise was not a matter of tit-for-tat among separate societies, but could be a genuine search for the common good. Here one might reasonably ask whether the attitude of the delegates or the legal framework of the convention—which voted by state, ratified by state convention, and could not force a state to adopt the final product (all reflections of a sense of corporate state identity)—was more important. Even if one sees the convention as nationalist in outlook, moreover, the Federalists had to take a more middle-ground approach in the ratification debates to make their changes palatable to most people, who remained stubbornly attached to their states.
The final chapter covers compromises and the breakdown thereof as the Union headed toward civil war. Among other interesting insights, he examines two rival conceptions of compromise promoted by Henry Clay (the Great Compromiser) and John C. Calhoun (who identified compromise as the preservative element of every constitutional government). The former sought to create a spirit of compromise within national institutions, reflecting a national, corporate identity for the American people. The latter viewed the states as separate, corporate identities, and sought to formally constitutionalize mechanisms that demanded compromise, reflecting a contractarian conception of the American people as a “community of communities.” Perhaps Calhoun insisted on this firmer, constitutional remedy because compromises are so much more difficult with those seen as outside the corporatist whole, which he identified with the state. As the “chords of affection” wore down, of course, compromise became less and less tenable, both in the North and South, and the debate over the American people was settled with the sword.
A Novel Approach to the Founding
One common tension in many “American founding” discussions is the desire to present a definitive set of actions as the capital-F Founding, while at the same time recognizing (if one is historically honest) that there were developments coming before and after that were important, even essential, to defining America. For example, if you say that America was founded with the Declaration of Independence, you must find a way to account for the essential changes brought about by the Constitution. If you say the Declaration and Constitution combined constitute the founding, you are left to grapple with the formative colonial period, the Jeffersonian revolution of 1800, or of course, the fundamental changes brought on by the Civil War. This gives rise to never-ending discussions of “refoundings” and “completions” of the founding.
Fumurescu’s account presents the founding as a historical process, rather than a moment: a people (or peoples) working out their relationship to one another—consciously or unconsciously—and determining the structures of authority appropriate for governing the body politic. As such, the American founding was “more fortuitous than the actors and the promoters of American exceptionalism had (and oftentimes still have) in mind.” Perhaps “accident and force” aren’t ever altogether absent from the political choices we make.
The book is not a light read, and is suited best for scholars of the founding era. It weaves together many various themes from Puritan theology of personhood to virtual representation to the development of partisan government. As the thesis acknowledges, the underlying differences about “the people” are often buried under layers of rhetorical and theoretical expostulations on more “surface-level” topics. As such, it can be difficult to follow through the dense historical jungle that the book traverses.
The thesis is compelling. It hits on two fundamental political truths that are in a degree of tension with one another: One is the observation that “the people” is made up of individuals and is meant to promote the good of those individuals. Nevertheless, a body politic is something more than a joint-stock company, aiming only at individual advancement and governed by the majority. The ideas expressed by the most cogent political thinkers—especially those committed to popular rule but nonetheless concerned about the dangers of majoritarianism—typically recognize these dual truths. It is useful to study the founding era from this perspective.
One is nevertheless left with a sense that perhaps the book bites off more than it can chew. Such a broad and all-encompassing thesis cannot be fully demonstrated in 250 pages. This is especially true of the discussion of the Constitution and the antebellum era, two topics that have been so exhaustively studied as to likely require an entire book dedicated to each.
Fumurescu has convincingly shown that “the people’s two bodies” is a productive approach to many of the issues that defined American development. As we enter a time when honest, non-ideological assessment of America’s past is becoming more difficult to find, this is a valuable contribution.