The Constitution, with a reply from Sanford Levinson

...Those with property were seen at the very same instant as those possessing the requisite social virtue to prevent the disintegration of the American republic into a mere democracy, where the rabble might potentially turn the world upside down...

...To clarify this issue by uncovering that missing in gredient, consider, by way of example, the French Declaration of the Rights of Man and of the Citizen of 1789...

...That the entitlement he mentions has been so long denied to so many of the citizens of the union may have something to do with the fact that the First SPRING • 1989 • 263 Communications Amendment of the "Bill of Rights" shows that its authors feared an establishment of religion, a theocracy, more than any other, in the light of their experience with the establishment of the English church, but failed to recognize the greater likelihood of an establishment of wealth, a plutocracy, which now to so great an extent dominates the life of the nation today and imposes its values on the whole...

...The function of the judicial branch of government is to see that it remains the appropriate instrument for that goal...

...Again, the italics are mine, for I believe it was Madison's intention that the Constitution would put individual behavior and factional behavior within the reach of government...

...Fred Siegel, in his commentary, comes close to naming it but doesn't quite make it...

...The point of the initial title, and of the "accounting" metaphors that run throughout the article, is precisely to suggest that an analyst must present a rationale—an accounting— for any given interpretation...

...But many founders viewed the Constitution's protection of private property and enhancement of the role of the propertied classes as desirable features of the Constitution...

...The upshot, of course, since the "invisible hand" is an appendage of the god Mammon, has been to enable "those who live by profit" to enrich themselves at the expense of the rest, as Smith warned that they might...

...In its next sentence, the Declaration says, "The exercise of the natural rights of every man has no other limits than those which are necessary to secure to every other man the free exercise of the same rights...

...Only that polity can do so which is committed to that goal and provides the necessary discipline, that which the Constitution, as Madison conceived it, was to provide, as the "hammer" for driving that "nail...

...Hamilton, in the above quotation from Federalist 80, certainly seems to imply that this is so...

...That faction most likely to win the immunity and privileges of an Establishment, and so to escape the constraint of the democratic law, is the one which controls to a sufficient degree the access of the citizens to the means for their subsistence, and so is able, in effect, to hold the whole nation hostage to its interest and to block out any significant effort to bring it under that constraint...

...If the goal of your present behavior is to drive a nail, you are constrained to use a hammer, not a sponge...

...It will do what it can to win the general acceptance of that notion...

...It certainly doesn't allow place to Madison's "well constructed union...

...This is a slender reed upon which to rely...

...Sanford Levinson Replies I regret very much that the editors changed my original title, which was "Accounting for Tastes in Constitutional Interpretation," not "Clashes of Taste in Constitutional Interpretation...

...Athearn indicates his own rejection of "pure democracy" in favor of a polity that is adequately disciplined...

...With wealth concentrated in the hands of a few, and many living in or near poverty, the United States cannot be rationally classified as a democracy...

...Such a constitution limits behavior to assure that the equality of privileges and immunities to which the citizens are 264 • DISSENT Communications entitled remains "inviolable...

...In particular, there is reason to believe that government by plutocracy was well within the vision of some of the founders, though of course they would not have used the term "plutocrat...

...And I suspect, further, that he would have been puzzled that anyone would question the ethical essence of the document, without which there would be no need of a Constitution at all...

...Sociopolitical factors (like a president's success in appointing ideologically agreeable judges) may lead to the temporary supremacy of one particular account during a particular era, but there has never been, nor do I think there ever will be, a cessation of the struggle between contending systems of accounting...

...No such theory has ever proved generally persuasive...

...In the translation I have at hand, its crucial paragraph begins with the statement that "Political liberty consists in the power of doing whatever does not injure another...

...To believe that purported agreement around the proposition "control faction" provides much guidance is fanciful, for one must go on to develop a general theory by which one successfully recognizes a "faction...

...That this has happened, that in the process "the inviolable maintenance of that equality of privileges and immunities to which the citizens of the union will be entitled," which the Constitution was to assure, has been violated, testifies to the failure of the judiciary to protect them from this disfranchisement...

...It is this constitution to which the judiciary ought to be solely accountable...

...He very likely would have seen this and the many other discussions of what the Constitution is all about as evidence of a failure to comprehend what he expected it to do...

...There was no consensus in 1787 about the nature of good government...

...This expresses my idea of democracy...

...Athearn presents an attractive theory of the Constitution, but it is clearly not the only theory that could be derived from study of the late-eighteenthcentury background of the Constitution...

...James Madison, who understood democracy better than most then or since, would have been perplexed by Sanford Levinson's piece in the summer issue that treated interpretations of the Constitution as mere matters of "taste...

...The question raised by the article concerns the existence of any "generally accepted principles of accounting" that can resolve these clashes...

...Insofar as exemptions are allowed to the democratic rule constraining the exercise of autonomy, there is no democracy...

...Siegel's approach to this, as I see it, is in these words: "The practical effect of insisting on absolute moral autonomy is to destroy community sentiment by putting individual behavior beyond not only the reach of government, but of social censure as well...

...Madison was quite sure what he was about in proposing the Constitution as an answer to such political uncertainty...

...This is the constraint a democratic polity would place on individual and factional behavior, on the exercise of personal autonomy...

...Further, the idea that democracy is an arena for the unconstrained competition of a plurality of factions will find favor with the faction that achieves its dominance in that competition...

...The judiciary is properly the agent of that law...

...We now judge the health of the nation by its Gross National Product rather than by the well-being of all its citizens which would be the chief concern of a genuinely democratic polity...

...As Hamilton wrote, "control of a man's subsistence is control over his will...

...The exercise of personal autonomy, alone or in concert with others as a faction, has its natural moral constraint in the right of every other person to the same exercise...

...When any person or faction exercises autonomy in a way that interfaces with the equal right of another to do the same, the effect is a master-slave relation with that other...

...Whatever differs from this, to the extent of the difference, is no democracy...

...What is especially to be noted, however, is that the only constriant that rule places on that exercise is the requirement that it must not affect the well-being of another adversely, as the law assuring justice determines...

...The currently prevalent notion of democracy as an arena for the unconstrained combat of a plurality of factional interests was precisely what he hoped the Constitution would prevent, for the thrust of his conception of that document was that it would control what he called "the violence of factions" and so assure what Alexander Hamilton, in Federalist 80, called "the inviolable maintenance of that equality of privileges and immunities to which the citizens of the union will be entitled...

...Madison, in Federalist 10, recognizes that the existence of a plurality of factions is unavoidable but expected that a "well constructed union," for which the Constitution was to provide what today might be called a "hegemonic frame," would "break and control the violence of factions...

...In Federalist 78, Hamilton, discussing the role of the judiciary under the proposed Constitution, wrote, "The complete independence of the courts of justice is peculiarly essential in a limited constitution...

...By its powers, including its control over the opinionmanipulating media, it will seek to justify the continued withholding of democratic constraint by claiming that Adam Smith's "invisible hand" provides a sufficient constraint and makes the constraint of the law redundant, or even harmful, and will manage to persuade a sufficient portion of the population that this is indeed the case, that giving greed—the defining plutocratic value—its head would serve the pubic's well-being as well or better than Constitutional constraint...

...These two counts alone, among many others, indicate that the nation is much more a plutocracy than it is a democracy...

...Madison warned that persons with sinister intent might, "by intrigue, by corruption or by other means" —"other means" would include the institution of a factional establishment—"first obtain the suffrages, and then betray the interests of the people...

...But such a definition lacks an essential ingredient...

...Governments," says Whitehead, "are best classified by considering who are the 'somebodies' they are in fact endeavoring to satisfy...

...Abraham Lincoln said it well: "As I would not be a slave, so I would not be a master...

...the plurality of value-holding groups is taken for granted...

...the attention of "the best elements" has for the most part been successfully diverted to other concerns...

...The italics are mine, because the essential ingredient is in that phrase...

...SPRING • 1989 • 265...

...There is none now...

...In Levinson's discussion, the assumption seems to be that democracy is, indeed, such an arena for the more or less unconstrained competition of diverse factions...

...Madison's "representative Republic" has become "an impossibility...

...Differences in interpretive approaches are more than a rational clash of taste—do you prefer chocolate to vanilla constitutional law?—but rather a clash of accounting systems...

...A Republic cannot stand upon bayonets, and when the day comes, when the wealth of the nation will be in the hands of a few, then we must rely upon the wisdom of the best elements in the country to readjust the laws of the nation to the changed condition...

...Under its influence, we have seen a gradual regression toward the "pure democracy" the welldocumented evils of which the Constitution, as Madison conceived it, was meant to avoid...

...My impression is that Madison, Hamilton, and others among the framers would agree that the function of the Constitution was to provide that "law...

...It will be an impossibility because wealth will be concentrated in the hands of a few...

...Beyond all these considerations, however, which some might not be willing to agree to, is the elemental idea, of which I am sure Madison was aware, that any human behavior intended to accomplish a certain end must be disciplined— constrained (pace Thomas Sowell)—to do only those things that are conducive to that accomplishment and to refrain from doing those things that are not...

...It is the moral factor that distinguishes anarchy, defined by the first part of that statement alone, from the democracy defined by the whole...

...The concluding phrase of the Declaration's paragraph, continuing the last one quoted above, reads, "and these are determined only by the law...

...Lacking that ingredient, the definition is of anarchy, which democracy definitely is not and cannot be if it is to remain a democracy...

...If the goal of government is the well-being of all its people, neither the anarchy of a factional plurality nor a manipulable "pure democracy," nor a theocratic or plutocratic value-hegemony can assure that well-being...

...I obviously think not...

...This is the moral principle that defines democracy and distinguishes it not only from anarchy but from the tyranny to which, without that restraint, anarchy opens the door...

...The wolf has eaten the sheep and clothed itself in the sheep's skin...

...Later in his life, with what must have been for him a melancholy prescience, he said, We are free today substantially but the day will come when our Republic will be an impossibility...