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Publius’s Constitution, Now More than Ever

with Colleen Sheehan,
hosted by Richard M. Reinsch II

Richard Reinsch:

Hello, I’m Richard Reinsch, and welcome to Liberty Law Talk. Today, we’re talking with Colleen Sheehan about Publius and how he contributes to our knowledge and thinking about American constitutionalism. Colleen Sheehan is a master teacher of the American founding. She’s also an excellent scholar of James Madison with two books on his thought, one James Madison and the Spirit of Republican Self-Government, and The Mind of James Madison. She’s the Director of Graduate Studies at the Arizona State School of Civic and Economic Thought and Leadership. We’re glad to have her on the program today. Colleen, thank you so much for joining us.

Colleen Sheehan:

Thank you for having me Richard. Happy to be here.

Richard Reinsch:

Great. So the occasion of the interview is Publius, but you’re the co-editor with Jack Rakove of a new book just out, a collection of essays called The Cambridge Companion to the Federalist, which has 16 essays from leading scholars on the Federalist Papers and on Publius’ thought from a range of great contributors. You, Greg Weiner, Paul Rahe, Harvey Mansfield, and others. It’s a wonderful volume. As I was reading it, the first question that comes to mind, and maybe for our listeners, and it’s a simple question but a complicated question as you flesh out in the introduction, who exactly was Publius, and why do we need to understand him?

Colleen Sheehan:

Well, as you know, a lot of folks today probably think we don’t need to understand him. He’s just some dead white male, or maybe dead white three males, some trio of dead white males, that have outmoded ideas that have nothing to do with our nation today. And that’s, of course, one perspective on the American founding and America’s past that maybe what happened in the past in America should stay in the past, and that we are a new and better nation. That’s not my view. I suppose I wouldn’t have spent my time since about 16 years old studying these things if it were my view. I discovered the founders actually at a fairly young age, and thought that there was something more than history going on when I read Jefferson and Hamilton and Washington and Madison. These were people who actually thought that there was something about politics that was ennobling, or that at least it could be. It certainly hadn’t always been, but that it could be. And what I think Publius was up to was looking at the history of the world as a history of the struggle of human beings to live in freedom, to not be governed by somebody else for somebody else’s purposes.

Richard Reinsch:

There’s that famous opening in Federalist 1 that I thought we could talk about because I think it encapsulates their project, and that is … We should also talk about who Publius is, too. But the Federalist 1, can we found a republic on reflection and choice versus with accident and force, those two different contrasts. What would it mean to Publius to forego instituting this new constitution on reflection and choice, or failing to do so?

Colleen Sheehan:

Ah, well, I mean I think it means everything. We either do it on the basis of reflection and choice, or we don’t do it at all. When Hamilton says that in Federalist 1, that it seems to have been reserved for the people of this country to decide the important questions, whether societies of men are really capable, or not, of establishing good government around the basis of reflection and choice, or whether they’re forever destined to depend for their political constitutions on accident and force? It’s almost the opening salvo of the Federalist Papers. What that is is really the answer to what Publius says in Federalist 39, that only a republican form of government would be acceptable to the genius of the American people, to the principals of the American Revolution. Because, of course, the American Revolution, and the Declaration of Independence, declares that all just government, all legitimate governments, are based on the consent of the governed. And all governments not based on the consent of the governed are not legitimate, not truly popular, not truly republican governments. And so, it has to be on the basis of reflection and choice. You’ve got to try it, and you’ve got to get it right, or you’ve really not succeeded in anything that the American founding is about. So when Hamilton’s writing Federalist 1, he doesn’t know if it’s going to succeed right? This is the first Federalist paper, and they’re going to be many afterwards, 85 of course in total, written to the people of the state of New York, a state in which it was not at all clear that the federalists would beat the anti-federalists. And if they didn’t win in New York, it was likely that the constitution would fail, we would not have a new constitution. There might not, in a few more years, be anything called America. So it meant everything, Richard.

Richard Reinsch:

The reflection in choice, but one never gets a pure choice. What events have sort of forced them into this move? First, the Philadelphia Convention, and then this sort of attempt to have a theoretical exposition of the document that’s come out of that convention. But they did change. They are proposing a complete change to the Articles of Confederation, with some, we can go back and forth about the legality of what they’re doing, but they do believe it’s called for by circumstances. And some seem, the anti-federalists as they coined them, unwilling to go along with that. Maybe just talk a bit about the claim that the accident and force would come about if they’re not listened to and the anti-federalists are sort of allowing this experiment to be open to accident and force?

Colleen Sheehan:

Ah, wow what a great question. Yeah, it would be a kind of drifting. And so we wouldn’t deliberately form a new government, and the economic situation was so bad, inflation was so high. You know, the phrase, “Not worth Continental,” was pretty popular in those days. Widows and orphans of the schools or some war didn’t have enough money to live. We all know about Shays’ Rebellion, and they prevented the courts from sitting so that they couldn’t foreclose on the farmers’ mortgages. And then they’d be sent to debtor’s prison, and then their families would probably not make it. And so the situation was dire. And some of the anti-federalists tried to downplay it, but everyone knew that major changes were absolutely necessary. When Madison says later on in the Federalist Papers, really addressing the question that you just posed and one that the anti-federalists brought up quite a lot, that the convention was not authorized to make these kind of changes. It’s kind of an entirely different, new constitution, on a new basis because it’s not on the basis of state sovereignty anymore, it’s on the basis of popular sovereignty. And so it would be like the UN reorganizing itself so that it would be the sovereign nation of the world. It’s a pretty big change. And the anti-federalists tried to downplay how bad the situation is, but they know it’s bad. And so Madison says later on in the Federalist Papers that this is a question necessity forms, just have to give way when it’s an issue of necessity in politics.

Richard Reinsch:

And they’re also, by calling for state ratifying conventions, there is the element of popular sovereignty here. I mean you could criticize them on the rule of law, but it’s a question they’re willing to pose to the peoples’ representatives.

Colleen Sheehan:

Right. And so the constitution’s nothing but a dead letter until life is breathed into it by the ratification of the people of the Federal States of America. So all it is is a proposal coming out of the Philadelphia Convention on September 17, 1787. It’s a pretty important proposal, and it’s got the weight of people like George Washington behind it which means everything. But nonetheless, it doesn’t carry any force of law. It’s simply a proposal. And it has to be ratified by nine of the states until it can go into effect. And of course when it’s ratified by nine of the states, it’s only in effect in the states that ratify it because the authority comes from the people in federal states.

Sara Jay kept very nice notes about all of her dinner parties. And there was a dinner party about a week before the first Federalist Papers came out. And interestingly enough, it was all men, which is very unusual. But Hamilton, Jay, and Madison are all at that dinner. Now there are others there, and of course it’s a secret who Publius will be, and they know this is not something told to others, so presumably they don’t talk about this at dinner. But they must’ve huddled in a corner at some point, I mean how could they not have with their plans for this coming out? 

Richard Reinsch:

Now you mentioned the New York Ratification Convention and the motive for the Federalist Papers, an immediate motive to influence their deliberations. That’s sort of a question, and it’s one I asked at the beginning, Publius is Alexander Hamilton, it’s James Madison, and to a lesser extent John Jay. How do they come together to do this and to sound, although we can find differences in their arguments throughout the Papers, people have pointed out contradictions to me, but at the same time they sound remarkably similar and on point? And these are three people, different people, different experiences, different ideas, and they come together to do this. Talk about that.

Colleen Sheehan:

Yeah, well it’s the brainchild of Alexander Hamilton, which makes a lot of sense of course. He’s from New York, not originally of course. He’s from a little, little tiny island. Only 30-something square miles in the Caribbean called Nevis, which is down by St. Kitts, but moved to the United States when he was a teenager, and actually at some point in his life says, “What, am I the only American here?,” when people are thinking of themselves of Virginians or New Yorkers or I guess Delawareans, is that a term? Hamilton always thought nationally, yet he lived in New York. Of course he intermarries with the famous Schuyler family of New York, we all know that now because his play and the Schuyler sisters, very prominent family from actually a place down by Albany called Schuylerville. And where I am right now in upstate New York on Lake Champlain, I look out my window and I see an island called Schuyler Island. Great fishing over there I hear from the folks around here who like to fish.

Anyway, so Hamilton had been at the convention with two other delegates from New York. And the other two delegates, John Lansing, and Robert Yates, were very good friends of then Governor of New York George Clinton. And these guys were big fish in the pond of the state of New York, and they did not want any major changes to the Articles of Confederation. They wanted New York to keep the power that New York had. And New York was successful. New York had New York City. New York had financial successes that were happening in the United States. But they could strong arm states like New Jersey and some of the smaller states, and they didn’t want to lose that power. So at the constitutional convention, Hamilton was always outvoted by Lansing and Yates. And when they go back home after the constitution-

Richard Reinsch:

And you voted by you state, you had one vote per state.

Colleen Sheehan:

That’s right. And so New York went with Lansing and Yates until actually Hamilton left and then they left, and so New York wasn’t even there for a while. But Hamilton returned at the end to sign the Constitution. So he starts the effort in New York to advocate for ratification of the Constitution with Lansing, Yates, George Clinton, and a group of very powerful people who became part of the anti-federalists cause on the other side. So he tries to enlist a number of people to help him, but he’s not successful with some of the folks he asks. Besides Jay, and originally Jay was supposed to do a lot more of the writing than he did. He became ill and ends up only writing five of the 85 papers. So ultimately Hamilton asks a Virginian, James Madison, who agrees to do it. Now interestingly enough Richard, just about a week before the publication of the first Federalist Paper in October of 1787, I went back and looked at this, John Jay’s wife was from New York down in Westchester County. Sara Jay kept very nice notes about all of her dinner parties. And there was a dinner party about a week before the first Federalist Papers came out. And interestingly enough, it was all men, which is very unusual. I mean this is not polite company, wouldn’t be considered polite company. But Hamilton, Jay, and Madison are all at that dinner. Now there are others there, and of course it’s a secret who Publius will be, and they know this is not something told to others, so presumably they don’t talk about this at dinner. But they must’ve huddled in a corner at some point, I mean how could they not have with their plans for this coming out? So wouldn’t you have liked to be a fly on the wall at that dinner party?

Richard Reinsch:

Yeah. I mean you think about coauthored pieces, how those sometimes get worked out rather quickly.

Colleen Sheehan:

In the beginning, they tried to communicate as much as they could sending sometimes essays to each other, and trying to get things done in advance. But as we all know who’ve been students, and especially those who’ve been graduate students, that ends pretty quickly. And things get ahead of you and you’re writing late at night to complete the deadline the next day, and that’s exactly what happened to them. So the actual original plan that Hamilton lays out in Federalist 1 isn’t precisely followed at all as time goes on. I mean Jay is unable to write some of the essays that he was originally slated to write. And just the pace that they were following to get these essays done and into print, it’s amazing that the work is as coherent actually as it is given the difficulty there. And especially in speaking with one voice. This is one of the questions that Jack Rakove and I ask in this volume. One note about Jack, Jack is an historian, and Jack is-

Richard Reinsch:

Jack Rakove, your co-editor?

Colleen Sheehan:

Jack Rakove yeah, from Stanford. He’s a Madison scholar, a founding scholar. He is a smart, witty, what a pleasure to work with him on this volume. It was a constant going back and not just about getting things done, but talking about the ideas and really, in our correspondence, I think the founding for us during that period of time was very much alive. But Jack and I have different views on a number of things, and one of them is whether we should call the author of the Federalist, Publius, or whether we shouldn’t do that because it’s really three separate people and we should always talk about them in terms of Madison, Hamilton, and Jay. Now I’m fine with it both ways. I like country and western. But Jack, as an historian, really didn’t like the idea of referencing them as Publius. And I said, “Well let’s not standardize this throughout the text. Let’s let folks do it how they want to approach it,” and Jack agreed to that. And so the volume reflects both, those who want to take the Federalist author at his word. I mean every essay is signed Publius. They deliberately chose to speak in one voice, even though they didn’t agree on everything themselves. They certainly did not agree on everything themselves. And there are things that … When Madison has to write about the Senate, it’s difficult for him. He and James Wilson almost wanted to go home on July 16th because they were so incredibly upset about the Great Compromise. They thought it was an anti-republican compromise. Madison could not have been more disappointed in that, yet he’s the one that writes about the Senate and has to try to defend that it’s based on equality of the states.

Madison says in one of the Federalist Papers, “Think about not from whom the advice comes, but whether the advice be good.” And so they really did set a very high standard for political discourse, even though it’s political discourse about a particular cause at a particular moment in history. Jefferson called the Federalist Papers, “The best commentary on the principles of government that was ever written.”

Richard Reinsch:

Some have said, and this I think leads to a broad question, the Federalist Papers, really what you need to read are the convention notes, and there are various versions of those. But that’s really where you learn about the constitution. And the state ratification debate notes, which we now have like a 14 volume edition out on each state’s ratification debate, including press coverage of the debates, contemporary press coverage. And the Federalist Papers are something else that’s been overemphasized, but I think that leads to a question, which is what does Publius add, contribute, to our thinking about the constitution that wasn’t there before?

Colleen Sheehan:

Well it’s the most comprehensive of all the writings during the ratification era by federalists or anti-federalists. As you know Richard because it’s published by Liberty Fund, Jerry McDowell and I put together a book called Friends of the Constitutions, Writings of the Other Federalists 1787-1788, there’s a whole slew of people who wrote to advocate ratification of the constitution. And there’s some very, very fine writing, foreign spectators, just fabulous material. I think that those essays are excellent, and James Wilson, and a number of others. But no one comes even close on the federalist or anti-federalist side to such a comprehensive examination of the principles and processes of the constitution. So what the Federalist Papers adds is people like Justice Story, and still today the Supreme Court not at all unusual to see the Federalist Papers cited in court opinions. It’s an in-depth, rich interpretation of not just the provisions of the constitution, but the meaning and purpose of the constitution. Now that is not to say that it’s pure philosophy, it’s not. It’s political philosophy, it’s very political. It has a political purpose, it’s for a particular cause. But as Publius says in one of the Federalist Papers, one of the reasons I think that they wrote anonymously, somebody asked me this just the other day, “Why did they write anonymously? Were they trying to hide something?” Well first of all of course it’s very typical in the 18th century for people to use pen names. But I think the other reason is that they don’t want to be identified as either partisan advocates for this, and for people to make a judgment just based on whether they like Madison or they like Hamilton or they don’t like them. This kind of idea that factions are often caused by attachment to leaders. You’re pro-Trump or you’re anti-Trump. If Trump is for it, you’re against it, things like that. They were avoiding that. Madison says in one of the Federalist Papers, “Think about not from whom the advice comes, but whether the advice be good.” And so they really did set a very high standard for political discourse, even though it’s political discourse about a particular cause at a particular moment in history. Jefferson called the Federalist Papers, “The best commentary on the principles of government that was ever written.” Pretty high praise.

Richard Reinsch:

I wanted to talk about this essay because to the extent people have read the Federalist Papers, they’ve encountered it maybe in a survey course, and it’s one of the central papers. Although, I’ve been taken by one essay in particular on this in your edited volume on the degree to which the Federalist Papers is about national security and having a strong union in order to protect the country. And I’ve tended to always go past that and go straight to the thinking about constitutional liberty and republicanism in the later essays. But the Federalist 10, famous essay, Madison finds a novel idea, perhaps extent of the republic will help prevent against the vices of minority or majority faction through the instrumentalities of the government. Was he wrong about that ultimately? Has he been proven wrong just through sheer size of government and the ease with which special interests can in fact work against the greater good?

Colleen Sheehan:

This is actually a question that I’ve been trying to myself give some good thought to lately. So I mean his idea, as you know well Richard, is that he sort of turned the small republic argument on its head, and had always thought that you can’t have popular government, government by the people, except in a small territory. Because if it gets large, large nations, and especially empires, are despotic. I mean look at China, look at Persia, look at what happens to Rome when Rome expands. And so there’s hardly … I mean no one disagrees with that until Madison says, “Well but wait. One of the things that a large republic can do is control the violence of factions.” But the only way Madison thinks we can do that is if this large republic is also a federal republic. There has to be small republics within the large republic, so that the tools of self government are still viable. And so federalism is not just a mere compromise for Madison. Federalism is absolutely critical to republicanism. That’s my read of Madison on this.

But this whole idea of states, what state does, is create time for deliberation. And Greg Weiner is the master of this, his book Madison’s Metronome, is all about this idea of time, and how time slows things down. Like what they used to say in the 18th century, “Save your breath for porridge.” Today we say, “Count to 10 before you respond.” That cooler heads will prevail, that reason can prevail over passion, if we can just slow things down. Now I actually think it’s more than just time that’s at work here, that space creates more than time, that what Madison had in mind was that something’s happening. I actually, in the article I wrote for this to Jack Rakove’s chagrin, I quoted Buffalo Springfield that, “Something’s happening here.” There’s something happening in this time of this slowing down. And the processes in place, that Madison envisions in place, have to do with the refinement and enlargement of public opinion during this time, and that there’s all of these mechanisms as well as extra-constitutional factors at work. Representation. Newspapers, the growth of newspapers across the country, has to do with communication and that communication is how we refine and sharpen, hone, moderate our selfish and narrow opinions. Basically it’s a form of civic education, right? This is what civic education is all about, it’s elevating the public view. Now what does that mean today? I think that this made a whole lot of sense in the 18th century. I still think theoretically it makes very good sense.

The problem with our day is that there are things that are equivalent to the contraction of the territory. When folks say today, “The world is a smaller place,” it’s not that the globe has shrunk, it’s that communication is such that ideas, opinions, even passionate ideas and prejudices, can spread rapidly and quickly. And so the rise of factions is once again a problem, especially because the internet in a way that of course it wasn’t in the 18th century. So even though we’re even a larger country now, in some ways we’re smaller, and this makes the possibility of rule by faction once again a problem in America in a way that hasn’t been quite so … I mean it’s always a problem Richard. The solution in Federalist 10 is not a fantasy yet because in the final analysis, if a majority is determined to be factions, the majority makes the law in the end. There’s no substitute for a republican people being dedicated to republican principles.

It’s not an edited book, a political edited book, about how we ought to conduct ourselves and our manners. But it’s all about the idea of what it means to be a free people, the processes that have to be in place to be a free people. And it’s also of course not the government’s job to make us good, or to make us happy. That’s our job. 

Richard Reinsch:

As I listen to you talk about is the world shrinking, and that brings to mind that technology enables people to demand more from the government or to increase their inputs, and to be dissatisfied even with a Congress being able to handle them and wanting immediate redress of things. But that to me suggests there’s another problem here, and it’s a problem that Willmoore Kendall wrote about evaluating the Federalist Papers, which is how do the people remain virtuous. And he had a great essay, The Missing Federalist Paper, where he tries to argue essentially there’s a paper missing here on the nature of the virtuous republican people and how they deliberate. That there was perhaps too much presupposition in the Federalist Papers about republican liberty in that regard, that there’s not their engagement with virtue that needs to happen. What do you think of that?

Colleen Sheehan:

Well that of course has been one of the question that’s been predominant among scholars of the American founding for many years, and the dominant thesis about the founding is that they dispensed with the need for virtue in the citizenry. And instead, they created what might be called a modern commercial republic. This was Martin Diamond’s thesis, lots of folks, that you can have a nation of devils and you could still end up with the public good because of the kind of course/counter course, sort of politics, one vice counteracts another vice. And somehow in the end, you get a common denominator, but the low common denominator. There’s nothing elevated about it. So Martin Diamond called it low but solid. It’s mediocre. America celebrates mediocrity. I just don’t see that at all, I think that’s missing the forest for the trees in the Federalist Papers. Publius is not preaching about virtue.

Processes don’t create virtue. Madison says in Federalist 14 that what we’re doing is foraging not just a new course, but a new and more noble course. And in Federalist 39, he talks about the spirit and the genius of the American people. And then of course he talks about later on in Federalist 55, is there no virtue among us? Well if there’s not, no amount of check can do anything to make this experiment work. So I mean it really is an experiment in self government, the Federalist Papers. It’s not an edited book, a political edited book, about how we ought to conduct ourselves and our manners. But it’s all about the idea of what it means to be a free people, the processes that have to be in place to be a free people. And it’s also of course not the government’s job to make us good, or to make us happy. That’s our job. The government’s job, when Madison says in Federalist 10 that the first object of government, a lot of people mix this up and they think he said the first object of government is protection of property. It’s not at all what he said. He says it’s the protection of the faculties of man from which the rights of property originate. So it’s a protection of our exercise of freedom, the freedom of the mind, and it’s on that basis that we make choices, hopefully based on reflection in choice, that then creates a free country and a free people. It’s not the job of the constitution to tell us how to live our life. It’s not the job of the constitution to tell us how to live our life, it’s our job to make a constitution so that we can live our lives well.

Richard Reinsch:

So with Publius obviously we have these institutional mechanism. Maybe mechanisms isn’t the right word, but processes and procedures to both give government energy that it needs to govern, and also to restrain it, channel it, filter its power. There’s famous discussion in Federalist 63, the idea of auxiliary precautions are needed to protect constitutional liberty and the overall workings of the system, separation of powers, checks and balances, the executive veto. He doesn’t mention judicial review I don’t think, although that comes in later. There’s a later discussion of the judiciary. Are these auxiliary precautions still working? There’s a lot of smart people now talking about how this is just a misguided thing. And the discussion’s been going on for a while that of course people put their partisanship now above say defending the interests of the institution that they’re in. It’s far more important if you’re in the party in Congress that you go along with your president rather than say defend precedence that outlines separation of powers. Was this sort of another misguided notion, or is there something deeper going on?

Colleen Sheehan:

The idea of auxiliary precautions and checks and balances and things like that are are these things still viable today?

Richard Reinsch:

Are they outmoded? Yeah, bipartisanship, yeah.

Colleen Sheehan:

Yeah, great question. Let me back up here just a little bit. In Federalist 51, a paper devoted to these inventions of proving auxiliary precautions that Madison talks about if men were angels, no government would be necessary and so forth. When he talks about these auxiliary precautions by which he means essentially kind of four things in particular. Separation of powers, checks and balances. Within separation of powers, also bicameralism, that separation within the legislative branch. And then finally, the vertical kind of separation between states and nations in the form of federalism. And so he talks about the necessity of these auxiliary precautions, these inventions of prudence. But he also says, which is often forgotten in this essay but, “A dependence on the people is no doubt primary control on government. So what experience has taught mankind the necessity of auxiliary precautions. Still, the primary dependence is on the people.” In other words, on the people, their character, what they believe in, what they cherish, their morals, their mores.

But remember when these bureaucrats take place of the people’s’ representatives, they’re taking the place of the people. It’s a destruction of any possibility of self government. And what is tyranny except the rule of masters over those who must obey, and that’s what the administrative state in America has become.

And so that’s where Publius is always number one. There can’t, as Joe Allen has said so well, there can’t be a republic without republican citizens. And so that’s the forest that’s often missed for the trees by some folks I think reading the Federalist Papers. Of course separation of powers, checks and balances, none of these things are mentioned in the constitution. They’re woven in the processes, the way it’s setup, but the words aren’t there. Are these things outmoded today? Well the progressives think so. This starts with Woodrow Wilson, he really didn’t like Madison’s idea at all. These two Princetonians couldn’t be further apart in their views on government. And Wilson thought it just got in the way of good administrators getting things done. And if Wilson had his way, he basically had public opinion … He thought most people were pretty stupid and that they should be quiet. That’s not Madison’s view. Madison is absolutely … he really was a man of the people in the sense of promoting a reasonable public opinion and trying to find the processes to do that. I think those things are still, separation of powers, checks and balances, bicameralism, still as important and viable today, and necessary if not more necessary today, than they’ve ever been. Look, a lot of these ideas come out of Montesquieu’s Spirit of the Laws. Why is Montesquieu so concerned with these mechanisms and processes of government? Very simply, the prevention of tyranny. Liberty is not safe when all power is concentrated in the same hands or set of hands. And so this is just a truism in politics that these kinds of institutional arrangements are absolutely critical to the workings of a free government.

Richard Reinsch:

Question for you. How would Publius respond to the creation of our modern administrative state? How would he respond to … I mean you see in the conservative legal side there’s constant talk of the non-delegation, a doctrine that this is automatically unconstitutional. Progressive scholars would say, “No, there was actually a delegation near the founding.” But apart from all of that, just the administrative state holding these three powers in its hand seems to me, as I read the Federalist Papers, the definition of tyranny. And a lot of smart people writing about how to curtail this, a lot of smart people writing about reinvigorating Congress with its powers, and nothing really seems to happen.

Colleen Sheehan:

Yeah. I mean I think for Madison and Hamilton and Jay, Hamilton might not be quite as vehemently opposed as Madison, but even he would be opposed because these guys are not elected, and they are running the country. John Marini has done such a great job on this subject. Congress has advocated its responsibility to rule. I mean they are supposed to be making the law, which is the most important function of government. None of the others can do anything until there’s some kind of law to be enforced and interpreted. Yet they’re not doing it. They’re allowing these bureaucrats, these nameless, faceless, unelected people, to basically take the place of the people’s’ representatives. But remember when these bureaucrats take place of the people’s’ representatives, they’re taking the place of the people. It’s a destruction of any possibility of self government. And it is what is tyranny except the rule of masters over those who must obey, and that’s what the administrative state in America has become. When David talked about the veracity and kind of an iron cage, and Ralph Lerner wrote a piece once where he talked about, “Shaking the iron cage,” and don’t you feel that way sometimes? I mean who doesn’t in America today with the government is just one aspect of this? This mentally has seeped through our country. I mean it’s in universities. Everything has become the DMV, where nothing is possible to get done without lines that are enormously long with people standing behind the counter who don’t even ask can they help you half the time because they’re talking to someone else. I mean this whole business of people ruling your life, and it’s inefficient, and it’s tyrannical, and it’s meant to make us be some kind of unthinking, mindless, not citizens, just kind of creatures who wait to take the next order from the paternal state. Sorry, I get excited about this because I find this stifling, enervating. I think it’s one of the worst things, and it grows more and more. Universities, and especially state universities, are just absolutely … How can Amazon get you toothpaste within 18 hours, but we can’t get a check paid to somebody that we have come speak and give a lecture. That takes two to three months. Why is it so impossible to get these things done?

Richard Reinsch:

No, I’ve asked myself the same question at any number of institutions that I deal with. And even as we think about the lackluster response over basic medical goods and devices in response to the COVID crisis, that somehow it became impossible to find an N95 mask. That was because of the administrative state, most people didn’t realize that, and the licensing procedures of the Food & Drug Administration made that nearly impossible at first. And then of course you’re behind the ball and you need it to generate them. I’ll end with a question that I think about, and I think Publius sheds light on maybe how we should think about. It seems light factually it’s nearly impossible to deliberate about serious questions anymore, not only in Congress but in public. What would Publius make of that? And just given your discussion about time and delay and this idea in the Federalist Papers the cool and deliberate sense of the community, I mean this is sort of republicanism working well, but it doesn’t work well, this part now for us.

Colleen Sheehan:

Before I answer that one, I want to give one example of this whole mentality that goes along with the administrative state of things that can’t be done, it can’t be done. Imagine before the coronavirus. I was just talking with some friends, Zooming with them yesterday about this, and had anybody said at a university, “We all have to go online within the next week,” they would’ve said, “It’s impossible. It’ll take us seven years to figure that out. Absolutely impossible.” But every university within a matter of days managed it. We all just jumped in and did it. I learned Zoom. If I can learn Zoom, anybody can learn Zoom. I’m not very techy. And people just did it because necessity is the mother of invention. It’s amazing what people can do if they give it a shot. These things are not so impossible, and do not need so many committees and so much discussion all the time. So that’s one thing.

Why don’t we deal with serious questions anymore in America? Harvey Mansfield’s chapter in this book is about that, and certainly in terms of the academy and the social sciences, political science in particular. Political science deliberately refuses to deal with the important and serious questions because they can’t deal with any of the questions that have to do with value, which of course are all the important and interesting questions in politics. And so political science has just decided to be kind of a boring, meaningless discipline, and it’s no wonder that people who actually are in politics don’t read anything that political scientists write. I mean it has no relevance to political life.

I don’t think in a society though, Richard, that we have dispensed with the serious questions. I think they’re out there, and I think many citizens are talking about them. And that’s why there’s so much controversy in the country right now because there’s a disagreement about healthcare, about abortion, about marriage, the list goes on and on. These are all questions about justice and how we should live our life. What it means to be human, and what is the role of government vis-a-vis the individual in these kinds of decisions that we have to make as individuals and/or as a society? Politics won’t go away. These questions are there, they’re important. And I think ordinary citizens are dealing with them. It’s true that Congress tries to run away from a lot of these questions, but we have a presidential election. I mean it’s hidden behind a veil of COVID-19 right now, but I think the American people are demanding that those who would be the leader of the United States take up these questions, take a stand on them, and say why they believe one way or another. Joe Biden has recently taken a very different position on the Hyde Amendment than he held previously, and there’s some people who celebrate, and some people who don’t. But either way, his feet are held to the fire on those kinds of questions, just like Trump’s feet have been and will continue to be held to the fire on what he says and he believes.

And what the future direction of the United States is, I think the biggest question for all of us is are we one people? Are we any longer one people? What does it mean to be an American? If Tocqueville came here today Richard, and went around America and observed in that brilliant way that he did back in the 19th century, who would he meet? Who would these people called Americans, what would they be like? What would he think of them? 

Richard Reinsch:

Colleen Sheehan, thank you so much for your time today. We’ve been talking about Publius, America’s republican genius. Thank you so much.

Colleen Sheehan:

Thank you Richard, it was my pleasure.

Richard Reinsch:

This is Richard Reinsch, you’ve been listening to another episode of Liberty Law Talk, available at lawliberty.org.

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on July 15, 2020 at 18:03:33 pm

Ms. Sheehan:
1) Apologies for twice referring to you as “Shaheen” in these pages.
2) Rather liked your position in the “Mind of James Madison” that Madison view Federalism NOT solely as an impediment to Federal “consolidation” but also as a spur to republican sensibilities / governance.
3) In a very real sense, Madison’s appreciation (hope) for federalism and republican virtue was predicated upon his then proper understanding that communications, which in his time were appreciably better or more timely than the past, could (or would) help to limit, and eventually under Legislative amending, refine “public opinion.
4) 4) All this may have been true, at the time. One wonders what Madison’s response would be in our present age of “instant” AND “UN-refined” communications and opinion. This is ever more critical given that, as you (and Marini, et al) suggest the Legislative has ABANDONED / ABDICATED its constitutionally delegated responsibility to legislate and instead appears more prepared to a) eschew decisions, especially controversial ones, b) permit the Executive Branch to fashion remedies, c) further defer decisions or rather policymaking to the Judicial AND, most importantly 4) not only FAIL to *refine* public opinion but appear all too ready to uncritically accept and advance that unrefined opinion.
5) To my mind, this poses a critical and possibly fatal threat to republican sense AND practice and ultimately Federalism itself as ALL opinion becomes subsumed under the vortex, un-refined and unintelligible of mass and instant communication leading ALL levels of governance under a Federalism structure to also submit / accept this un refined opinion.
In any event, enjoyed your book.

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