In 2007, Harvard University Press published a remarkable book by Yale professor Bruce Ackerman, The Failure of the Founding Fathers (hereafter Failure). Best I remember, I read the book because I was startled by the sacrilegiousness of the title: Ackerman was violating the cultural canons mandating unqualified awe of the Founders and Framers by suggesting that, in writing the Constitution, they had failed in some way. (To say that the Framers failed because they compromised with the slave States to get the Constitution ratified is a truism. Ackerman had something else in mind, however.) He convinced me, though I persist in believing that the “perfect storm” of synergistic malfunctions that very nearly deadlocked the election of 1800, and that almost led to the dissolution of the Union -- a consequence we have long since forgotten about 200-plus years later -- could not have been foreseen by anyone, however illustrious. (Jefferson was US minister to France and living in Paris at the time, and therefore not one of the Framers.) Observing the ongoing, chronic chaos of the Trump Presidency and the surrounding cloud of neo-fascists, para-fascists, and just garden-variety whack-jobs and propeller-beanie wearers, however, I have come to realize that Ackerman was right, though in a way probably even he could not have anticipated at the time he wrote his book. For if anything proves fatal to the tradition of liberal constitutional government, it will not be deficiencies in the “machinery” explicated in the terse text of the Constitution, which can be remedied, but in the perennial cupidity of the human heart, which cannot.
A couple of salient examples from Failure will illustrate what I mean by “the machinery of the Constitution” and how such “mechanical” imperfections relate to the deeper psychological, even spiritual, threats to constitutional government.
o The election of 1800 deadlocked between Thomas Jefferson and Aaron Burr, thereby throwing the election into the House of Representatives under Article II, Section 1, paragraph 3. (The previous President, John Adams, was ruled out early in the contest in the voting.) In the case of the election of 1800, as Ackerman notes, Vice President Thomas Jefferson, like Vice Presidents generally, served as president of the Senate where the votes were counted. But Mr. Jefferson was also himself a candidate for President, and also supervised the counting of the votes. This is an obvious conflict of interest.
o The House of Representatives was so hopelessly deadlocked in 1800 that, even though vote after vote was taken, no decision as to electing a President emerged. This was painfully problematic because, as time dragged on, Inauguration Day approached – Inaugurations were held in March in those days – and the possibility had to be realistically contemplated that Inauguration Day would arrive with no President to inaugurate. Because relations between Jeffersonians – the party of Jefferson, also rather confusingly (for us these days) referred to as “Democratic Republicans” – and the hitherto dominant Federalists were so acrimonious that any attempt to change the date of the Inauguration would be greeted with instantaneous suspicion, and most likely the debate on when to hold the Inauguration would extend past Inauguration Day itself … still with no President to inaugurate.
In the midst of all this, an anonymous open letter was published proposing that Congress appoint an “interim President” who would serve until the electoral issue could be resolved. But there was no constitutional machinery allowing for an interim President, and besides, any interim President would either be a Jeffersonian or a Federalist, i.e., someone who would not please the other party. Moreover, strong rumors were bandied about to the effect that the author of the open letter, whose identity remains unknown to this day, was Chief Justice John Marshall, an Adams appointee and an ardent Federalist, which would mean that the Congress would be overwhelmingly Jeffersonian, but that the interim President would be a Federalist – a circumstance which might itself suffice to break the Union.
The day was saved when a bipartisan group of Representatives met with Rep. James Bayard of Delaware and asked Mr. Bayard to basically fall on his sword by either voting for Jefferson or by abstaining. (Which alternative Mr. Bayard elected is somewhat ambiguous: I have heard versions of both.) Delaware was selected for attention because Delaware only had a single delegate to the House, which saved the trouble of convincing larger States with multiple delegates. Mr. Bayard consented and voted for Jefferson – or abstained, whichever – the deadlock was broken, and Thomas Jefferson was elected the third President of the United States. This entire process required thirty-six ballots in the House, and produced a still-unsung hero of American history: Rep. James Bayard of Delaware, who single-handedly probably saved the Union.
The point of all the foregoing is that we can use the harrowing story of the election of 1800 as a yardstick to measure the difficulty facing American politics today, in comparison with which the “mechanics” of presidential politics in 1800 was borderline-trivial. The important point to note is that, as deep as the differences were that separated Jeffersonians from Federalists, both parties – the first political parties to emerge in the history of the Republic – all parties to the dispute subscribed to a common set of principles, all of which were firmly rooted in the European Enlightenment. John Marshall, Thomas Jefferson, James Madison, Alexander Hamilton, George Washington, James Wilson, John Jay, etc., etc., had important differences regarding the size, scope, and power of government. But they at least agreed on some critical first principles, e.g., the importance of reason in addressing social and political issues, the criticality of empirical evidence in resolving questions of policy and governance, the neutrality of government regarding religious issues, the skill of learning to agree to disagree, equality before the law, etc., etc. I have addressed these principles at length elsewhere with respect to their importance in the political and social life of the Republic.
Tragically, this foundational consensus has begun to crumble, not only in the United States, but also in western Europe, i.e., in the very countries that conceived, midwifed, birthed, and nurtured the European Enlightenment and the classical-liberal socio-political order it fostered for over 500 years. What is in the process of replacing this classical-liberal consensus is various forms of postmodernist nihilism: epistemological nihilism, moral nihilism, ideological nihilism, and political nihilism. Even scientific nihilism, especially as exemplified by, e.g., Jean-Francois Lyotard. For a variety of reasons I do not have time or space to enter into, I am not quite as pessimistic about the chances for saving the Enlightenment consensus as I was perhaps 18 months ago, but I still see the election of Donald Trump in the US, the election of, e.g., Victor Orban in Hungary, the resurgence of right-wing politics in France and Germany, of Brexit in the UK, etc., as troubling harbingers of further dislocations of important foundation stones of Western culture.
The Framers of the American constitutional tradition – literally unthinkable without the European Enlightenment – were visionaries, and they understood that not all political issues were susceptible to being solved with constitutional tinkering. In particular, James Madison warned his friend Thomas Jefferson that even the most robust Bill of Rights would constitute only a “parchment barrier” to the demons that would be unleashed when id began to dominate superego, when the limbic system began to hold sway over the prefrontal cortex, and when passion overcame reason. As tumultuous as the election of 1800 was, it never even remotely threatened that underlying commitment to the classical-liberal governing principles of the European Enlightenment. Those lessons had been purchased at the price of 200 years' worth -- and that is probably an optimistic estimate -- of religiously incited blood, violence, and destruction in the very heart of Europe, i.e., the very lessons many, especially on the Christian right, seem determined to forget today, 500 years later.
That, in a nutshell, is the problem with virtually all political debates and rhetoric these days: not that people disagree about particular, discrete issues and policies, which has always been the case, but that people disagree about the most foundational, fundamental principles upon which the entire edifice of the American – indeed, the entire Western – political culture is founded. If we disagree about the importance of evidence in resolving issues of truth, about the relevance of reason in addressing matters of public policy, about the competence of science to discover objective truth about the world, about equality before the law of everyone, etc., etc. … if we disagree about those things, then I submit that whether or not we grant, e.g., most-favored-nation status to the People’s Republic of China or continue funding NPR is, at least in relative terms, quite trivial. That, by the way, is the difference between, e.g., Mitt Romney and Donald Trump. I disagree with Romney on just about everything. But I would not feel threatened, nor would I see the American Republic as threatened to the core, if Romney had won the election of 2012. Romney is personally a man of honor, and, while conservative, is conservative well within the broad stream of American political history. His conservative beliefs are quite consistent with the principles of the European Enlightenment. I believe none of those things about Donald Trump, however, and so feel threatened, both personally and for my Nation, from the core outward. Yet Trump is President. That is why, when people like me perorate about the Enlightenment to most people on the right these days, the discussion is like "debating" evolutionary biology with fundamentalist Christians, i.e., with people who disagree about first principles, who believe in revelation instead of empirical evidence. We are preaching to the “un-choir”.
So it may be that the dangers Madison warned us of in his letter to Thomas Jefferson are now in the process of being realized and instantiated into actual history. As Americans we must learn – or perhaps learn again – how to be passionate about the Constitution and its principles, not as academic abstractions, but as principles that stir the blood and bring tears to the eye. When you read the First Amendment, for example, your throat should constrict and you should have trouble talking, much as the throat of a devout Christian would constrict upon reading John 3:16, or the throat of a devout Muslim would constrict when reciting the shahada, or the throat of a devout Jew would constrict when reciting the sh’ma.
The Constitution must become something we feel. It must become something we do. We must learn to love it, not merely know it academically. We must learn to love it the way Romeo loved Juliet, the way Heloise loved Abelard, the way Tristan loved Isolde, the way Dante loved the young Beatrice Portinari. The Constitution must become a matter of visceral passion. It must become our civic religion.
James R. Cowles
Chinese ideogram for "failure" ... www.codeus.net ... Public domain
James Madison ... Gilbert Stuart ... Public domain
Thomas Jefferson ... Rembrandt Peale ... Public domain
David Duke ... AP ... Public domain
James Bayard ... Library of Congress ... Public domain
Title image ... Michael_Mapes.jpg ... Public domain