In the following I intend to search the U.S. Constitution
(both the strict word, and the implied life) for the “Three Ingredients of Good
Government” I have written about elsewhere in these pages. To make sense of
this, you ought to read that essay. This will only be a preliminary sketch, in
part due to my lack of expertise on the matter, and in part as a marker for a
longer work in the future.
Briefly, John Adams summed up the three healthy qualities of
the British Constitution as splendour, independence, and freedom, and connected
these in turn to the three Aristotelian modes of government – monarchy,
aristocracy, and democracy. This is, in essence, the theory of the Mixed
Constitution – where the weaknesses of each form are mitigated by the strengths
of the others. Splendour (monarchy) enjoins respect and reverence, independence
(aristocracy) provides various bulwarks against arbitrary power, and freedom
(democracy) protects the rights of the weak.
These may sound like strange qualities to seek out in the
United States, where there is no monarch and no formal aristocracy, and never
has been. However, it is not as if the Framers of the Constitution lacked
insight into these matters, or that they in general favoured any sort of pure
democracy. Both Federalists and Anti-Federalists sought to form a limited
republic, not a direct or even delegated democracy. The entire concept of the “Separation
of Powers” ultimately descends from the argued advantages of the Mixed
Constitution, even though it seems opposite to it, seeking as it does to
quarantine constitutional components rather than mix them. Yet both are
proposed as sources for “Checks and Balances” – not an Enlightenment idea, but
one pursued in both the Roman Republic and Medieval England (thus Fortescue’s
distinction of England as “a kingdom both regal and political” compared to the
entirely regal France).
Nor is it the case that the Founding Fathers themselves did
not have great sympathies with the Mixed Constitution. Adams, after all,
praised it in various ways. Adams and
Hamilton were both accused – largely libellously – of seeking to turn the
United States into a monarchy or an aristocratic republic. Even bad old Tom
Paine suggested crowning the Constitution, before breaking up the crown and
distributing it – because the concept of Liberty Under Law belonged to every
citizen.
How, then, does the US Constitution – again, both as written
and as executed – provide these qualities, if at all?
Well, for splendour we might naturally look to the
executive, to that most revered of posts, the Presidency. It has been hallowed
by impressive men, not least its first, that “first citizen of the world”,
General Washington. Even after a man vacates the office, the convention is to
address them as if they still held it – “Mr President”. No British Prime
Minister can claim the same honour! The President is part of the most impressive
civil ceremonies of the Republic. In retirement, he ordinarily founds a Library
or some other fine institution, putting his name upon the public weal.
Yet the President cannot be said to fully embody Splendour
in the United States. He must face the electorate every four years, and
therefore must please as well as impress – and this is right, because the
enormous power he holds must be checked in some meaningful way. Similarly, he
is subject to the most abject scurrility in the press, no matter his party,
demeanour, or behaviour. This can only tend to degrade his splendour in the
eyes of the populace. The nearest to a constitutional monarch a President
approaches is in his retirement, by which point he is sidelined from public
life and cannot be a legitimate central focus of public reverence.
In American political terms, Splendour actually comes, where
it comes in any healthy form, from the Constitution itself. Paine divined this,
as we have seen; reluctantly admitting there was some need for reverence, he identified
the common compact as the object. We see the adoration offered the Constitution
by the Romantic wing of the Originalists, and the centrality of “Constitutional
rights” in the discourse – for both sides of any given argument – is telling.
The written Constitution wields no material power, and yet is submitted to,
though sometimes more in subtle breach than strict observance. The paper of the
Constitution is the tangible embodiment of the dream of a nation – flawed in
execution certainly, without commenting on conception – but nonetheless, with
the Declaration of Independence, a relatively stable marker of a people’s
values.
There is some cause for doubt here, though. I do not mean
doubt as to the Constitution’s political value – I am not concerned here about
its Amendability or any like thing. Rather, the Constitution is not living – at
least, it may be “living” in the judicial sense, but it is not a person. It can
inspire a species of deep respect, but I do not believe any American has died
for it – rather they have died for the nation it articulates. Personal
affection would be peculiar where it existed. And the very inclarities of the
Constitution – of its Framers’ intents, of the right way to adjudicate it, and
so forth – make it too often a bauble for factions rather than a person of
fixed values. Though it fulfils its role in part, the proof is there that it
does not sufficiently overawe the vandals who would mutilate it.
Now, what of Independence? There is no titled aristocracy,
of course, and no role for any hereditary or consecrated group in government. Independence
is found, in our terms, in the existence of disparate power centres able to
legitimately counterbalance central government. Naturally, in the United
States, the States were and are conceived of as providing this. States joined
the Federation, not persons; States carry equal representation in the Upper
House of Legislature (itself more insulated from popular agitation by its 6-year terms), regardless of their population or size; States send
blocks of electors to the Electoral College, and so may elect (as they have done
several times) a President who did not win the popular vote. Perhaps most
theoretically important, it is States which must – by popular vote – approve Amendments.
A minority coalition of small States can therefore counterbalance a
majoritarian impulse.
Some strength still lies in the States – as demonstrated by
the relative independence they have had in handling Coronavirus, over matters
as diverse as hospital policy, restaurant opening rules, and mask-wearing
mandates. Additionally, States can function as meaningful localities within a
Union, where there is no overwhelming sectional divides. This makes them differ
from the devolved governments of the United Kingdom, which exist in large part
to sate sectional rancour (they fail utterly in this task). As abiding and
corporate concerns, the States provide a partial balance to the efforts
Yet States have been stripped, one by one, of their powers,
by one means or another. The Constitution was Amended to require States elect
Senators by popular vote – preventing the indirect democracy previously
favoured. Supreme Court decisions have repeatedly restricted State discretion
on “Rights issues” – notably Abortion. Now, aside from public campaigning on
the matter, many States in themselves are seeking to surrender their rights in
the Electoral College, by aiming for a functional enforcement of the popular
vote. All of these are examples of the relocation of power from States to other
bodies, usually of a (structurally) Democratic form.
If we are to look at where many Americans now seek a bulwark
of Independence against that which is popularly enacted, the obvious example
seems to me to be the Supreme Court. This body is not elected, but selected via
a multi-branch process requiring qualified approval. It can make decisions that
bind the other branches. Its technical task is to adjudicate the law, not
create it in favour of special interests.
Yet – setting aside any specific partisan criticisms of it,
or judging on the matter of whether it overreaches – it is still a bureaucratic
rather than an aristocratic body. Accordingly, it is necessarily invested in
the maintenance of the status quo of the central elite. On that note, we must
observe it is a singular and central body, not a disparate series of centres of
power, spread across the centre and localities. Finally, it is a strictly
limited body – it does not have the wide range of action the generic Aristocrat
does, with capacity to engage directly in politics, sit as a Magistrate,
patronise artists, and so forth.
Finally, we may consider how the component of Freedom
operates in the US Constitution. What we learn from the emphasis on the popular
vote is that the Democratic component, if taken too literally, can become a
serious danger to minority rights – to put the matter bluntly, a plebiscite on
slavery held in the fifteen Slave States in 1860, assuming somehow black slaves
were permitted to participate, would very likely still have returned a
result that kept them shackled. The Democratic component in the US Constitution
is better identified in, particularly, those Amendments which relate to
particular enumerated rights – first the Bill of Rights, and then later
iterations such as that abolishing slavery. Whilst the Rule of Law exists,
minority rights are preserved in the USA in large part by this
hard-to-eliminate “moral property”. Of course, some of those rights are deeply
controversial – whether the Second Amendment’s protection of gun ownership, or
that interpretation of the Fourteenth Amendment which permits abortion. Yet
nonetheless here the “distance” of the Constitution itself from everyday
political decision-making provides a better bulwark for individual liberties
than a thousand plebiscites.
Nonetheless, before we close, I must sound a note of
caution. Where mediating institutions between governing power and mass populace
are eliminated, Caesarism is always a risk – and this slide is as much a trend
in the United States as it is elsewhere in the West. Ever greater demands for
ever greater powers for simple majorities of voters may give you a Rousseauian
General Will, but then Rousseau is the grandfather of every great modern
tyranny. Where the limitations of representative democracy become intolerable –
for good reasons or bad – you see the sort of paramilitary direct action many
cities in America are presently experiencing. America risks discovering a new
overweening Monarchy or Aristocracy, and losing the very Freedom it claims as
its special national possession – because it has idolised Freedom to the
detriment of the other legs of the stool, the whole thing looks at risk of
falling. May it never be!
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