In Defense of the Constitution

Introduction

InDefense_001-050.indd 3 11/2/07 1:34:05 PM Introduction While the essays that follow are addressed to different aspects of our constitutional order and operations, there is an underlying unity to them. The principal source of this unity takes the form of a reaction to a revisionist school of thought, now dominant in academia, that has sought in various ways to disparage our Founding Fathers and their handiwork. Because so much of what I say in the following selections presupposes an understanding of the development and major tenets of this school of thought, I will examine it and the consequences that have flowed from its "teachings" at the outset. For several decades now, since the early 1900s to be exact, the Constitution has come under increasingly severe and sustained attack for what is alleged to be its "undemocratic" character. The initial attacks were "shocking" in the sense that they challenged the prevailing orthodoxy that served to place the Founders and the Constitution above reproach. Today, by contrast, the gist ofthese early attacks constitutes commonplace observations- advanced normally in the guise ofundisputed facts-found in many colleges and high school government and history texts concerning the motives and purposes of our Founding Fathers and the nature of the system they bequeathed to us. While, as we shall see, there are differences between the early revisionists and their modem counterparts, the most notable being a belated but welcome acceptance of a strong national government, there is at least one common theme that weaves through their critiques: namely, the Constitution is an " undemocratic" document. In this respect, the critiques are, so to speak, double-edged; that is, not only is the Constitution found wanting from the perspective of the majority rule principle, it is viewed as an instrumentality that thwarts the realization of "democratic " ends such as those presumably embodied in the second paragraph of the Declaration of Independence. Thus, the revisionists' democracy is of two kinds: one concerned with the means or methods of decision making, the other with goals or ends. Now what is often overlooked is that these two conceptions of democracy are not entirely compatible. For instance, a majority may vote for policies that contravene the presumed democratic ends. To some extent, the liberal revisionists have been able to avoid facing the theoretical difficulties posed by this incompatibility by assuming, sometimes tacitly, that majorities do cherish these democratic ends, 3 Constitution_001-050.indd 4 10/22/07 12:23:11 AM 4 INTRODUCTION but that our institutions and processes either thwart or distort their will. Accordingly , they have long held that, once the Constitution has been democratized, majorities will actively pursue and ultimately realize these democratic ends. For the New Left, neo-Marxists, and other social dissidents, of course, to reach this coincidence of ends and means requires a good deal more than mere institutional ''reform,'' since institutions are only the reflection of dominant social and economic forces. For them the problem is overcoming the hurdles- social, economic, educational, and the like- that prevent majorities from perceiving their true interests , an undertaking that would necessarily involve comprehensive social engineering. What seems increasingly clear in recent decades is that the revisionists, off at the end, have given primacy to ends over means; that is, their commitment to majority rule is secondary to their commitment to democratic ends which, to a great extent, come down to egalitarianism mixed with virtually unbridled liberty. Indeed, their commitment to majority rule seems to be contingent on whether they like what the majority wills. One reason for this, we may surmise, is that it is now painfully obvious to most revisionists that majorities can (that is, from the revisionists ' point of view) be a "beast," that they are not as "enlightened" as some of the earlier revisionists seemed to assume. Without going into the whys and wherefores-for this is a matter I will take up in due course-what has emerged from these revisionists' reservations concerning republicanism and their quest for the realization of democratic ends is what can appropriately be termed a new "constitutional morality"; that is, they advocate and justify a way of looking at the proper operations and relationships of our constitutional institutions and processes that is inimical to the older morality wrought by the Framers and articulated in The Federalist. This new morality, it should be noted, is truly revolutionary because it represents, as the following essays will endeavor to show, a repudiation of the basic principles...