Gerald J. Russello
September 6, 2016
he success of Lin-Manuel Miranda’s Hamilton confirms that a large audience still welcomes stories about the founders’ lives. But how well have their 18th-century ideas held up? In An Argument Open to All, Sanford Levinson asks this question of each of the 85 essays that constitute The Federalist, seeking to establish which of Publius’ premises and principles should still guide us.
Levinson, a professor of government and law at the University of Texas at Austin, has long been one of the Constitution’s most provocative liberal interpreters. He harbors “strong reservations” about our ability to determine the original meaning of constitutional phrases, and clearly believes that parts of the document, however interpreted, make little sense in contemporary America. Still, Levinson argues that “every one of the essays that make up The Federalist contains something that should spark our interest today.”
Though concerned with the “science of politics,” The Federalist is not a theoretical treatise, but an attempt to persuade a skeptical audience to adopt the new Constitution. Levinson draws a lesson from Publius’ purpose: the Constitution’s meaning is to be determined by the various branches of the federal government and the American people. Levinson seems to agree with opponents of judicial supremacy: Publius, he writes, “had only a limited faith in what we may term a ‘legalized’ Constitution, that is one consisting of commands, whose meanings, when ambiguous, should be resolved by judges whose authority gives them primacy over all other interpreters.” Judges are important, but “it would be a huge error to ignore the extent to which Publius relied far more on politics, in the highest sense of that term, including a widely shared commitment to ‘prudence.’” The contours of that widely shared commitment are not to be invented by judges, in other words; they must reflect the actual political arrangements and understandings of the people themselves.
Federalist 78 contains the famous defense of judicial review. The judiciary can neither execute the laws nor spend the public money—it holds “neither sword nor purse,” in Publius’ phrase—making it the federal government’s “least dangerous” branch. But it can override legislative enactments that contravene the Constitution. This power, says Publius, “only supposes that the power of the people is superior to both [branches]; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.” Thus, the nods toward “emerging international norms” that the Supreme Court occasionally indulges would have no place in a Publian political theory, since it entails the justices substituting their will and purposes for those of the people.
Publius, convinced only a few citizens would possess both the morals and the knowledge needed for judging well, anticipated that lifetime tenure would be sufficient to check judges’ ambition for favor and advancement. Levinson is more skeptical: in our age of strong partisanship, lifetime tenure might entrench judges who promote their own ideological or partisan interests over the constitutional will of the people. Since the rise of an activist liberal judiciary in the 1960s, the idea that judges should push the nation toward certain partisan (usually progressive) conclusions has become standard. Watch any confirmation hearing and Publius’ confidence in those few “who unite the requisite integrity with the requisite knowledge” will seem misplaced. The judiciary serves as a bulwark against the other branches when they overstep their bounds. When judges themselves exceed their bounds, however, politics intrudes into the world of law.
Publius defends the Constitution’s institutional supports—the separation of powers chief among them—that restrict and counteract ambition. He also presumes certain characteristics of the American people and their elected officials. Americans must respect institutional barriers to power, and govern according to “reflection and choice.” But fruitful reflection requires a common set of assumptions about natural rights and the nature of government. Levinson highlights Federalist 2’s intriguing language, where Publius stresses America’s political stability rests on its people being “descended from the same ancestors, speaking the same language, professing the same religion, [and] attached to the same system of government.” This was never strictly true, even in 1787. Many in the colonies and the new nation did not share those characteristics, and some were deliberately excluded from the political community. Nonetheless, Levinson invites us to consider whether cultural, linguistic, political, or historical homogeneity strengthens the republic. But such bonds cannot be the only support for constitutionalism. He nicely ties this theme to the need for a “veneration” of constitutional forms, discussed in Federalist 49, veneration that must be combined (if tensely) with devotion to public reason accessible to all citizens. The Founders envisioned a critical citizenry that all could join, but one whose criticism must be bounded by a respect for the constitutional structure that gives their criticism coherence.
Levinson is concerned, for example, about how large-scale immigration from countries without democratic traditions will affect our democratic decision-making. This is especially worrisome now that America’s culture has lost confidence in its founding documents, and the system those documents established. When Harvard Law School strangles free speech, when the federal government threatens religious freedom, and when every discussion of the founding is preoccupied with denouncing evils of the founding generation, it is unsurprising that the institutional supports Publius relied on have been weakened. These considerations become all the more important in moments of crisis, such as 9/11. Federalist 40 and 41 seem to permit the government to set aside the “law” to preserve the nation. However, without a settled understanding from our own history and tradition, how can “we the people” know whether such “illegal” activities should be countenanced or condemned?
The Federalist, in Levinson’s hands, becomes less a guidebook and more of a dialogue, one reminding and persuading us that a constitutional republic remains possible.