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Reason Bounded by Experience

To say legislation is not a discretely rational exercise is not to say it is positively irrational. But what of the fundamental law that is often taken to be the apex of legislative reason: the Constitution of the United States?

The work of 55 men in 89 days, it could, for several reasons, be regarded as abstract philosophy made concrete. Publius declares off the bat that the question the Constitution presents is whether governments can be established by “reflection and choice” rather than “accident and force.” British Prime Minister William Gladstone, as Evan Bernick notes, called the Constitution “the most wonderful work ever struck off at a given time by the brain and purpose of man.”

Publius was right. The problem is that Gladstone misread him. Read in isolation, the words of Gladstone—who actually said the Americans and the British “alike prefer the practical to the abstract”—have the Philadelphia 55 engaging in what another British statesman assailed as “the nakedness of metaphysical abstraction”: philosophy detached from the concrete.

Yet Publius is not detached from the concrete. To be sure, he calls for reflection, but reflection on what?

Even reason’s greatest champion at the Founding, Jefferson, manifestly did not advocate it in proclaiming truths that were “self-evident.” Their essence was that they presented themselves to the mind without reason’s intervening. The kind of reflection for which Publius calls is reflection on those kinds of truths. He calls for reflection on experience.  He does not call for the kind of abstract reflection to which Gladstone—again, read in isolation—seems to assume.

The Federalist as a whole is not a work of abstract reason, but not even that—nor the Declaration—is where American politics begins. If Eric VoegelinWillmoore Kendall and George W. Carey are right that political analysis should originate at origins, it starts in America with the Mayflower Compact, a document whose humility is striking.

The soon-to-be settlers affirmed that they will pass such laws as are merely “thought to be most meet and convenient for the general good of the colony”—not the laws that are most meet and convenient. The latter would have bespoken complete confidence in reason, whereas what the settlers say is that they are making their best deliberative guess. They both employ reason and perceive its limits.

The Declaration itself, while it harmonized, as Jefferson later recalled, the “sentiments of the day,” was the culmination, not the cause, of revolutionary fervor. Of course, the colonists were deeply affected by the ideas of the Enlightenment, as they were by the ideas of antiquity (far more essentially a staple of their curricula).

As Donald S. Lutz has shown, in fact the Book of Deuteronomy was the most frequently cited political authority during the Founding period; and among Enlightenment figures, the Baron de Montesquieu, defender of the British constitution, led the way, with William Blackstone—also not a revolutionary—coming in second.

Nonetheless, citations to John Locke—although more often to his epistemological rather than his political writings—are especially common in the 1760s, suggesting that he helped give voice to the American mind and American events. (It is still suggestive that there was no American printing of the Second Treatise until 1773, and not another, Peter Laslett notes, until the 20th century.)

In any event, to say Locke helped give voice to events is flatly different from saying philosophy caused Americans to revolt. It did not, any more than Locke caused, rather than justified, the Glorious Revolution of 1688. In both cases, he helped provide the scaffolding of ideas and words that legitimated and, doubtless, influenced activities that, equally doubtless, were otherwise occurring.

That enhances rather than diminishes the Founders’ achievement. At Philadelphia, John Dickinson told his colleagues:

Experience must be our only guide. Reason may mislead us. It was not Reason that discovered the singular & admirable mechanism of the English Constitution. It was not Reason that discovered or ever could have discovered the odd & in the eye of those who are governed by reason, the absurd mode of trial by Jury. Accidents probably produced these discoveries, and experience has give a sanction to them. This is then our guide.

Dickinson’s warning came relatively late in the Convention, in August; in any case he and his colleagues had done remarkably little that could not be traced directly to experience. It could not have been otherwise. Such rational plans as were brought to Philadelphia almost immediately gave way to compromises to which judges or others cannot retrospectively impute discrete reason.

The major resulting features of the constitutional project—separation of powers, bicameralism, representation that cools passions, even the celebrated systems of “filtration” that Madison is widely thought to have borrowed from David Hume—virtually all descend from colonial forms. None of these was invented de novo—sprung forth, in Burke’s description of the Revolutionary French constitution, “out of the brain of Jupiter himself”—on the basis of philosophical abstraction. The only genuinely new form, federalism, was necessitated by circumstance and hammered out less in a spirit of philosophical instruction than in workmanlike give-and-take.

It should not surprise us, then, to see that Publius’ attitude toward abstract reason is, on the whole, balanced even as his disposition toward experience is deeply respectful. Thus Federalist 15 calls on the public to listen to “that best oracle of wisdom, experience.”

That is Alexander Hamilton. In Federalist 43, Madison agrees, writing with respect to the need to authorize the national government to quell domestic violence that “theoretic reasoning in this, as in most other cases, must be qualified by the lessons of practice.” Federalist 52 urges its readers to “consult experience, the guide that ought always to be followed whenever it can be found.” Madison had engaged in that consultation. His pre-Convention researches pertained to experience, not to abstraction.

Federalist 85, the concluding essay, quotes Hume on the founding of laws for a state:

[N]o human genius, however comprehensive, is able by the mere dint of reason and reflection to effect it. The judgements of many must unite in the work: EXPERIENCE must guide their labour: TIME must bring it to perfection: and the FEELING of inconveniences must correct the mistakes which they inevitably fall into, in their first trials and experiments. (emphasis in original)

It is true there are contrary rhetorical impulses throughout the Founding. But paeans to reason during the period typically oppose it to the passions, as in Gouverneur Morris’ statement in Philadelphia that “we should be governed as much by our reason, and as little by our feelings, as possible,” or Federalist 15’s explanation that government is necessary “[b]ecause the passions of men will not conform to the dictates of reason and justice, without constraint.” This contrast is different from that between reason and experience.

To apply one’s reason to understanding experience is to confine it to concrete circumstances and thus inherently to limit it. To apply reason to metaphysical abstraction is to give it free rein. To bound it by experience is to recognize that no one’s limitless, Cartesian rational capacities would be adequate to the infinite complexities of politics.

Which brings us back to Gladstone, whose inaccurate contrast of the United States as having supposedly struck its Constitution off instantly, as opposed, he said, to the gradual evolution of British institutions, came in an 1878 article that celebrated the parent and child nations as twin champions of “rational politics.”

Even so, the Prime Minister could declare the American separation from the mother country to have been “a conservative revolution” in which “the thirteen colonies made provision for their future in conformity, as to all that determined life and manners, with the recollections of their past.” Rational, indeed.

Reader Discussion

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on August 11, 2016 at 12:57:14 pm

Greg:

Very well stated. to my mind, the phrase "Reason bounded by Experience" pretty much approximates the *rational* process by which, and through which, the Founders arrived at our rather "most wonderful work."

A "healthy respect" for experience necessitates compromise while a disregard for it and a preference for the metaphysical "Perfect" both denigrates experience and forces the mind AND the political system / apparatus envisioned onto a path that will eventually demand the negation of experience and it's lessons.

It is always an interesting question: what is the interplay between Reason and Practice? while it is clear that large "R" Reason is prone to error, especially in politics, there remains the question of what value, if any, may be derived from Reason in the political sphere?

If a value is to be found in Reason (politically speaking) perhaps it is one that must be viewed as time-dependent. Agreed that political schemes that at the time of their inception / conception are predicated upon Reason (alone or primarily) have been doomed to failure; yet, is there not a value in a later, and roughly post-concurrent time frame, in the *formulation* and transformation of experience based reason into Reason based political creed? What centralizing tendency may be said to be found in this new formulation? - in this new creed or myth? How does this help form a "national" identity? How does it serve to instill purpose and direction to a people?

In short, if we did not have a myth, would we not need to invent one?

In effect, is this not now what the Progressives are seeking to attack and destroy with considerable success, I would add.

One further thought on this.

While the Founders did indeed practice "reason bounded by experience," it cannot be denied that the existing legal framework(s) (both British constitutionalism and early colonial legal traditions) played a major role in the Colonists conception of what was the proper form of governance. Was this "legalism" or "constitutionalism (see John Phillip Reid and Jack Greene's works among others) experience or Reason - or some combination of both? After many centuries of "constitutionalism" was legalism, in some sense, a philosophy that had served to unify a people? had it taken on in the minds of the colonists (and the Brits back home) the characteristics of an ideology.
Heck, I don't know and welcome any thoughts on this (Kevin Hardwick especially).

Funny, how this very legalism, formerly used to support the British constitutional tradition(s) of fair governance, consent of the governed, etc is now being deployed by the Progressives to overturn those very same traditions of fair governance, consent and in some ways re-institute all those disreputable practices that constituted, for Mr. Jefferson, a "long train of abuses."
One could argue that our current crop of *Reason-able* people are dedicated to the proposition that all experience is faulty and is not to be trusted.
Quite a difference from our early reasonable Founders.

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gabe
on August 11, 2016 at 15:22:15 pm

On August 7th of this year the Thai people ... their new constitution. I just finished reading it. (Found here: http://www.un.or.th/wp-content/uploads/2016/06/2016_Thailand-Draft-Constitution_EnglishTranslation_Full_Formatted_vFina....pdf)

This newest democracy learned many lessons from the past. They made critical errors in the 2007 constitution. It was overly democratic and given to a "tyranny of the majority" that led to its collapse. This time around they restored the authority of the Thai King and focused on a rich set of checks and balances; they included a lot of protection against government corruption; they required their Constitutional Court to hear cases of citizens rights, and they allowed for the removal of justices. They also provided for a senate appointed by the King instead of by election, and like the US Constitution the Thais require senate approval for most acts and appointments. They spelled out reasonable requirements for holding office; being well liked is not enough to get into office, and being too rich is cause for not holding office. They even added a degree of separation between the press and the state; owners of mass media are not allowed to be members of their House of Representatives and at the same time the press is granted freedom from government involvement. This constitution is very powerful.

There is very little in it that I have not advocated, and very little that I have not cautioned against (at least in general). I find it an agreeable document.

The Thai people learned the lessons of the past, and applied reason bounded by experience in forming their new government. Just as the US Constitution is an extension of the various government practices and writings of all preceding American experiences, so did the Thai people extend their past experiences (and numerous experiments in democracy) to their new form of government. What's more, they most certainly learned the lessons of our experiences as well as those governments that derived their forms from us. The new government is in large part an extension of our own.

A number of people have questioned whether there is a better form of government than the American form. I would not be at all surprised to someday find that the Thai people finally got government right. After all, they did learn from the example of the best, and then applied themselves to improving on that.

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Scott Amorian
on August 11, 2016 at 15:23:23 pm

They "ratified" their new constitution. Sorry. Copy and paste error.

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Scott Amorian
on August 11, 2016 at 15:51:15 pm

My favorite part is where the winning candidate for the House or Representatives is the one who receives a plurality of votes--with a caveat. The winner must have more "for" votes than the total number of empty ballots. "None of the Above" is not allowed to be the winner, which is a breath of fresh air in light of the current US presidential political race. Expect high voter turnout and a lot of political involvement from the voting public in Thailand.

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Scott Amorian
on August 12, 2016 at 02:23:28 am

Mr Weiner, I could not get past the first few paragraphs. I am an old, fragile man and I don't have a lot of time on my hands, being the primary caregiver for a new granddaughter and being a very practical person.

My point is simply that a person can spend a lot of time on the Greeks and the Romans and the whatevers, but that is simply not required for the purpose of realizing that the "American experiment" has worked very well, maybe too well, and that most of the reason for that success is the Declaration and the RESULTING constitution of the government of the United States, still the greatest nation in the history of man, in spite of Barack Hussein Obama's best efforts to lower the US to the level of Greece, Spain, Italy, Denmark, France, Germany, Sweden.

Spend as much time as one considers necessary to consider the philosophical sources for the Declaration and the US Constitution, but the facts are clear: Americans are the most free, the most prosperous, the most ingenious ad inventive, the happiest people on the face of the earth, AND THAT IS WHY PEOPLE RISK THEIR VERY LIVES TO COME HERE.

Glad you asked.

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Luis
on August 13, 2016 at 10:22:21 am

Scott:

Today's media brings news of violent turmoil in Thailand due to "increased" influence of the military.

Don't know the specifics but it would seem that once again, "the best laid plans......"

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gabe
on August 13, 2016 at 14:54:46 pm

First, I would like to say that we Conservative/Originalists owe a debt of gratitude to Randy Barnett for the brilliant work he did in opposition to the Affordable Care Act. Second, I would like to thank Greg Weiner for providing a solid Conservative/Originalist rebuttal to Randy’s theory set forth in his book “Our Republican Constitution”.
It occurred to me that a similar discourse involving Randy had taken place sometime in the past. Doing a little research, I found a Northwestern Law School Article by Raoul Burger titled “The Ninth Amendment, As Perceived by Randy Barnett” (1994). If you were as disturbed as I was when I understood what Randy was proposing, I recommend you read Greg’s excellent article again and then enjoy Burger’s dismantling of Randy’s bizarre concept of unenumerated rights. The world won’t seem such a scary place and you’ll sleep better at night.

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Willmoore

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.