Scholars and Our Craft
By
By
William Gangi[1]*
The focus of this Article is the challenges faced by contemporary scholars. The emphasis falls on related experiences rather than on attempted substantive public policy resolutions. Although examples of the latter are inevitable for purposes of illustration, they are provided without being overly argumentative or tedious. The Article is divided into eleven parts. Parts I and II introduce the reader to influences to which all scholars must acclimate. Some of these influences have always existed; others have only recently come into existence. Parts III and IV consider what phenomena prompt students to pursue an advanced degree and describe some of the choices and pitfalls facing them.[2] Parts V, VI, and VII explore which values and objectives motivate those who pursue scholarship and offer several suggestions for maintaining greater research objectivity. Part VIII discusses how scholars may escape the intellectual tides of their day. Part IX explores James Madison’s republican model and why it is frequently distorted today. Part X contends that scholars do not and should not have the last word on public policy-making. Part XI offers some brief conclusions.
For several years, I have been intermittently[3] immersed in the Second Amendment literature on a project still awaiting completion.[4] In the course of this research, certain exchanges between Justices Scalia and Stevens in the Heller[5] case struck me as unusually bitter.[6] The two justices questioned each other’s interpretive integrity,[7] and each combatant’s admirers undoubtedly believed their respective champion won the day. From my perspective, however, the Second Amendment cases[8] added yet another layer of inconsistency to the now long-standing constitutional law “mess.”[9]
But I get ahead of myself. After I had prepared extensive briefs on the Heller and McDonald cases as well as consumed a fair number of commentaries, one article had struck me as superior.[10] I emailed its author:
I just completed reading your “Second Amendment” article and did so with admiration. It was insightful and fully anticipated the McDonald majority.
But, aside from the substance you discussed, what I appreciated most was its incorporation (if I may use the term) of the best standards of scholarship and its willingness to confront opposition arguments, a practice that I find sorely lacking in contemporary scholarship. Alas, . . . your insistence on “reading the footnotes” too often today falls on deaf ears . . . if not characterized as rather “old school.” . . . I also admired your writing style—personal, direct and honest.[11]
Rakove’s article, our subsequent brief correspondence,[12] and the unearthing of a decade-old manuscript[13] came together, bringing my immersion in the Second Amendment literature—and the writing of my Second Amendment Article, to a screeching halt.[14] I could not help myself. Question fragments began floating in and out of my subconscious or, as on other occasions, rose into consciousness while engaged in some menial or physical task—or in some other professional obligation. Fearing these question fragments would otherwise evaporate, I fleshed them out as best I could. The question to emerge—and thus the inspiration for this Article—was “What is a scholar?”
Ten years earlier, I published an article entitled A Scholar’s Journey on the Dark Side.[15] There, I offered my “impressions of contemporary legal education,”[16] concluding that, despite lip-service paid to the framers’ intentions, constitutional law scholarship was no longer rooted in its founding principles. Instead, it drew its contemporary animus from broader theoretical concerns.[17] I concluded in this article that many prominent legal scholars urged members of the judiciary to impose public policies on the American people thought most consistent with American ideals.[18]
Overlap between the Journey piece and this Article could not be avoided, but the emphasis here falls on scholarly experiences rather than the substantive resolutions suggested in Journey.[19] Put another way, the discussions herein are process rather than substantive ones.[20] Both articles, of course, presume human beings are capable of reason, and decisions based on reason are usually superior than those based on emotion.[21] Confronted by conflicting evidence, a reasonable person not only will consider arguments pros-and-cons, but he or she will also, somehow and in some manner, weigh the relative merits of each. He or she ultimately will opt for the best choice.[22]
Reasoning is a skill requiring years of training. For example, in law, when it comes to interpreting a document there are “rules,” or as Publius described them more fully, “rules of common sense, adopted by the courts in the construction of the laws.”[23] And even then, all of us, including scholars, reason differently or not always the same way to the same degree on all subjects—certainly not consistently, or equally, or all the time.[24] Greater maturity also brings an acknowledgment that similar conclusions can be reached for very different reasons. Finally, whatever one’s educational training, evidence acquired also passes through a variety of perhaps non-syllogistic prisms that shape and direct our logical thinking and subsequent judgments. Broadly stated, over a lifetime these influences include our acquired learning legacy, personality-type preferences, and acquired attitudes.[25] The latter often consists of lightning-fast judgments of the rightness or wrongness of an idea or action, before any intellectual assessment actually takes place.[26]
From the preceding discussion, one might conclude the following: what some people perceive either as logical or inescapable realities others find malleable. Just as we know that light possesses an unseen materiality and can be curved by gravity, others analogously believe that so too is logic or other realities. That is, for them, something is only real if they acknowledge its existence. They can also choose to ignore those realities. Over time, that of course proves to be untrue. Realities eventually triumph over faulty theoretical constructs that, for a time, had been denied. But it may take some time.[27] As explored below, shifting realities, real and imagined, also influence the scholar’s world.[28]
While the four challenges detailed below have always posed obstacles to good scholarship,[29] today they are undoubtedly more complex than ever.[30]
Scholars are perhaps more obliged to keep informed about current events than ordinary citizens.[31] They need a consistent source of quality information. Some rules of thumb are easily articulated: it is usually better to consult more rather than fewer sources, and consulting more diverse sources is presumably preferable to consulting similar ones.[32] But, the information gathering environment is not static. Perspectives of trusted sources may change or calcify.[33] Trusted sources also may become less reliable.[34]
Let me relate my own experience. For as long as I can remember[35] my political inclinations have leaned conservative (again without defining).[36] For nearly fifty years, however, as a scholar I considered the New York Times an essential resource for current events. On any given day, one found there the text of relevant documents or speeches (frequently in their entirety). Of course, the editorial opinions of the Times (though usually cogently argued) often were (though not always) inconsistent with my views.[37] Simply put, those editorials were too liberal for my taste and so, over the ensuing decades, I habitually skipped them. Admittedly not very scholarly, but then again, I was seeking only general knowledge.[38] Still, the Times remained my go-to current events resource.
Over the last several years, I became disillusioned with the Times’ journalistic integrity.[39] Simply put, to my eyes, its reporting became indistinguishable from its editorials.[40] I increasingly found the reporting shallow, by which I mean it often ignored questions literally begging to be asked, or it failed to adhere to the traditional journalistic mantra of Who, What, When, Where and Why.[41] Hence, from my conservative perspective, the Times’ reporting became more and more slanted, manipulative, and unreliable. Beyond such rudimentary journalistic sins of omission, I occasionally found lapses in the reporter’s logic. That is, based on my training on how to evaluate evidence, these reporters skipped a step between the facts described and the conclusion reached. Why, I asked, was I failing to understand what permitted that reporter to reach the conclusions he or she reached? Had logic been redefined as I aged? Had I missed that something which would make sense of it all?[42] My confidence in the Times as a reliable current events source was shaken.[43]
The second challenge facing scholars today is not a new one, but, perhaps, it is more arduous than ever. For example, how should a scholar approach the many considerations associated with the right to keep and bear arms? Stated more broadly, the issue is this: What criteria should scholars use while pursuing their research, and once that research is completed, how do they organize those materials so that different but related argument strands may be separately retrieved? As I draft this Article (and redraft it seemingly ad infinitum) I often have time between drafts. Sometimes I need a break from the manuscript because I can’t seem to find the words to express what is in my head, or I struggle with a perceived lapse of logic (my own or others), and on other occasions, I become aware of my own or another scholar’s unsupported statements. Or, alas, there are times when I am simply not in the mood to write. I use these occasions to “chart” previously completed readings on the Second Amendment.[44]
My experience is that such charts have a life of their own, growing as additional sources are added to existing categories, or as new categories are created. Organizational issues soon emerge: e.g., should the Heller and McDonald opinions be treated as one (combining the majority and minority opinions from each case) rather than separately, so that both perspectives may be more efficiently contrasted on a long list of pertinent topics?[45] Such issues might include the following: what had been the framers’ intent when they used the Second Amendment language they did?[46] Are there alternate approaches to those taken by the majority and minority opinions in the Heller and McDonald cases?[47] And beyond such issues there is this challenge: would the criteria put forth in the Journey article remain viable when applied to a subject that had been unanticipated when the article had been written—namely, the Second Amendment?[48]
Adding a contemporary dimension to the usual challenge is the fact that legal scholarship has become more complex in part because judicial considerations themselves today often extend well beyond evaluating legal doctrine or precedent consistency.[49] In sum, today it is not uncommon for legal scholars to encounter a far broader range of expertise (e.g., philosophy, theology, sociology, political science) than in the past, and correspondingly the organizational challenges increase with it.[50]
These considerations impact every aspect of a scholar’s responsibilities, from establishing the accuracy and pertinence of cited authority to examining the voluminous body of amicus curiae briefs and post-decision commentaries. How do scholars practically isolate and distinguish various argument strands (often a dozen or more) from each other, and then, at the appropriate point in their analysis, examine each strand’s distinct components to determine how that strand impacts the others? Put another way, how do scholars sift opinions in the traditional Aristotelian fashion?[51] Is that model outdated today, and is another model required to pursue these critical tasks?
Few scholars are oblivious of conscious biases. Most try to put these aside. Many of us have to work very hard at doing so. However, as discussed below, biases that lie beyond the surface are more difficult to identify and confront.[52] The first step, in my experience, is becoming more aware of just what those biases might be, and then to better understand their experiential or intellectual source. I refer to three types of communication described below: intellectual judgments, acquired attitudes and feelings, as well as the important distinctions between them.[53] Added to these considerations would be greater self-awareness of our personality-type preferences.[54] All scholars bring this baggage to their craft. Each component contributes or detracts from the quality of scholarship produced. For example, despite having obtained an advanced degree more than fifty years ago, remnants of my working-class heritage remain. Similarly, though Roman Catholic by birth, I had not been exposed to the Catholic intellectual heritage until college and graduate school. At least initially, I sometimes continue to filter evidence through those two prisms, among many others.[55]
Of course, political preferences must be counted among these initial filtering prisms. Honesty remains the best policy. It is no secret, though by no means unprecedented, that our political—and to some degree legal atmosphere—has become polarized. Much heat, little light. For some the stakes are exceedingly high. The disease spreads but, in my opinion, does not consume most Americans.[56] For most scholars, transparency is probably the best course of action. I counsel greater awareness of political inclinations: stating them and letting critics discern if, and to what degree, those biases impacted one’s findings.[57]
Constitution-making is about forging governing structures consistent with a people’s values and circumstances.[58] Politics is about a people’s ability to sustain the resultant way of life and governing structures in ever changing circumstances. That is a very difficult task under any circumstances.[59] However, during their careers, scholars also must be prepared for partisanship of varying intensities.[60] If possible, scholars should abstain from partisanship because partisans habitually assume the truth of their public-policy choices. Some partisans certainly have been proven to be right. But all partisans think they are right all the time. In fact, most often, the majority of partisans ignore, deprecate, or dismiss contrary evidence. We need not mince words: there is a danger that some partisan scholars permit their partisanship to unduly influence their scholarship.[61]
Logic, as well as experience, does not demand that scholarship and partisanship be mutually exclusive. Honesty, however, requires an acknowledgment that the mental compartmentalization required to be both scholar and partisan is unusual, and even then, rarely perfect. Hence, scholars must be held—and hold themselves and each other—to the highest standards, or they no longer serve a societal purpose.[62] So, in exercising their self-awareness muscles they can discern if a partisan sub-text has unfairly influenced the quality—i.e., the reliability—of their scholarship. Transparency contributes to honest dialogue and improves the quality of their scholarship.[63] One more consideration.
All scholarship occurs in time and space. Different circumstances create different challenges. Circumstances are not always hospitable.[64] Nothing, however, prepared me for the 2016 presidential election. Nothing.[65] Any acquired expertise as a political science professional certainly did not.[66] The 2016 presidential election has proven more disturbing to more people than any election I can recall.[67] Many voters were left numbed, bewildered at the outcome, and with a growing cynicism and hostility toward the media.[68] The lingering bitterness, however, has gone well beyond a mere election defeat or even dashed expectations.[69] Let me add a few words on this phenomenon.
When in 2008 Barack Obama had been elected America’s first black President,[70] many liberals-progressivists viewed history as once again moving in the right direction.[71] During his two terms there had been progress with respect to securing greater race, gender, and sexual-orientation equality, confirming proponents’ expectations.[72] Hence, an indeterminate number of Democrats and Independents anticipated a forthcoming November romp as well as the election of our first female president. For those supporters, Hillary Clinton’s subsequent defeat was nothing less than shocking. It undermined an anticipated future—one that lay just beyond their grasp while placing an unanticipated obstacle in the path of their vision of an even more open American society.[73]
The post-election disappointment and deepening anger are understandable.[74] By electing Donald Trump, not only had a minority of Americans forestalled further advances in the struggle against various forms of discrimination, but they guaranteed Trump at least one, perhaps more, Supreme Court justice nominations.[75] That is not all. Any prospect of a second Trump term could have a chilling impact on a variety of policies that had been secured under Obama. Simply put, many Democrats and Independents remained incensed that a minority of Americans could do such damage to the American dream.
What we don’t know is the future—whether over time a Trump administration will become more effective, and less divisive, or what, if any, accomplishments might increase or diminish opposition. Will the “resistance” prove victorious or eventually fade and fail? Will it prove prescient—and will Americans subsequently endure cycles of alternative resistance? In any event, some Americans have concluded that something is very wrong with the American system. Wrong, not simply because Trump’s election flew in the face of historical evolution, but wrong also because, in their eyes, Trump’s election was undemocratic. Trump never won a majority of American hearts, and some have asserted that he in fact does not “represent” them.[76] Dashed expectations are always painful.[77] In conclusion, for some, Trump’s election not only represented a political defeat, it resulted in significant obstacles being placed in the path of anticipated progress.
Of course, after the election we have a better idea of how and why Trump was elected, and why so many “experts” (certainly many possessing a far better track record than my own) missed national undercurrents that now seem so obvious. As is common in such situations, pundits subsequently have explained that the signs were there but were ignored, dismissed, or mischaracterized. My point is twofold. Scholars, like other citizens, live in political societies. That too is part of a scholar’s reality. Second, societal realities often clash with perceptions until those perceptions are no longer perceived as viable—even by former adherents.[78]
In drawing this introduction to a close, it is sufficient to note that the 2016 presidential election divided families, generations, and perhaps genders more than usual. It has rattled assumptions about America’s future and its values. Some urban, intelligent, and well-educated colleagues of mine were literally—for weeks or longer—unable to discuss, analyze, or reflect upon the election results with a Trump supporter, even a reluctant one. Two years have passed since the 2016 Presidential election and the Trump administration has proven to be neither reassuring to Democrats nor promising to many Republicans. So, for an indeterminate number, the pain, and perhaps anger, continues unabated.[79] Of course, rarely is something unprecedented in American history, and to a certain extent, that is the point. Scholars always will investigate and evaluate public policy proposals, supported or opposed, for cogent or partisan reasons. Scholars, however, have a serious obligation to minimize the impact of their personal, intellectual, and political baggage on their research. Their job is not only to illuminate the subjects they study but also to inform citizens on those subjects. While a “world view” is perhaps the life blood of an academician, for most Americans public policy decisions always have some wiggle room. And, as argued in the Journey article as well as later in this Article, James Madison’s republicanism depended on that fact.[80] Contemporary democratic theory is not the same thing.[81] Unlike in the Journey piece,[82] however, my emphasis in this Article falls on my experiences as a scholar.
Such decisions are a consequence of varied tugs on the human soul, imagination, and the creativity of universities. Some students are drawn to admirable endeavors, hoping to better understand the world in which they live; others desire to reshape the world to be a better place. Some seek to do both. Though technically distinct, among these students may be counted those seeking a law degree.[84]
Students choosing to pursue an advanced degree are soon compelled to select an area of concentration. In each generation, patterns of selection are discernible, with students attracted to some single or related causes. Specific student choices are in turn frequently associated with having had an inspiring professor, often also committed to one cause or another (e.g., one form of equality or another, the environment, climate change). Shortly thereafter, these young scholars select a dissertation topic and mentor.[85] In the social sciences, a wide variety of mentoring styles and methodological decisions must be made. Those decisions habitually shape initial publications. Make no mistake, however, thesis topic selection and methodological choices entail significant effort to master. Such choices are not easily revisited. The best doctoral training provides students with at least a working knowledge of competing methodologies as well as familiarity with the multiple tools required to utilize them.[86]
Here are at least four reasons why:
All scholarship occurs in time and place, and to one degree or another, all scholars must reexamine their professional training, acquired assumptions, and the conventional wisdom of their day.[96] Over the course of this Article, several facets of related issues will be explored. For example, among other topics I refer to challenges such as making unwarranted assumptions, the need to move in unanticipated directions, and displaying wariness toward conventional wisdom.[97] However, no pretense is made in what follows to describe experiences not my own—a task that is rightly left to others. Some could point out that many of the lessons deduced from the related experiences in fact merely reflect one side of the political divide in which we find ourselves. I agree, but I assure the reader that these lessons are sincerely and honestly conveyed. Other perspectives are anticipated.
Some of my college professors, having completed their advanced degrees prior to or shortly after World War II, counseled me, first, that perhaps the Constitution’s framers had not been motivated entirely by patriotism. Perhaps, prospects of personal gain was their immediate consideration. Second, referencing some of the framers’ negative comments on the nature of democracy, my professors also suggested that perhaps the framers were not as committed to popular government as earlier scholars had proclaimed. Finally, these professors contended that, rather than providing checks on the powers exercised by the executive and legislative branches, the judiciary’s primary contribution to the separation of powers was to permit judicial monitoring of the dangers associated with majority tyranny, that is, to protect minorities from oppressive legislation.[98]
Putting off a substantive discussion of my professors’ contentions (i.e., that perhaps the Framers were prompted by immediate monetary gain and insincere in their professed democratic beliefs),[99] we focus here on their third assumption described above, namely, that the primary purpose of the separation of powers was to permit judicial monitoring of minority rights.
Soon after beginning my teaching career, I ran across an article which challenged the idea that the Framers’ doctrine of separation of powers was intended to expand the judicial function.[100] In this article, Professor Carey contended that the primary purpose of the separation of powers, as understood by the framers, was to make instances of “governmental tyranny” less likely.[101] Publius defined tyranny as consisting of the consolidation of legislative, executive, and judicial power into a single hand.[102] Although the tendency was common to all forms of government (e.g., monarchies, aristocracies, and democracies), it was a tendency particularly dangerous in popular governments because the legislature, who made the law, naturally predominated.[103]
At the Philadelphia Convention, many Antifederalists expressed concern that if the newly proposed national government was granted the powers proposed by the Federalists, those powers could be used by the national legislature to tyrannize all citizens. Even Thomas Jefferson expressed concern over consolidations of power already occurring in some state governments, including his beloved Virginia.[104] Would the danger posed not be even more acute in a yet untested government? The framers were keenly aware of the danger. Although they insisted on a national government possessing adequate powers to meet any contingency, they took as many practical precautions as feasible to make the consolidation of powers less likely.
First, the states ceded to the national government only those powers perceived as essential to accomplish the limited objectives assigned to it.[105] All residual sovereign power remained in state hands.[106] Second, those powers lodged in federal hands were then dispersed (separated) among the legislative, executive, and judicial branches, and each were given sufficient power to assure the powers granted could be protected by each respective branch.[107] Third, since in a popular government the legislature was the branch most likely to attempt a consolidation of power (they made the laws), the framers took yet another precaution: conditioning use of the extensive powers granted the Congress upon the cooperation of the House of Representatives and Senate, structuring the chambers so that each had different terms of office as well as, in some cases, distinct responsibilities.[108] The framers believed such precautions would reduce the likelihood of consolidation yet preserve the requisite governmental vigor on both the state and federal levels.[109]
But, if what my professors had taught me was incorrect, and the purpose of the separation of powers was to forestall not majority but governmental tyranny, then how did the framers anticipate addressing the danger posed by the majority’s use of governmental power against a minority of citizens? I again was forced to re-examine my assumptions. The danger of majority tyranny, the author explained, was an issue distinct from the one posed to all citizens by a consolidation of powers. It could not be remedied by a structural provision because any proposed structural solution, Publius argued, would be inconsistent with republican government: majority rule.[110] And so, the author reminds us that the framers’ cure for majority tyranny was the same cure suggested for the protection of religious rights: reliance on the multiplicity of interests and an extensive territory.[111]
So, as you can see, scholars regularly work in minefields of conflicting viewpoints, grand theories, and assumptions (stated or unstated), with some coming into being, others gaining or losing popularity, while still others—for one reason or another—completely falling out of favor. All this occurring, of course, in addition to the ebb and flow of other tides, such as those respecting appropriate research topics and methodologies. Simply put, scholars must remain cognizant of the intellectual fashions of their day, even though it is unlikely that they can escape such prisms completely.[112] From this experience, coupled with those noted above, scholars exploring historical materials should follow four fundamental investigative precautions: (1)The principles or words used by historical figures should be conveyed as the figures themselves understood them; (2) Any meaning those principles or words acquire after the period being studied should be exorcised from purported reconstructions of the period examined; (3) If, during the period studied, the principles or words had several usages, scholars should determine which view dominated and how influential those were who shared that view. Accordingly, scholars should not focus on minority points of view even if, having the benefit of hindsight, one knows they become dominant sometime in the future; and (4) Perhaps most importantly, scholars should test the word’s alleged meaning against actual practice. Scholars should not be satisfied with logical explications; they must zero in on the action. A people’s actions provide a crucial context for the interpreter, just as, in adjudication, concrete facts provide a more appropriate setting than do hypotheticals. Students should be leery when discrepancies between belief and action are characterized as ignorance of the words’ true meaning, or are due to the people’s alleged hypocrisy.[113]
But let’s start closer to the beginning of a scholar’s journey.
Curiosity!
Although many scholars, upon reflection, admit that some moral or ethical injustice prompted their initial subject interest, persistent curiosity tips the scales towards greater objectivity.[114] Many scholars fail to completely escape their own biases, but striving to do so enriches the quality of their final product.[115] To have a lasting impact on one’s research, curiosity must be sustained, but, in my experience, it instead often waxes and wanes. That too has taught me valuable lessons.
Skill acquisition requires persistence. When, as a Ph.D. candidate, I obtained two of Willmoore Kendall’s “Vanderbilt Lectures” (originally delivered at the University of Dallas), I skimmed them briefly, found them intriguing, but put them aside. Other priorities beckoned (a doctoral thesis). Several years later, now teaching, the lectures were published in book form (Basic Symbols).[116] Reading that book I was initially troubled because when I contrasted their explication of The Mayflower Compact (Compact) language with my copy of that document, some of the words the authors quoted did not appear in my copy of the Compact.
Am I being conned, I contemplated? (A fear I later realized common among Brooklyn-bred boys.) By chance, I noticed that the volume of important American documents I was using was an edited one, and once I obtained an unedited copy of the Compact, the authors’ scholarship proved impeccable. For some reason, the editor of the edited volume had excised the very words which the authors of the Basic Symbols thought particularly significant, presumably because the editor thought those words extraneous.[117]
From this experience, and from the Basic Symbols’ book, I offer five suggestions which scholars might adopt to improve the quality of their research.
Kendall and Carey warn scholars not to rely upon, or unintentionally create, “thesis books,” books wherein important unstated assumptions are made that in effect predetermine the outcome of their research before they begin. Put otherwise, assuming the truth of their assumptions, these authors focus more on explicating the internal logic of their thesis (consisting of one or more often related assumptions) than on the evidence encountered.[118] Consequently, thesis book authors fail to recognize that if encountered evidence is viewed from another perspective, that evidence may in fact partially or completely undermine the thesis they are trying to logically explicate. In sum, there is a tendency among thesis book writers either to ignore or to otherwise diminish the importance of the encountered evidence, that is, to characterize such evidence as being unimportant or irrelevant.[119]
Still, the thesis book writer must be differentiated from an author committing intentional fraud—knowingly ignoring or purposely excluding evidence that even they acknowledge (to themselves) as relevant. The mistake thesis book writers make is clearly unintentional. It is due solely to the fact that they had focused so intently on their thesis content, or on the effort and concentration required to logically explicate that thesis—or on describing how that thesis contributes to the shaping of the present—that these authors become incapable of viewing evidence from outside their assumed assumptions. Encountered evidence partially or completely undercutting their thesis simply does not register to them—or, it is perceived as unimportant or irrelevant.[120]
Unintentional or not, however, thesis books can damage a body of scholarship for several generations. The extent of the eventual damage depends on when it occurs in the creative cycle of formation, early adoption, critique and ultimate abandonment. Hence, if the injection of what over time proves to be a false thesis occurs early in the noted cycle (if not soon corrected), will do the greatest damage over the longest period. The damage is so extensive because its originators—or early contributors—intensively speculate on the breadth and depth of its possible application. If thesis books come late to the body of scholarship (just as critical appraisals of that thesis either begin in its field of origin or to other fields to which it had been initially applied), they naturally do the least damage. In practice, however, the time between initial thesis criticisms and rejection of that thesis as partially or completely defective, is indeterminate. The damage done in the interim can corrupt a body of scholarship for several generations because, as noted above, a thesis book of one generation often forms the jumping-off point for the next generation of scholars building upon and expanding the original thesis.[121] In sum, a defective thesis is embedded further in a body of literature—until at some time in the future it is revisited. These occurrences are perfectly understandable. Thesis book creators often are innovators with scholarly reputations otherwise beyond reproach. Often the timing is right and the audience is receptive to the consequences of the thesis, which then becomes so widespread in the field that it is considered to be beyond question. We will return to this and another facet of this topic later in the Article.[122]
The rub of course is that such errors are unavoidable since all scholars must make assumptions. If anything, scholarship is about the accumulation of a body of knowledge over a sustained time period, inherently creating fertile ground for error accumulations. One might suggest that scholars are as likely to add as to subtract from the accumulations. On the one hand, good scholarship requires scholars to identify their own assumptions and prejudices and to prevent them from adversely influencing their substantive research conclusions. On the other hand, for the same reason, that scholar must carefully identify their opponents’ prejudices and assumptions, stated or unstated. The very juggling of these two considerations may prompt a reexamination of one’s prior conclusions. That in turn may cause the scholar to consider another perspective, one prompted by the opponent, or another perspective, perhaps only partially attributable to that opponent. In either case, these circumstances may stimulate the scholar’s curiosity, and he or she might consider a topic, an approach, another point of view, or insight, they had not before anticipated or had given credence.
To illustrate my point, I again recount my own experience. After publishing several articles, subject curiosity drew me to the origin and rationale of the exclusionary rule. Having nearly completed that research, I ran across a brilliant article whose authors brushed aside as inconsequential the rule’s history, and the fact that until recently the rule had been understood as a mere rule of evidence admissibility lacking constitutional status. Instead, the authors forthrightly defended the proposition that judicial imposition of the rule should be understood as a corollary exercise of judicial review.[123] The authors labeled their approach the “judicial integrity argument.”[124] As recounted elsewhere, the argument dazzled me. Instinctively (perhaps a synonym for refusing to let go of my historical evidence), I knew they were wrong, but for the life of me I could not cogently refute their reasoning. I also could not withhold it from my students because in class I had acknowledged the argument was a powerful one, and during the course of the semester I had repeatedly chided them about the need to confront opposition arguments! So, for a few semesters thereafter when lecturing on the exclusionary rule, my confidence was undermined, and that certainly contributed to some of my class room surliness.[125]
Drawn deeper and deeper into the related literature an even broader issue came into focus: in the American system of government, what is the proper role of the Supreme Court? Recognizing (not too graciously, mind you) that my theoretical and historical tools were deficient, I abandoned research on the exclusionary rule and instead turned my attention to this new subject.[126] Having one’s research taken in unanticipated directions forces scholars to once again confront, re-embrace, or abandon assumptions that perhaps are near and dear to his or her heart.
Finally, even if one successfully explores his or her assumptions on one subject, it may still draw criticism on another—even from unexpected quarters. I recall, not long after publishing an article on competing interpretive perspectives, Professor Carey sent me a letter,[127] forthrightly challenging my characterization therein of the Constitution as a “mixed regime.”[128] He chided me and pointed out that Publius[129] certainly did not share that view, and had instead contended that the American Constitution was unique in its day since every branch ultimately remained dependent upon the people (unlike, for example, in Great Britain, where the monarchy named members of the House of Lords). Although I did not realize it then, Carey’s comment reinforced the caution against scholars making unsupported assumptions, eventually compelling me (having been frequently nurtured by defective scholarship) to reexamine my understanding of both the idea of a “mixed regime” and the already mentioned purpose of the separation of powers.[130] At least that is how I process his criticism today; then, unfortunately, some of the suggestions I now make eluded me: “Whatever,” I thought at the time, rather flippantly.[131]
The third lesson deduced from Basic Symbols is distinct but related to Kendall and Carey’s thesis book concern.[132] I refer to their coining of the “official literature” phrase,[133] that is, literature consisting of secondary sources that purport to explain the significance of our primary national documents (The Declaration of Independence, The Federalist Papers, the Constitution, and the Bill of Rights). Succinctly put, the official literature teaches that our political tradition began with the Declaration of Independence, and since that time primarily consists of a continuous expansion of equality and personal rights. Such assertions, however, are difficult to reconcile with the facts.[134]
Official literature assumptions continue to dominate the academy—which is precisely the authors’ point.[135] To clarify, the authors used the adjective “official” not to refer to the legal status of liberties or equality assertions, but rather to describe the pervasiveness of those secondary source assertions as providing prisms through which many academicians view the associated primary sources. Consequently, those same prisms dominate teaching on associated subjects in secondary, college, graduate, and law schools—so much so that it is difficult for students to find an alternative view in many, if not most, American Government college textbooks.[136]
Scholars must continuously test the validity of their conceptual tools. The Basic Symbols authors did precisely that. They forthrightly challenged official literature assumptions that a concern for liberty and equality formed the cornerstone of the American political tradition.[137] Exclusive focus on those values resulted in our historical experiences being weighed through an implicit evolutionary lens (did this or that experience expand or contract the nation’s commitment to liberty and equality)? Furthermore, an inherent tendency emerged to condemn predecessors for, at best, lacking an understanding or commitment to the values assumed, or at worse, for being hypocrites (touting associated values but in fact acting contrary to them).
Instead, the authors suggest that once historical events are viewed through a different theoretical prism,[138] self-government—and not liberty and equality—emerges as the core of our tradition. Put another way, the self-government prism better explains our history as a nation, and while the themes of equality and personal rights remain important, they were not always our primary concern.[139]
Because details remain outside the scope of this Article, a few brief corollaries must suffice. Once the right to self-government is put center stage, our history becomes more comprehensible because it no longer focuses exclusively upon the expansion of personal rights and equality, as advocated by proponents of the official literature. Instead, experiences such as our legacy of slavery, as well as other forms of discrimination, are put into the context of our complex republican political structures and its ultimate dependence upon human beings. It is a history far from perfect—but better than most—in which our governing structures intersect with fallible human beings.[140] It is at that intersection that we depend on scholars and statesmen to illuminate the past so that we may better understand the present and prepare for the future.
Application of a new set of theoretical tools to an existing body of scholarship often introduces new perspectives and insights. And the clashes between those today who put liberty and equality center stage and those who resist doing so, or perhaps elevate other values, certainly contribute to the existing political rancor. On both sides, some view various policy choices—or even Supreme Court picks—as a high stakes zero-sum game where one is either a winner or loser.
Here, however, our focus is on understanding the articulation of a perspective different than those suggested in the official literature. Accordingly, once self-government is put center stage, students are no longer encouraged to view our predecessors as possibly hypocrites. Instead, they are encouraged to better understand why perhaps some Americans believed one thing and did another.[141] Simply put, those who have adopted self-government as the center of the American tradition suggest they provide a better contextual understanding of the discriminations in which we as a people engaged, while at the same time minimizing arrogant accusations of citizen hypocrisy or stupidity.[142]
Finally, Kendall and Carey suggest students should be discouraged from imaginatively rewriting history (that is, by applying twenty-first century moral assessments retroactively to condemn eighteenth century perceptions of societal structures or beliefs), as if by doing so something insightful or practical is accomplished.[143] Such speculations miss the point. All Americans should own our history, and work harder to fully understand it and to avoid repeating the mistakes of those who preceded us.[144] Perhaps most importantly, the self-government perspective discourages students from viewing their participation in the body politic (implicit in the official literature perspective), almost exclusively in terms of rights possessed or denied. Instead, students are encouraged to consider the legacy of freedom bequeathed to them, to embrace that legacy, and to accept the awesome responsibility to define today who we are as a nation, to defend that meaning, and to pass the legacy of self-government onto successive generations.[145]
The four preceding sections express scholarly cautions. This last lesson also suggests a methodological check, that is, how scholars can better understand how the people of a particular era understood the words they used. Scholarly misinterpretations most often occur because all relevant evidence has not been considered, or because authors stress one and not another reason for the people’s actions, or because, as previously noted, authors remain so focused on their thesis that that they are unaware that other explanations exist or elude them.
But, if not already hard enough, scholars must be cautious when extraditing themselves from those minefields. Even if scholar X suspects scholar Y’s conclusions are tainted by one or more of the dangers described previously, he or she cannot, on the level of principle, systematically ignore or discard the entire body of scholar Y’s research. Rather, scholar X must proceed cautiously. Even research based on a defective premise may contain insights integral to a more comprehensive understanding of the investigated subject. Succinctly put, it may take one or more generations of scholars to undo the damage wrought by the original thesis book writers and their successors. It takes time to unravel unjustified assumptions or unsustainable theses.[146] In order to minimize such mistakes, Kendall and Carey suggested this succinct rule of thumb: “Unless we can see a correspondence between the symbols we have in hand and the people’s action in history, the symbols we have in hand do not in fact represent that people and we must look a second time for the symbols that do in fact represent them.”[147] It is a suggestion that has far-reaching consequences.
Perhaps it is best to illustrate that assertion by using concrete examples. In the first example, a scholar asserts that a phrase in the Bill of Rights (e.g., “freedom of speech”) was intended to protect certain actions, but during this same period the government prosecuted seditious libel, blasphemy, and pornography. Kendall and Carey suggest it would be inappropriate to contend either that the government or the people of that era were slow-witted (did not then understand the logical implications of free speech as we understand them today), or that they were hypocrites because, although professing allegiance to the idea of freedom of speech, they nevertheless engaged in inconsistent behavior (that is, by supporting the noted prosecutions). Kendall and Carey suggest that, at best, either judgment would be premature.
Instead, what is far more likely is that our investigating scholar did not consider what the noted prosecutions might reveal about the scholar’s assumptions about the meaning of freedom of speech. Had the scholar focused more on the people’s action rather than what the scholar thought a logical explication of what the words should entail, he or she might have better understood what the people meant when they used the words they did (i.e., freedom of speech). In sum, during the founding period, the people’s view of “freedom of speech” did not preclude such prosecutions because, once that language was put it in its textual context in the Constitution, such prosecutions were thought not to “abridg[e]” the freedom of speech right.[148] Put another way, the noted offences (blasphemy, seditious libel, and pornography) instead were considered abuses of the freedom of speech right: i.e., taking license with the legitimate concerns of that right, namely attempts by government officials to suppress political speech. Understood thusly, our investigating scholar unjustifiably substituted a meaning he or she believed freedom of speech should mean (or came to mean subsequently) instead of probing the meaning the people of the time embraced. Simply put: our scholar permitted his or her assumption (i.e., thesis) to misconstrue what the people meant when they used the words they did.[149]
Our second example further fleshes out the far-reaching effects of integrating the people’s actions with the words they used. Basic Symbols carefully examines major colonial documents, among which is the Massachusetts Body of Liberties (1641). When viewed critically, the authors observe that all the liberties conferred therein (many of which today persist in identical language and would be called “rights”) had been procedural, adopted over time as a result of prior monarchical or judicial abuses in England.[150] The authors observe, however, that “there is [in the document] no hint of any right that limits the power of the legislature.”[151] Furthermore, when considering the specific liberties we today would consider sensitive, the document contained “escape clauses” that authorized the legislature to make exceptions from how those liberties were usually applied.[152]
Granting the legislature the power to modify rights’ application is foreign to contemporary scholars who would probably ask, “if the legislature is granted the authority to make exceptions to liberties’ application, how can these provisions still be considered liberties?” These scholars would maintain that they would no longer qualify as rights.[153] Put another way, should we distinguish the right of the Massachusetts’ legislature to grant exceptions to normal liberty application, from our more contemporary understanding today, when we speak of rights versus liberties?[154] One resolution for contemporary scholars, I suggest, is to view the Massachusetts’ liberty provisions as being a primitive form of what we understand as rights today, that is, they assume that originators of these liberties did not fully grasp their import or evolutionary potential. Put yet another way, given the early date of the document, they assume that today we have become savvier about the nature of rights.[155] I think their perspective is faulty as well as arrogant.
Let’s examine the legislature’s power to grant exceptions in the Massachusetts Body of Liberties more carefully by offering a specific application. The Body of Liberties prohibited “involuntary servitude,”[156] but as with other sensitive issues, the “General Court” was empowered to make exceptions.[157] Modern rights proponents certainly would sneer at the fragility of such a protection, one that lodges a dangerous discretion in legislative hands. Yet, unless it is assumed that in “unanimous[ly] consent[ing]” to these provisions, the good citizens of Massachusetts were dullards (not quite capable of understanding the nature of liberties)—which needless to say would reveal considerable arrogance on our part—the prudent scholar would look for a more credible explanation.[158]
And, to do so, we must step outside the prism of the official literature. Even at that time, Massachusetts citizens recognized (in modern parlance) that “s*** happens.” Confronted by a natural disaster (again, in modern parlance), a nor’easter adversely affecting significant portions of the state and population (the storm washing out roads and bridges thereby inhibiting the ability to aid storm victims, or, as a result of these conditions, commerce throughout the colony is crippled), citizens expected their legislature (i.e., General Court) to do something to ameliorate the situation.[159] Volunteers would undoubtedly appear and attempt to take corrective measures. But, what if, for whatever reason, the number of volunteers or required equipment fell short? Citizens certainly did not expect their legislators to wring their hands and bemoan the decline in civic participation. Representatives were elected precisely to address situations such as this, and bring their collective wisdom to bear, with respect to what measures were required to resolve the emergency.
While the good citizens of Massachusetts understood that in ordinary times citizens should not be imposed upon, I suggest that they also understood that in extraordinary circumstances, extraordinary measures might be required. In sum, they authorized legislators to ignore ordinary liberties and instead mandated even unwilling citizens to participate in road repair for the sake of the general good. The stakes may be perceived to be so high that legislators would not brook interference from resistant citizens claiming that being forced to help against their will was contrary to the Body of Liberties provision against involuntary servitude.[160] Understood from that perspective, the inclusion of escape clauses makes perfect sense. It is neither hypocritical nor inconsistent with the protection against involuntary servitude.[161]
The two examples offered above reasonably demonstrate why examining what the people did helps scholars better understand what the people meant when they used the words they did. But, at the risk of nibbling at more substantive contemporary issues, I thought it worthwhile to further illustrate the consequences of the Basic Symbols approach by turning to this far more complex Massachusetts Body of Liberties provision:
No man shall be forced by Torture to confesse any Crime against himselfe nor any other unlesse it be done in some Capitall case, where he is first fullie convicted by cleare and sufficient evidence to be guilty, After which if the cause be of that nature, That it is very apparent there be other conspiratours, or confederates with him, Then he may be tortured, yet not with such Tortures as be Barbarous and inhumane.[162]
Can you imagine the vociferous reaction to the sentiments expressed in this passage? Contemporary rights proponents would label ludicrous any characterization that such a provision guaranteed a liberty—never mind a right. Where, they most assuredly would ask, is the unchanging substantive protection from legislative whim? Was the Massachusetts judiciary not authorized to intercede, declaring illegal such arbitrary behavior, or surely they were authorized to intervene against this capricious interference with that liberty? But—and I cannot overemphasize this point—the quoted provision was not only demanded by the good citizens of Massachusetts, but, when enacted, was perceived not as a diminution of a right but rather as advancing (securing, existing, and expanding further) our English liberty heritage![163] Most importantly, citizens did not find the granting of such legislative discretion inconsistent with that legacy.[164] Why not? Because at the next election, a majority of voters could remove any legislators that did not deserve the discretion entrusted to them.[165] In sum, citizens fully embraced their power of self-government, and, properly understood, the quoted passage recognizes today what most American citizens instinctively understand (if properly inoculated): that few, if any, substantive rights exist in all times and circumstances. There is a perpetual need to balance competing concerns.[166]
Having absorbed—after some three decades or more—the preceding lessons, The Federalist Papers beckoned me.[167] The timing seemed right. For more than two decades, I had immersed myself in Supreme Court decision polemics. I paused, feeling the need to take stock of my intellectual baggage, especially my understanding of the founding era.[168] Before recounting some specific suggestions of how to approach the Papers, I want to bring to the reader’s attention some fundamental concerns regarding all original sources.[169]
As a graduate student, The Federalist Papers had been mandatory reading. At least I think it was.[170] My far-better-prepared Ph.D. candidate classmates certainly were more familiar with it and other original sources than I. But, as we all know, reading is one thing, immersion another, and mastery is often an elusive lifetime goal. I recall only this: at the time of publication and for a considerable period thereafter, the Papers was universally admired for its practical political wisdom.[171] Yet, college and graduate professors and fellow students rarely mentioned The Federalist Papers. Why the disconnect?
Since then I have realized that scholars must explore past perceptions of original sources before the sources can be accorded proper weight. Once again, historical context is necessary. After the Civil War, borrowing concepts originating in biology (more specifically the research of Charles Darwin),[172] some scholars combined them with French economic theory, creating what eventually became known as laissez-faire capitalism.[173] Hence, natural laws such as the Darwinian one (that only the fittest species survive environmental changes) were analogously brought to bear on societal economics, such as the natural law of supply and demand, or the natural law that all capitalists are compelled to maximize profit. Understanding these natural laws was thought to illuminate the natural economic conflicts between capital and labor. Accordingly, French Physiocrats suggested that to maintain a vigorous economy it was best if the government remained neutral, permitting these natural economic laws to sort out resulting conflicts—naturally! These assumptions formed the cornerstone of laissez-faire capitalism (non-governmental interference in the market place) and was widely adopted. As is commonly the case, it captured “the imagination of the American intelligentsia—including its judges,” creating a prism upon which nearly a century of scholarship reinterpreted the Constitution’s philosophic underpinnings.[174]
Hence, from the late nineteenth to the third decade of the twentieth century, Supreme Court majorities used laissez-faire justifications to strike down “state and federal legislation [which had] attempt[ed] . . . to ameliorate the ill effects of modern industrialization. . . . [And by doing so] imposed upon the American people the . . . intellectual prejudices of their era.”[175] Moreover, these Supreme Court majorities insisted that not they—but rather the framers—had embedded those economic principles into the Constitution. All the justices did, they claimed, was remind Americans of their obligation to adhere to the principles their predecessors had sworn allegiance to uphold.[176]
But what does all this have to do with why The Federalist Papers fell out of favor? The answer to that question is to be found in the academic response to the above-noted laissez-faire contentions, that the framers had incorporated these economic precepts into the Constitution.[177] Some specifics must be provided. Scholars are aware that time has a habit of nibbling at, if not consuming, intellectual tides. So, it should come as no surprise that having peaked toward the turn of the twentieth century (a vantage point this writer enjoys), the tide began to shift away from the laissez-faire perspective. As is usual, these challenges began in the academy and eventually found their political expression.[178] We may group these academic critics under the general banner of Revisionists.[179]
Some Revisionists chose not to directly challenge laissez-faire economic assumptions; instead they sought to achieve the same result by attacking the Framers’ prestige.[180] That approach probably proved attractive for at least three reasons. First, on the national level, laissez-faire precepts had become so associated with Supreme Court decisions that an attack on one was perceived as an attack on the other.[181] Second, some Revisionists undoubtedly embraced as accurate contentions that the framers had, in fact, subscribed to laissez-faire principles. Third and finally, some Revisionists charged that the framers actually had been hostile to democratic government as well as to the principle of majority rule.[182] In this context their strategy was simple: by undermining the framers’ moral standing, they simultaneously undermined the moral authority of the Supreme Court—and vice-versa. Thus, a rising tide of scholarship (purporting to reexamine the founding period more objectively than in the past) soon allegedly established that the framers were not nearly as noble or public-spirited as Americans had been led to believe. Instead, motivated by personal self-interest, they craftily hid their undemocratic intentions from the electorate.[183]
Particulars do not concern us here. The lesson scholars must employ is this—when examining any original source, to properly understand it, one must assess whether past scholarship is more meritorious than present scholarship, and how assumptions, past and present, may influence those determinations.[184] One might pose this additional line of inquiry: Why has the Revisionist criteria continued to unduly influence contemporary scholarship with respect to the framers’ constitutional motivations?[185] Hasn’t the time come for the founding period to be re-reexamined without both the laissez-fairest and Revisionist veneers?[186]
When approached in the above context, students soon grasp why The Federalist Papers today no longer engenders the respect in the academy that it once did. Unfortunate, but correctable. Still, why do an indeterminate number of scholars continue to embrace the flawed Revisionist analysis? Is it because doing so enables them to suppress questions that if raised might unravel other dearly-held but defective theses?[187] One today could perhaps attribute such omissions to the unprecedented volume of information available to all scholars today, not to mention pure chance (that is, whether the period proves attractive to one or more contemporary scholars). Possibly this may be the case, but such explanations do not satisfy me. When reading the legal literature or conversing with colleagues, these omissions are jarring, especially when no apparent desire or effort is made either to acquire additional information or to demonstrate familiarity with the contrary arguments presented, or, more importantly, to present evidence repudiating them. The body of scholarship repudiating Revisionist assumptions raises the “look for a thesis” red flag.[188]
Recall, we have cautioned the reader of the danger posed by being guided by unstated or uncritically accepted assumptions—or perhaps, utilizing theses that are not well-grounded in historical fact—or when a scholar ignores what the people did when trying to determine what the people meant when they used the words they did.
Even if one acknowledges an abstract obligation to examine original sources, questions remain. When is that necessary: Always? Sometimes? It is impractical to ask scholars to ignore their accumulated expertise each time they embark on a new research project. Shortcuts are inevitable. After all, most scholars consider some sources fundamental, rock solid, reliable—sacred texts if you will.[189]
Let’s view the issue from another perspective. Students are usually introduced to a subject by an inspiring professor, one who more probably than not intertwined his or her expertise (including unstated assumptions) with perhaps embedded value preferences. Professors rarely differentiate the two components, and students today, perhaps more than ever, are rarely encouraged to distinguish acquired expertise from desirable outcomes.[190] When in turn these students themselves become budding scholars, their understanding of original sources begins where their mentors’ own understanding left off. Sometime in the future, however, these emerging scholars may be compelled by circumstances (e.g., during advanced graduate work, writing their doctoral dissertation, exposure to competing viewpoints, years of diligent research) to reexamine the original sources upon which their professor’s expertise had been at least partially based.
The quality of that reexamination may well depend on the quality of their initial training (perhaps from the same inspiring professor) or upon other training or research experience subsequently encountered. If the standards their inspiring professor initially provided prove adequate, the reexamination of original sources will still likely enrich their craft for no other reason than they now bring to the reexamination more knowledge than what was available to them as students. Thus, such reexaminations simply may affirm their professor’s assessment of those original sources.
However, as is frequently the case, the reexamination may to one degree or another alter the perception of those original sources inherited from their inspiring professor. Perhaps greater familiarity with the literature or even new research enables them to detect inconsistencies or the importance of evidence which heretofore had eluded them. In brief, the reexamination may result either in a partial or complete rejection of what their professor had taught them about an original source. This scholar must decide if their tainted understanding of an original source has adversely impacted their past research and conclusions. If it has, they must decide if the perceived shortfall can be corrected and the resultant errors addressed. This course of action may require a pause in the scholar’s research agenda and a need to expend energy to address these newly discovered gaps in expertise.[191]
In my own reexamination of The Federalist Papers, I found Kendall and Carey’s “Introduction” invaluable, permitting me to understand that my initial exposure to it had been faulty.[192] Let me count the ways: (1) Scholars and students alike should read all the Papers and not just Nos. 10, 51, and 78, copies of which often are conveniently included in the typical college text book. And they should read each Paper carefully. Only then can one assess whether what a professor taught that Publius had said corresponds with what one now reads. Too often my professors had interpreted Publius’ words either through the “official literature” or Revisionist prisms, paying little or no attention to an alternate interpretation or what evidence challenged their related assumptions;[193] (2) Scholars and students alike should subject two other assumptions to close (one is tempted to write “strict”) scrutiny, namely: (a) “The Mischiefs of Factions,” that “[a]ll individuals pursue their self-interest, seeking advantage or power over others”[194] adequately addresses our political history and (b) that since Publius supported judicial review—an important constitutional feature—he endorsed the contemporary assumption that the framers endorsed a general judicial discretion to resolve public policy disputes;[195] (3) After a careful reading, scholars and students alike should be able to evaluate whether the Papers, as some scholars claim, are “mere propaganda, a mere ‘school-teacherish’ explication of the Philadelphia Constitution;”[196](4) A similar reading also permits scholars and students alike to judge Revisionist characterizations of the Papers as being simplistic and unsustainable.[197] Instead, as Kendall and Carey argue, the Papers can be fairly described as “a ‘basic document’ of the American political tradition.”[198] In fact, we should view them as “a re-enactment, in miniature, of the miracle of the Philadelphia convention itself . . . .”[199]
(5) I eventually grasped another insight that eluded me for decades, namely, the fact that Hamilton and Madison’s subsequent expression of divergent views on a variety of issues was largely irrelevant to an understanding of the Papers.[200] Their later disagreements do not diminish the unity of explication contained in the Papers, a unity that the long-lived Madison never repudiated.[201] Scholars and students should embrace this guideline: “[T]he holistic perspective of The Federalist . . . holds out the best prospect for identifying, illuminating, and comprehending these and like concerns surrounding the foundations of our system.”[202]
(6) Finally, I now reject as unsustainable the Revisionist assertion that the Papers contain “mutually inconsistent positions and values that masked the “Framers” undemocratic motives.[203]
For these reasons, I better grasp today why too many political scientists and legal theorists have ignored or depreciated, with the notable exception of the tenth Paper, the continuing relevance of the Papers.[204]
On several occasions, I have cautioned readers that scholarly tides are frequently in a state of flux.[205] Those discussions focused on their character and provided examples of their occurrences. In the last instance, it provided some explanation of why some scholars dismiss the relevance of The Federalist Papers. However, those prior discussions offered little practical assistance when the broader and perpetual challenge is approached: How may scholars escape the intellectual “tides” of their day? Frankly, in all probability, most of us can’t. But having absorbed some of the preceding lessons, a few practical suggestions may be offered.
There is no substitute for the years of reading, reflection, and writing integral to acquiring expertise. That process is repeated during periodic immersions in another body of literature, immersions that to one degree or another, disturb past subject certainty. Avoid the natural inclination to push aside those challenging your point of view. Read opposing literature more carefully than that of those agreeing with you. Then, read them again. Be thorough without being obsessive.[206] By sifting carefully through the opinions you encounter, soon you will identify those who focus on evidence rather than placing an emphasis upon obtaining desirable results. Gravitate toward scholars evincing greater evenhandedness. Reflect. After identifying superior scholars, examine cited sources. Read and compare those sources to others you’ve encountered. Organize the arguments. Separate the different arguments within a single strand. That act sharpens your skillset, permitting you to separate the wheat from the chaff: that is, it helps you distinguish which scholarship is obviously motivated by short term agendas from those seeking greater understanding—and perhaps driven primarily by curiosity.[207] Finally, mastering opposition points of view has a tendency to moderate conclusions.[208] These practices should stimulate you to look beyond immediate consideration of the consequences of your musings, and perhaps help to free you from the conventional opinions that may surround you.
Acknowledge the debt owed to those who nurtured your craft and assisted in acquiring your expertise.[209] You will often find humility in the works of outstanding scholars and are likely to find an honesty and meticulousness in their works, especially when examining respected opponents.[210]
After weighing opposition arguments, superior scholars report their findings as clearly and forthrightly as possible. They don’t run from a fight.[211] If scholarship is about anything, it is about the obligation to be honest with yourself and your opponents, a particularly difficult task when conclusions prove to be inconsistent with your public policy preferences or run counter to those of your usual allies.[212]
American scholars have an obligation to accurately discern and respect the republican principles as understood by the generation that enacted them. Should they not do so, it is far more likely they will misinterpret the Constitution’s design, which in turn will increase the prospects of producing inferior scholarship. Furthermore, if driven primarily by assumptions of constitutional inadequacy—without accurately understanding the framers’ design—the resulting scholarship is bound to be somehow defective and thereby more likely to lead to unanticipated consequences. Once at least initially understood from the ratifiers’ perspective, scholars are free to identify felt constitutional deficiencies in their design and should address them separately and directly. After all, that is precisely what the framers did when they argued to replace the Articles of Confederation. Finally, differentiate personal preferences from scholarly obligations,[213] while refusing to suppress relevant questions.[214] Unless otherwise bound by the Constitution, leave the door open to political resolution, that is, to self-government,[215] even in those areas that personally concern you.[216] That is what Chief Justice John Marshall suggested.[217]
From my perspective, many conservative and liberal legal scholars assert that, if properly interpreted, the Constitution compels adoption of one or another desirable public policy. The American people have been repeatedly lectured by fluctuating Supreme Court majorities that the policies imposed are the logical consequences of our nation’s commitment to one liberty or another, or that our tradition has always consisted of the expansion of liberty, or equality, or both. But what of our tradition of self-government?
Until recently, many liberal policy advocates preferred to rely on judicial imposition rather than on elected representatives to advance their public policy agenda.[218] One might accurately observe that conservative public policy advocates seem prepared to do the same. There are certainly exceptions to that assessment. Nevertheless, a disproportionate number of scholar-advocates in both camps today seem to say “look how smart we are—we can isolate phrases from the Constitution and interpret them to require judicial-imposition of policies long considered to be within the electorate’s discretion.” Instead, once these policies are mandated by the Supreme Court, their often landmark decisions consist of national lectures that are intentionally or unintentionally incorporate unproven assumptions, employ intricate but defective analogies (constructed to validate those assumptions), or put forth a seemingly limitless number of suggestions with respect to what must be done to make our governing system (from their perspective) what it ought to be. And—as did their laissez-faire predecessors—these critics once again suggest to the American people that these judicial determinations lie beyond the people’s competence because they, it is again alleged, are what the Constitution demands.[219]
But, much of their reasoning is fundamentally flawed because it is inconsistent with the framers’ understanding of their republican design. True enough, the framers left the judiciary unaccountable directly to the electorate. But they did so, not because they intended to create a judicial oligarchy, or to deceive the people by abandoning the created republican regime. On the contrary they did so because it was the only means of doing so while providing an independent branch of qualified (and temperamentally suited) individuals capable of keeping the legislature and executive, separately or collusively, within the confines of the powers granted by the people to each in the Constitution. Assured of its structural independence,[220] it was uniquely suitable to police the Constitution’s boundaries. While the framers considered the judiciary the weakest of the three branches of government, its lack of coercive powers was intentional. What made their pronouncements so compelling was precisely that the judiciary lacked a direct power of enforcement. In rendering a judgement, it was presumed they had nothing to gain. Had the judiciary possessed a coercive power, its judgments would more likely engender civil war than obedience.[221]
Today, neither the judiciary’s unrepublican character nor its independence are perceived as inherent limitations on the scope of its power; rather, these features are instead perceived as empowering the judiciary to do (in the mind of one advocate or another) the right thing without fear of voter reprisal. If, on one particular or another, the Framers’ intent is demonstrated to be clearly to the contrary, they reply, “why should that restrict us today?” If one demonstrates that there are precedents contrary to the proposed imposition, those precedents are overruled, ignored, or reinterpreted. In effect, the reply is, “so what?”[222] Show them that a pivotal premise or assumption is historically or otherwise shaky, they reply, “how can we know for sure?” Prove historical assumptions faulty, or that, in pursuing the object of their heart’s desire, other constitutional considerations are obliterated or unjustifiably minimized, more often than not the response (some more subtly than others) is that those considerations are of little consequence, since—in the big picture (the one their preferences create)—the net results are good. This brief synopsis is the aggregate alternative put forth by a significant portion of contemporary constitutional scholars, which I wish now to contrast to the complexity of politics put forth by James Madison.
Perhaps thirty years ago, I ran across a seminal article: The “Intensity” Problem and Democratic Theory (Intensity).[223] Sadly, then and for two decades thereafter, I did not fully appreciate its content. That is itself a lesson for scholars: be prepared to re-immerse yourself in materials already consumed because time and other research may prompt greater appreciation of what insights eventually you realize had eluded you. The Intensity article not only challenged post-World War II reinterpretations of democratic theory, but it also brought into high relief the contrast between those theories and the Founders’ view of republicanism.[224] The article raised this penetrating question: why does the Constitution place “severe limitations upon temporary majorities, and le[ave] the path to the statute-book open only to serious, deliberate majorities—that is, majorities able to keep themselves in being long enough to gain control of both houses of Congress, of the Presidency, and of the Supreme Court[?]”[225]
Perhaps readers nurtured exclusively in contemporary democratic theory find the question baffling. Putting aside a more substantive discussion on that issue, I focus on how the Intensity article affected my own scholarship.[226] First, the article suggests that scholars master mindsets other than their own, and in doing so one need not subscribe to the mindset studied. Instead, that acquired skill contributes to sounder subject mastery, providing a practical means by which scholars put aside the conventional wisdom of their time and place, enabling them to better grasp how those in other eras viewed the same materials.[227]
Second, the authors advise scholars to be cautious before applying insights borrowed from one field and applying them to another.[228] More frequently than not such applications are dependent upon accident, that is, scholars whose personal curiosity crosses multiple fields. Such cross-pollination is invigorating—for a time. But once such cross-overs occur, it may take a generation or more before succeeding scholars (with the same curiosity and set of competencies) point out that the now-accepted criterion in the second or third field has been found wanting, or totally discarded, in the field where it originated.[229]
Third, as demonstrated earlier, scholars are less likely to engage in thesis book writing if they habitually avoid judgments of intellectual deficiency or hypocrisy.[230] Instead, when a people’s historical actions (whether right or wrong in the investigating scholar’s mind) apparently conflict with that scholar’s understanding of the words and beliefs explored, the scholar should consider alternate explanations. They should not pluck a phrase from the Constitution, as previously noted (like “free speech”), and then, by logical explication, define what in their mind that phrase should mean, or apply a definition of what the phrase has come to mean, to the historical situation investigated.[231] Instead, the scholar should attempt to understand what the people did at the time while reconciling those actions with professed adherence to the values that the words used imply. Intriguing assertions and speculations are very different from the obligations associated with scholarship, and the scholar should clearly make those distinctions.[232]
Fourth, and perhaps the most difficult lesson for some contemporary scholars to embrace, is this: in a republican government, rightly or wrongly, morally justified or not, the people are legally entitled to prevail.[233] “But.” Yes, I fully appreciate the desire to add reservations. Nevertheless, that is a fundamental constitutional truth we forget only at our—and our successors—peril. No one can anticipate the unintended consequences that might ensue if that truth is not embraced, and worse still, no one can predict how over time it might be cured.
Fifth, that understanding of Madison’s schema helped those like myself avoid a temptation among my contemporaries, namely, to characterize the framers as anti-democratic. On the contrary, once one puts their fears about dangerous democratic tendencies in their proper context, the framers are nothing less than wise democrats.[234] The framers refused to ignore historical experience (English and Colonial) or the inherent weaknesses of past popular governments. Many contemporary democratic theorists seem to ignore the framers’ English heritage and Colonial experience and concerns, or they minimized any risks associated with those experiences. Instead, they focus on what they perceive as good results (outcomes), and whether these advocates be progressive or conservative, each explicitly or implicitly desire to obtain better policies or a better governmental system, though often it is one that exists only in their imagination. The framers, however, forthrightly addressed those weaknesses and provided cures consistent with republicanism. Though those cures perhaps remain imperfect, the framers left the tradition of self-government intact. The intricate power-sharing and inter-branch checks were “intentionally designed to foster deliberation and . . . consensual politics,” simultaneously creating delay, and in doing so, specifically and cogently addressed the problems of majority tyranny, the intensity of factions, and the dangers associated with passion injection.[235] Can we improve upon their work? Through constitutional amendment we certainly have tried, and nothing prevents us from repeatedly doing so. But, before correcting felt deficiencies, we should demonstrate a far better understanding of the Framers’ design than the views that dominate the legal literature today.
The intensity problem needs to be probed further by going beyond the structural provisions devised by the framers. Preferences, whether personal or societal—Kendall and Carey remind us—“must be weighed as well as counted, and weighed in such a manner that the heavier ones tip the scale more than the lighter ones.”[236] That is to say, as noted in our introductory remarks,[237] if reason is to prevail as the preferred basis of decision-making, it is probably best if those not feeling intensely have a pivotal voice in public policy determinations. Deliberation is cooler when the relatively apathetic control it.[238] That perspective, I suspect, is alien to many modern scholars, so we must explore it more thoroughly.
I realize today that, upon my first reading of the Intensity piece, I dismissed as simplistic the illustrative device put forth by its authors—an analogy that reduced all citizens in a society to just two persons, “X and Y.”[239] Returning to the piece again, decades later, I better appreciate that even in a two-person political society, complexity emerges.[240] That greater appreciation prompted a closer examination of the consensus-building skillset.
We know from experience that different people have different preferences. Standing in line at the local Starbucks and listening to customer coffee orders is sufficient evidence to establish this point. People disagree about the simplest things.[241] Try raising this question among your meat-eating friends: Should beef be served rare or well done, or somewhere in-between? Record the variety (and intensity) of the answers. See if substituting lamb for beef changes those responses. The more apathetic among the group (at least on this issue) might conclude that people are entitled to eat meat however they prefer. Compare the degree of indifference on that subject to other contemporary public policy issues: building a wall on the Mexican border; restricting immigrant entry into the United States; repealing Obamacare; affirmative action in higher education; instituting an effective and fair tax stimulus package; the desirability of abortion or partial birth abortions; how to equitably reform the Social Security program so as to assure its continued viability; and establishing professional standards for accountants and lawyers. Has the incidence of indifference remained the same? Has the intensity of opinions escalated? Is each individual either as apathetic or indifferent equally on each topic?[242]
Madison believed it was dangerous for a popular government to create public policy based on momentary public passion. Doing so was more likely to damage the long-term public good. Rapid and alternating public policy changes fueled by successive waves of passion injection were particularly dangerous because they created societal instability, as public policy shifts soon became unpredictable.[243] That precisely had been the primary weakness of all popular governments preceding the American constitution. They trembled, one day going in one direction, and within a short time, reversing or going yet in a completely different direction. Madison understood that a well-constructed popular government required at least one focal point responsive to passion injection. To measure voter dissatisfaction and provide assurance they had been heard, the system provided a means for measurement for those who perhaps heard the noise but doubted just how widespread and intense those were vocalizing their dissatisfaction. Only voter sentiments that endured offered a solid foundation for stable change.[244] Such considerations are at the core of Madison’s thinking and the Intensity article.
For example, in an inflamed environment (one where the passions were intense, but different for X and Y), cooperation between them might deteriorate except on the most serious matters (e.g., survival as a distinct society), and then only if one or the other did not see a long-term advantage by seeking a foreign alliance. Consensus-building is a complex process because human nature is what it is.
But is consensus-building the object of modern democratic theory? Not from my perspective.[245] Simply put, in contrast, under the Madisonian model, decision-making shifts from the most opinionated to the least opinionated. To reach a reasoned consensus requires adequate time for reflection, a cooling down, assessing one’s intensities as well as those of one’s opponents, and coalition building—all factors that operate equally in family as well as societal disputes. The two-person society device conveys the complexity of the Madisonian model, whereas much of contemporary democratic theory does not.
Considerations of justice and fairness are certainly important. They undoubtedly play a role even in a two-person society. But practical, not theoretical, skills are essential for consensus-building. The Intensity authors accordingly identify two of those requisite skills. First, X or Y each must assess how important each issue is to them. Second, on each of those same issues, X and Y also must correctly assess how dear each issue is to the other.[246] How else could either judge what may be required to obtain the other’s cooperation on an item of common interest? Should either X or Y lack the skill to accurately make either or both of those determinations, the prospects for serious miscalculations increase—from an inability to reach a consensus on topics of common concern, to the equivalent of a civil war between them.[247]
But that is only the beginning. From the very first page of the Intensity article,[248] Kendall and Carey remind readers why relative indifference plays an important role in the Madisonian schema. “Let’s go to ‘Z’ restaurant,” one member of your group suggests, only to find that either one, a few, or many in your group are indifferent to that proposal. Some members of the group might be willing to consider the suggestion, but with few exceptions, it receives only a lukewarm reception. For simplicity’s sake, we put aside other concerns that might influence acceptance of the suggestion to one degree or another, such as wishing that the group stay together (which, on that issue some members of the group might feel more intensely about than others, not to mention perhaps more intensely than on the restaurant suggestion). Or perhaps some members of the group (silently) are concerned that a divided decision on the matter might result in hurt feelings of one or more members of the group (again, the avoidance of which some members of the group may believe is more important than either sticking together, going to dinner, or the restaurant selection). Another possibility arises—one specifically entertained in this Article. By coming down on one side or the other, one or more of the previously indifferent members of the group may tip the balance sufficiently to form a majority. In return for their support, however, they might extract a concession from the others. “Okay, we will go to restaurant ‘Z,’” they suggest, “if next week we go to the jazz club.”
Finally, we cannot ignore another possibility mentioned by the authors. X or Y also might choose to “fake” (manufacture) an intensity that they are not actually experiencing, that is, engage in a calculated ploy to obtain some advantage (i.e., to get a little more, or give a little less), than might have been otherwise conceded. This faking also can be used to get something entirely different—something one or the other knows (or guesses) the other party feels less intensely about.[249] All this faking occurs, mind you, in an environment in which most citizens on most issues are apathetic.[250] By that I mean that, at any point in time, on an infinite number of possible public policy issues typically before us, most Americans rarely feel intensely one way or another about more than a few—if any.
Along with the observations in the preceding paragraphs, the authors conclude: Isn’t this what usually occurs at the end of congressional sessions? Congressmen and senators engaging in horse-trading within and between issues, within the context of an externally imposed time constraint (the end of session)? Play the cards you have or fold them. Either one articulates what they want and puts a reasonable “price” for their cooperation on a proposed compromise, or one risks another majority coalition coalescing around them. Certainly, other options exist. One can simply refuse to, from their perspective, compromise their principles: i.e., refuse to participate in any crass (unprincipled) bargaining, or set the price so high for their cooperation that it makes any deal unattractive to other participants. (Even then one might employ a negotiation tactic such as: What the hell, let’s ask for . . . .? What do we have to lose?) But, in either of those situations, one risks being excluded from the process altogether should other bargaining participants offer either lesser costs, or less rigid principles (depending on perspective), or perhaps, they might remain open to compromise if accommodated on something entirely separate from the issue being discussed. Thus, instead of perhaps getting something for joining a coalescing majority, they are excluded from a law’s enactment. True enough, they may retain their principles into their next election without knowing whether or not one’s constituents will find that approach sufficient.[251] They call that majority rule.[252]
Ideally, scholars pursue truth for its own sake.[253] Some academicians simultaneously pursue scholarship and advocacy. Very few scholars can do both well. We again must paint with a broad brush. Scholarship and advocacy have different objectives, processes, and skillsets. The primary objective of scholarship is comprehension. It requires the sorting of multiple opinions, weighing credibility, and the obligation to render as dispassionate a judgment as possible. For the most part, however, all the related processes occur only in the scholar’s mind where reconciliation of disparate opinions are judged by the reasonableness of the scholar’s conclusions.
Although similarities exist, the objective of advocacy is action, political or otherwise: to advocate change, or defend the status quo. Hence, one seeks to move public policy opinions in one direction or another, to depart from or to return to existing principles, standards, and values. In the political arena, although scholars enter a thicket of opinions similar to that encountered in the academy, what is distinctly different is that competing opinions are no longer juggled solely in their head. Now, they are lodged in human beings, infuriatingly capable of exercising free will. While the conclusions reached in both situations may be identical, the processes are certainly not. Both scholars and citizens are equally susceptible to having their prejudices cloud their judgment. But, voters are not compelled to reach conclusions based exclusively on the information provided by scholars. Voters are perfectly entitled to add their life experiences and, of course, their sense of right or wrong, into the mix. At the ballot box, all opinions are equally weighed.
That reality frustrates many scholars. Voters (like jurors) are not required to defend their verdicts. They are not required to base their vote on what others (perhaps smarter than they) consider a sounder or more rational basis. In the election process, voters, not scholars, hear competing points of view and sift them thorough their belief prisms and prejudices (perhaps one and the same), and upon that basis, cast their vote. The ballot box is final—at least for that election—on who will represent them.[254]
Madison, as I have demonstrated in the last section, understood that, and having taken as many precautions as possible consistent with republican government, embraced it. He believed dialogue on public policies would truly begin in earnest only after those elected took their seats. Hence, there would be yet another weighing of competing public policy arguments.[255] Elected representatives may be right or wrong for good or bad reasons, or right or wrong for no reason at all. Most troubling, from the perspective of the academician, of course, is that the electorate may choose someone favoring the “wrong” policies.[256] But Madison understood there was no other possible approach consistent with republican government.[257] No government can guarantee that the best idea will always prevail. That truth frustrates and disappoints intellectuals of every political stripe. But it is not a uniquely contemporary dilemma. The framers confronted that same reality at the Philadelphia Convention, and it resurfaced at every twist and turn in our nation’s history. We too must embrace it. Self-government was not a right given to our predecessors; it was won on the battlefield, and we were lucky enough to have those bright enough, practical enough, and wise enough to secure it—and keep it for more than two centuries.
Under the Constitution, every citizen has an identical obligation: to pass down to our children’s children the lessons they have learned from governing themselves. Many scholars are uncomfortable (sometimes arrogantly so) with the fact that idea implementation requires a very different skillset than does idea construction. Governing is an imprecise and very complex business. Publius understood that, and so should we. Uncertainties abound, and republicanism makes matters far more difficult, placing as it does ultimate responsibility in the hands of the very people who “get frightened, embrace stereotypes, and—[to] one intensity or another—hold certain beliefs based on . . . experiences and . . . intelligence (though, Lord knows, the latter is exceedingly fragile).”[258] Complex indeed. As Publius observed: “[Y]ou must first enable the government to control the governed; and in the next place oblige it to control itself.”[259] All this, mind you, in the context of being prepared for eventualities so numerous that they were and remain impossible to catalogue. At times, it is even difficult to draw the line between statesman and demagogue.[260]
Scholars and political practitioners usually possess distinct skillsets and play different roles within the American republic. When scholars attempt to sell their public policy preferences directly to the people, or to the people’s representatives, more frequently than not they are met at least initially with stifling apathy. Instead of doggedly pursuing the long, arduous task of persuasion required by self-government, most politically active scholars prefer having their preferences imposed though the judiciary.[261] They see themselves as engaged in an improvement project, one promising better results sooner than does our existing model. I suggest an alternate explanation: they lack the Framers’ faith (and that is precisely what it is) in the judgment of American people.[262] So, preferring to avoid the admittedly difficult task of persuading a majority in a few, some, or all the states, or Congress (with the accompanying probability of failure), many instead have turned to the courts—citing inadequate structures of representation (they have polls to prove it!) or the cumbersomeness of the legislative and amendment processes, or the evident prejudice or self-interestedness of opponents of their public policy preferences.[263] All these obstacles, they argue, prevent good, moral, and sound legislation from getting a fair hearing in our existing and obviously defective political process. Our constitutional system, they charge, resists change, and they are certainly right on that score.[264]
To help scholars approach their craft with greater objectivity, a number of important considerations have been addressed. Each was dissected to better illuminate the challenge posed. In doing so, we have briefly contrasted contemporary democratic theory with the suggestion that it is obscuring the fact that republicanism ultimately is as much about the American people as it is about our governing structures. It is about what principles we embrace as a people and how we rank them as surely as it is about self-interest, justice, or rights. Instead of the simplicity of modern democratic theorists (disguised under an illusion of complexity), we have relied upon scholars who embrace political complexity (disguised under an illusion of simplicity).[265]
Madison of course appreciated that, in a liberty rich, well-constructed republican government, citizens’ opinions fragment. That is only human. Furthermore, he anticipated alliances that would materialize, and when they did, would not always be or remain as cohesive or long-lasting as one might presume they would.[266] Indeed, Madison depended upon such occurrences. He recognized that people engage more than logic in politics, just as they do in their daily lives, and, much to the chagrin of system-builders (academic or political), people also are inconsistent. Should any of us become jammed in traffic, we (probably meaning we “A-type” personality types) often rile in disgust at rubberneckers who obviously are slowing things down, only to find ourselves inexorably sneaking a glance as we pass the accident scene—this or the next time. One might say, “That’s only human nature.” Exactly my point. Humans conduct themselves by more than simple logic, and a good government—our Madisonian one—was designed with that in mind.[267]
In many ways, my journey as a scholar has rekindled an appreciation for the complexity of American politics, citizen participation in self-government, and our uniqueness as a nation. All of these require an understanding of our history,[268] the principles of our founding, and how the Constitution, including the Bill of Rights, embodies those principles.[269] Losing sight of any of these components leads us astray, not just temporarily (for that is inevitable), but permanently, which is the present danger.
You might like to know, and your students might like to know, that even though Inbau and I have been bitter professional adversaries, we became good friends in the 1970s and remain so. I think students should know that lawyers or law professors can rip into each other in their professional roles but “not take it personally”[—]and enjoy each other’s company over a dinner or over a few drinks. . . . We disagree about most basic issues, but we like and respect each other.
Letter from Yale Kamisar, Clarence Darrow Distinguished Univ. Professor of Law Emeritus & Professor Emeritus of Law, Univ. of Mich. Law Sch., to William Gangi, Professor of Gov’t and Politics, St. John’s Univ. (April 5, 1985) (on file with author). Professor Kamisar remains an appropriate model for scholars to follow. ↑
More often than not our attitudinal judgements are instantaneous reactions to a situation—“knee-jerk” reactions if you will, come into our consciousness before our intellect can be brought to bear. In sum: Attitudes shape our response to the ideas, analyses and conclusions of others. They appear so correct, so natural, that they themselves often evade intellectual detection—short-circuiting our ability to identify alternatives. They also govern our lives much more pervasively than do our intellectual positions.
Id. at 2. See infra note 52 for additional discussion. Broadly stated, some scholars conclude that, given the complexities involved, reasoning is an illusion, or that objective analysis is impossible, or that it is doomed to failure. Obviously, they prove too much, since otherwise their analysis would be a waste of their time. Others counsel that the only proper basis for public policy-making is self-interest, or perhaps, the focal point should be the group, a collective orientation determined by wealth, race, gender, or sexual orientation—so called identity politics. I do not share those perspectives, and so these remarks are subject to criticisms from those quarters. See infra notes 265–266 and accompanying text. ↑
[The Court] take[s] the Law School at its word that it would ‘like nothing better than to find a race-neutral admissions formula’ and will terminate its race-conscious admissions as soon as practicable . . . [The Court] expect[s] that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.
Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (citations omitted). ↑
[W]hen a significant number of law professors and historians hold themselves out as experts when they are not, they mislead, and all academics pay a price. For this very reason, academics can ill afford another nail to be placed in the coffin of the dispassionate academic expert. Rather, they must hold politically motivated professors accountable for abusing academic freedom.
Id. at 166. ↑
Reconciliations, despite initial sweetness and hope, fail. Again and again such attempts at reconciliation fail. No one time frame rules. For some the process takes days, for others, it takes years. However, the break becomes final when for one (rarely both simultaneously) the pain of continued contact far outweighs the discomfit of separation. For one, self-esteem is reasserted.
Gangi, supra note 25, at 34. ↑
from the Jews and the early Christians—a tradition of prophecy which during those same centuries took on a fresh and exuberant vitality. In the language of theology—which seems here the most appropriate language—there existed an eschatology, or body of doctrine concerning the final state of the world, which was chiliastic in the most general sense of the term—meaning that it foretold a Millennium, not necessarily limited to a thousand years and indeed not necessarily limited at all, in which the world would be inhabited by a humanity at once perfectly good and perfectly happy.
Cohn, supra note 27, at xiii. Official Catholic teaching took a different view. St. Augustine, for example, in his fifth century work, City of God, articulated what would become the official Church position for a thousand years thereafter: “the Book of Revelation was to be understood as a spiritual allegory; as for the Millennium, that had begun with the birth of Christianity and was fully realized in the Church.” Id. at 14. Nevertheless, outbursts of millennial expectations occurred on numerous occasions and they often had serious consequences for secular authorities, namely, that expecting the end of times some adherents refused to labor and perhaps also chose to ignore religious and secular prohibitions. Why bother—the end was near? Professor Runciman reports (with respect to the Manicheans) that “authorities in that hard bellicose age . . . could not approve of a faith . . . whereof a considerable number of believers wandered about, refusing to work, refusing to notice secular regulations, living on the charity of others and exercising a vast influence on the whole community.” Steven Runciman, The Medieval Manichee 17 (Viking Press, New York 1961). ↑
Thus, in most institutions of higher learning, cycles of research and publication, teaching, and service are common and are integral parts of the profession. See Sorcinelli, supra, at 5. The mix and intensity of each task varies, not only within a university’s self-perception of where it sees itself on the research-teaching spectrum, but also because of external pushes and pulls on a faculty member, as well as from their personality preferences and lifestyle choices. Rarely is participation in each of these components (teaching, research, and service) in perfect equilibrium, and perhaps they should not be, because greater involvement in one category diminishes participation in the others. At some point (perhaps associated with promotion), a faculty member’s research interests expand beyond his or her initial Ph.D. thesis. At that juncture, productivity (e.g., publishing) differs from what occurred during the Ph.D. thesis writing years. All the related tasks (e.g., literature review, reading, subject organization, assessment, and writing) now take place in the context of other career obligations (i.e., teaching, service) as well as lifestyle choices (including time spent sustaining a committed relationship and perhaps parenting). Furthermore, as the faculty member ages, research interests typically grow broader and more complex.
By the end of one’s career, for many but not all faculty, the focus falls on career capping projects, wherein a lifetime of scholarship is reassessed and perhaps rearticulated. During these years, “service” may peak and perhaps decline, or it may increase, such as a faculty member finding a professional outlet within university administration (their own or another) in a final effort to utilize organizational prowess or interpersonal skills. In the alternative, senior faculty may apply accumulated expertise and acquired wisdom to the classroom where—after two generations of service—a challenge develops when instructing students whose values may be very different than when they began their career. ↑
Let me begin by noting that more than ever before, scholars today have enormous difficulty mastering a specialized field. The problem is not simply unparalleled access to materials in any one specialty, or even in one discipline: it is the need to grasp the relationship between one’s specialty and the general discipline, and then, between one’s general discipline and allied fields.
Gangi, supra note 1, at 61. ↑
Utilization of the Carolene Products criterion accelerated during the Warren Court, particularly with respect criminal rights and reapportionment cases and in subsequent years with respect to privacy, gender, and sexual-orientation issues. One might claim that the legacy continues with the Second Amendment cases. I insist, however, that a distinction must be made between the desirability of the noted public policies and the authority of the Supreme Court to impose them. Other scholars reject that distinction as unimportant, instead defending such impositions as part of modern judicial review (although frequently conceding that it is different from the one championed by the Framers), still other scholars champion expanded conceptions of interpretive application, or they believe the good results associated with the imposed policies more than justifies any concerns over the legitimacy of their imposition. Perhaps a brief comparison of these views may be offered without unduly burdening the reader. Professor Perry suggests:
I wonder which is stronger among contemporary constitutional theorists: the belief that the Supreme Court should maintain a strict fidelity to the original understanding of the [F]ourteenth [A]mendment or the desire to have the Court continue to answer “[F]ourteenth [A]mendment” questions by reference to traditional and emergent societal ideals. . . . My guess (hope?) is that most constitutional theorists will forsake the belief that the Court should be faithful to the original understanding. While they may not forsake it openly, many will do so silently, by declining to call for the Court to overturn all [F]ourteenth [A]mendment doctrine plainly not rooted in the decidedly limited original understanding of the amendment.
Michael J. Perry, Book Review, 78 Colum. L. Rev. 679, 704 (1978) (reviewing Raoul Berger, Government by the Judiciary: The Transformation of the Fourteenth Amendment (1977). Elsewhere I observed:
This criticism of Berger is multi-faceted and integrated and is dependent upon three apparent premises which may be briefly summarized: (1) our ‘history must not be the sole or even the predominant factor in determining the legitimacy of the Court’s performance,’ (2) the Constitution is an ‘empty’ vessel into which meaning may be poured and (3) . . . the Supreme Court is best suited to resolve contemporary public policy issues.
Gangi, supra note 11, at 33 (first quoting Louis Lusky, Government by Judiciary: What Price Legitimacy?, 6 Hastings Const. L.Q. 403, 415 (1979); then citing Arthur S. Miller, The Elusive Search for Values in Constitutional Interpretation, 6 Hastings Const. L.Q. 487, 499 (1979)). Substantive discussions on these topics lay beyond the scope of this paper.
As detailed later in this Article, from approximately 1890 to 1930, progressive critics of the Supreme Court also attempted to impugn the moral integrity of the Framers and the Supreme Court majority. They instead sought to empower state legislatures and Congress to address economic stresses, including working conditions in the coal mines and elsewhere, as well as to challenge prevailing legal doctrine on worker liability for industrial accidents. Justice Benjamin Cardozo suggested legislatures should enunciate broad policy goals that judges would keep in mind when the principles were applied. See infra notes 174–84 and accompanying text; see also Gangi, supra note 36, at 97–99. ↑
But if what the Founders considered to be defects are genuine defects, and if the remedies, without violating the principles of popular government, are genuine remedies, then it would be unreasonable to call the Founders anti- or quasi-democrats. Rather, they would be the wise partisans of democracy; a man is not a better democrat but only a foolish democrat if he ignores real defects inherent in popular government. Thus, the question becomes: are there natural defects to democracy and, if there are, what are the best remedies?
Martin Diamond, Democracy and The Federalist: A Reconsideration of the Framers’ Intent, 53 Am. Pol. Sci. Rev. 52, 56 (1959). ↑
But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.
Id. Simply put: Kings and aristocracies ultimately depend on loyalty to the idea that they are entitled to rule or have been ordained by God to do so. The bond between ruler and ruled may deteriorate. In popular governments, however, the legislature is empowered to make the law and direct the many to use their physical power against its enemies, real or imagined. Thus, some believe, popular governments are potentially the most dangerous because the republican principle of majority rule can be combined with the physical might of the populace against minorities. ↑
All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. 173 despots would surely be as oppressive as one.
Thomas Jefferson, The Constitution of the State and Its Several Charters?, in Notes on the State of Virginia 126 (Frank Shuffelton ed., 1999) (1785). ↑
In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.
The Federalist No. 51, supra note 22, at 323 (James Madison). ↑
This schizophrenic attempt to equate results with legitimacy in particular instances, but to generally preserve majority rule as an option, presumably as insurance against a Court disposed to injustice, is at best a considered gamble resting on pragmatism rather than an intellectually definable principle. It is a gamble that only those who are dissatisfied with majority rule, with democracy, at least on some levels, ever decide to take.
Randall Bridwell, The Scope of Judicial Review: A Dirge for the Theorists of Majority Rule, 31 S.C. L. Rev. 617, 639 (1980). ↑
In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government.
The Federalist No. 51, supra note 22, at 324 (James Madison). ↑
Of course, some scholars are capable of both detachment and advocacy. Few, however, do it very well. For many, the moment of truth comes when their scholarship drives them to conclusions inconsistent with past political preferences, or when their scholarship runs contrary to that championed by their usual allies. For example, my understanding is that Justice Oliver Holmes personally subscribed to the belief that laissez-faire was a superior economic perspective; yet, he nevertheless authored his famous retort that “[t]he [Fourteenth] Amendment does not enact Mr. Herbert Spencer’s Social Statics.” Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting). Although personally supportive of a woman’s right to an abortion, Professor John H. Ely expressed grave reservations about the constitutional legitimacy of the Roe v. Wade decision (striking down a state anti-abortion law), at least as the majority opinion had been written. See John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 923, 947–49 (1973). Professor Gerald Gunther, like Ely, personally supported abortion legislation but described the Roe v. Wade decision as “an abomination, an outrage, one of the worst Supreme Court decisions in terms of constitutionally mandating what ought to be legislatively mandated responses to political pressures.” Henry Steele Commager, The Constitution and Original Intent, Center Mag., Nov.–Dec. 1986, at 4, 17. I would add that, after decades of correspondence with Raoul Berger, a severe critic of various modern Supreme Court decisions, his personal political philosophy remained decidedly liberal. ↑
[D]amage is . . . done through interpretation. The content of a source may be reported correctly as far as it goes, and nevertheless the report may create an entirely false picture because essential parts are omitted. And they are omitted because the uncritical principles of interpretation do not permit recognizing them as essential.
Voegelin, supra note 26, at 10. ↑
When students probe the First Amendment faith they will find that it rests on little more than the logic of John Stuart Mill and his creative successors. These free speech theorists (or worshipers) usurp federal and state legislative power, and ultimately rest on unconvincing scholarship. Let me go further. Even if one embraces all their doctrines and assumptions as perfectly true, they would still not provide a constitutional standard. All they amount to are sub-constitutional arguments. They may be brilliant, they may be reasonable, they may be logical, and they may even be convincing, but they still are not compelled by the Constitution. Congress and state legislatures can reject their dictates or reasoning. They also, of course, can embrace them, and by statute or amendment, direct courts to apply them. But I deny that courts have ever been authorized to impose them.
Id. at 28 (citing Gangi, Exclusionary, supra note 72). ↑
In terms of providing the reader with historical context using a single example, by the mid- twentieth century, leading American democratic theorists advocated that our political parties should move closer to the European parliamentary model by offering clear programmatic differences. Compare The Need for Greater Party Responsibility, by THE COMMITTEE ON POLITICAL PARTIES OF THE AMERICAN POLITICAL SCIENCE ASSOCIATION [reprinted in Liberalism Versus Conservatism, supra note 97, at 403 (arguing that America needs a stronger two-party system, including better integrated and more responsible parties)], with James MacGregor Burns, Two-Party Stalemate: The Crisis in Our Politics (1960) (arguing that societal problems are a result of America’s weak two-party system—namely, that a system doesn’t appear to exist) [reprinted in Liberalism Versus Conservatism, supra note 97, at 429]. I am unaware of another volume that contains such rich resources and such even-handed treatment as does Liberalism Versus Conservatism volume. See comments note 97, supra.
The 1966 date of publication of Liberalism Versus Conservatism, supra note 97, is significant, since it occurs during the heyday of the Warren Court, which is to say, during the period when the Supreme Court redefined republicanism and sought to nationalize and expand the meaning of various Bill of Rights provisions. See, e.g., Arthur Goldberg, Equal Justice: The Warren Era of the Supreme Court (1972) (recounting the equality theme during the Warren Supreme Court era). For an example of a modern college text book on American Government, see generally David B. Magleby et al., Government by the People (2012 Election ed.), infra note 194, at 108–35 (discussing “The American Political Landscape”). Today, each appointment to the Supreme Court is a high stakes proposition, because so many have vested so much power in the Court without fully realizing that the judiciary can overturn the work of its predecessors. ↑
In every First Amendment case I have examined, not one Justice stated more than an elementary appreciation of symbol utilization. All have ignored an entire body of scholarship which contends that to fully understand what a people hold dear, it is important to establish correlations between their symbolic expression and their perceived embodied truths, as well as between those symbols and the actions of the people. Instead the Justices persist in viewing symbols solely as potential tools of manipulating the masses. This much seems self-evident: whoever defines our symbols, defines us as a nation. So again I raise the issue: in whose hands would the framers have placed that responsibility?
Gangi, supra note 1, at 23 (citations and emphasis omitted). As examples of these permeations, I would include Texas v. Johnson, 491 U.S. 397 (1989) (holding that the defendant could not be convicted for flag burning despite the fact that the flag is recognized as a symbol of nationhood), Virginia v. Black, 538 U.S. 343 (2003) (holding a statute that criminally punished any person who, intending to intimidate another person or group by burning a cross on another person’s property, highway, or public place, unconstitutional since the statute may have required that any such cross-burning is prima facie evidence of an intent to intimidate), R.A.V. v. City of St. Paul, 505 U.S. 377, 396 (1992) (holding that a city ordinance outlawing racially motivated symbols violated the First Amendment) and United States v. Eichman, 496 U.S. 310, 317 (1989) (finding that the defendant’s conviction for flag burning should be overturned, regardless of the flag’s status as a national symbol). In all these cases the majority may be criticized for inadequate symbol analyses. For critical comments, see Gangi, supra note 1, at 19–32.
One also might observe that those decisions rely heavily on “official literature” precepts, which substitute parts of actual history with parts steeped in values its proponents think our history should have emphasized. Again, we are moving into more substantive issues best avoided here. See Douglas Adair, “Experience Must Be Our Only Guide:” History, Democratic Theory, and the United States Constitution, in The Reinterpretation of Early American History 141–44 (Ray Allen Billington ed., 1966) (discussing the nature of the Constitution and what form of government the founding fathers intended to create). ↑
Finally, as Voegelin observed, for some time a sense of moral outrage has been a harbinger to a claim to political power:
In order to start a movement moving, there must in the first place be somebody who has a “cause.”. . . In order to advance his “cause,” the man who has it will, “in the hearing of the multitude,” indulge in severe criticisms of social evils and in particular of the conduct of the upper classes. Frequent repetition of the performance will induce the opinion among the hearers that the speakers must be men of singular integrity, zeal, and holiness, for only men who are singularly good can be so deeply offended by evil. The next step will be the concentration of popular ill-will on the established government. This task can be psychologically performed by attributing all fault and corruption, as it exists in the world because of human frailty, to the action or inaction of the government. By such imputation of evil to a specific institution, the speakers prove their wisdom to the multitude of men who by themselves would never have thought of such a connection; and at the same time they show the point that must be attacked if evil shall be removed from the world. After such preparation, the time will be ripe for recommending a new form of government as the “sovereign remedy of all evils.”
Voegelin, supra note 26, at 135–36. ↑
Happily for America, happily we trust for the whole human race, they pursued a new and more noble course. They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. They formed the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate. If their works betray imperfections, we wonder at the fewness of them. If they erred most in the structure of the Union, this was the work most difficult to be executed; this is the work which has been new modelled by the act of your convention, and it is that act on which you are now to deliberate and to decide.
The Federalist No. 14, supra note 22, at 104–05 (James Madison).
On the Antifederalist side, for example, would be George Mason: “The convention, though comprising so many distinguished characters, could not be expected to make a faultless government. And [Mason] would prefer trusting to posterity the amendment of its defects, rather than push the experiment too far.” John Lansing, George Mason and Luther Martin (from Madison’s records of the Federal Convention) 20 June, 1787, reprinted in The Essential Antifederalist 7, 10 (W. B. Allen & Gordon Lloyd eds., 1985). Similarly, Cato, another Antifederalist observed:
You are then under a sacred obligation to provide for the safety of your posterity, and would you now basely desert their interests, when by a small share of prudence, you may transmit to them a beautiful political patrimony, which will prevent the necessity of their traveling through seas of blood to obtain that, which your wisdom might have secured. It is a duty you owe likewise to your own reputation, for you have a great name to lose.
Cato, Letters V, VI, and VII, N.Y.J., 22 Nov., 1787, 3 Jan., 1788, reprinted in The Essential Antifederalist, supra, at 201–02. ↑
And the breath-taking powers attributed to the General Court must be understood in that context: The General Court that is to pass laws on the delicate topics touched upon, to pass laws in the sensitive areas from the standpoint of freedom, is to be made up of servants of humanity, civility, and Christianity, sitting as a deliberative body, and subordinate to the “call” of humanity, civility, and Christianity.
Kendall & Carey, supra note 115, at 55. I have not investigated whether at that time recall also was available with reference to members of the Massachusetts General Court, or whether the terms in office served were one year or less. ↑
For purposes of clarity, the text also requires several additional observations. First, the text is not intended to imply that Bill of Rights provisions stand on no higher ground than statutory or common law rights. On the contrary, I believe the specific understanding of what protection was afforded by specific constitutional language at the time of adoption must be respected today and always by Congress and defended by the courts. See Gangi, Sixth Amendment, supra note 146, at 73, 86 n.69; Gangi, supra note 36, at 236–48. Second, among other subjects, this Article explores a scholar’s responsibility to convey the Framers’ understanding of constitutional provisions, even should they run counter to their personal preferences. How I resolved associated issues are a matter of public record, but they are not germane here. The varied perspectives on these issues are at the heart of the divide among contemporary constitutional law scholars. They include the scope of the federal judicial power and the nature and limits of interpretation. Third, here I also put aside issues such as application of the Bill of Rights to the states through such doctrines as selective incorporation. ↑
Writing to Hamilton in the midst of the ratification struggle, George Washington asserted that “[w]hen the transient circumstances and fugitive performances which attended this Crisis shall have disappeared, That Work [The Federalist] will merit the notice of posterity; because in it are candidly and ably discussed the principles of freedom and the topics of government, which will always be interesting to mankind so long as they shall be connected in Civil Society.” Thomas Jefferson, writing a few months later to Hamilton’s collaborator Madison, joined in this high appraisal. The Federalist was “the best commentary on the principles of government which ever was written.” Jefferson’s respect for The Federalist endured, even though the party struggles of the 1790s and the Revolution of 1800 to the end of his life. In the course of his last great life’s work, the establishment of the University of Virginia, Jefferson listed The Federalist second only to the Declaration of Independence as one of the “best guides” to “the distinctive principles of . . . the United States, . . . being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the United States, on questions as to its genuine meaning.”
Christopher Flannery, The Federalist, Teaching American History (Sept. 2, 2009) (second, third, and fourth alterations in original), http://www.teachingamericanhistory.org/newsletter/
200909-2. ↑
the freedom of private or public individuals and groups (of any legal entity) to form . . . contracts without government restrictions. This is opposed to government restrictions [on such public policies] such as minimum wage laws, competition laws, . . . [or] price fixing. The freedom to contract is the underpinning of laissez-faire economics and is a cornerstone of free-market libertarianism. [Freedom of contract grants] individuals . . . a general freedom to choose with whom to contract, whether to contract or not, and on which terms to contract.
Freedom of contract, Wikipedia, https://en.wikipedia.org/wiki/Freedom_of_contract (last visited Nov. 5, 2018); see also Richard A. Epstein, Contracts Small and Contract Large: Contract Law though the Lens of Laissez-Faire, in The Fall and Rise of Freedom of Contract 25 (F.H. Buckley ed., 1999); Freedom of choice, Wikipedia, https://en.wikipedia.org/wiki/Freedom_of_choice (last visited Nov. 5, 2018). For a broader historical view on the impact of the Progressivists’ perspective on legal concepts, see Charles E. Shattuck, The True Meaning of the Term “Liberty” in Those Clauses in the Federal and State Constitutions Which Protect “Life, Liberty, and Property.,” 4 Harv. L. Rev. 365 (1891) (suggesting laissez-fairests redefined constitutional terms to be consistent with their beliefs). I think personal rights advocates are doing the same thing today. For example, see also Carey, supra note 163, on the meaning of the Fifth Amendment. ↑
I can report this much: In 1963, in Ferguson v. Skrupa, 372 U.S. 726, 729 (1963), the Supreme Court formally repudiated its laissez-faire legacy. Delivering the opinion of the Court, Justice Hugo Black stated, “Under the system of government created by our Constitution, it is up to legislatures, not courts, to decide on the wisdom and utility of legislation.” Id. He went on to say, “We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.” Id. at 730. Also noteworthy at this time is that progressivists viewed the states as social laboratories where its citizens could experiment with various public policies: e.g., unemployment insurance and workmen’s compensation. As Professor Gilmore astutely observes, however, the change was more “a change of course, not a change of goal.” Grant Gilmore, The Ages of American Law 90 (2d ed. 2014). He concludes that the New Deal philosophy was perhaps more accurately “not much more than a changing of the guard.” Id. at 78. See also Maurice J. Holland, American Liberals and Judicial Activism: Alexander Bickel’s Appeal from the New to the Old, 51 Ind. L.J. 1025, 1036 n.23 (1976) (discussing scholarly attacks on judicial review). He notes that while the Realist-Progressivist movements rejected the substitution of judicial preferences for those of the legislature with respect to national economic and social policy, before long (late 1930s, early 1940s) they began to use judicial power to set national policy goals in three other areas. Id. at 1027 n.6, 1044 n.42 (setting policy goals for educational equality and voting opportunities). ↑
[A]uthors who focus on the political-economic dimensions, . . . are [also] prone to read Publius as saying that the “first object of government”’ is the protection of property per se, rather than, as [Publius] states it, the protection of “the diversity in the faculties of men, from which the rights of property originate.”
George W. Carey, The Federalist: Design for a Constitutional Republic 27 (Illini Books ed. 1994). Publius’ more complete statement was:
As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties. The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society.
The Federalist No. 10, supra note 22, at 78–79 (James Madison). ↑
The initial charges made by Revisionist scholars nevertheless continue to cast a long shadow over an accurate understanding of the framers’ design, despite . . . within their fields of origin their conclusions have been discredited. Exposure continues through the back door, that is, the Revisionist findings still appear in college textbooks (and in other scholarship) in which the authors seldom explicitly reveal the authorities upon which they rely. Students sense that something is going on. I for one have experienced it. Some professors believe the original Revisionist conclusions are true (ignoring the counter evidence) because ultimately, those findings better square with their own prejudices. Somewhat like Sally, [referring to the film When Harry Met Sally] they “fake it,” that is, they give students the impression that such matters are well settled and only an idiot (and a naive one at that) would dare question [them]. . . . So when your professors make some sweeping generalizations about the [F]ramers’ distrust of the people, or that they lined their own pockets, ask them to cite their sources. Surely such assertions should be supported by evidence.
Gangi, supra note 1, at 47–48 (citing When Harry Met Sally (Castle Rock Entertainment 1989); other citations omitted). ↑
But, for the moment, let’s consider an alternative: that at the time social mores were indeed different than they in fact were, and blacks were equal to whites, or at least had the right to vote. Can we assume the vote on ratification of the Constitution would have gone otherwise than it did? I put “what if” historical speculations, as well as those made above, in the same category as social contract theorists, that is, speculation on the state of nature, which itself is a speculation, because no witnesses exist for the period. How far do we go until we recognize the wisdom of Publius’s remark:
If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert. Where is the standard of perfection to be found?
The Federalist No. 65, supra note 22, at 401 (Alexander Hamilton). ↑
In Theodore J. Lowi & Benjamin Ginsberg, American Government: Freedom and Power (6th ed. 2000) the authors rely most heavily on Beard’s thesis. Id. at 22–23. They modify such a reliance by describing the founding as “[a] Marriage of Interest and Principle.” Id. at 37. The analogy is closely associated with contemporary views of democratic theory, not republicanism. In any event, the authors recount Beard’s thesis in some detail, including Beard’s assertion that the Framers “recognize[d] the claim of property to a special and defensive position in the Constitution.” Lowi & Ginsberg, supra, at 22 (citing Beard, supra note 180, at 324–25); but see infra note 189. Furthermore, Lowi and Ginsberg recount Beard’s conclusion that “about three-fourths of the adult males failed to vote on the [Constitution’s ratification, with no] more than one-sixth of the males doing so.” Lowi & Ginsberg, supra, at 22–23. The alleged great divide, as Beard had proposed, “was between substantial personality interests on the one hand and the small farming and debtor interests on the other.” Id. at 23. But, as far back as 1956 (more than forty years prior to publication of the American Government text), Robert Brown had challenged Beard’s conclusions, observing that while Beard gave the impression that his book was “an arid catalogue of facts,” in fact “nothing could be further from reality.” See Robert E. Brown, The Constitution: A Democratic Document, reprinted in Liberalism Versus Conservatism, supra note 97, at 54. Furthermore, Brown asserted that “[i]f historical method means the gathering of data from primary sources, the critical evaluation of the evidence thus gathered, and the drawing of conclusions consistent with this evidence, then we must conclude that Beard has done great violation to such method in his book.” Id. Brown had countered: “Present evidence seems to indicate that there were no ‘propertyless masses’ who were excluded from the suffrage at the time.” Id. at 56. He then concluded, “If historians insist on accepting the Beard thesis in spite of this analysis . . . they must do so with the full knowledge that their acceptance is founded on ‘an act of faith,’ not an analysis of historical method, and that they are indulging in a ‘noble dream,’ not history.” Id. at 58. Although beyond the scope of this Article, Brown observed that one might suspect Beard “of using only that evidence which appeared to support his thesis,” and even then, “the conclusions which . . . [Beard] drew were not justified even by the kind of evidence which he used. If we accepted his evidence strictly at face value, it would still not add up to the fact that the Constitution was put over undemocratically in an undemocratic society by personality.” Id. at 55. Lowi and Ginsberg do not mention Brown, although they cite one of Forrest McDonald’s books. Lowi & Ginsberg, supra, at 49.
In Edward S. Greenberg & Benjamin I. Page, The Struggle for Democracy 33 (7th ed. 2005), the authors focus on the colonialists’ desire to “acquire and enjoy private property rights,” mentioning that before long “the popular culture was growing increasingly hostile to privilege of any kind, whether of social standing, education, or wealth.” They describe delegates at the Convention as “not common folk. There were no common laborers, skilled craftspeople, small farmers, women, or racial minorities in attendance.” Id. Greenberg and Page then describe Beard as having “had legions of defenders and detractors” (providing a list of various commentators, including Brown and McDonald). Id. at 34. They concede, however, “Beard overemphasized the degree to which the framers were driven by the immediate need to ‘line their own pockets,’ failed to give credit to their more noble motivations, and even got many of his facts wrong.” Id. However, Greenberg and Page further noted that Beard “was probably on the mark when he suggested that broad economic and social-class motives were at work in shaping the actions of the framers.” Id. at 34–35. The authors do not suggest that the Framers were unconcerned with such topics as “national interest, economic stability, or the preservation of liberty,” only that those concepts were understood in the context of them being “fully compatible with their own positions of economic and social eminence.” Id. Specific opposition arguments that might impact their assessment are ignored. For example, Robert E. Brown had observed that “[i]f the members of the Convention were directly interested in the outcome of their work and expected to derive benefits from the establishment of the new system, so also did most of the people of the country.” Brown, supra, at 56. Greenberg and Page dodge such common-sense observations and instead apparently assume that it is class that is determining, not individual participant choices, the former being a very modern assumption. As noted above, Brown claimed that Beard’s thesis was unsupportable even on the secondary information Beard had used. Furthermore, Brown’s conclusions had been based on original, not secondary sources. See supra. Robert E. Brown also denied that most voters had been disfranchised or were “propertyless.” See earlier comments in this note; Brown, supra, at 56. Intriguing, of course, as mentioned by Brown, is that even in 1913 several of Beard’s book reviewers noted that Beard’s book was “replete with interpretation [instead of being an “arid catalogue of facts”], as Beard had sometimes stated . . . [or] implied.” Brown, supra, at 54. As previously mentioned with respect to the Lowi & Ginsberg text, Brown claimed that the sources used by Beard could not sustain Beard’s thesis. Id. at 55. And, as also mentioned previously, Beard’s thesis was more “an act of faith,” not an analysis of historical method, and that those who accepted that thesis were indulging in a “noble dream, [and] not history.” Id. at 58. In all fairness, however, once one personally places oneself in the intellectual milieu of the time (i.e., the applicable “tides”) it is easy to understand why Beard’s thesis was so widely accepted. Intellectuals of the day were focused on the contemporary evil—the Supreme Court majority’s imposition on the American people of laissez-faire economic theory accompanied by the assertion that the Framers’ design prohibited the national or state legislatures, of both, from addressing the economic crisis through ordinary sub-constitutional processes. In the air also was the unbounded hope that the world would be reformed under, by that time, a long legacy of socialist theorists as well as the program championed by Karl Marx and Frederick Engels.
In the third examined text, Principles and Practice of American Politics: Classic and Contemporary Readings (Samuel Kernell & Steven S. Smith eds., 6th ed. 2015), the authors credit Beard with resurrecting Anti-federalist charges made during the Ratification debates. The authors claim that later scholars have relied on Beard to berate the Madison model. Id. at 35. While this text incorporates the Revisionist assumptions through authors such as James Allen Smith, Charles Beard, and Herbert Croly, see supra notes 180–81 for references, they also rely on scholars who redefined democratic theory from how the Framers understood it. Second, the text makes no mention of those authors who challenged Beard and his successors, including Brown, or McDonald. I also would urge the reader to compare the authors’ understanding of the quotes from The Federalist Papers, the purpose of the separation of powers and Madisonian model, with discussions provided in this (text accompanying notes 96–112, supra) or in the Journey article. Gangi, supra note 1, at 45–51.
In the final examined text, Karen O’Connor and Larry J. Sabato, American Government: Continuity and Change (2004 ed.), the authors put forth Beard’s thesis, noting however that in the 1950s it was challenged (mentioning Brown). Id. at 45 (citing Beard, supra note 183). The authors also recount a subsequent rebuttal to those critics by those partially supporting Beard (e.g., Jackson Turner Main and Gordon S. Wood). Wood, they mention, “concluded that the Framers were representatives of a class that favored order and stability over some of the more radical ideas that had inspired the American Revolutionary War and break with Britain.” Id. (citing Gordon S. Wood, The Creation of the American Republic, 1776–1787 (reissue ed. 1993)). Space does permit a more extensive analysis, or to raise questions such as whether those conclusions stemmed from unstated assumptions or are sustainable by any evidence presented. The implication of O’Connor and Sabato’s remarks, at least to me, is that somehow the more radical ideas were inherently purer (better, more noble). And who determines that? Not only is Publius’ response sufficient, see supra note 185, but with respect to some of Beard’s successors (although there is no desire to judge them solely on that ground), they are further discussed in Carey, Defense, supra note 99, at 7–13, and Carey, supra note 180, at xxxi-xxxiii nn.5–11.
I want to express my appreciation to Joesph Telano for his research assistance in acquiring samples of college texts and chasing down several citations. ↑
The Constitution became possible because, increasingly, the delegates were willing to ask themselves not “[w]hat do I, personally, think the Constitution ought to be?” but rather “[h]ow much of what I think can I insist on with any hope of getting others to go along with me?” and “[h]ow much of what we can all get together on is there any hope of getting accepted by the American people?” . . . The Federalist, we are saying, re-enacts that political miracle—as, we would add, with the exception of the tragic years that produced the Civil War, American political life has re-enacted it over and over again ever since—and eventuates in a public act that became possible only because the authors were prepared to submerge their individual personalities, their individual political philosophies, in the common enterprise.
Id. ↑
Gerald Gunther who discovered Marshall’s “Defense of McCulloch v. Maryland,” commented, “[I]f virtually unlimited congressional [or judicial] discretion is indeed required to meet twentieth century needs, candid argument to that effect, rather than ritual invoking of Marshall’s authority, would seem to me more closely in accord with the Chief Justice’s stance.’
Raoul Berger, The Fourteenth Amendment: Light from the Fifteenth, 74 Nw. L. Rev 311, 370–71 (1979) [hereinafter Berger, Fourteenth] (alteration in original) (quoting Raoul Berger, supra note 109, at 378 n.19). Chief Justice Marshall’s classic statement appears perfectly consistent with Professor Gunther’s conclusions:
We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist [sic] with the letter and spirit of the constitution, are constitutional.
McCulloch v. Maryland, 17 U.S. at 421. ↑
The judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
The Federalist No. 78, supra note 22, at 465 (Alexander Hamilton). Raoul Berger suggests that the scope of judicial review was significantly circumscribed: “[T]he judicial function was to police constitutional boundaries, to prevent the other departments from ‘overleaping’ their bounds, not to interfere with the legislative or executive discretion within those bounds.” Berger, supra note 210, at 537 (citing Berger, supra note 109, at 305). It was precisely because the judiciary lacked the powers of the purse and sword that Publius believed that the people would accept the Justices’ judgments. They, individually or institutionally, had nothing at stake. If the judiciary had coercive power, as had the legislature or executive, it simply would increase prospects of civil war because we have no reason to believe that citizens would not continue to divide over one decision or another. See Gangi, supra note 36, at 202–05. I suggest that the high stakes game now surrounding appointments to the Supreme Court (and perhaps Appeals Courts) are the most obvious result of new perspectives of an expanded judicial role. Certainly, barely beneath the surface, in rhetoric (if not action) are harbingers of civil war rhetoric on both the left and right. ↑
Frankly put, our system was intentionally designed to delay legislative proposals (although that comment elicits surprise from some law students). Delay, I remind my students (with a glint in my eye), has the tendency to diminish all passion! It provides time for reflection (such as, “Do we really want to do that?”; “In the way proposed?”; “What happens if . . . ?”), as well as an opportunity for opposing forces to coalesce. That, in turn, usually leads to better (more moderate) laws—ones that enjoy wider subscription (and therefore, greater conformity with its dictates). In sum, Publius reasoned that it was far better to consistently delay and perhaps defeat many bad laws, even if as a result, a few good laws were temporarily thwarted. Different constituents, staggered terms, and competition amongst the three branches were intended to prevent public passion from being immediately injected into public policy making—an occurrence that had rendered past popular governments ineffective, indecisive, or erratic. Our system integrates institutional delay with the faith that, given adequate time, most Americans will opt for justice.
Id. at 68–69 (emphasis omitted) (citation omitted). ↑
Every unbiased observer may infer . . . that, unfortunately, passion, not reason, must have presided over their decisions. When men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions, if they are so to be called, will be the same.
The Federalist No. 50, supra note 22, at 319 (James Madison) (emphases omitted). ↑
How could a readiness for war in time of peace be safely prohibited, unless we could prohibit in like manner the preparations and establishments of every hostile nation? The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation.
Id.; see also Strauss, supra note 85, at 160–61 (discussing Aristotelian tradition that exceptions to a rule is as just as the rule itself). ↑
[W]hether you are pro-choice or anti-abortion; for or against capital punishment; for or against legal recognition of gay rights or affirmative action—do not some of your bedfellows’ proposals appear to go too far? Do you not shy away (if not cringe) at seeing your beliefs carried out to their logical end? And, even if you do not, surely you recognize that some of your bedfellows will. Single-minded advocates may judge their potential allies weak-minded or illogical, and that may be infuriating, but Madison depended upon a disinclination towards the extreme, to moderate the adverse consequences of factions. For Americans who believe that tempering principles is itself unprincipled or illogical, those individuals often find themselves condemned to political irrelevancy, that is, at least those who seek election. Every husband and wife (or those who cohabitate), as do participants in organizations or businesses (especially family-run businesses), recognizes the realities of intensity, even if they do not fully comprehend it. If relationships are to endure, compromise is required. As Billy Joel astutely observed in Piano Man, even the waitress practices politics.
Gangi, supra note 1, at 71 (other citation omitted) (citing Billy Joel, Piano Man (Columbia 1973)). ↑