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  • Constitutional Collapse: The Faulty Founding
  • Stephen L. Elkin (bio)

Beneath the present economic-financial crisis is a deeper one that is the source of at least some of the disaster—a constitutional failure. I will get to this financial-economic crisis towards the end of my discussion because I must first consider our constitutional order. However, since I don’t want all of you to race to the exits in order to immediately cash in your constitutional bonds—although by their nature these bonds are invisible—I will say now that we haven’t arrived at constitutional collapse. But, what I will call our working constitution is in sad need of repair, and some of the fault lines have become startlingly apparent in these last months.1

The Constitutional Theory of James Madison

Let’s begin, then, appropriately enough, at the beginning, with the foundations of this republic, that is, with political fundamentals—and specifically with the thought of its principal architect, James Madison. His thinking—as it shaped the founding of the republic, and the institutions that were created then—has shaped us as a people. These institutions have and continue to constitute us as a people, shaping our character in a multitude of ways.

To be sure, this Madisonian tale that I am going to tell is a strange one because one short man with a squeaky voice—that is, Madison—was able to think deeply and powerfully about popular self-government, and do it in the middle of nowhere—which is to say, in the America of 1787. His effort was not without its flaws and that will be part of my subject, but it was an amazing feat that commands and should command the deepest respect from us, his beneficiaries.

You will notice that I have used the word “constitute” as a verb—as in “to constitute a people.” It is Madison as a constitutional thinker that is my concern: his thoughts on how to create and maintain the political institutions and political practices that have helped us to become a self-governing people. Madison’s understanding of these matters is a lens through which we can look at our present political order to see how it is in fact working and how it is supposed to work. He gives us the pieces of the puzzle of self-government on which we must focus if we are to understand our successes and failures. [End Page 1] [Begin Page 4]

My overall point with regard to his thought is that in spite of its serious flaws, we can reformulate his arguments—and that if we do so we will be able to understand well our working political constitution—and that this in turn will enable us to make some sense of our present political-economic perplexities.

The constitution I am referring to then is not the piece of paper but our fundamental working institutions—our constitutive institutions—and the practices that are needed to make them work properly. The crucial question that this constitution is meant to answer is how we ought to constitute ourselves as a people if we are to be engaged in governing ourselves.

Madison is important for answering this question not because he is dead—that is, because he was there at the beginning—but because he was, in substantial ways, right about what we must think about with regard to constituting ourselves as a free and equal people engaged in governing ourselves—in other words a republican people engaged in republican government.

I will aim to cover a lot of ground in this lecture. But if I can manage nothing else, I would like to be able to convey to you both the necessity and power of thinking constitutionally, of thinking about the whole political order as all of a piece—of how its parts are to fit together if we are to realize our aspiration to be a well-ordered republic.

It will perhaps help in thinking about the usefulness of the kinds of things I have to say to contrast them to two other kinds of political thinking now regularly indulged in:

  1. 1. Talk about the kinds of particular policies...


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