Bench Memos

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The Perennial Publius, part 85


In the last of all the Federalist essays, Alexander Hamilton fends off a last-ditch argument of the Constitution’s opponents: that in light of its imperfections, another constitutional convention should be held to revise and improve the document.  “Why not amend it, and make it perfect before it is irrevocably established?”  But do the Anti-Federalists mean to say “that went so well in Philadelphia, let’s do it again,” or “this was a completely botched job, we have to do it over”?  Either way, Hamilton is rightly concerned that a full-scale revisiting of the Constitution’s drafting might be fatal to its essential principles, rather than resulting in an improvement of it at the margins.  This is just what all persons of sound judgment ought to fear today about the prospect of a new constitutional convention, which would probably be dominated, if not by the actual presence, by the spirit of the nation’s liberal law professors.

By this time “a majority of America has already given its sanction” to the new Constitution (at this writing, Hamilton knew seven states had ratified, and by the publication date an eighth had done so), but Publius’s growing confidence in its success is wisely tempered by an awareness that it could all unravel.  Under the circumstances it would be “the extreme of imprudence to prolong the precarious state of our national affairs . . . in the chimerical pursuit of a perfect plan.”  Any change in the Constitution prior to its conclusive ratification by a ninth state would work a change that would require all the previously ratifying states to reconsider, since it would change what they had agreed to.  “But every amendment to the constitution, if once established, would be a single proposition, and might be brought forward singly.”  As a latter-day American philosopher memorably phrased it, “Git ‘er done.”  Then worry about tinkering at the margins afterward.

From the distance of more than two centuries, it is hard for us to capture an accurate sense of the felt urgency of May 1788.  Nothing else has been written or talked about in American politics, since the previous September, but the proposed Constitution.  America is at peace with other nations, and the debate over the country’s future has been admirably free of violence.  But the economy teeters somewhat, and a host of unresolved political problems, foreign and domestic, are on hold while Americans debate the most essential questions of politics that any great nation ever aired out in public.  As Alexis de Tocqueville was later to say in Democracy in America:

[W]hat is new in the history of societies is to see a great people, warned by its legislators that the wheels of government are stopping, turn its regard on itself without haste and without fear, sound the depth of the ill, contain itself for two years in order to discover the remedy at leisure, and when the remedy is pointed out, submit voluntarily to it without its costing humanity one tear or drop of blood.

Yeah, what he said.  But you don’t want to try demolition and reconstruction of a nation’s entire political order, from the foundation up, on a regular basis, nor do you want to tempt fate by prolonging the suspension of ordinary politics in favor of extraordinary politics.  As Madison said in Federalist No. 49, “the experiments are of too ticklish a nature to be unnecessarily multiplied.”  Necessity is sometimes right behind us, holding something sharp–as the Iraqi people know at this moment all too well.  But the comparative luxury of the American experience–the luxury of having remade our constitution in peace and relative prosperity–should not teach us the lesson that we can indulge the impulse at will.

(For explanation of this recurring feature, see here.)


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