This month marks an important anniversary. It has been 230 years since the delegates to the Constitutional Convention completed their work and signed the Constitution, sending it off to the states for ratification.
The Constitution is the greatest instrument of government ever produced by man. It has proven itself remarkably sturdy, facilitating popular government in the United States amid enormous changes through the centuries. James Madison said that the delegates’ task was “framing a system which we wish to last for ages.” In this regard, they were successful beyond their wildest dreams.
What is amazing about the Constitution is how radical it is — not only by the standards of 1787, but even by our own today. The system of government it delineates is one that is both deeply libertarian and profoundly republican.
It is easy overlook this — no doubt due to the failings of the delegates themselves. Their vision for civil society was far-sighted, but they placed too many restrictions on who gets to participate in it.
Heavily influenced by the “commonwealth” tradition of English political thought, especially the writings of James Harrington, many Founders believed that land ownership was a crucial component of citizenship. Property owners, by this reckoning, were ideally suited to exercise the independent judgment required of the citizen, which meant a lot of people — including propertyless men as well as women — were left on the outside looking in. Worse, the Constitution sanctioned slavery, undermining its moral vision and ultimately leading to the Civil War.
The main improvement that subsequent generations have made upon the Constitution is expanding the definition of citizenship. But we have left largely untouched the Founding vision of what civic participation entails. And it is here that we find two ideas that, even so many years later, are still audacious.
The first is the notion that civil liberty must be nearly absolute. The First Amendment guarantees the right to speak, to assemble, and to worship — with no caveats whatsoever. The Second Amendment empowers the people to arm themselves, as an alternative to standing armies, which had historically been tools of oppression. The remaining amendments in the Bill of Rights keep the government from abusing the rights of privacy, ensure fair and humane treatment in the investigation and prosecution of crimes, and underscore the limitations of federal authority.
The Bill of Rights employs clear and unambiguous language to outlaw every major tactic that tyrants had heretofore employed to suppress the people.
Taken together, the Bill of Rights employs clear and unambiguous language to outlaw every major tactic that tyrants had heretofore employed to suppress the people. It was the culmination of a process begun at Runnymede in 1215, when English barons forced King John to sign the Magna Charta. The Bill of Rights finally, after 562 years of further struggle, extended those protections to average citizens.
These rights remain inconvenient to this day. Civil authorities are still interested in reading them in the narrowest terms they can get away with. Not that they want to tyrannize us, but a broad view of the Bill of Rights interferes with a “tidier” execution of government. We see such arguments all the time — the good of the nation requires a little less free speech, a more constricted view of religious freedom, confiscation of private arms, wider latitude for law enforcement, and so on. Even by today’s standards, the Founding generation was decidedly libertarian in its conception of what each citizen was entitled to say and do.
The second idea is a radically republican conception of the state. “Republicanism” had long been around as a governing ideal — the notion being that government should serve the citizenry and, in some respect, reflect its views. Political philosophers had usually reckoned that the best way to accomplish this task was to blend different forms — like democracy and aristocracy — to keep the defects of any one system from undermining the whole regime. In the 1700s, European theorists such as Montesquieu and David Hume had judged the British Constitution to be the greatest realization of this idea, for it “balanced” the Commons against the House of Lords and the Crown.
The delegates to the Constitutional Convention would have none of this. Their system of government was founded solely upon the people — with no self-appointed or hereditary authority. And we see their radicalism in the fact that they affirmed this commitment in 1787, when popular government in the United States seemed to have been foundering for many years. The national government was impotent during the 1780s, and the state governments were often no different than mob rule. But instead of seeking reconciliation with George III, or some reinstatement of mixed estates, the delegates to the Convention, as Madison put it, chartered a government that addressed the “inconveniencies of democracy” while remaining “consistent with the democratic form of government.”
Since at least Woodrow Wilson, progressives have grumbled about the Founders’ achievement, often complaining that the Constitution does not facilitate vigorous government. Power is too divided in this system, Wilson sniffed, leaving the government incapable of acting in behalf of a popular majority. Of course, it is so easy to complain about a majority’s inaction precisely because the Constitution has done such a good job of preventing tyranny of the majority.
Since at least Woodrow Wilson, progressives have grumbled about the Founders’ achievement, often complaining that the Constitution does not facilitate vigorous government.
Moreover, the Constitution assumes a process of civic deliberation that still rubs people the wrong way. It establishes Congress as the fount of all legislative authority, and by extension it empowers the people who elect the legislature. But over the years, Congress’s power has been shoveled off to unelected bureaucrats and judges. A few years ago, Peter Orszag, former director of President Obama’s Office of Management and Budget, argued in the New Republic, in a piece titled “Too Much of a Good Thing,” that what we really need is less of that good thing — less democracy. Power should be transferred more fully to experts who can make decisions that the people themselves cannot make.
This view, quite popular in today’s Washington, D.C., is a reimagining of the old notion of mixed estates, whereby certain groups of people (in this case, the credentialed experts) effectively enjoy a permanent place in government regardless of their numbers in society. The Founders rejected this view, in favor of a robust civic republicanism whereby the people do the hard work of governing themselves.
Undoubtedly, the Founding Fathers had a too-narrow conception of who gets to participate in civil society. But their view of that society is still on the vanguard of Western thought. It is an exhilarating vision of human freedom, and an uncompromising call for self-government. It is the boldest, most far-sighted system of government the world has yet to produce. In a thousand years, it will still be remembered as the turning point in human history — the moment when average people finally claimed control of government for themselves and their posterity.
— Jay Cost is a contributing editor of The Weekly Standard and the author of A Republic No More: Big Government and the Rise of American Political Corruption.