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Should James Ceaser Ditch His “FED 49” License Plate?

Professor James Ceaser of the University of Virginia has recently published an article and a video conversation with Bill Kristol on the significance of the appellation, “founder.” Who exactly deserves that title, and why, are interesting questions. In teaching my American government courses, I enjoy discussing with my students the difference between “framers” and “founders”: all framers of the U.S. Constitution are founders, but not all founders were framers. Thomas Jefferson is a founder who was not a framer (he was in France at the time of the Constitutional Convention); George Washington is a framer and a founder, since he was present at Philadelphia and at almost every stage of the founding game. Ceaser defines founders as either the leaders involved in the Revolution of 1776, or the writers and defenders of the Constitution of 1787, or the political actors involved in enshrining the Constitution in the Washington Administration. I, following Mike Uhlmann’s example, would extend Ceaser’s last category to include Chief Justice John Marshall as a founder.

A key insight Ceaser offers is that none of the people in the 1787 Convention considered themselves as “founders” at the time. Ceaser argues that came later, during the ratification debates. As it turns out, the concept of “founder” was first applied to the Constitution writers by James Madison himself, in Federalist 38. Madison claimed there that a founding involving the collective wisdom of multiple founders, rather than the wit of just one individual founder, truly sets the American founding apart from the ancient foundings of Athens, Sparta, and Rome described in Plutarch. Madison’s practical recommendation in Federalist 38 is that the miracle at Philadelphia should be locked in place and unamended for as long as possible, due to the “great imprudence of unnecessarily multiplying” such experiments.

The logic of “locking in” is most connected with Federalist 49, a document that Professor James Ceaser appreciates so much that he has bought vanity license plates with FED 49 printed on them. Federalist 49 is perhaps the most “conservative” of the 85 papers; it’s where Madison explains the reasons why he thinks it is prudent to keep around a good Constitution (pace his friend, Thomas Jefferson!). The reason is this: it’s a fact that humans have a tendency to venerate what is old and has been around for a long time, whether it be an old person or an old Constitution. It makes us feel as if veneration for the Constitution is the popular thing to do, because so many people before us were doing it. That veneration and respect for the rule of law is a very good thing, as long as it is a good Constitution being venerated. The veneration we have for the “founders” has added something important to our veneration of the U.S. Constitution itself, Ceaser argues.

In the year 2019, there are some conservatives who question whether veneration of the Constitution is the right attitude to have now. Their argument is that the current Constitutional system, with its unlimited powers to regulate and its delegations to unelected bureaucrats, is qualitatively different than the system put in place by the founders. In his review of John Marini’s new book, Unmasking the Administrative State, Michael Anton claims starkly that “the United States is not now, and has not been for some time, a constitutional republic.” It is of course true that although principles we glean from the Federalist Papers are still valid because they’re rooted in human nature, many of Publius’ practical recommendations are clearly wrong for 2019, as Yuval Levin has pointed out. This finally brings me to the important question I raised in the title: should James Ceaser ditch his FED 49 license plate?

My suggestion is that Ceaser should keep it, but for his next car he should buy a plate that reads “LAST TRUMP.” This would initially cause drivers to think of our President, Donald Trump, but if they Googled it further they would discover the conclusion of Abraham Lincoln’s speech “The Perpetuation of Our Political Institutions” (also known as the Lyceum Address):

Reason, cold, calculating, unimpassioned reason, must furnish all the materials for our future support and defence… that, during his long sleep, we permitted no hostile foot to pass over or desecrate his resting place; shall be that which to learn the last trump shall awaken our WASHINGTON.

In his video with Kristol, Ceaser humorously claims that Lincoln’s Lyceum Address was “Federalist 49 on steroids.” That speech to the young men of Springfield, Illinois in 1838 acknowledges the power that time and veneration have bestowed on the Constitution, but I would argue Lincoln’s speech brings out something Ceaser doesn’t mention The veneration Lincoln seeks for the Constitution is veneration of a high order. It is the sort of veneration offered by people who have talent, who have ambition, who could easily apply their cold, calculating reason to plot against the Constitution and try to become founders themselves; but these people too are called to try and save the founders’ Constitution. It is plausible to think that Lincoln saw himself as one of the “the family of the lion, or the tribe of the eagle” who was tempted to subvert the Constitution to become a founder, either “at the expense of emancipating slaves, or enslaving freemen.” But Lincoln remained loyal to the Constitution, because he believed that the Constitution was inseparably connected with the truths of the Declaration of Independence.

The Declaration’s philosophy of natural rights Lincoln’s trump-all reason for venerating the Constitution. Lincoln even saw the Declaration philosophy as a possible inspiration for recent immigrants to venerate the Constitution, people who had no chords of memory to the battlefields and patriot graves of the American Revolution (to borrow a phrase from Lincoln’s “First Inaugural”in 1861). As Lincoln put it in his 1858 “Speech at Chicago,” immigrants with no family connection to the “men of iron” of the American Revolution can still claim the natural rights philosophy, “as though they were blood of the blood, and flesh of the flesh of the men who wrote that Declaration… and so they are.”    

John Marini interprets Madison’s Federalist 49 to demand a similarly high sort of veneration. The veneration we owe the Constitution in 2019 is not some blind prejudice, or simply based on a sociological cause, or undiscerning. He writes:

[C]onstitutionalism requires an enlightened or rational defense of free and limited government (see Federalist 49). Hence, [Madison] recognized the importance of a liberal education in terms of perpetuating an understanding of the principles of nature and reason… neither Washington nor Madison could have known that the so-called enlightened or learned in the academy and university would turn against those ‘treasures of knowledge’ of which Washington had spoken.

The lesson we ought to take from Ceaser, Marini, and the other smart friends of the Constitution in 2019 is this: forget about venerating the fake Constitution taught in elite law schools, and remember to venerate the Constitution of the founders’ philosophy.

Note: The author would like to say a special thanks to Ken Masugi.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on April 30, 2019 at 13:28:03 pm

I didn't recognize Federalist No. 49 from the article - perhaps a different paper was in mind?

The point of Federalist No. 49 is simply this:

1. Thomas Jefferson drafted a proposed Constitution for the STATE of VIRGINIA which provided (in part) that a convention should be called if two of the three branches of the state government wanted to alter the State Constitution or correct breaches of it.

2. Madison's entire paper is devoted to showing the "insuperable objections" against the convention route to address violations of the Constitution by government. The points Madison makes in No. 49 are these:

a) If 2 Branches of the State government combine against the 3rd, they couldn't have a convention.

b) The people aren't philosophers - they tend to believe what others believe. Governments find it an advantage to have the prejudices of the people on their side.

c) Conventions are dangerous. The federal convention of 1787 was unique because the people had confidence in their patriotic leaders; they all wanted a government which was different from English rule; and party politics weren't there to corrupt the formation of the new federal government.

d) The legislative branch is the branch which tends to seize power at the expense of the other branches. But that branch is the most closely connected to the people. So people would side with that Branch. So a convention wouldn't solve the problem of legislative encroachments against the other two branches.

e) If there is a convention, the legislators who caused the problem would get themselves seats at the convention and so would be in a position to control the outcome of the convention.

f) Public opinion can never be expected to turn on the true merits of a question - public opinion is formed by partizanship, and people follow what influential people tell them. Passions, not reason, control people.

g) Mere declarations in a written constitution are not sufficient to restrain the branches within their legal powers.

So! Conventions ["occasional appeals to the people"] are neither proper nor effective to restrain government when it encroaches on the powers delegated to it.

3. Perhaps the fellow who had the license plate reading "FED 49" meant, like future Chief Justice John Jay, to warn of the "extravagant risques" of an Article V convention.

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Publius Huldah
on April 30, 2019 at 13:59:38 pm

“Fake” Constitution? Good grief. The Declaration is not even mentioned in the Constitution and is barely mentioned in the Federalist Papers. The Claremont theory is the “fake” version of constitutional law. https://theimaginativeconservative.org/2017/10/harry-jaffa-demise-old-republic-barry-shain.html

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Mark Pulliam
on April 30, 2019 at 21:59:38 pm

Well, it sounds like we have a lot to disagree about Mark- but I'm at least glad you adopted a form of my phrase "fake Constitution" in your critique of my article. I'm hoping it catches on

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CJ Wolfe
on May 01, 2019 at 07:24:31 am

Harry Jaffa single-handedly invented a pernicious fiction that generations of acolytes have credulously adopted. https://misruleoflaw.com/2019/04/17/bad-originalism-harry-jaffas-toxic-constitutional-legacy/

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Mark Pulliam
on May 01, 2019 at 08:54:54 am

The Declaration of Independence is part of the Organic Law of our Land: http://uscode.house.gov/browse/frontmatter/organiclaws&edition=

The Northwest Ordinance and the Articles of Confederation were superseded by our Constitution of 1787 - so our "organic Law" now consists of the Declaration of Independence and our Constitution of 1787.

Our Declaration of Independence lays out the Principles which are implemented (more or less perfectly) in our federal Constitution. Primarily, that the purpose of government is to secure the Rights God gave us. Each of the enumerated powers delegated to the federal government over the Country at Large secures a specific God-given right. If you are interested, I can show you.

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Publius Huldah
on May 01, 2019 at 12:00:56 pm

This is all correct, Publius Huldah. The part of Federalist 49 that I and I think Jim Ceasar were referring to is Madison's excursus on your point "f." I didn't include this paragraph in the article, but Madison writes:

"The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ANCIENT as well as NUMEROUS, they are known to have a double effect. 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. The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied."
http://avalon.law.yale.edu/18th_century/fed49.asp

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CJ Wolfe
on May 01, 2019 at 23:54:37 pm

Lincoln never seemed to care about the constitution and would fit very well into today's legal mindset that the ends justify the means. In fact, for everything Lincoln said in support of the Constitution I would argue you can find another writing of his that contradicts. Much of the reason for southern succession was specifically that they realized that Lincoln was two-faced and couldn't be trusted.

As far as the Constitution is concerned I relate it loosely to the ten commandments. There are many interpretations of the Ten commandments but essentially all those who believe in them come to the same basic conclusions. Because they are unchanging there is freedom in knowing what the rules are.

If we allow ourselves to follow the legal "scholars" of today and believe the law should not get in the way of accomplishing a goal then we are not unlike any (other) thief or murderer who ignores the law. Our Constitution should be an unchanging guide for our Country.

WE played with adding prohibition and then removing it. WE had to add special provisions explaining who is a person and now many want to start adding specific categories of people. Why?

We have Justices who have really mucked things up by ignoring the Constitution and writing opinions that achieve their pre-desired goals (Ginsberg, Stevens). Now the Supreme Court, which was never expected to be supreme in the Constitution, has to try to figure out how to unravel all these bad decisions and come up with a correct reading of the law. At least we finally get rid of the argument that Stare Decisis is not breakable.

I think the constitution should be considered as it was when ratified. This gives everyone a level playing ground. Amend it at your peril. Allowing second-rate lawyers (CLS) to become justices should never happen.

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Arthur

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.