Saturday, November 20, 2010

Federalist 40: A Strict Reading of the Rules

In the tradition of James Madison?
The men who created the Constitution didn't gather at Philadelphia with the purpose of creating a constitution, actually. They were there to try to fix the old constitution, the Articles of Confederation, that bound the United States together loosely but imperfectly. This was their commission:
"Resolved -- That in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union."
But the men who gathered at Philadelphia didn't actually do the specific job they were given. Rather than fiddle around trying to fix the (apparently) unfixable Articles of Confederation, they more or less ripped up the document and started over with a blank piece of paper. And it's important to consider that act, very carefully, because what it means is this:
The Constitution was created because the Founders decided not to be "strict constructionists" about the rules they were given. Instead, they decided to act in the spirit of their commission, for the good of their country. The Constitution -- and the country -- we have is the result of their expansive reading of a plainspoken document.
Seems to me that this fact should have some bearing on how we decide to read the rules the Founders gave to us. Do we rely on a strict or originalist reading of the Constitution and bind ourselves very tightly to the vision of men who died more than two centuries ago? Or do we act in what we perceive to be the spirit of that document, allowing the government some leeway in acting for the collective good? And if we do that, where can we say the line is drawn, where the government has gone beyond the bounds a free people should allow it? Tough questions, often treated simply. But the experience of the Founders suggests, really, that there isn't a simple answer.

Federalist 40 is entirely James Madison's attempt to defend the Constitution's creators against charges they had overstepped their commission. He tries several defenses: He argues the Constitution is a revision of the Articles, because similar concepts were found in both. He argues that a strict reading of the commission would violate the spirit of the Declaration of Independence, which states the right of the people to abolish or alter their governments as they see fit.

He argues -- and this is probably his strongest argument -- that the Framers acted according to their commission, which required them to "render the federal Constitution adequate to the exigencies of government and the preservation of the Union," and which trumps any conflicting clauses within the commission. That might be true, but it also reminds me of a David Souter speech that argued against a "strict constructionist" reading of the Constitution. Slate's Dahlia Lithwick reported on the speech:
"The Constitution is no simple contract," he explained, "not because it uses a certain amount of open-ended language, but because its language grants and guarantees many good things, and good things that compete with each other and can never all be realized, altogether, all at once."

Under such circumstances, justices can no more be neutral umpires—in Chief Justice John Roberts' famous formulation—than they can be dispassionate microcomputers. You can be the greatest reader of text in the world and the most profound diviner of linguistic meaning, but it still won't help you in any but the handful of very easy cases, which, as Souter correctly observed, "do not usually come to court, or at least the Supreme Court." That is precisely why, he added, "the fair-reading model has only a tenuous connection to reality." It describes a nonexistent universe in which all cases are easy and all the constitutional directives are perfectly clear.
In other words, you do the best you can with what you got, weighing the various provisions of the rules you have before you with an eye toward getting a good and legal outcome. That's the approach Souter advocates, and it seems to be the approach that Madison is arguing the Constitution's creators took when going about their business.

But Madison's final argument is probably the one that makes the most sense if you don't buy all the others. And that argument is this: So what? If the Founders did disobey their commission and make a new Constitution in violation of the rules they were given, so what? Are you really going to vote against a government that probably works better than the Articles, just because a few rules got broken along the way?

But that the objectors may be disarmed of every pretext, it shall be granted for a moment that the convention were neither authorized by their commission, nor justified by circumstances in proposing a Constitution for their country: does it follow that the Constitution ought, for that reason alone, to be rejected? If, according to the noble precept, it be lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends? The prudent inquiry, in all cases, ought surely to be, not so much from whom the advice comes, as whether the advice be good.

The sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assume; and that finally, if they had violated both their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America.
One could argue that this is a "cover your butt" provision, that Madison made the argument last because it's the argument he believed and cared for least. But it also functions as his trump card. And it raises the entirely legitimate question: If the Founders believed they had the right and obligation to (ahem) transcend a strict reading of the rules for the greater good, why would we be bound to a stricter reading of the rules they gave us?

Will we get an answer this question in future chapters of the Federalist?

The full index of my blogs on the Federalist Papers can be found here.

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