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Constitution-and-MadisonIn the post-Constitutional American order of 2013, one hears increasingly frequent reference among everyday conservatives to “the real Constitution.” This entails popular references to the Framers, to the late 1780s, and even to the political-science classics being referenced by the Framers in the late 1780s. One rightly designates it a good thing.

However, a sharp dissonance strikes the attuned ear. The dissonance is born from the erroneous presumptive congruence by these popular accounts between the foremost of such Framers—James Madison—and the paragon of those classical political scientists—the Baron de Montesquieu. That is, when James Madison (with the Federalists) shaped and defended throughout 1787 the document which became our Constitution, he did not follow Montesquieu’s most important admonitions, but rather presumed to “correct Montesquieu” in three cardinal ways. These “corrections” have proven both significant and unfortunate in our republic’s life. Madison should have stayed the Montesquieuan course, as his Antifederalist opponents pointed out at the time.

Popular accounts of this on talk radio—by conservatives with whom one usually agrees—have missed the memo. And the big idea. Recently in my car I heard a popular radio conservative giving voice to precisely this false equation: “Madison read and followed the dictates of Montesquieu.”

No, he did not. After reading Montesquieu’s most important admonitions in Spirit of the Laws, Madison decided that he could outsmart him. The Montesquieuan admonitions were actually limitations on what a well-functioning republic could allow, and thus, be. And Madison got greedy, not wanting to abide by those limitations.

First, Montesquieu required republican governments to maintain limited geographic scale. Second, Montesquieu required republican governments to preside over a univocal people of one creed and one mind on most matters. A “res publica” is a public thing valued by each citizen, after all. “How could this work when a republic is peopled diversely?” the faithful Montesquieuan asks. (Nowadays in America, for example, half the public values liberty and the other half values equality, its eternal opposite.) Thirdly—and most important—Montesquieu mandated that the three branches of government were to hold three distinct, separate types of power, without overlap.

Before showing just how correct Montesquieu was—and thus, how incorrect Madison was—it must be articulated that in the great ratification contest of 1787-1788, there operated only one faithful band of Montesquieu devotees: the Antifederalists. They publicly pointed out how superficial and misleading were the Federalist appropriations of Montesquieu within the new Constitution and its partisan defenses.

The first two of these Montesquieuan admonitions went together logically: a) limiting a republic’s size to a small confederacy, b) populated by a people of one mind. In his third letter, Antifederalist Cato made the case best:

“whoever seriously considers the immense extent of territory within the limits of the United States, together with the variety of its climates, productions, and number of inhabitants in all; the dissimilitude of interest, morals, and policies, will receive it as an intuitive truth, that a consolidated republican form of government therein, can never form a perfect union.”

Then, to bulwark his claim, Cato goes on to quote two sacred sources of inestimable worth: the Bible… and Montesquieu. Attempting to fit so many creeds and beliefs into such a vast territory, Cato says, would be “like a house divided against itself.” That is, it would not be a res publica, oriented at sameness. Then Cato goes on: “It is natural, says Montesquieu, to a republic to have only a small territory, otherwise it cannot long subsist.”

The teaching Cato references is simple: big countries of diverse peoples cannot be governed locally, qua republics, but rather require a nerve center like Washington D.C. wherefrom all the decisions shall be made. The American Revolution, Cato reminded his contemporaries, was fought over the principle of local rule.

To be fair, Madison honestly—if wrongly—figured that he had dialed up the answer, such that the United States could be both vast and pluralistic, without the consequent troubles forecast by Montesquieu. He viewed the chief danger of this combination to lie in factionalization. One can either “remove the cause [of the problem] or control its effects,” Madison famously prescribed in “Federalist 10”.

The former solution (“remove the cause”) suggests the Montesquieuan way: i.e. remove the plurality of opinion and the vastness of geography. Keep American confederacies small and tightly knit. After all, victory in the War of Independence left the thirteen colonies thirteen small, separate countries, contrary to President Lincoln’s rhetoric four score later. Union, although one possible option, was not logically necessary.

But Madison opted for the latter solution (“control the effects”), viewing union as vitally indispensable and thus, Montesquieu’s teaching as regrettably dispensable: allow size, diversity, and the consequent factionalization. Do so, he suggested, by reducing them to nothing…with hyper-pluralism. Madison deserves credit: for all its oddity, the idea actually seemed to work… for a time.

But Madison’s friend and mentor, Thomas Jefferson, ideologically closer to the Antifederalists and thus to Montesquieu—yet willing to entertain the possibility of Federalist union among all thirteen colonies—wrote from France that union was not altogether necessary. Jefferson maintained this position throughout his presidency and his life (even though he committed a mortal sin against Montesquieu via the expansive Louisiana Purchase). He admonished his Antifederalist devotees to listen patiently to Federalist arguments in favor of a vast, single, American union. Conversely, he admonished friends like Madison on the Federalist side (very few!) that the superior form of republic should be elected, irrespective of whether that meant one American union or several confederacies or “one Atlantic and one Mississipi confederacy.” In short, Jefferson suggested that the metric for the course opted for should be that which confers the optimal amount of liberty. How many countries formed was “not very important to the happiness of either part,” Jefferson wrote in 1804. The important thing was maintaining local rule in whichever country/countries were formed by the former colonies.

Madison did not hearken.

Montesquieu’s third and most important admonition was that the executive, legislative, and judicial branches should never share overlapping powers. In short, there ought to be no intragovernmental balances—branch overlaps—only checks—divisions of power. Thus, no executive “veto” (where the president acts the legislator), no Senatorial ratification of executive treaties (where Congress acts as the president), and very limited judicial review (such that the judiciary does not act like Congress, legislating from the bench), to name a few examples. Allowing balances would lead to collusion among the branches, Montesquieu forecast, whereas the goal of good constitutions was to engender rivalry between them. Each branch should do only that which is proper to it: enforce, make, or interpret law.

Another Antifederalist, Brutus, covered this third Montesquieuan ground, advising Madison against “the dangerous and premature union of the President and Senate, and the mixture of legislative, executive, and judicial powers.” In that, his fifth letter, Brutus went on to lament “such an intimate connection between the several branches in whom the different species of authority is lodged.”

But over against these passionate Antifederalist citations, Madison lowered his head and created the balances of Constitutional power named above, casting overboard his Spirit of the Laws, just as he had done with respect to Montesquieu’s first two warnings. Forgivably, Madison thought this would achieve greater restraint on government. Sadly, it had precisely the effect that Montesquieu and the Antifederalists had foretold: the three federal branches used their overlapping powers not against one another, but in league against the several state governments. They colluded, not competed, with one another. And the state governments were largely incapacitated.

Taken together, these three “fatal conceits” of 1787 render the infirm state of the American Constitution to be an unintended consequence that Madison hath wrought. Picking nits with Madison or the Constitution is always unpopular with conservatives. Fair enough. Yet I urge fellow patriots: read the wise voices of the Antifederalists before rendering that determination. Their teaching is the world’s most heavyhanded instance of, “if it ain’t broke, don’t fix it.” This meant you, Madison.

Yet, for all this, James Madison is not directly to blame for America’s current situation, of course. The Marxists (secular progressives) are. Madison was responsible for making unfortunate modifications to Montesquieu’s philosophy, while claiming the banner of Montesquieu speciously.

Although Spirit of the Laws was published in 1748, it was really just an explication of 17th century British political philosophy, applied to a new form of republicanism. In short, Montesquieu articulated a 17th century republicanism. Madison innovated an 18th century republicanism. And Marxism was a 19th century beast.

Republicanism had been mostly dormant since its primordial versions failed in the ancient Greco-Roman world. Mostly, the world had given up on self-rule of either the direct form—democracy—or the indirect form—republicanism—deeming that it simply requires too much virtue out of its “rulers,” the people. One of the few items upon which all Federalists, all Antifederalists, and Montesquieu himself agreed was that representative government required a religious, vigilant people whose foremost interest be the pursuit of the private and public good. (This sounds foreboding to an epicurean American culture whose dominant interests include recreational sex, celebrity minutiae, technology shopping, and dilettante cuisine.)

But in the long span between the imperial turn of Rome and the American Revolution, there did exist a few thriving exceptions of republicanism, footnotes to most history texts: the partly mythic Anglo-Saxon system of pre-Norman self-rule from the sixth to the eleventh century; the Venetian Republic which existed from the seventh to almost the nineteenth century; the Swiss cantons were republics dating back to the defeat of Holy Roman Emperor Maximillian in 1499 and yet existing today. And these exceptions explicitly informed the arguments of Antifederalists like George Mason and Patrick Henry at the state and national ratification debates of 1787-88: Look, Madison, they said, if kept sufficiently small, univocal, and virtuously peopled, republicanism will thrive. But only if…

Republicanism had a new chance in the Framing era, especially given Montesquieu’s political philosophy’s nuances in Spirit of the Laws. Whereas the ancient republics were necessitated (by their direct governance) to be mere city-states, modern theories of representation allowed geographic expansion to the size of small nation-states. Republics, Montesquieu admonishes, still cannot become huge, but representation allows them to be bigger than mere cities. Moreover, the three-branch innovation by Montesquieu (the British system considered the judiciary to be a part of the executive) streamlined republican due process so as to increase efficiency—especially if the three branches are hermetically sealed off from each other.

Thus, we see that the Montesquieuan limitations on republicanism were anything but arbitrary. Rather, they informed Montesquieu of republicanism’s evolution over the course of two or three millennia, with all its cautionary examples.

On a second look, then, Madison’s modification of Montesquieu seems a bit more flippant. It modified a workable 17th Century political philosophy into a wholly new, experimental 18th Century political philosophy.

Montesquieu’s 17th century republican form required small, tightly knit nation-states wrought of religious and moral solidarity. Madison’s 18th century form—relying on his innovations of political culture such as the Senate, factional nullification, national commercialism, and “balancing of power” among the branches—allowed a large, scattered, divided, irreligious republic to form without the consequences predicted by the Montesquieuan Antifederalists. Or so Madison thought.

These problems just took a while to show up, on account of the solid foundation of classical republicanism not taken out of the mix. But show up they did.

Our current American problems are attributable to the slight to moderate overnationalization of Madison’s 18th Century theory (it’s arguable), as cross-fertilized by 19th Century theory: redistributive Marxism. Even though Madison, Hamilton, et al. would never have willingly endorsed redistributivism, they nevertheless endorsed a national government big enough to effectuate it under the right conditions. Whereas the American 19th century bore witness to a sort of playing out of the Madisonian-Montesquieuan hybrid (explaining both the Civil War and the robust states’ rights which survived that long), the 20th shoved Montesquieu out, with Marx replacing him. Thus far into the 21st Century—after eight years of enormously central governing by Bush and in the fifth year of the Obama nightmare—it appears that Madison has been pushed out. No more mongrel. All we see is a descent into outright Marxism.

And that much is not Madison’s fault, in the usual sense of the term.

That is, the pernicious effects of the Fourteenth Amendment, a.k.a. the “new Constitution,” are not Madison’s fault. It was ratified nearly a century after the Framing (illegally… individual research on this point is merited). And in Madison’s carefully balanced federal system, any imposition on either side—however slight or accidental—could grossly change the balance of power between state and nation. More than effectuating minor or unintended change, the Fourteenth was designed to debilitate state governments fundamentally. Out of it grew both the doctrine of incorporation, which now enforced the Bill of Rights against the states as well as the Fed, and the outrageously malappropriated and misunderstood doctrine of substantive due process, which allows federal judges to construe non-enumerated individual new rights (viz. abortion, “reproductive rights,” gay marriage?) from the idea of “due process” and to enforce them against the States. In short, the Fourteenth Amendment allows most of the original Constitution’s vigorous procedural commitments to be bypassed. Hence, the “new Constitution.” Behold the brave, new, post-procedural world of the Fourteenth Amendment, the American Marxist’s best friend.

And true to the Marxist form, federal judges have “constructed” rights only ascribable to its favorite children.

The American Constitutional story is a sad one, cut short prematurely by American secular progressives and Marxists on the judge’s bench. But the entire point of this glance at history—in danger of being missed when one discusses only the Left’s hand in it—is to express that the secular progressives only had occasion to alter the Constitution by the permission of the Constitution itself. Saying such a thing is not quite the same, but not altogether different, from uttering the unassailable idea (as all the popular talk radio conservatives do) that Progressives were the ones who disturbed and changed the Constitutional order.

Of course they were. But one does better to honestly apprise the specific clauses in the Constitution which allowed such manipulation.

This is the point in the ride, sadly, where the vexing anti-scholastic pragmatism of popular conservatives prompts them to “get off board”: “What is the point?” they ask. The point, my myopic friends, is to cease pushing danger’s horizon further and further away, ever and anon, as if the inclement weather be not directly overhead. It be. No, the responsibility of the present is already storming torrentially upon conservatives and libertarians: retrieve the true meaning of the Constitution, already long gone! And while you’re at it, remove the clauses which led to its perversion! One way or another, the Montesquieuan possibility of liberty and federalist governance is retrievable. God willing. But the first step is certainly acknowledgement that Madison was no Montesquiean, as every Antifederalist yelled loudly at ratification, that crucible of forensics which produced the singular document which mostly ignored, but has been ascribed to, Montesquieu.

Books on this topic may be found in The Imaginative Conservative Bookstore. This piece was formerly published as two companion articles on American Thinker: “Madison’s Constitution” and “Madison’s Republic”.

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46 replies to this post
  1. Ho Hum.
    Another theoretical argument which leads to a theoretical dismemberment of the United States in favor of small homogenous republics. Hurrah for the Antifederalists and the Confederates!

    Frankly, I grow weary of this constant fantasizing along the lines of, “The USA got off the rails somewhere in mid-August 1776.” That is not conservatism. It is radicalism, for it strikes at the root of things. The revered Montesquieu did not have to deal with the problems facing Madison and the gang of Founding Fathers. The Constitution was a compromise. It was never confessed to be perfect. It has nonetheless worked rather well for a long time (as these things go).

    The sort of government the AntiFederalists wanted was tried once, under the Articles of Confederation. It failed of application. Oh, one replies, but all was needed were a few patches? All it needed was a good old college try? It never had a chance? No, the fundamental concept of the AntiFederalists was flawed.

    Limited Government is Controlled Government. By the time the Constitution rolled around, the option to create an Athenian state was long lost. Heterogeneity had already despoiled the possibility, and the rationale for slicing geography was already lost — unless one chooses to break up the 13 Colonies into Rhode Island-sized entities?

    Too many Conservatives, and even some conservatives, fail in understanding the concept of “Limited Government”, confusing it with Small Government. (Small government, in terms of geography, homogeneity, and univocality, may easily be as tyrannical as any other form of despotism. Size is no guarantee.)

    We do not live in cloud cuckoo land. We live in a real world. (I even think that may be the First Premise of conservative thought, all due deference to Russell Kirk aside.)

    We are desperately in need of exploration of possibilities for correcting our current problems of mis-government. We really don’t need distractions

    Madison was right.

    • Are “we” really “desperately in need,” or is it more accurate to say that some small number of us feel that way? The original Federalists, a sufficient number of their fellow citizens, and in time quite evidently their main opponents, including Madison himself, were far from immune to the material as well as spiritual satisfactions that participation not just in any modern mass polity but in an American mass polity seemed to hold out to them. The parallel results at each critical moment in the nation’s history reinforce the sense that the national-imperial and statist victory during the Founding period did not come about by chance or even by force of argument, but, to use the Hegelian phrase, by historical necessity. Why should we assume that in the year 2013 an authentically and viably conservative, rather than radical if not morbidly ideological, point of view would be the one that seeks some true Montesquieuvian faith? Nothing less than a true system crisis would allow for a re-ordering of the American state as we know it (or think we do), probably to occur, if ever prior to the End of Days, only at the point that the despite-itself global potential of that state has finally played itself out.

      For more specific and exhaustive historical-political analysis I’d urge you all to read Fukuyama’s latest essay at the American Interest: http://www.the-american-interest.com/articles/2013/12/08/the-decay-of-american-political-institutions/

    • Cliff: yes, I love the 2nd unexplored 5th Article way (the state legislature way) of calling a revising convention. It SEEMS great (although, ironically, because the Fed swallowed the States so fast in our national history, it has never even been tried–States are too disabled to do so.) But remember, there’s a reason that Jefferson and the Founders only tried British-system-revision for so long: it works only where flaws are topical or superficial, and where the “redlining does not swallow the task.” If you sit down to revise, and you have more red lines on the page than untouched text, I suggest you start a brand new text. Just saying…

      Besides, Cliff, see the comments above and below yours. Taking any sort of remediation seems to be…unpopular.

      David and Peter: ho hum. More American Pragmatism, bespeaking a false dichotomy between truth and “what works.” Ick. I find that relativistic, or at the very least, Kantian.

      Madison admitted he was wrong, by the way, all throughout the 1790’s: he spent a decade eating crow. Just google “Madison in the 1790’s,” which I believe is illustrated by a gentleman consuming a crow, whole. Read his argument in the Virginia REsolutions in 1800, for Pete’s sakes. All his closest homies in Virginia (many of whom went on to be President) had been among the Antifederalists–Jefferson, Monroe, George Mason–and by 1800, Jeffersonian Antifederalists were already calling for a new revolution based on the burgeoning of the Federal power in twelve meager years. He was not the big-gov figure that Hamilton was, mind you.

      The only genuinely pressing issue catalyzing a national constitutional convention in the late 1780’s was Shays’ Rebellion (to this end, a national convention was called in Annapolis that same year–1786–and yet no one showed up, so they postponed until the next year…and got GW to show up): anti-debtor relief retroactivity provisions were utterly absent from the Articles. And they were actually needful (unlike an expansive commerce power for Congress or an equity power for the Court.) Now, the mark of genuine issues is unanimity. Everyone at Philadelphia agreed in 1787 that something like A I, S10’s Contract Clause was needed. So they got it. And the Contract Clause was the most heavily litigated constitutional issue in the country for 100 years.

      But then–all because of the obscenely potent trumpcard awarded to the judiciary in the form of “equity” by Article III–the New Deal bench decided on a whim that the Contract Clause meant the opposite of its plain text. On the basis of exigency…or Pragmatism…or “what works.” That Pragmatism is a dangerous wield, my friends. It’s always “burning a hole in the moment,” isn’t it? (And in such a way as to render the fabric unusable later…)

      Like I already said: I agree that Madison’s arguments are forgiveable, because they were plausible. Unlike Hamilton’s. That is, Madison at least developed a system for his “modernist” spin on large groups of human beings; Hamilton just lied about the situation.

      Now, a free ride on the carousel to anyone who can, without breaking into manic laughter, read Hamilton in #78 describing why the Judiciary will be fair, disinterested, and juridical after entrusted with wide discretionary review!

  2. WhileI agree that it is enlightening to study the ratification process, I do not agree with the criticism of Madison here. The individual states were already bigger than the optimal size of Montesquieu’s ideal republic, as Madison pointed out. If Americans were to follow the presumed prescriptions of Montesquieu to the letter, they should begin by dismembering the states, which in effect would have meant abolishing republicanism.

    Secondly, it is not fair to Madison, whose entire system was a practical attempt at coming to terms with the theoretical problems raised by Montesquieu, to say it was a coup against him (and the classics). Montesquieu’s Spirit of the Laws was not faced with the grim reality of political practice. That Madison and his generation revered political philosophy enough to build a system in response to it is not a coup, but an homage.

    Certainly this does not mean the Constitution is perfect. But in a world beset by tribalism and fragmentation, factionalism and strife, a political system that covers vast portions of humanity while preserving a large degree of self-rule is praiseworthy and must be emulated. Actually, given the pathetic state of the contemporary American character, it is only because of the Constitution that Madison framed that America survives, despite our vices.

  3. CK –We are “desperately in need” because if conservatism qua conservatism is to survive more than the generation weaned on Kirk, more thought must be given than of late.

    (Most of what I see on the Right these days that passes for argument boils down to “We don’t like the Black Man in the White man’s House.” That is not ‘playing the race card’, because, in case you haven’t been looking, most on the Right are more Joe Six-Pack than White Citizen’s Councils. Granted, I could be sensitive on this issue, since I was bred in a part of the country with broad Southrun sympathies, but it is none the less still There. And, there are Always problems of mis-government, given that none of our institutions are perfect, nor can ever be given the fallen nature of humankind.)

    Parenthetical verbiage aside, the fact is that standing athwart history yelling STOP only gets you flattened under the wheels of Juggernaut unless you have allies. You don’t gain allies by a constant carping negative attitude, but by showing a happy positive vision – even Ronald Reagan of sainted memory knew that, it’s how he got elected.

    Where is the joyful expression of conservatism? Buehler? Buehler?

    Timothy – I find it amusing that you have scorn for American Pragmatism. Have you also scorn for Burke’s pragmatism? Do you equally deride his dismissal of “abstractions”? Or John Adam’s angry categorization of “ideology”? Conservatism is not some theoretical exercise in historical revisionism, cherry-picking what matches the pre-determined verdict – let us leave that to the Marxists and Benthamites.

    Also, you DO realize that The Federalist is not some sort of Constitutionalist version of Talmud? It was written in the white heat of the New York ratification debates, and several of its articles, being purest partisanship, are severely tedious. That we gain anything good from it is one of the miracles which I associate with the Founding.

    All this is quite beside the point. One should never begin an argument with a lawyer, on sanitary grounds if none other.

    Finally (though I am very sure your summation for the jury will follow), unlike you, I have no problem with the Constitution as ratified and amended (except the direct election of Senators as being too much a bow to the Populist Reformism which also gave us the Primary and other dead-weights about the neck of the nation). If you see more red ink than black, may I humbly (right) ask what nation’s constitution is most pleasing to you. For all that you decry the lack of purity, I should like to remind you, once again, that conservatives live in the real world, and pointless courtroom rhetoric will not permit the fabrication of Castles in Spain for you to furnish.

    As for the idea that the States could take action to refine the Constitution, just what sort of Constitution does anyone think would arise in these days of Red State gerrymandering? The Constitution (the real one) is programmed to guarantee that each State will have a republican form of government, not a permanently Republican government.

    There are all types of conservatives, and – save only those libertarian Randites posing as conservatives – no person of Burke-Kirkian sensibilities should ever want to go on a “CINO” hunt. In the spirit of discussion to advance the prospects for American conservatism, and not European theoretical paradigms, do I offer my remarks.

    Mister Rieth – I don’t often find myself in agreement with another conservatively-minded person, but when I do … :)

    • David:

      Normally, I in-line responses with prompted lines like a true analytic philosopher. But that’s irritating as all hell. And you already seem irritated: let’s try and “coexist” like we’re admonished to do in 2013 America (I’ll call this “your America,” just to be irritating one more time). If we were discussing these ideas over a good IPA, as is only moral to do, you’d find me a good deal more charming. I guarantee it in the most Zimmerly fashion I can.

      Snappy as some of your points are, you’re still wrong on the whole, I implore you. Just listen to the following:

      1) Even tongue in cheek, I can jab that “coexist” America is “your” America (even though I’m sure it is not!) because republicanism is about the citizens. There is no middle ground between affirming and repudiating a contemporary regime. In this sense, “coexist” America is even my America, although I’m about as close as folks come to

      2) Bentham and Marx are, curiously, the two ultimate Pragmatists, even more than the formal American ones like John Dewey. Marx said, famously: “our goal shouldn’t be to understand the world, but to change it.” This is you (except that you’re probably a damn fine chap, and Marx was not). Actually, you assume that the distinction, “No, I aim to maintain the current regime” is a meaningful one. No, it is a distinction without a difference. What matters is understanding the world, and THEN changing it. The former without the latter is cowardly pedantism; the latter without the former is Jacobinism; no understanding and no change is skepticism. The only meaningful position is both together.

      3) I don’t know what you mean by Burke’s brand of Pragmatism, but I’m sure that he uses it in a confoundingly attenuated sense. Pragmatism is what Marx said.

      4) Yes, the ratification contest (Fed/Antifed Papers) had rhetorical value, but also heuristic. There’s absolutely NO tension between these two properties coexisting. Every argument strikes some balance of these two. No surprise, however, that I find MUCH more of the former in the Fed arguments, and MUCH more of the latter in the Antifed arguments. How do I premise this? Simple: Go read Brutus’s (the most underrated Antifed by far) 2nd, 3rd, 5th, and 6th letters. All of this stuff he predicts came ABSOLUTELY TRUE, and just in the manner he said it would. No point in debating until you read those four. (And if you haven’t ALREADY read those, then you shouldn’t be claiming they’re pure rhetoric, my man!)

      5) MOST IMPORTANTLY: all that “1776 was NECESSARILY a one-time deal” haranguing of conservatives who advocate slightly more (or less) change is outrageous. Moreover, it’s utopianism. Conservatives should understand that reasonable minds can differ on propositional solutions, but not THAT we have major, unprecedented national problems. This side of the eschaton, none of us is owed a republic; we have to see to it ourselves. Federalists like Adams and Washington agreed with the Antifeds like Pat Henry and Jefferson on that one. Really, it is only the Americans throughout history who have felt entitled to a republic. Like Jefferson said, “the earth belongs in usufruct to the living.” The price of republicanism is constant vigilance. I mean, in theory. But also in the way that republics work. Government gets bigger and bigger (even with pretty good Constitutions like ours) until it no longer roosts atop a “republic.”

      6) Simple math: all future revolutions should gauge themselves against this arithmetic: are the grievances of the government greater than/less than/equal to those in 1775? It’s easy math. I’m not hereby suggesting an answer. But Jefferson thought–and wrote, from the Presidency–to this effect. In honesty, I’m not certainly convinced either way–but to talk so scornfully as you do about conservatives who feel differently is a bit of a shame. It’s simple math that everyone who takes republicanism seriously should do.

      • Interesting as this is becoming, I fear that we are not communicating well enough to make it more fruitful.

        Specifically, I feel you are trying to bludgeon me with irrelevant factoids and straw man arguments.

        Probably, I seem to be doing the same in your direction.

        Let us part in peace. Or, if you wish, you win.

        • Go suburban soccer on this one: think of it as no winners or losers. These ideas we’re bandying about are borrowed anyway!

          Just read Brutus 2, 3, 5, and 6! They’re very short. While you’re at it, read Madison’s Virginia Resolutions from 1800. He’d turned back to small gov by then.

    • Mr. Naas – To the extent “Kirk” stands for a particular school or movement, then his or its conservatism might not be very qua, but rather a historically very contingent and possibly very narrow conservatism. I’m not sure whether Kirk himself would have been pleased, at least on his better days, to be credited with or accused of founding a conservative political ideology. The quote that adorns the IC sidebar suggests he might not have been, though saying so might not relieve him of all fault in the matter.

  4. As a point of practical concern to the above – has anyone given any practical thought to what it would mean for America to jettison Federalism beyond the obvious fact that most of the Federal government programs conservatives oppose would cease to oblige the states?

    I mean specifically this: what would happen to the nuclear arsenals in places like Montana or Kansas? I assume that a peaceful dismemberment of the Union would look something like the dismemberment of the USSR; with the emergence of new nation-states (in our case, say, “Free and Independent States”) alongside the remaining United States of America (I assume some states, perhaps all of them, would stay in the Union if given the choice).

    Now let us say one state, like Montana, decided to seceed. Fine. Who owns the Nuclear arsenal there? I imagine the United States would, like Russia via Ukraine in 1993, claim ownership. I do recall there was a bit of tension back then, and President Clinton promised the Ukrainians some sort of security arrangement in exchange for them giving the Nuclear arsenal back to Russia (I could be wrong about this, my memory is foggy – but I do know the problem of “what to do with the nuclear weapons?” did exist).

    Now, how would this look in the case of states like Montana or other Nuclear states? I think you can see that it might be better, rather than to dismember the Union because of assuming terrible flaws in the Constitution, to prefer assuming terrible flaws in the people and its government which the Constitution was made to control, and to renew President Nixon’s “New Federalism” or smething like it.

    After all, in real life, Montana is not Ukraine (a nation with a long history and ethno-religious-linguistic identity – although even that seems to be splintering). Montana is quintessentially American, as are most of the fifty states who together constitute not merely stars on a flag, but a common historical community that has only recently begun to fragment on account of mass illegal immigration and a failure to assimilate people.

    • Peter,

      That’s an undeniably important point. I’ll think on it. Nevertheless, I’m no consequentialist: the right thing to do (if thats what secession were to turn out to be) remains that even if the odds are long or the outcome is bad. Aren’t you glad out Founders opted the way they did?

      Quickly, there is simply no such thing as a 400 million person community. Please see the recent article on TIC about subsidiarity. Natural communities numbering in the millions, or even billions when the Bonos of the world start talking world community, are a Utopian sham. “National community” is like saying “circular square.” It’s why Montesquieu’s first point was right.

      • Only in America would educated gentlemen discuss the complete “dismemberment” of the political-administrative state and the attendant disruption to every aspect of the lives of citizens, for the sake of notions abstracted from the works of of long-dead philosophers, as in any sense “conservative.”

        • Absolutely correct. (You utter it as a critique, I realize.). “Conservative” means a) virtuous self-possession enabling b) very limited gov’t mostly by local rule. It doesn’t mean “conserving whatever evil regime you happen to live under.” Please.

          You want me to apologize for the undeniable fact that 1776 was the SINGLE world revolution based on these, and not the whims of a series of gang-bosses??? (The 1688 Glorious Revolution almost categorizes here, too.). Okay: SORRY. Still a fact.

          • I don’t take your view on the proper or even the specialized definition of “conservative” to be a very conservative perspective on proper or even specialized definition. As for the language of “whatever evil regime” and “a series of gang-bosses,” I’m happy to let it make my argument for me.

          • I can’t for the life of me understand what those 2 sentences mean, Mr. McLeod. (I am not one of those souls who takes pleasure in saying that either.). Can you please clarify.

            Small gov rooted in natural local community (as opposed to some radical, libertarian individualism), is the most conventional definition of C I could ad hoc. To those obsessed with definition by cognate, NATURAL LAW is what’s being conserved.

  5. Mr, Gordon, I don’t think natural law, or NATURAL LAW, requires your or my efforts to be “conserved.” Peculiar notions about applications of natural law or of understandings of natural law might be another matter. We may be asking whether such notions as articulated by certain 18th Century thinkers are applicable to our political life at all, and, if so, how. My own answer would be: possibly, but very likely not as ideology fit for everyday polemics, or as in the writings of contemporary self-identified Natural Law proponents.

    As to your mystification regarding two sentences that struck me when I wrote them as quite clear and to the point, I’ll try again: To me, and I would argue under any sensible approach to usages, attaching the word “conservative” to advocacy of the total re-configuration, indeed destruction, of an existing and long-settled way of life, on behalf of another regime that seems to exist only as an imaginary ideal, ought to be taken as ridiculous or insane. It ought to be impossible. It verges on the comical. I would call it bizarre, except that it’s a normal and influential feature of American politics: The existence of a gnostical political cult standing athwart pedestrian traffic and doing a lot of nonsensical yelling about an evil regime that appears to equate with all existing social, political, and economic relations.

    The efforts have been rewarded with the fulfillment of Alice’s wishes about the meaning of words, though in another sense the results are in keeping with contradictions embedded within the American idea at its inception and re-expressed throughout the nation’s history. I won’t say it’s all to the bad. For one thing, I would not consider saying so to be a reasonably conservative way to discuss the question.

    • If Jefferson, George Mason, James Monroe, the Randolphs, and the Lees weren’t “conservatives,” then neither am I, Pragmatist.

      (They were.)

      Seriously though, sorry you understood conservatism to be naught but some sort of usufructuary padlock for the status quo, your material goods, and your comfortable way of life. It’s a great deal more, and it requires teeth, sometimes. Most, I’ll grant you, revolutions have been the armed equivalent of Occupy Wall Street. But not all: ours was the Tea Party.

      PS: who’s Alice?

  6. Meant to say or should have said “Humpty-Dumpty”: http://en.wikipedia.org/wiki/Humpty_Dumpty#In_Through_the_Looking-Glass

    I made no reference to a padlock, but a bias toward settled, inherited norms and practices, and a suspicion of radical or would-be revolutionary schemes and of outsized claims of any type, or the “presumption in favor of the status quo,” would I think be included in any common, not to mention settled and inherited, understanding of the word “conservative.”

    • NOW we’re getting somewhere! Yes…I embrace those classical norms. And when both the political and the popular culture moves radically away from them, what then…? It is precisely in the name of those norms–Natural Law–upon which good (conservative) revolutions are premised.

    • It is precisely BECAUSE cultural traditions so often depart from natural norms (given mankind’s fallen status)) that your Torey’s sense of conservatism gets befuddled. If cultural tradition emulated Natural Law more than once in awhile, then I’d probably assume Burke’s view of stasis as well.

      As things happen, however, I cannot. I’m thinking now of phenomena such as the law- and culture-sanctioned infanticide which approaches 60 million victims. There’s your prize-winning culture…you’re right, only a bona fide libertine could object to that.

      Like I said, conservatism is about far more than simply crystallizing whatever good or ill happens presently to abide.

  7. We disagree over the idea of American political and popular culture moving radically away from classical or any other norms. The idea seems to entail two presumptions, first that political and popular culture ever embodied those norms or could embody them to some much greater extent than under current circumstances, second that culture ever moves radically away from itself. I see no good evidence for the first, at least pending a careful definition of key terms, and, as for the second, to my way of thinking, you’re suggesting that a culture might somehow radically detach from itself. Specifically in regard to America, I would argue that such movement, both a potential for movement and a requirement for it in relation to a progressive ideal alien to the classical worldview very much characterizes American culture, the American idea, or what Gordon Wood called the “American science of politics.” When I refer to the American idea as “progressive,” I’m not referring specifically to the Progressives and their heirs, but I don’t exclude them either. Part of the reason that conservatism is such an unstable element in our discourse has to do with the difficulties or contradictions of striving to “conserve” a “progressive” impetus, but progress conservatively is very much what I think Americans have managed to do, on the whole, to world-historically radical effect.

    • You haven’t studied American jurisprudence, have you? I realize that all this is very nebulous until one realizes that in 100 years, virtually EVERY important clause in the constitution (not just the 3 Amendments talk radio conservatives characterize as the constitution, but ALL of them) is now articulated and defended in an opposite way from before. It’s an incredibly precise and unique touchstone for cultural climes. I know of no others.

      So by your reasoning, which is stretching further and further, no culture at any time has done or can do any better by their fetuses?

  8. I’m not sure why you see the question of care of fetuses to be paramount, but, if Aristotle qualifies as “classical” in this discussion, the Politics includes consideration of the circumstances under which the apparently quite “normal” practice of “exposure” of infants ought to take place, so I’m not sure whether you really want to stand on classical norms anyway. Your position regarding “EVERY important clause” I find dubious, and I suspect it’s highly subjective. Without conceding your claim, and although I of course acknowledge the significance of American constitutionalism, I also don’t consider the Constitution to be the sum and substance of American politics and culture: Considering how different the USA and the world of 2013 are from the USA and the world of 1913, and the USA and world of 1913 from the USA and world of 1813, I would expect interpretations of a singular document from 1787 to have undergone somewhat commensurately radical transformations presuming it was not going to be simply discarded as a useful reference at all.

    • Aristotle is the most important distiller of NL before Thomas. He captivated what was true in the tragic Greek sense of it. Nonetheless, he misapplied it in that passage in the politics (I’ll cite check you shortly).

      So, a culture CAN or CANNOT move away from formerly embraced norms? You’ve taken both positions at this point.

      So you hold out the “living Constitution” and that abortion does not violate any fixed sense of Natural Law: now I know why you object to “my brand” of conservatism!

      • Also – incidentally – don’t have time to get into detail – but on a culture’s movement away from formerly embraced norms: Culture is already such movement (“cultivation”). The problem would be with the notion of a “radical” detachment.

        As for the “living” Constitution, absolutely, if the alternative is a “dead” fundamentalist-literalist constitutionalism that I find as untenable as a Humpty Dumpty version of the other view. Put me down for a living originalism: http://zombiecontentions.com/2013/05/21/notes-on-a-living-originalism/

  9. Well it’s an interesting notion, maybe this regime is too big to fit Montesquieu, but that’s the model we’re left with.Of course all the restraints on the Republic are being dismantled, CK doesn’t see anything wrong with that, Mr, Nas ignores the point entirely, Just as well, having read what the President lectured on at Chicago, Alinsky power relationship, and other artifices of the critical legal school, bequeithed by De Unger among others, one sees what he is trying to do,

  10. The Hippocratic oath, is a dead letter, as Ezekiel Emmanuel has informed, as are the insights of John Holdren, and other like minded folk, it had to be it isnt compatible with the progressive mindset,

  11. One turns the Commerce Clause inside out, disregards that the First Amendment was about political speech, predominantly, hence the foolishness of the Federal Communication Act, among other, one allows the Courts to be a perpetual amending body, not the constitutional convention, this is what you get.

  12. That the Constitution’s original intent is nowhere in our culture, jurisprudence and politics understood is not the fault of James Madison. Franklin told us the founders gave us a republic “if you can keep it”. To say the Constitution failed is to say Americans failed to keep it. Proving we failed to keep our republic does not prove James Madison failed to establish a good one.

    • Very true, Peter. Still…read Brutus’ 2nd, 3rd, 5th and 6th letters. Sorry to be a broken record. But when I read these, I considered the fact that Madison’s fellow planters were predicting/yelling this stuff AT THE TIME a game changer. Seriously, give them a read, see if you agree…it’s eerily specific, and I retroactively shift greater onus thereby to JM.

  13. I have read Brutus, I find Montesqueieu himself more convincing, and agree with Madison that Brutus misunderstood Montesqueieu.

    In Livre IV, chapitre VII, Montesqueieu writes:

    “Ces sortes d’institutions peuvent convenier dans les republiques, parceque la vertu a politique en est le principe. Mais, pour porter a l’honneur dans les monarchies, on pour inspirer de la crainte dans les etats despotiques, il ne faut pas tant de soins. Elle ne peuvent d’ailleurs avoir lieu que dans un petit etat (comme etoient les villes de la Greece), ou l’on peut donner une education generale, et elever tout un peuple comme une famille. Les lois de Minos, de Lycurgue et de Platon, supposent une attention singuliere de tous les cityones les une sur les autres.”

    This is not a prescription. It is a description. It is not even a description of ancient practice, but of Platonic republicanism under ancient conditions. Furthermore, the key to the success of republicanism, repeated by Montesqueieu over and over, is “la vertu.” Geographic and population limitations are not an end in and of themselves, but a means for the cultivation of virtue. But Madison rightly points out (in Federalist #10) the fate that awaited the cultivatores of virtue:  “there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual.”

    Madison recognized that his proposed constitution would protect the means of republican government (virtue) by shielding the philosophers who contemplate and teach virtue from the majority or the stronger faction. In the above noted fragment of the Spirit of the Laws, Montesquieu goes on to blame commercial interests as being the bane of the ancient polis, via Aristotle and Xenophon. Madison agrees, which is why the Constitution attempts to check the passions and factious interest that naturaly arise in commercial republics.

    Brutus did not understand that Montesquieu, in describing ancient virtues of small republics was not prescribing them, but presenting them for useful contemplation. Furthermore, what was the virtue of Athens? “Les lois de Platon”? No, it was Homer, which Plato’s teacher wished to expell. This teacher, next to Christ, was the most “obnoxious individual” in Western history. Montesquieu’s aim in the laws was to comparatively examine the virtues and vices of various regimes. Madison, in the spirit of Aristotle’s mixed regime, attempted to construct a Constitution which would feature the virtues of the various regimes, protect against their vices and secure the most important freedom: that of the philosopher. Brutus was wrong to cite Montesquieu as supporting him, and an analysis of the whole ouvre (and Montesquieu in the preface asks us to judge the whole, not its parts) proves Madison was right to claim Montesquieu’s support. I would also be happy to defend Hamilton’s view of the courts, but am pressed for time. Virtue is the bedrock of the Federalist system, the means for its preservation were novel. They now require repair – but this is not because Madison made the Constitution, but because we unmade it.

    • Mr. Rieth, thanks for that very interesting addition to this discussion. While I was reading it, I couldn’t help but think of Strauss’ views on American liberal democracy, the mixed regime, and philosophical politics.

      Your last sentence seems to rest on two assumptions that I would consider open to question, first that Madison by the time of the Federalist Papers retained confidence in “Republican virtue” as a “bedrock.” Wood’s view is that by 1787 and the conclusion of the Critical Period, the Spirit of ’76 had been spent, and that the “novel” mechanisms of the Constitution originated in a pessimism regarding human nature confirmed or seemingly confirmed by experience. Put simply, the Constitution wasn’t built on a bedrock of virtue, but for lack of one. The other assumption would be that, if “virtue” once existed and has somehow been lost, that it might be recovered, or that the “means for its preservation” exist at all, or that that if they do exist can be considered susceptible to a political or any other project of repair.

      We may be able to put ourselves more in Madison’s predicament if we consider that that which would be required, if the Constitution or constitutional government were a means to preservation of virtue, may not and may never have been available to us, so cannot be required at all. Under this view, the Constitution or its provisions might serve to impede political decay, and to allow the new nation-state to take the best material advantage of unique and in other respects remarkably promising circumstances, but expecting constitutional government to preserve or augment our virtues, individually or collectively, would be a cardinal error.

      • Yes, Mr. McLeod, my most recent comment to Peter is in accord with you/Wood on this point. Of course, like any good leftist, Wood assumes a statist view of the collective (and of “public virtue”) which swallows the individual whole.

        But at any rate, I agree with him and you insofar as the mainline view of Madison is definitely one of skepticism. I can see it no other way (namely, I’ve never even HEARD it Mr. Rieth’s way). I mean, Federalist #10 is very, very clear on the point that “controlling the effects” is better than “removing the causes.”

        Moreover, the gradeschool platitude we were all taught in middle school history even supports this position: Feds wanted a big commercial republic based on multiplicity; Antifeds wanted a small agrarian confederacy based on family/virtue/unicity. Yes, I realize that’s not exactly how it was put in middle school!

      • As to your second point to Mr. Rieth, I retain my objections from yesterday: viz. “yes, some republics come closer to cultivating natural virtue than others, however imperfectly.” It’s a continuum which anticipates imperfection.

      • Remember, Madison in #10 harbors a VERY modernist/materialist presupposition as “bedrock” (rejected by the Antifeds/Montesquieu): that economic stratification –and NOT diversity of religious/moral viewpoint–is what causes the diversity of opinion leading to faction. Think of the manifold effect of this determinist presumption.

    • Peter, that is tremendously helpful. (“Geographic and population limitations are not an end in and of themselves, but a means for the cultivation of virtue.”) Really. And I agree with your terse expression of it here.

      Yet, you’ve mischaracterized the Federalists writ large. Madison and the Federalists urged commerce and multiplicity of faction as a surrogate to citizen’s virtue: not that he was against it, just that he understood that it couldn’t be cultivated in such a large place, and thus, he wanted to exchange a new solution for its effects.

      I wonder how you receive the whole “remove the causes or control the effects” (favoring the latter) schtick of #10? It’s an argument against virtue as sine qua non. Faction (predicated on vice) is its own manifold solution, rather than removal (via virtue)…

      **Could you transliterate that passage, please? I don’t speak French…

    • PS: Brutus gets way less into any exegesis of Montesquieu and gets down to predicting specifically how the proposed federal system will fail. Most of his points (except, ironically, those regarding the Presidency) have come true undeniably.

    • Remember, Madison in #10 harbors a VERY modernist/materialist presupposition as “bedrock” (rejected by the Antifeds/Montesquieu): that economic stratification –and NOT diversity of religious/moral viewpoint–is what causes the diversity of opinion leading to faction. Think of the manifold effect of this determinist presumption.

  14. CK Macleod, thank you for comparing my meager thoughts to Strauss; that is praise of a caliber I do not deserve.

    Mr. Gordon -forgive my quoting Montesquieu in French, I do not have the english version, only a five volume copy printed in Paris in 1816. My rough French-to-english translation is:

    “These sorts of institutions might be convenient in republics, because their principle is political virtue. However, to carry honor into monarchies, or to inspire fear in despotic states, it is not necessary to try so much. They cannot moreover have a place but for in a small state (such as were the cities of Greece), where it could be given to educate generally, and elevate all of a people as a family. The laws of Minos, Lycurgus and of Plato suppose a singular attention of all of the citizens one over the others.”

    As to how I rectify the supposed contradiction between Madison’s proposal to “remove the causes or control the effects” of faction through the constitution with my claim that Montesquieuian political virtue lies at the heart of Constitutionalism: it is enough to observe that what the Founders did was equally as important as what they wrote. Prior to the ratification of the Constitution, who controlled the effects of their faction? They did it themselves. The entire Constitution is one grand exercise in self-restraint. The Founders crafted a government wherein their own power would be limited. Then, they practiced a politics which established even more rigorous precedents for limited government than called for in the Constitution. Washington left office after two terms though he might have stayed for life. Jefferson and his anti-federalists took power peacefully and did not proceed to murder their political opponents. It is impossible not to regard the actions of the Founders before and after the ratification as of equal importance to the system they set up. Madison did not argue that virtue was unnecessary, only that it was not prudent to expect virtue to be constant. The Constitution was to preserve the republic in the unavoidable moments when bad men would be put at its helm. To say Madison did not believe political virtue necessary, prefering to bypass it via a system of checks and balances is to ignore the virtue of Madison and the Founders in checking and balancing their own passions and ambitions for the greater good.

    • Yes, Peter, but that is not what is at debate: the political virtue of the natural aristoi. What is at the heart of Montesquieu and the Antis versus the Federalists is the view of UNIVERSAL republican virtue (by each citizen). Obviously, your distinction offers no aid there.

  15. Very interesting, but you skipped (b) by sleight of hand. Antifederalists also complained that the Constitution was fundamentally atheistic and would leave the country vulnerable to being taken over by anti-Christians (namely, Jews, pagans, atheists, Freemasons, and “Mohammedans”), which has actually happened — so completely that no one now dares to even point out the flaw. Can you tell us more about it?

  16. I’m am delighted to see new treatments on Montesquieu and the Founding but unfortunately this article puts forward a bad reading of Montesquieu and an unfair criticism of Madison.

    “First, Montesquieu required republican governments to maintain limited geographic scale. Second, Montesquieu required republican governments to preside over a univocal people of one creed and one mind on most matters. A “res publica” is a public thing valued by each citizen, after all. “How could this work when a republic is peopled diversely?” the faithful Montesquieuan asks. (Nowadays in America, for example, half the public values liberty and the other half values equality, its eternal opposite.) Thirdly—and most important—Montesquieu mandated that the three branches of government were to hold three distinct, separate types of power, without overlap.”

    Even to say that Montesquieu “required” anything with respect to republican government is wrong. He said that “laws should be so appropriate to the people for whom the are made that it is very unlikely that the laws of one nation can suit another” (SOL 1.3, ¶12). This is not to say that he is a value-neutral social scientist. One must attend to the climate, religion, commerce, etc.– together they form the spirit of the laws. Whatever he says in praise of one form of government or one arrangement must be understood in this light. To say that Montesquieu gives prescriptions about the proper size of a nation, etc. to fit all cases is to profoundly misread him.

    When Montesquieu talks about the proper size of republics, he is talking about ancient republics. He leaves ancient republicanism behind in Part 1 of SOL; it is no longer possible. The model, insofar as one can speak this way, is England: a republic hidden under the form of a monarchy. A federated republic is like England in that it is a republic internally and a monarchy externally– see 9.1, ¶3.

    This response to the first way in which you’ve wrongly argued that Madison wrongly interpreted or corrected his teacher also serves as an introduction to the way in which you’re wrong about the next two points. Here are some obscure points in that regard:

    One must learn to read Books 9-10 together with 11-13 as treatments of the same subject.

    See Book 10 together with Machiavelli’s Prince 3-5.

    See especially 10.15 for a response to your 2nd and 3rd points. Compare it with 11.4 and 5.14, ¶30.

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