Forrest McDonald: Novus Ordo Seclorum: The Intellectual Origins of the Constitution. Lawrence: University of Kansas Press, 1985.
Walter Berns: In Defense of Liberal Democracy. Chicago: Gateway Editions, 1984.
The distinguished historian Forrest McDonald has earned his reputation as a less than star-struck chronicler of the American founding. The distinguished political scientist Walter Berns equally has earned his reputation as an unenchanted observer of the drift away from that founding. Yet their criticisms issue from different premises, and thus present a challenge to each other as well as a rebuke to fashionable illusions.
In an earlier book, ironically titled E Pluribus Unum [1], McDonald questions what he calls nationalist “fictions” about the American founding: that the Revolutionary War aimed at national, not states’ independence; that the Articles of Confederation were unworkable and contributed to the collapse of “public and private morality” (as Publius contended); that the Founders were “demigods.” Along the way he delivers a number of amusing jibes, particularly about Virginians (“Because they often found it difficult to feed their slaves, they embraced humanitarianism….”). There are excesses, as when he dismisses James Madison as “at base… a brittle, doctrinaire theorists,” but beneath it all McDonald wants to find the truth even more than he wants to polemicize. He differs from many Southern writers in preferring the nationalist position even as he deflates nationalist mythology. There is a flaw, inevitable in any reductionist argument, no matter how measured: at the end of his apparent demonstration of the Founders’ profound disunity, he cannot quite explain how they produced a system that worked. Instead, he calls it “the miracle of the age, and of the succeeding age, and of all ages to come.” If “the wheel of history turns on petty pivots” all the time, then any lasting success at all must be attributed to incredible good fortune or amazing grace.
In Novus Ordo Seclorum McDonald undertakes to understand the Founders as they understood themselves. This presents not so much an interpretive problem—McDonald rejects the fashionable pessimism of ‘deconstructionists’—as a historical one, namely, making sense of the Founders’ many and apparently contradictory principles. He identifies four of these: the intention to protect citizens’ lives, liberty, and property; the intention to establish a republican government; the use of history as a source of evidence for their arguments, as a legacy, and as a stage on which their own reputations might find a place; and the appeal to modern political theory, particularly as enunciated by Hume, Harrington, Locke, and Montesquieu. These are less principles than rubrics containing many “ingredients,” some of them “incompatible.” In the first half of the book, McDonald tries to separate these ingredients and to demonstrate their incompatibility. In the second half he describes the properties of the compound resulting from their mixture.
McDonald tend to somewhat exaggerate theoretical contradictions among the Founders’ philosophic sources. For example, he contrasts Locke’s idea of property, based on nature, with Blackstone’s based on the king’s dominion. He rightly observes that Blackstone regards the source of kingly dominion as rather mysterious, teaching moreover that once the king has granted property, rights to it are beyond his reach except by means of due process. But McDonald does not draw the obvious conclusion: in practical terms, this argument makes Blackstone’s idea of property similar to Locke’s, and, in theoretical terms, the mysteriousness of the origins of kingly property leaves an opening, so to speak, for modern natural right. McDonald generally does not sufficiently allow for the philosophic writer’s need of prudence in such matters. He attempts to prove Locke a pious Christian simply by quoting theistic passages from his works; and he identifies Montesquieu with the argument for ‘virtuous’ or classical republicanism. Occasionally, even relatively straightforward arguments are garbled in paraphrase, as when he claims that Locke “sanctioned” slavery “under certain conditions”; in fact, in chapters 23 and 24 of the Essay on Civil Government the philosopher describes slavery among the Jews not as slavery at all but as a form of “drudgery” whereby any physical abuse of the servant was legal cause for liberation. At another key point in his argument, McDonald unaccountably describes the Lockean social contract as an agreement between the people and a prince, not among the people themselves.
Having said this, one should also say that the core of McDonald’s book—his chapters on Alexander Hamilton’s adaptation of the political economy of Smith and Steuart, on the tensions between “virtuous” and commercial republicanism, and on the relation of the Founders’ Humean theory of the passions to the governmental device of federalism—will clarify and deepen any reader’s knowledge of the American founding. The chapter on passion and federalism deserves particular notice. Many writers have expounded on the American Founders’ refusal to rely upon “the kind of public virtue required by classical and puritanical republicanism” while nonetheless insisting upon the need for certain common decencies often called ‘bourgeois virtues.’ But this cannot explain the character of the Founders themselves, of subsequent American statesmen, or of whatever it is in the character of the American people that enables them to respond to those statesmen with courage and self-sacrifice. McDonald recalls that certain modern writers did not imagine the ‘low but common ground’ to be a sufficient condition for civil society. He cites the neo-classical playwright and essayists Joseph Addison (his Cato was admired by George Washington), who emphasizes the importance of honor, the esteem of wise and good men, as a firmer ground for statesmanlike behavior than is virtue itself. Shaftesbury, Hume, and Smith advance parallel teachings: McDonald overlooks their source, Locke’s Some Thoughts Concerning Education, wherein esteem is presented as virtue’s basis, particularly among the class of gentlemen. The passion for honor finds institutional support in hereditary aristocracies; McDonald identifies John Dickinson as the Founder who saw the American states as “institutional substitutes” for the English baronies—”in a manner of speaking,” the states are “permanent and hereditary.” Dickinson “therefore proposed a mixed system,” wherein, for example, the House of Representatives represents the nation and the Senate represents the States, making the latter “as near as may be to the House of Lords in England.” One might add that the American federal structure resembles the English mixed regime as the modern version of honor resembles classical and Christian virtues. These resemblances cause McDonald to call the American Constitution “the culmination of a tradition of civil humanism that dated back more than two millennia.” Thus even as he emphasizes discontinuities among the Founders’ principles, McDonald works another ‘miracle’ of unity. “Tradition” plays much the same role in ‘conservative’ thought as Hegel’s Absolute Spirit plays (in various guises) in liberal and leftist thought: as an intellectual deus ex machina, ‘saving the phenomena’ at the expense of the principle of non-contradiction.
But perhaps the American founding is not so miraculous, in part because it is not so full of contradictions. “It should be obvious from this survey that it is meaningless to say that the Framers intended this or that the Framers intended that: their positions were diverse and, in many particulars, incompatible”; moreover, “no delegate or coalition of delegates was able to dominate the [Constitutional] convention except for brief periods and on specific issues,” a fact resulting in “repeated compromises.” This restates the century-old description of the Constitution as a bundle of compromises. McDonald’s argument limps because it has sustained a logical fall: he fails to see that a compromise itself represents an intention, albeit perhaps a modified intention. Contracts work that way: negotiation, compromise, deal. Thus when McDonald claims that “abstract speculative doctrines… were of limited use” to the Founders, that “experience, both their own and that of their mother country, provided a surer guide,” he inflates a distinction into a dichotomy. Theory as such does not ‘intend’ to be useful. Modern theory, often identical to method, does ‘intend’ to be useful, but not usually in any formulaic way when it comes to founding a political regime. As the failures of such men as Comte and Spencer show, even the moderns must rely on prudence, whereby moral and political principles may be brought to bear upon practice without any illusion of melding theory and practice. [2] Moderns attempt to substitute ‘History’ (‘conservatives’ read ‘tradition,’ libertarians ‘the invisible hand,’ the left ‘dialectic’) for prudence. As long as historians adhere to historicism, they will misunderstand statesmanship.
No historicism colors Walter Berns’s In Defense of Liberal Democracy, wherein he undertakes the Aristotelian task of strengthening the decent regime under which he lives. He does this not by seeking to ‘adapt the United States Constitution to his ‘time,’ but “in part and to the extent possible, to keep the times in tune with the Constitution.” The book’s five parts contain chapters on the principal issues facing American republicanism: the Constitution, foreign politics, domestic politics, “racial politics,” an “religion and politics.”
Berns conveys the Founders’ political realism more vividly than any other commentator on the Constitution. He has a healthy contempt for the high-flown. Thus he recognizes the Constitution without the Bill of Rights would nonetheless secure rights by its prudent balancing of governmental powers, but the Bill of Rights without the body of the Constitution would among to little more than a list of good intentions. By emphasizing ‘ideals’ instead of institutions, recent Supreme Courts have contorted the doctrine of judicial review and, not incidentally, overstepped their own institutional functions. Berns stresses the limited and even problematic role of judicial review in the modern political philosophy upon which the Constitution largely rests. Hobbes, Locke, and Montesquieu respected lawyers little more than they did priests. Modern natural law reduces lawyers to equality with other men because it regards all men as essentially equal, none more naturally fit to rule than the others. To the moderns, “no man can rationally agree to an arrangement where another man is authorized to convert his opinion into fundamental law.” The American judiciary enjoys more power than the great moderns would permit, but only if judges restrict to speaking for the Constitution—an organization of political institutions based upon consent—and not for themselves, for their own privately-held ‘ideals.’
Berns identifies the underlying tension between the so-to-speak theoretical realism of the moderns and the realities of American life in the 1780s: “More, of course, than the principles of modern natural right and law went into the founding of the United States. In theory, the country was founded by men claiming rights against each other; in fact they were men closely associated in families, churches, and a host of other institutions.” These institutions formed the character of Americans. Such character and institutions may have no place in modern ‘realism,’ but modern ‘realism’ needs them. A country “founded on the principle of self-interest… could not be expected to flourish if it consisted only, or mainly, of self-interested men.” But the problem may be more subtle than this. Berns says that modern natural right finds equality and unalienable rights self-evident, by nature. But this is not what the Declaration of Independence says. The Declaration calls it self-evident that all men are created equal, endowed by their Creator with certain unalienable rights. The Founders’ idea of self-evidence goes beyond Lockean self-evidence, and even beyond a moral sense; it posits what might be called a metaphysical sense (reportedly much to the annoyance of principal author Thomas Jefferson, who had included no religious language in his draft). This moral and metaphysical sense strongly resembles Christian conscience, although it would be a mistake simply to identify the two. In the Declaration, the Founders enunciate a public or politic conscience. The tension between Christianity and modernity remains, but there can be no question that the Founders worked to moderate it.
Berns vigorously shows how the American compromise between Christian and modern thought unravels when ‘idealist’ sentiment exerts too much pressure on institutional safeguards. Fear animates American pacifists more than faith does, and their hoped-for world government could end only in despotism, rule by fear. In politics, ‘love’ is not enough, because “experience shows” that Christians “are more likely to love their neighbors when their neighbors are like themselves.” “Religious faith seems to unite men but divide mankind,” Berns drily remarks. As for existing institutions, the United Nations cannot quite overcome certain formidable obstructions to universal humanitarianism, most notably the Soviet Union.
In American domestic politics, the problems of pornography and violence escape the obvious antitoxins, censorship and capital punishment, because libertarianism allies with a tolerant or ‘soft’ Christianity to dull the instruments of justice. Shame and anger are the passions that prevent liberty from descending to license; they hold men responsible. Because the American Constitution acknowledges the sovereign power of “We, the People,” not to God, “it is only a short step from the principle that the laws are merely a product of one’s own will to the opinion that the only consideration that informs the law is self-interest; and this opinion is only one remove from lawlessness.” Berns cites Lincoln on the Constitution as an inheritance of our fathers, worthy of veneration, but Lincoln centrally appeals not to the veneration of the old but to the truths or “propositions” of the Declaration, without which the work of Americans’ fathers would be no more venerable than the monarch they rebelled against—or, as the Declaration puts it, the monarch who rebelled against them and indeed against Creation itself.
Veneration of the law, its principles, and its framers has never been conspicuous in American “racial politics,” to which Berns devotes a section separate from ordinary domestic politics. In one of his most substantial essays, Berns charges that the Constitutional provision to restrict the importation of slaves suffers from an ambiguity exploited cynically by Southern politicians, including Jefferson and Madison. Today, unfortunately, attempts to counteract the longstanding effects of such willful distortion rest on much the same contempt for constitutionality. Worse still, mere hypocrisy has given way to ideology, as the school of “legal realism” tries “to persuade us that the essence of the judicial process does not consist in interpreting law… but in making it.” The attempt defeats itself, because ‘realism’ regarding law cannot but reflect upon its self-proclaimed makers, whose actions, intentions, and authority then become fair, broad targets for political deconstructionists.
In the book’s final part, Berns argues that contemporary religious zealots make the same mistake in a different way. They denigrate the law not by arbitrarily seeking to make it, but by arbitrarily seeking to transcend it. In calling conscription immoral (for example), the U. S. Catholic bishops put lay Catholics “in the position [someday] of having to choose between obeying either their spiritual advisors or the law of the land,” a dilemma likely to weaken the authority of both. The dilemma mirror Americans’ “acceptance and simultaneous rejection of modernity,” their eager pursuit of self-interest and community feeling.
If McDonald’s neo-Burkean historicism causes him to underestimate the intellectual coherence of American statesmanship at the time of the founding, Berns’s emphasis on the Constitution’s theoretical underpinnings occasionally causes him to overlook the exact character of the Founders’ statesmanlike adaptation of modern political philosophy. Writing about statesmanship is nearly as difficult as practicing it.
NOTES
- Forrest McDonald: E Pluribus Unum: The Formation of the Republic 1776-1790. Boston: Houghton Mifflin Company, 1969. Reissued in 1979 by Liberty Press, Indianapolis.
- For an excellent critique of McDonald on precisely this point, see Charles Kesler’s untitled review in The American Spectator, Volume 19, Number 5, May 1986, pp. 35-36.
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