What Did Franklin Mean by a Republic if You Can Keep It?
A Commonwealth, If We Tin Continue Information technology
The government set up by James Madison and the other Founders requires a virtuous public and virtuous leaders—or the whole organization will neglect.
About the author: Adam J. White is a resident scholar at the American Enterprise Institute and an assistant professor of police force at George Stonemason University.
In the days leading upwardly to the Senate'south impeachment trial, some people hoped that Chief Justice John Roberts, presiding over the trial, would use his position to send a strong message to the senators on what the Constitution requires of them. He had, in fact, already sent such a bulletin, just weeks earlier, on what the Constitution requires of all Americans. On December 31, in a letter accompanying his annual written report on the work of the federal courts, Roberts called on federal judges—and everyone else—to invest themselves in the preservation of constitutional commonwealth.
"Each generation," he wrote, "has an obligation to pass on to the side by side, not simply a fully operation government responsive to the needs of the people, but the tools to understand and improve it." For Roberts, this requires civic education—and something more than fundamental than that, too.
He illustrated his point with a founding-era episode involving the nation'due south first master justice, John Jay. After Jay committed to joining Alexander Hamilton and James Madison in writing essays in defense of the proposed constitution, Jay was seriously wounded by a mob of New Yorkers who had been whipped into a frenzy by rumors of grave robberies. Jay'south wounds batty his involvement in our nation's greatest work of political philosophy, The Federalist Papers. "It is sadly ironic," Roberts wrote, "that John Jay'due south efforts to educate his fellow citizens about the Framers' plan of regime fell victim to a rock thrown by a rioter motivated by a rumor."
The connection between Jay'south day and ours is clear: "In our age," Roberts wrote, "when social media can instantly spread rumor and false information on a grand scale," there is even greater danger that political passions tin can plough united states of america against one another, or confronting constitutional authorities itself. He emphasized judges' particular role equally "a central source of national unity and stability," but his deeper indicate was that those values are needed among more than just judges.
His letter invoked Jay, Hamilton, Madison, and John Marshall, simply his ideas called to heed some other Founding Father: Benjamin Franklin, who, on leaving the constitutional convention of 1787, supposedly told a curious passerby that the Framers had produced "a republic, if you lot can proceed it."
What does information technology take to "continue a republic"? Well-nigh two and a one-half centuries into this experiment in self-governance, Americans tend to think that they keep their commonwealth by relying on constitutional structure: separated powers, federalism, checks and balances. But constitutional structure, like any structure, does not maintain itself. Each generation has to maintain its institutions and repair whatsoever harm that its predecessors inflicted or allowed. This job begins with borough education, so that Americans know how their government works, and thus what to await from their ramble institutions.
Yet borough teaching alone, though necessary, is not sufficient. For civic pedagogy to take root and produce its desired fruit, the people themselves must have sure qualities of self-restraint, goodwill, and moderation. Because those virtues are necessary for the performance of a constitutional republic, they are ofttimes chosen civic virtue, or republican virtue. This is non morality writ big, but something more limited and practical. As the belatedly Irving Kristol argued in an essay 45 years ago, republican virtue is fundamentally the virtue of public-spiritedness every bit the Founding Fathers knew information technology:
It means curbing 1'southward passions and moderating i'south opinions in order to accomplish a large consensus that will ensure domestic tranquility. Nosotros think of public-spiritedness every bit a form of self-expression, an exercise in self-righteousness. The Founders thought of it every bit a class of self-control, an practise in self-government.
Kristol further described this in terms of "probity, truthfulness, self-reliance, diligence, prudence, and a disinterested concern for the welfare of the republic." A cofounder of the policy journal The Public Interest, he understood that in a democracy there is such a thing as the public interest apart from—and perhaps at odds with—i's own personal interests, and thus it requires citizens to restrain themselves in the slow, deliberative workings of constitutional and civic institutions, and even in their interactions with ane another, as Roberts emphasized in his alphabetic character.
As information technology happens, Roberts is not the only justice returning to these themes. Last fall, Justice Neil Gorsuch published A Republic, If You Can Keep It, a collection of essays, speeches, and judicial opinions in which he elaborates on his sense of the Supreme Court's proper place in constitutional authorities, and in the country more more often than not. Many of the volume'southward themes—originalism, textualism, and the structural Constitution—are familiar to lawyers and the broader public. Simply Gorsuch, similar Roberts, goes beyond familiar structural arguments and calls for civic education and civility, reminding Americans that the Constitution's structure is non cocky-preserving.
For Gorsuch, civic virtue requires civility. His book highlights the case of his ain courtroom. The justices are able to contend and disagree so vigorously in their judicial opinions but because they work and then hard to foster a spirit of customs with one some other: "We consume tiffin together regularly and share experiences and laughs forth the way," he wrote, "and whenever we gather for work, no matter how stressful the moment, every justice shakes the hand of every other justice."
The spirit of community amongst nine justices is not so easy for the land every bit a whole to replicate. "My worry," Gorsuch warned, "is that in our country today we sometimes overlook the importance of these kinds of bonds and traditions, and of the appreciation for civility and civics they instill." In a time when many "people are actually calling for an cease to civility," when people believe that "more than anger is needed [because] the stakes are too high and the ends justify the means," Gorsuch urged that for "a authorities of and by the people" to work, the people themselves need "to talk to 1 another respectfully; debate and compromise; and strive to live together tolerantly." While the "essential goodness of the American people is a profound reservoir of strength," it "cannot be taken for granted"; it "need[s] abiding tending." In an era of fractured politics, the blessings of freedom come "with the duty of having to listen to and tolerate other points of view," because "republic depends on our willingness, each ane of us, to hear and respect even those with whom nosotros disagree."
By emphasizing civility as a measure of one's self-restraint, rather than a blunt demand for our opponents to restrain themselves, Gorsuch avoids the mistake of making civility a phony substitute for civic virtue. As David Brooks observed recently in these pages, describing the idea of the tardily Gertrude Himmelfarb, Irving Kristol's married woman, "A swell deal … is lost when a social club stops aiming for civic virtue and is content to aim merely for civility." Gorsuch's book calls for civility not to stifle disagreements on public matters, but to facilitate them.
These are themes that the Constitution'southward framers knew well. Madison, for case, understood how much of his ramble vision depended on republican virtue, and he wrote about it. But those writings have been overshadowed past his more than famous quotes, on the need for constitutional structure to baby-sit confronting flesh's vices. "If men were angels," he observed in "Federalist No. 51," "no regime would be necessary." For people who aren't angels, republican authorities relies on constitutional checks and balances, which redirect sure vices toward the public benefit: "Ambition must be made to counteract appetite," he argued, and liberty is safer when one ambitious branch of government counteracts some other.
But to say that constitutional authorities does non need people to exist angels is not to say that constitutional government requires no virtue at all. Madison himself warned against assuming otherwise. In "Federalist No. 55," facing critics' predictions of corruption in Congress, he observed that while "there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust," at that place are also "other qualities in homo nature which justify a sure portion of esteem and confidence." But then, setting optimism aside, he warned:
Republican government presupposes the beingness of these qualities in a higher degree than whatever other class. Were the pictures which accept been drawn past the political jealousy of some amongst us faithful likenesses of the human character, the inference would be, that there is non sufficient virtue amid men for cocky-government; and that naught less than the bondage of despotism can restrain them from destroying and devouring one another.
This was edgeless. Madison knew that the Constitution could non exist sustained if the country did not outset sustain certain virtues of self-restraint amid those who administer the regime, and amidst the people who choose them.
Such themes resonate throughout The Federalist Papers, often explicitly, but oft implicitly in Hamilton'south and Madison'due south discussions of constitutional structure. Madison's description of Congress is a proficient instance of the latter. The Framers divided the legislative co-operative into ii houses, requiring deliberative processes within each business firm to pass a bill in each; and then a deliberative procedure between the 2 houses to settle on a bill that both could pass; and, finally, a deliberative process for the president to sign their bill or for congressional supermajorities to overcome his veto. This process is possible merely if the participants are capable of deliberation, persuasion, compromise, and consensus. Information technology requires a patient willingness to abide past procedures and rules fifty-fifty when they do not evangelize one's ain preferred outcome in a given legislative fight—lest the legislative process devolve into total war, with political factions "destroying and devouring one some other."
Other branches of authorities, designed differently for different types of activeness, crave virtues of their own. And on these points, Hamilton and Madison made the arguments for republican virtue much more than explicit. Take, for example, the seminal give-and-take of judicial power in "Federalist No. 78." Hamilton argued that judicial independence is necessary considering ramble authorities requires judges of a item temperament, judges whose deep learning in the law makes them willing to "be bound down"—more than accurately, to demark themselves down—"by strict rules and precedents." Information technology requires judicial self-restraint.
And even in recognizing that judges will sometimes need to declare statutes unconstitutional, Hamilton urged that they should exercise this power with restraint and moderation, nullifying statutes only when at that place is an "irreconcilable variance" between the statute and the Constitution—that is, to first endeavour to reconcile the variance, to find a "fair construction" that lets both the statute and the Constitution stand. Hamilton's judges are moderate and self-restrained, hitting down statutes as a last resort, not a kickoff 1.
Hamilton'south view of judicial self-restraint echoes Madison's own explanation, in "Federalist No. 37," that written laws' inherent vagueness will frequently require time for legal pregnant to be "liquidated and ascertained" through "a serial of particular discussions and adjudications"—a procedure that is impossible if all legal ambiguity must be resolved immediately past the showtime judges to hear every legal question. In other words, "Federalist No. 37" and "Federalist No. 78" recognize that the judicial branch itself must do a measure of patience.
The necessity of virtue and cocky-restraint comes through even more clearly with regard to the presidency. The Constitution contains express provisions for presidential self-restraint: The president swears an oath to "faithfully execute the Office of President of the Usa," and he bears a constitutional duty to "accept Care that the laws be faithfully executed." Past these vows the president is spring to enforce not just the statutes that he likes just likewise the inherited statutes that he dislikes, and then long as the statute is constitutional.
Defenders of presidential ability—recently Attorney General William Barr, in his address to the Federalist Guild—often quote Hamilton's discussion, in "Federalist No. 70," of the Constitution's need for "energy in the executive." But advocates for presidential free energy should focus on both the president's powers and on the president's duties, and the ends to which presidential power is supposed to be directed. Hamilton championed energy in the executive not for its own sake only for "the steady administration of the laws" and "the security of liberty confronting the enterprises and assaults of ambition, of faction, and of anarchy." Rooted in the right republican virtues, a president'southward free energy reinforces our constitutional system; unmoored from those virtues, a president's energy destabilizes it—or worse.
Hamilton made these points even more than bluntly elsewhere. In "Federalist No. 68," he argued for choosing the president through an electoral college, rather than by parliamentary election or direct commonwealth, in order to maximize the odds of electing presidents with "the requisite qualifications"—non men with "talents for low intrigue, and the picayune arts of popularity," but "characters pre-eminent for ability and virtue."
Perhaps Hamilton's subtlest argument for republican virtue in the presidency is found in his famous essay on the judiciary, "Federalist No. 78." Here, in his discussion of the judicial co-operative'southward relative weakness, Hamilton observed that the courts "must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." That is, the Constitution gives presidents at least some legitimate authority not to enforce judicial decisions with which they disagree, if simply when necessary for presidents to carry out their constitutional duty to "have Care that the Laws be faithfully executed." But Hamilton'south balance of judicial and presidential ability is sustainable only if presidents restrain themselves from disregarding judicial decisions whenever they feel like it; presidents' power can coexist with the Constitution's judicial ability and independence merely if they use their non-enforcement ability sparingly, if at all.
The executive branch'south need for republican virtue is not express to the president alone. It extends throughout the administration that he oversees. In "Federalist No. 76," remarking on the Senate'south role in the appointment of officers, Hamilton observed that to give the president unfettered powers of appointment would free him to staff his administration not from merit in the public involvement just "from family unit connection, from personal attachment, or from a view to popularity."
Constitutional regime, past contrast, requires an administration staffed by the nation's best servants, non past a president's favorite friends. The steady assistants of the laws requires an executive branch filled with officers who follow the president'south lawful orders but not before providing the effective feedback that the president needs. Or, as Hamilton put information technology, constitutional administration requires officers who offering more than than just the "pliancy to render them the obsequious instruments of [the president's] pleasure." Instead, constitutional assistants depends on officers with both courage and fortitude, merely also with the moderation and cocky-restraint necessary to follow lawful presidential orders with which they personally disagree.
Finally, the Constitution needs republican virtue not only in the three branches of authorities merely also in the people whom the government serves and is accountable to. Long before Roberts wrote his twelvemonth-stop letter, Hamilton and Madison filled The Federalist Papers with warnings about "passions" that inflame public stance and prevent reasoned deliberation. Hamilton introduced this theme at the very outset, in "Federalist No. 1," presenting the Constitution'southward ratification debates as an opportunity to see "whether societies of men are actually capable or not of establishing practiced government from reflection and choice," and to decide the debates not as a competition of narrow interests but with a view to "patriotism, to heighten the solicitude which all considerate and good men must feel for the event."
Madison emphasized it, too. Recognizing that the public will e'er be impassioned by politics, he observed in "Federalist No. 49" that the process and construction of our federal regime will help to transform the public'due south passions into a less impassioned public reason, so the public's "reason, alone" would "control and regulate the regime," while the government would control the people'southward passions. Just this arroyo presumes that an impassioned public is willing to be controlled. If the public persists in its impassioned country, it volition eventually accept the opportunity to overcome any limits the government tries to put on the impassioned majority. Just with the virtues of self-restraint urged past Madison and Hamilton in their time, Irving Kristol four decades agone, and Roberts and Gorsuch today, can the country avoid the national self-immolation that the Founding Fathers feared.
The justices can exercise much to advance these themes in public, by writing or speaking about them and by modeling them in their ain work: in the way they conduct themselves at oral argument, and in the tone and manner of their judicial opinions. But on this, as in all things, judges tin do only so much to save the country from itself. For the country to relearn republican virtue will require heroic efforts by parents, teachers, clergy, coaches, and statesmen. Benjamin Franklin did non hope "a republic, if your judges tin continue it." He promised something far more challenging: "a republic, if you can keep it."
Source: https://www.theatlantic.com/ideas/archive/2020/02/a-republic-if-we-can-keep-it/605887/
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