Thanks for joining this episode of the No. 86 lecture series, which continues the conversation
in the 85 Federalist Papers about the proper structure of government.
Today’s episode features Professor Ilan Wurman, a visiting assistant professor at
the Sandra Day O'Connor College of Law at Arizona State University, where he teaches
administrative law and constitutional law.
He is the author of A Debt Against the Living: An Introduction to Originalism (Cambridge
2017).
As always, the Federalist Society takes no position on particular legal or public policy
issues; all expressions of opinion are those of the speaker
_ Why should we be bound by the Constitution?
We’re here today with Professor Ilan Wurman to discuss the influences on our Founding
Fathers.
What are the mechanisms in the Constitution to refine the popular will while also protecting
liberty?
What makes the Constitution worthy of our obedience today?
A Constitution for a free society has to principally do one thing, it has to balance the two competing
objectives of a free government.
On the one hand, the Constitution has to create a regime of self-government, it has to create
a regime by which we the people can decide for ourselves, through our elected representatives,
what kind of people and society we want to be, morally, politically, socially, economically,
culturally.
On the other hand, a Constitution for a free society also has to protect a large measure
of natural liberty.
Because we are in a state of equal liberty in the state of nature, there would be no
purpose in entering into civil society if we gave up too many of our natural rights
without extra benefits of it being in a civil society.
So a Constitution for a free society has to balance these two competing objectives, the
creation of a regime of self-government on the one hand but the protection of natural
liberty on the other.
But as any student of politics knows, these two objectives are in tension with each other.
It's often popular majorities that infringe on the rights of minorities.
So creating a government that successfully balances these two competing objectives, self-government
on the one hand and the preservation of liberty on the other, is no easy task.
That is the task of a free Constitution.
I’d assume, then, that the Founding Fathers had those objectives, self-government and
maximizing liberty, in mind when they drafted the Constitution.
That must have been very challenging, even with the education and experience they brought
to the drafting of the Constitution in 1787.
Can you tell us more about that education?
The Founding Fathers themselves had numerous influences on their thinking.
They were influenced by the Civic Republicanism of the Greek and Roman writers, they were
influenced by the natural rights thinkers and the early modernists like John Locke,
they were influenced by the Scottish Enlightenment like Adam Smith and David Hume, and they were
also influenced by the Enlightenment and English Whig opposition theory.
It's hard to say whether there was a single unifying theory underpinning the Founders'
political philosophy.
In bringing these influences to bear on the American setting, the Founders created a Constitution
that both created a regime of self-government and preserved a large measure of natural liberty.
The Founders understood from the early modern thinkers like John Locke that a Constitution
had to protect natural rights.
But they also understood, for example, from the Greek and Roman writers that the best
kind of life was a life of virtue.
And so they had to create a regime that allowed men and women the ability, the capacity to
pursue virtue.
And part of that was through exercising self-government.
And so the Founders had to balance these two different modes of political philosophy in
the context of the American regime.
So, for example, one method by which the Founders ensured that we, the people, could govern
ourselves and could potentially create the capacity for virtue was creating checks and
balances.
That were ultimately responsive to the popular will but that also refined and enlarged the
popular will through a successive series of filtration, through the House of Representatives,
through the Senate where they had longer terms, through the Presidency.
The popular will had to be channeled through these different mechanisms in order to actually
effectuate into public policy.
And this was one way that the Founders could guarantee our ability to govern ourselves
while also ensuring some protection for liberty.
The Founders' understanding of human nature is what led them to create a Constitution
that balances these competing objectives of self-government and liberty.
The Founders understood that mankind has an inherent capacity for self-government.
They understood that men could design government by their own reflection and choice rather
than to be consigned to the existing government by accident and force.
So they understood that mankind had a capacity for self-government, but they also realized
that men were not angels, after all, as James Madison wrote, "If men were angels, then no
government would be necessary at all."
So while recognizing mankind's capacity for self-government, they also recognized the
capacity for depravity in mankind in human nature.
And that is why they created institutional mechanisms to refine and enlarge the popular
will through checks and balances and a separation of powers, and also protect natural liberty
through the Bill of Rights, for example.
The Founders also recognized that the people themselves were motivated by self-interest,
and so they argued most famously in Federalist 10 that the representative mechanism, the
Republican form of government, would remedy this problem by extending the republic over
a greater extent of territory.
And this meant that any particular self-interested faction would be less likely to garner majority
support and captivate a majority of the nation.
Thereby, also ensuring that the self-interest of minorities did not end up translating to
infringement of the liberty of others.
Can you tell us more about these mechanisms in the Constitution?
What role does structure play in protecting liberty?
We cannot underestimate the importance of structure to preserving liberty.
As Justice Scalia was fond of saying, "Any tinpot dictator can have a Bill of Rights.
The Bill of Rights for the Soviet Union was extraordinarily capacious, the Bill of Rights
for the North Korean regime is extraordinarily capacious.
But without structural protections, Bill of Rights are mere parchment barriers."
In the words of the federalist, "They're mere parchment barriers because they're very easy
to transgress without structural mechanisms keeping those in power in check.
So it's a structure that allows the different institutions of government to check and balance
each other.
It's structure that allows the ambition of members of Congress to check the ambition
of members of the executive branch.
It's structure that allows an independent judiciary to check the work after the fact
of the members of Congress and of the members of the executive branch.
It is this structure that allows ambition to counteract ambition that keeps government
officials in check.
Thereby, preserving liberty much better than mere parchment barriers ever could.
The Constitution promotes both coordination and friction among government institutions,
and this is not surprising because the Founders understood the task of a free Constitution
to be the balancing of self-government on the one hand and the protection of liberty
on the other.
In other words, the Founders wanted to create a regime of self-government but one in which
the popular will could be refined and enlarged through checks and balances.
You want the popular will ultimately to translate into policy.
You want the separate branches of government to be able to coordinate with each other,
but you don't want this coordination to be too easy because if the coordination were
too easy then it would be too easy for the passions of the people in a particular time
to gain control over the national instruments of power.
Thus, the Founders created a regime created, institutions of government that both promoted
coordination but also friction.
It was responsive to the popular will but they also wanted to slow down the popular
will, and to refine and enlarge it through these institutional mechanisms that also create
friction.
Speaking of friction.
The Constitution itself was the product of contentious debates between the Federalists
and the anti-Federalists.
It was created in response to the failures of the Articles of Confederation.
In what other way, then, was it an improvement on that structure?
A key defect of the Articles of Confederation was that it operated through states and was
not binding directly on the people.
Thus whenever the Confederation Congress needed to raise troops or when it needed to raise
money, it had to ask the states.
It couldn't raise them directly from the people themselves, and the states often were reluctant
to pay their fair share of money or to raise their fair share of troops.
The key advantage of the Constitution was that the Constitution and the federal laws
enacted pursuant to the Constitution were binding and operated directly on the people
themselves.
And that's because we the people ratified the Constitution, we the people ratified the
Constitution to be sure in state conventions convened for that purpose.
But, nevertheless, it was we the people and not the states that ratified the Constitution.
“The People” ratified the Constitution - yet these were people who lived more than
two hundred years ago.
Why should we be bound by the dead hand of the past?
How is the Constitution worthy of our obedience today?
Thomas Jefferson wrote a letter to James Madison in 1789 in which he said that the earth belongs
to the living, the earth belongs to the living, not to the dead.
The dead have neither power nor rights over it, one generation is to another as one independent
nation to another.
Jefferson's letter has often been quoted for the proposition that we should not be bound
by the dead hand of the past, by the dead hand of the Constitution.
That the Constitution should instead be interpreted as a living, breathing document subject to
changing interpretations over time.
But what people forget is Madison's response.
. . In Madison's reply to Jefferson, Madison wrote,
"If the earth be the gift of nature to the living, then their title can extend to the
earth in its natural state only.
The improvements made by the dead like the Constitution form a debt against the living
who take the benefit of them.
This debt," Madison said, "cannot be otherwise discharged than by a proportionate obedience
to the will of the authors of the improvement by a kind of originalism."
Well, who's right, Thomas Jefferson or James Madison?
This dispute is at the heart of the question of whether today we are bound by the Constitution
of our Founders.
What Madison meant by the Constitution forming a debt against future generations, he didn't
mean that this created sort of a requirement of blind veneration.
After all, the Framers of 1787, were in some respects rejecting the innovations of the
Founders of 1776.
They were rejecting some of the innovations of the state governments between 1776 and
1787.
So, of course, we the people can always deliberate and reflect upon the existing forms of government
and determine whether those existing forms have room for improvement.
And if that's the case, then we can have another Constitutional Convention, maybe we can have
some Constitutional amendments.
So by no means did Madison intend to convey that we are blindly venerating the Constitution,
that we have a blind obligation to the Constitution.
We are however indebted to that Constitution in so far as it creates this improvement upon
the natural condition of the world.
For the Constitution to create this improvement upon the natural condition of the world, for
it to create this debt against the living, that doesn't mean that we have to like every
part of the Constitution.
It doesn't mean we have to like every provision in it.
In the same way, that we are bound by the laws enacted by Congress even if we don't
like the laws that Congress enacts.
Even if we think that they are immoral laws, we are bound nevertheless by the laws enacted
by Congress because we believe in our legal system, that so long as those laws were enacted
by a process that confers sufficient legitimacy on the laws, enactment in two representative
Houses of Congress and a signature by an elected President.
So long as the laws were passed through that process, we consider them sufficiently legitimate
to be binding even if we don't like what they say.
Well, the exact same argument can be made about the Constitution.
So long as the Constitution on the whole, this improvement of the kind it forms a debt
against future generations.
So long as the Constitution on the whole successfully balances the two competing objectives of a
free government, self-government on the one hand and the preservation of liberty on the
other, it is on the whole sufficiently legitimate to be binding even if we don't like every
provision of it.
The Founding Fathers matter because they bequeathed to us a Constitution that successfully does
what a Constitution has to do for a free society.
A Constitution for a free society has to balance the competing objectives of a free government,
self-government, and the preservation of liberty.
And the Founders' Constitution did this through ingenious mechanisms, mechanisms that had
never existed before in other systems.
Mechanisms like the separation of powers, checks and balances, the enumeration of powers,
the division of federal and state power, the representative mechanism itself was a novelty
at the time, and, of course, we can't forget the Bill of Rights.
Through these ingenious mechanisms, the Founders ensured that our Constitution would create
a regime of self-government but one that also protected liberty.
And for that reason, they matter today in so far as their Constitution still successfully
balances these competing objectives.
Now, of course, there is no point in sugar coating the Founders…..the Founders were
white, they were male, they were mostly landowners, and they were mostly slave owners.
But we don't celebrate the Founders for any of those reasons, we don't celebrate the Founders
for any of those qualities because they didn't invent any of those qualities.
They didn't invent slavery, they didn't invent the exclusion of women from the political
process, they didn't invent the exclusion of the poor from the political process.
Those things had been universal.
We celebrate the Founders for overcoming these historical limitations in important ways.
We celebrate the Founders for writing for the first time in a foundational national
document that all men are created equal.
As a result of which writing, people forget, half the states abolished slavery between
1776 and 1789 or set a timetable for abolition.
We celebrate the Founders for creating the first free government in the modern world,
a government committed to the principle of equality under law.
We celebrate the Founders because the Constitution that they wrote abolishes and prohibits hereditary
privileges and titles of nobility.
The Constitution they wrote has no property requirements for holding federal office.
That was the innovation, that was the achievement.
We have, of course, progressed since the Founders time, but we have done so in large measure
because we stand on the shoulders of their achievement.
In thinking about the 13th, 14th, and 15th Amendments, why do we rightly feel bound by
those amendments?
Why do we venerate those amendments?
The amendments abolishing slavery, guaranteeing equality under law and due process of law,
and enfranchising the African-Americans who had previously been enslaved.
We value and admire those amendments not because women could vote on those amendments, some
could but most couldn't.
We don't value those amendments because African-Americans participated in the political process leading
to their adoption, some did but most couldn't, otherwise we wouldn't have needed the 15th
Amendment.
We celebrate these amendments because they were in improvement upon the condition of
the world that came before of the kind that Madison described in his letter to Jefferson.
They were an improvement of such importance that they create a debt against future generations.
We are not bound by the Constitution of our Founders merely because the Founders themselves
wrote it.
We are only bound by the Constitution if here and now we the people recognize that that
Constitution is our law and more importantly should continue to be our law.
And to answer that question, should we be bound by the Constitution?
Should the Constitution be our law?
We have to understand what a Constitution for a free society was intended to accomplish
and whether our Constitution does in fact accomplish those objectives.
If our Constitution successfully balances the competing objectives of a free government,
self-government on the one hand and the preservation of liberty on the other, again, a task that
is extremely difficult to accomplish, then that alone makes the Constitution worthy of
our obedience today.
Thank you for listening to this episode of the No. 86 Lecture series.
The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging
discussion and critical reflection relative to how each subject is widely understood and
taught in law schools and among law students.
Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each
episode delivered the moment it’s released.
You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers,
the Judiciary and more.
Thanks for listening.
See you in class!