https://www.nytimes.com/2022/07/19/opinion/manchin-senate-climate.html
Jamelle Bouie is the smartest dude writing for The New York Times these days. In every column, he brings an acute historical consciousness to bear on the political questions of our time, particularly when he’s pondering the constitutional constraints—whether results of egregious new SCOTUS interpretation or of structure, custom, and precedent—on the development of democracy. Those constraints are real, and they’re getting more significant every day, as the Republican Party reiterates the itinerary of the antebellum Slave Power in seeking to reinstate a white man’s republic by thwarting majority rule. So Bouie’s grasp of “original intent” gets more significant every day.
This column of July 19 is a case in point. Bouie cites Terry Bouton, Taming Democracy: The Troubled Ending of the American Revolution (2009), to argue that Joe Manchin, the malevolent oaf from West Virginia, has veto power over the Democratic Party’s agenda because the Senate was designed by the Founders themselves to blunt if not block the will of the majority. In other words, Manchin is only the belated symptom of the disease that is the founding itself: the deep structure of the Constitution is anti-democratic. In contemporary parlance, which is of course the vernacular of the “Reagan Revolution,” the federal government is not the solution, it’s the problem.
It’s a familiar argument by now, especially in view of the 1619 Project and related political projects, which seek to emphasize or evade the centrality of slavery, race, and racism in the American experience of government of, by, and for the people. But its origins are worth noting because the radical right—at least as intellectually embodied in the new majority of SCOTUS, in the Claremont Institute’s demented political theories, and in Steve Bannon’s fevered dreams of direct democracy—now seems to agree with the argument. The radical right seeks, accordingly, to gut the powers of the “deep state” administrative apparatus that derive from the charter of the federal (national) government we call the Constitution.
That is, it seeks, as a practical matter, to return us to the pre-Constitutional condition codified in the Articles of Confederation, which granted sovereignty to each state rather than dividing it between state and federal governments.
You read that right. The “originalist” interpreters of the Constitution would take us back to the stage of politics that preceded, and that would preclude, the exercise of federal power over the states. The US would revert to what it was under the Articles, a diplomatic compact between sovereign states, a confederation rather than a unitary nation-state. This deliberate retrogression to a pre-Constitutional regime would, not coincidentally, validate Senator John C. Calhoun’s argument that, even after ratification, the individual states had veto power over federal laws—that they could “nullify” such laws, as his home state of South Carolina tried in 1832.
The modern version of the argument was originally a “revisionist,” “progressive,” left-wing complaint about the Constitution. It went—and still goes (see Bouie, Bouton, et al.)—like this.
From 1774 to 1787, the American Revolution was a de-centered, radical event driven by The People “out of doors,“ a motley, unwashed crew known variously as “the crowd,” committees of privates, Sons of Liberty, or “the mob,” and typically led by artisans like Sam Adams in Boston and/or itinerant n’er do wells like Tom Paine in Philadelphia. (The merchants who led the early stages of rebellion, ca. 1765-1771, had by then retreated from an increasingly diverse and unruly revolutionary coalition bent on independence from British rule.)
The new state constitutions written and ratified by this Leveller-like constituency were remarkably popular, in both senses—in Pennsylvania, for example, which was then the largest state, the constitution of 1776 (which Paine helped draft) abolished property qualifications for the vote and installed a unicameral legislature, to be balanced by a rotating council of censors that would pronounce on the merits of the laws it passed.
Other states didn’t go as far, but in almost every case the powers of the executive branch were strictly limited, the demographic reach of the electorate was considerably broadened, and the resultant legislatures looked much more like the whole of the people they represented (with the obvious exceptions, women and slaves; but free Blacks did, in fact, vote on the state constitutions and, later, ratification). The revolutionary war was financed and conducted by the states, with only secondary assistance from the Continental Congress—basically, it printed money—which, like the “United States” created by the Articles of Confederation in 1783, had neither mandate nor statutory authority to tax state revenues, imported goods, or individuals.
In such perspective, the Thermidor of the American Revolution—the conservative, nationalist counter-revolution against the Articles that triumphed with the ratification of the US Constitution in 1789 and was then enacted by Alexander Hamilton’s financial revolution—began in the mid-1780s, the ‘critical period,’ when doubts about an “elective despotism” (that’s Thomas Jefferson’s phrase), which is to say doubts about majority rule, became a commonplace in all media, from the pulpits and the pamphlets to the broadsheets and the newspapers. In such perspective, the Constitution betrayed the radicalism of the revolution by removing the scene of sovereignty from the states to the nation.
The attendant argument about the meaning of the Constitution in the making of the American Revolution was originally an artifact of so-called Progressive historiography, whose practitioners—Frederick Jackson Turner, Charles Beard, Vernon Parrington, James Robinson—in effect restated the case against the Constitution made by the Anti-Federalists, the opponents of ratification. Beard’s book of 1913, An Economic Interpretation of the Constitution of the United States, was the blueprint. Suffice it to say here that Beard proved the Constitution was the handiwork of large property-holders, particularly the owners of “personalty”—liquid assets rather than land—who competed with owners of “realty” (land) in writing a document that would, above all, protect the rights of property by giving the federal (national) government powers of taxation and economic regulation it sorely lacked under the Articles of Confederation. The Constitution had no higher purpose, and no obvious or necessary democratic implications.
This “Progressive” argument was consistent with conservative opinion on the American Revolution, in scholarly and in popular venues alike, because it accorded with the daft notion that the US was exceptional among modern-nation states in having escaped their typical origins in civil war, armed struggle, and revolution, as per the spastic French experiments with republican government, ca. 1789-1871, or the more recent and horrifying example in Russia, ca. 1905-1956. (Never mind that the American Revolution featured all three salient elements of modern nation-building.)
And so Progressive historiography remained regnant throughout the 20th century and into the 21st, in both the high schools and the universities. Which just goes to show you that the US is, in fact, exceptional in one important respect. Only here do the losers, deviants, miscreants, and malcontents get to narrate the national experience, and not, mind you, as exiles or emigres like Leon Trotsky or Aleksandr Solzhenitsyn, but as accredited professionals boring from within their own disciplines and cultures. Only here do the winners not write the history books—seriously now, think of how the lost causes of southern valor and states’ rights still shape the narrative of Civil War and Reconstruction, or of how the lost cause of anti-monopoly Populism still determines how we think about the rise of corporate capitalism.
Before proceeding, we should ask why a “revisionist,” Progressive, anti-federalist interpretation of the Constitution can remain a truism on the Left, where the power of the national government to regulate interstate commerce and economic transactions in the name of the general welfare is taken for granted, indeed is probably the only thing leftists agree on. The short answer comes down to how the Left has reduced its definition of democracy to majority rule. The question that follows is how the Right, as informed and inspired by an activist jurisprudential organization called the Federalist Society, has followed suit, and in doing so is dismantling the very document—the Constitution—it ostensibly reveres.
Let me take up the last question as a way of fleshing out the long answer to the first. This will eventually require an excursion into the territory of “original intent,” where we can see what the Founders thought they were preventing and accomplishing by designing a republican structure of popular government that would outlast the emergence of a propertyless, proletarians majority, and thus make possible the rise of American democracy. But first, how is the radical Right now embarked on discrediting what it claims to be its legacy—the constitutional settlement of 1787-90?
There are four recent instances of this urge worth noting. First, the SCOTUS decision of January 13 that ended OSHA’s vaccine or test mandate for companies with 100 or more employees, which would have protected roughly 84 million Americans [595 US ____ (2022)]: “It is telling that OSHA, in its half-century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal way, from the workplace.” But then a virus of the Covid-19 kind had never before appeared in the 50 years since OSHA was created. But yes, why would anyone think that the spread of Covid-19 could be caused by close quarters in meat-packing plants or corporate offices or Amazon warehouses? Besides, the legislation that created OSHA did not stipulate a specifically public health mission, only health and safety in the workplace.
Second, West Virginia v. EPA [597 US ____ (2022)], the SCOTUS decision of June 30 ruling that the Clean Air Act and related legislation are not exactly worded enough to allow the Environmental Protection Agency to compel, or even encourage, transition from coal-fired plants to alternative energy sources, Here the “major questions” doctrine is invoked to vacate the Clean Power Plan of 2015 and to validate the EPA’s declaration in 2019 that it had exceeded its statutory authority in merely revising the CPP: “The Agency determined that the interpretive question raised by the CPP fell under the major questions doctrine. Under that doctrine, it determined, a clear statement is necessary for a court to conclude that Congress intended to delegate authority ‘of this breadth to regulate a fundamental sector of the economy.’ It found none. . . . This is a major questions case. EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute designed as a gap filler.”
Third, the impending SCOTUS decision in Moore v. Harper, granted certiorari June 30 and to be heard in the Fall term, which promises to invoke the novel legal doctrine of an “independent state legislature“ to nullify any supervisory role for state courts and/or Congress in post-census redistricting or choosing electors in presidential contests. Justices Alito, Gorsuch, and Thomas have already signaled their agreement with the doctrine, used by North Carolina state legislators in appealing the state supreme court’s decision to overturn their recent gerrymander.
The intellectual origin of this strange doctrine is, not coincidentally, the concurrence written by William Rehnquist and joined by Justices Scalia and Thomas in Bush v. Gore, December 12, 2000 [531 US 98 (2000)], which singled out McPherson v. Blacker 146 US 1 (1892) as the key precedent. The quote pulled from that decision in this concurrence is telling because it adds to the language of Article II, Section 1, clause 2 of the US Constitution. The conclusion drawn by Rehnquist, Scalia, and Thomas is therefore specious because the original constitutional text has no such language, and thus has no significance beyond or apart from its interpretation as articulated in McPherson. “Article II, Section 1, clause 2, provides that ‘[each] state shall appoint in such Manner a the Legislature thereof may direct,’ electors for President and Vice President. Thus, the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance. [paragraph] In McPherson v. Blacker, 146 US 1 (1892), we explained that Art. II, Sec. 1, cl. 2 ‘conveys the broadest power of determination’ and ‘leaves it to the legislature exclusively to define the method’ of appointment.” (my italics: that word is the added language)
The fourth instance of the radical Right’s urge to overthrow the Constitution is the plot against America almost carried out on January 6, 2021, in accordance with John Eastman’s plan to convene “alternative” slates of electors from the swing states which would stand in for those duly certified by the Electoral College as per the vote tallies for president of November 3, 2020. Like the impending SCOTUS decision in Moore v. Harper, Eastman’s plan repudiates federalism in favor of states’ rights—the “:independent state legislature” theory—and thus annuls the Constitution as such. Like the other two cases, both predicated on the “major decisions'“ doctrine, Eastman’s plan effectively disarms the US Congress by excluding it from any role in elections at the state level—this in direct contravention of the Constitution’s Article !, Sec. 4, clause 2—and/or by making it virtually impossible to delegate its authority to federal agencies in the executive branch, whether the EPA or the SEC, particularly if that authority is deployed to enact a “transformative expansion” of regulatory reach.
So the radical Right has finally arrived at the same conclusion that the academic Left has long offered in the form of “Progressive” historiography, viz., that the Constitutional settlement of 1787-90 was a counter-revolution, a device by which the democratic gains of the previous 14 years at the state level were blunted, and majority rule has since been prevented. It’s an astonishing irony, especially since the new “conservative” consensus at SCOTUS is the handiwork of alumni from the Federalist Society, an organization dedicated, it would seem from its name, to the preservation of Constitutional scruple, in principle and in practice.
Let me now turn to “original intent” as a way of demonstrating that both Right and Left are wrong to equate democracy and majority rule, thus mistaken in defining the ratification of the Constitution as the Thermidor of the American Revolution. There can be no doubt that the Senate, at least as hamstrung by the filibuster, urgently needs reform, or that the Electoral College is an ugly anachronism; but neither can there be any doubt that an amended Constitution is a better solution to our contemporary political impasse than a return to the Articles of Confederation.
In early 1787, having made a detailed study of republics ancient and modern, James Madison wrote a memo to himself called “Vices of the Political System of the United States.” This was a long rough draft of the famous Federalist #10. Here he worried about the multiplicity, the mutability, and the injustice of the laws passed by the various states under the diplomatic compact called the Articles of Confederation. But the big problem was the will of the people itself—an “elective despotism,” as Thomas Jefferson himself put it in 1783.
“If the multiplicity and mutability of laws prove a want of wisdom, their injustice betrays a defect still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental question of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights.”
Madison believed in the sovereignty of the people as the sine qua non of republican government. But he assumed that the defense of majority rule, and with it the possibility of a legitimate exercise of state power, required a logic that wasn’t circular—a logic that didn’t justify the power of the state, as expressed in law, by reference to power as such, in this instance the power of numbers.
In sum, Madison knew that a majority could be as despotic as any tyrant. What was to be done? How to contain or combat this despotic potential and thus preserve the substance and legitimacy of popular government? Neither a “prudent regard” for the common good nor “respect for character”—for elite opinion—was adequate, according to Madison. But piety was no help, either, because, like other “passions,” it could easily inflame oppressive majorities.
“The conduct of every popular assembly acting on oath, the strongest of religious ties, proves that individuals join without remorse in acts against which their consciences would revolt if proposed to them under the like sanction, separately in their closets. When indeed Religion is kindled into enthusiasm, its force like that of other Passions, is increased by the sympathy of a multitude.”
So, the way to establish a republic on enduring foundations was not to prevent but to prolong the process of majority formation, to devise, as Madison put it, “such a modification of the Sovereignty as will render it sufficiently neutral between the different interests and factions.”
In place of prudence and character and piety—instead of respect for elite opinion and its attendant hierarchies—Madison proposed, then, to put the structural constraints of a constitution. By this I don’t mean only that he proposed a “limited government” circumscribed by rights guaranteed to individuals, or prerogatives reserved to the states (the Bill of Rights), as enforced by a judiciary that recognized the federalist separation of powers. Of course he did. I mean also that his constitutional design, his “modification of the Sovereignty,” inscribed a difference, and a debate, between what he called “the two cardinal objects of Government, the rights of persons and the rights of property.”
It did so by adopting a “middle mode” through which the legislative branch was divided against itself, and each house became the effective voice of one of those “cardinal objects.” In this sense, Madison proposed to enlist historical time as the bulwark of justice in a society that would inevitably be riven by the differences between what he called “the Class with, and the Class without property”—he proposed to indefinitely prolong the debate between the social classes that had already appeared, in the 18th century, as the bearers of these different rights. The class without property would defend the rights of persons in and through the lower house of the legislatures, including the Congress itself. The class that possessed it would defend the rights of property in the upper house. But both houses would be subject to periodic electoral discovery and pressure.
In a critique of Jefferson’s draft of a constitution for Virginia, Madison explained the historical grounds for this division of labor.
“This middle mode reconciles and secures the two cardinal objects of Government, the rights of persons, and the rights of property. The former will be sufficiently guarded by one branch, the latter more particularly by the other. Give all power to property, and the indigent will be oppressed. Give it the latter and the effect may be transposed. Give a defensive share to each and each will be secure. The necessity of thus guarding the rights of property was for obvious reasons unattended to in the commencement of the Revolution.”
All previous republics had collapsed because they could not balance “the two cardinal objects of Government,” the rights of persons and the rights of property. The great secret divulged by the history of republican government, Madison had found, was that there was nothing left to learn from that history. Except this: Either the rights of persons would be protected from the power of property, or the new American experiment would perish along with all the other attempts at government of, by, and for the people.
“In all the Governments which were considered as beacons to republican patriots & lawgivers the rights of persons were subjected to those of property. The poor were sacrificed to the rich. In the existing state of American population & American property, the two classes of rights were so little discriminated that a provision for the rights of persons was supposed to include of itself those of property, and it was natural to infer from the tendency of republican laws, that these different interests would be more and more identified.
“Experience and investigation have however produced more correct ideas on the subject.”
In other words, the study of history has forced a complete departure from classical and modern republican theory, Aristotle to Montesquieu. As he said in the constitutional convention on June 19, 1787, “According to the Republican theory indeed, Right & power being both vested in the majority, are held to be synonymous. According to fact & experience, a minority may in an appeal to force be an overmatch for the majority.”
“It is now observed that in all populous countries, the smaller part only can be interested in preserving the rights of property. It must be foreseen that America, and Kentucky itself will by degrees arrive at this stage of Society, that is some parts of the Union, a very great advance is already made towards it “ (Kentucky was shorthand for the most verdant lands on the trans-Appalachian frontier, a new Garden of Eden.)
“It is well understood that interest leads to injustice as well where the opportunity is presented in bodies of men as to individuals; to an interested majority in a Republic, as to the interested minority in any other form of Government. The time to guard against this danger is at the first forming of the Constitution, and in the present state of population when the bulk of the people have a sufficient interest in possession or in prospect to be attached to the rights of property, without being insufficiently attached to the rights of persons. Liberty not less than justice pleads for the policy here recommended.
“If all power be suffered to slide into hands not interested in the rights of property which must be the case whenever a majority fall under that description, one of two things cannot fail to happen; either they will unite against the other description and become the dupes & instruments of ambition, or their poverty & dependence will render them the necessary instruments of wealth. In either case liberty will be subverted: in the first by a despotism growing out of anarchy; in the second, by an oligarchy founded on corruption.”
That last paragraph sounds like a Platonic prophecy, an acknowledgement that democracy was a dead end. Except that Madison never doubted that majority rule was the necessary if not the sufficient condition of popular government. In the Constitutional convention, on June 26, 1787, for example, he said this:
“An increase of population will of necessity increase the proportion of those who labor under all the hardships of life & secretly sigh for a more distribution of its blessings. These may in time outnumber those who are [placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former. How is this danger to be guarded against on republican principles?”
In other words, how to preserve both liberty and equality? How to treat both the rights of property and the rights of persons as commensurable commitments? How to embrace majority rule without enabling an “elective despotism”?
Nor did Madison ever think that a “natural aristocracy” of well-educated men with good character—an elite—could contain or guide the unruly energies of the proletarian masses. He always believed that the constitutional structures he designed would convert passions to interests, and that insofar as economic development created more and more interests, an oligarchy founded on corruption was unlikely if not impossible.
But again notice that Madison, like his fellow Founders, did not equate majority rule and legitimate popular government, republican or otherwise.
Complex analysis! It assumes politicians and SCOTUS engage rational thought. I don't get the feeling they do.
It still boggles my mind that SCOTUS would become yet another left wing extremist group of people who stsnd ready to hijack our political system not as neutrals but as party loyalists. My preference is for a neutral SCOTUS given a two party system diametrically opposed on tbe basic rights important to country and citizens.
This is fascinating. But at least in contemporary politics, there's hardly anyone who cares more about federalism than about outcomes. As soon as the Repubs get control nationally, they will stop caring about states' rights and become advocates of a unitary national state. The obvious starting point will be national legislation prohibiting abortion