HLS Library Book Talk | An Argument Open to All: Reading ‘the Federalist’ in the 21st Century
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HLS Library Book Talk | An Argument Open to All: Reading ‘the Federalist’ in the 21st Century


SUZANNE WONES:
I’m Suzanne Wones, the Executive Director at the
Harvard Law School Library. And on behalf of
the library, I’d like to thank you all for
coming to today’s discussion of professor Sanford Levinson’s
new book, An Argument Open to All: Reading “The
Federalist” in the 21st Century. The COOP is here, actually,
selling copies of the book, and we’re also going to
raffle off two copies. So if you haven’t entered
your name and email yet, you can do that afterwards at
the table where The COOP is set up there in the back corner. And I just wanted
to let everybody know that today’s
talk is being taped, so if you ask a question at
the end of the discussion, the audio will be part
of that recording. And then I’m just
going to launch into an introduction
of our great panelists, and then hand it over
to Professor Levinson. Our author today is Sanford
Levinson, visiting professor at Harvard Law School. And on the rest of the panel we
have Adrian Vermeule, John H. Watson, Jr., Professor of
Law at Harvard Law School, Jill Lepore, David Woods
Kemper ’41 Professor of American History and
Harvard College Professor at Harvard University. And Eric Nelson, the Robert M.
Beren Professor of Government at Harvard University. And without further
ado, I’ll hand it over to Professor Levinson. SANFORD LEVINSON: Well,
first thing I want to do is thank all of you
for coming out today. And the second thing, and
certainly equally as heartfelt, is thank the library
for arranging this. When June got in touch
with me originally, she asked me whom I might
appreciate her asking, and what I did was simply
give her a dream team. Not really expecting,
in the nature of things with busy people,
and schedules, et cetera, that it would come true. But I am here largely
to hear what Eric, Jill, and Adrian have to say. And I suspect that’s
true for many of you. I don’t take it personally. I thought what I would do
is try to take, literally, about seven minutes to
explain what I think is distinctive about the book. And what I certainly expect
to engage at least a bit of, perhaps, push-back,
particularly from historians. Because although the book is
very much about the single most canonical work in American
political thought, it is wildly presentist
in its thrust. It is a series of 85 short
essays, all by myself, each one corresponding to
one of the 85 Federalists. But it’s like saying [INAUDIBLE]
I have no interest, whatsoever, in the historical personages
who wrote the Federalist. Thus, I refer, throughout the
book, exclusively to Publius, except on a couple
of occasions when it’s relevant to refer to
something that Hamilton or Madison might have
said at some other point in their lives. But for me, there is
this fictive author called Publius, who published
a series of 85 op-eds in 1787 and ’88. And the question
I’m interested in is, do they have anything
to say to us today? They have tons to
say to historians interested in that period. The Supreme Court, I
think quite dubiously, believes they have
a lot to say when construing the Constitution
in the 21st century. I think one of the realities
is that Justice Kennedy, in particular,
cherry-picks, literally, from one or two of the 85
essays that happened to say good words about federalism. But it does seem to me that the
overarching thrust of the 85 essays is a hymn to
the importance of what the opponents of
the Constitution called consolidated government. But in any event, as I
say, what is, I think, distinctive about the
book is that there are these 85 essays,
which therefore, from one perspective,
takes number 18 or 61 or 72 and gives equal weight
to “Federalist 10.” There have been books
written on “Federalist 10.” This isn’t one of those books. I have about, I
guess, 2,000 words to say about “Federalist
10,” and so it is one of the longer essays. But I think the
longest single essay may be with regard to
“Federalist 2,” which is astonishingly,
and dismayingly, relevant to the
debates we’re having right now on the
nature of what it means to be an American,
on immigration, what it means to be united
people, and things like that. But I think that I
really have said all that I have to say
in introduction, and I really share what I’m
sure is your own eagerness to hear from this
quite remarkable panel. [APPLAUSE] ADRIAN VERMEULE: Well, thank
you so much, Sandy, and congrats on this wonderful book. And thanks to Suzanne for
organizing this for everyone. I want to start my
reactions a bit indirectly with an essay by JF Stephen. And for the students out there
who aren’t reading JF Stephen, I encourage you to do so. He has an essay. It’s a brilliant essay. It’s called “The Federalist.” He wrote it in 1864 and it’s
about The Federalist Papers. It starts in this condescending
register like this. He says, “It’s a common
reproach against the Americans that, with so many
opportunities, they should have produced
so few books of real power or originality.” So he’s English, of course. And he says, “Nor is the
reproach by any means unjust, but the few
remarkable books which were formerly written in America
have been made the most of.” The Federalist, he says, is
the most important of these. So Stephen is saying that
we Americans just can’t stop talking about The Federalist. And he wrote that 150
years ago and we’re still talking about it. And I think there’s
a real question about what could justify this. So what, if anything, justifies
us recurrently obsessing over this text? I think Sandy has
exactly the right answer. So first I’m going
to [INAUDIBLE] Sandy’s answer a bit, and
then talk about, I think, an irony about the book. So Sandy’s answer is frankly
presentist, rather than historicist. The justification for talking
about The Federalist has to be, what I think of as mining and
export rather than archeology. The goal of mining is to ransack
the past for what Jon Elster calls exportable mechanisms. So we dig up mechanisms
from the past, rip them out of their
original context, turn them into exportable goods,
and take them to other contexts where they can prove useful. Historians don’t like this,
but to me, the only question is whether this kind
of mining and export produces overall
social benefits. I think Sandy’s book is entirely
persuasive that it does, and that The Federalist is
a wonderful place to do it. To mention just one
of the benefits, The Federalist is full of
subtle causal mechanisms that promise to help us
get past, or beyond, or through stock debates
over originalism. The stock debate
over originalism often is premised
on the assumption that the utility
of The Federalist must be to inform us
about the public meaning of the Constitution of
1789 and the thought world of the ratifiers
and framers of 1789. But the mining and export
vision suggest to us that even living
constitutionalists of various stripes might
find The Federalist useful, as well, just because it
contains excellent causal analysis and excellent precepts
for institutional design, and for what I think of as the
management of political risks. OK. So I thoroughly applaud
Sandy’s overall aim. An irony of the
book, then, is that I thought Sandy did a terrific
job of intellectual archeology, of restoring the thought world
of the past for its own sake rather than for
mining and export. Sandy’s utterly
persuasive in what I think is his major theme. And that is that Publius
is not a liberal, in the political theory sense. This is a theme that
frees us from a number of backward
projections that pop up in current
constitutional theory. Publius is not a
classical liberal in Richard Epstein’s sense. He’s not a John
Stuart Mill liberal. He’s not Friedrich
Hayek liberal. He’s certainly not a
John Rawls liberal. Publius is not arguing
for the priority of the right over the good. He’s not skeptical
about the existence of a public good,
which he defines as the permanent and aggregate
interests of the community. What is Publius? I think he’s a
welfarist, with a kind of stability-loving,
property-friendly bent. He’s a type that one sees in
the Scottish enlightenment. Hume is often a similar type. And ironically Samuel
Johnson is a similar type, although he would
hate to be associated with anything Scottish. But this flavor of
what I think of as conservative utilitarianism,
so property-friendly utilitarianism. It follows that Publius is
not a rule of law fetishist, like Albert Venn Dicey. Publius sees law as a good
servant and a bad master. So Publius is
entirely comfortable saying that law should
be violated or ignored if public welfare,
overall, so requires. Now, of course, the
enlightened, kind of conservative
elite welfarist will take into account that legal
rules have benefits as rules. And precisely because
law is a good servant, it shouldn’t be
needlessly abused. But if need be, it
will be thrust aside. So that’s the thought world of
Publius that Sandy gives us, and I think it’s dead right. And if taken
seriously, would upend a lot of the casual assumption
in modern constitutional theory that Publius must be some sort
of liberal, political theory sense, if only we
could figure it out. I just think it’s not right. But there’s another side
to my irony, however, which is that if Sandy’s book
excels as intellectual irony, I thought it could have been
more ruthlessly exploitative as a kind of mining enterprise. So I think Sandy’s probably
too good a guy to really rip the precious metals out
of the earth, as it were. And I’m going to give just one
example about Publius’s view of the relationship between
the rule of law, dictatorship, and emergency powers. Because here, I think Publius
has a crystallized view that gives us a very sophisticated
mechanism that we can use in all sorts of other contexts. Publius’s clever mechanism
goes something like this. It’s an argument that
excessive governmental power is the product of
excessive constraint. OK? So it’s an argument
that tyrannophobia, the unjustified fear
of dictatorship, of executive power, perversely
tends to bring about despotism. That is Publius’s repeated
theme about the rule of law, emergencies, and dictatorship. So for example, Publius sees the
Roman dictatorship as a symptom not of excessive
strength of government, but as excessive weakness. The dictatorship is
what you have to create if your government is too weak. And you have to create it
when emergencies arise. So Hamilton says
at the convention, “If you establish
a weak government, you’ll have to
over-leap the bounds. Rome was obliged to
create dictators.” So the picture is, the ordinary
operation of the Roman system– Consoles and Senate– is too
restrictive, too constraining. It’s like a straight jacket. And the only way to get freedom
of action is to rip it apart. Whereas Publius wants
the Constitution to be like a
loose-fitting garment that provides flexibility while
retaining its basic shape. That’s Publius’s
diagnosis of the debility of all sorts of regimes,
like the States General in the Netherlands,
the House of Orange has to go around violating the
law in emergency circumstances because there is this
ambient tyrannophobia in the polity that produces
excessive constraints on government. Madison picks that
up in Federalist 41 after Hamilton writes
about it in Federalist 20. So we have this mechanism
that the excessive weakness of government is what produces
the excessive strength of government. And I just think that mechanism
has enormous export value. Let me relate it to one famous
claim in political science, which is Juan Linz’s analysis of
Latin American presidentialism. Linz’s analysis of Latin
American presidentialism, roughly, is that under
certain conditions, the separation of powers is a
risk factor for dictatorship, rather than a safeguard
against dictatorship. So this is precisely
the opposite of the kind of classical
constitutionalism of Richard Epstein, who simply assumes
that robust separation of powers is a safeguard
against dictatorship. Publius and Juan Linz
say the opposite. How would this work? Well, supposing you have
some antecedent demand for social and economic
reform, if your veto gates, if your choke-points
in the political system are too numerous
and too powerful, the demand may transmute into
a demand for a Bonapartist executive who sweeps
the veto gates away with a strong right arm. And Juan Linz sees that
occurring repeatedly in Latin American politics. And that is precisely
Hamilton’s picture, Madison’s picture in 41, and
Publius’s picture overall. Their path to
dictatorship on this view runs through the
separation of powers. It runs through a
constitutional constraint, rather than running through
insufficient constraint and excessive
concentration of power. John Marshall got this
in McCulloch v. Maryland, and adopted, I
think, Publius’s idea that the Constitution should
be a loose-fitting garment. So that mechanism was wisely
picked up in our own history and carried forward. OK. So that’s meant to
illustrate the sort of exportable mechanism
that Sandy’s exactly right to think is the only
justification, in my view, for continuing to talk
about the Federalist. If the book succeeds,
most conspicuously as intellectual
archeology, I think that’s a kind of happy
irony given Sandy’s aims. But it’s one we
should all applaud. Thank you. JILL LEPORE: Thanks very much. It’s a great honor to be
here to celebrate this book. One of the things I really
admire about this book is its companionability. This is a great treat to be in
the intellectual companionship of Sandy, reading through
The Federalist Papers, which are always worth revisiting. I guess I would dispute
that there is only the one reason, which is to
make use of them in the present. I think there are many reasons
to read The Federalist Papers. But it’s a great joy to see– to read them alongside Sandy. I feel that I was asked
to serve on this panel to be the historian who’s
going to critique presentism, and I sat down with
the book and I thought, I’m going to defy
that expectation. But I’m sorry, I’m going
to completely play to type. I am a fairly presentist
historian, as historians go, and yet the presentism
of this work, I think, requires some examination
and some careful criticism. There is, to begin with,
as Sandy himself mentioned, the fiction that there is
an author of The Federalist Papers named Publius. There’s a concerning
moment early in the book where Sandy writes, “By ignoring
the actual human beings hidden behind the mask of Publius,
we can simply elide almost all of these issues.” Almost all of these issues
being almost all the issues that historians
deeply care about, about the people who wrote
these essays, the people who read these essays. Where these essays came
from, how they were printed, what influence they had on the
debates about ratification. The consequences
that they yielded in the drafting and the
debates over the Bill of Rights and the
ways that they were read in the early decades
of the 19th century, not just by courts,
and by court sense, but by the American people. So those– the
question on the test, then, would be, is
there, nevertheless, a truth to be found
in the reading, having ignored the history? That, I think, is
a real question. Since The Federalist Papers
are themselves an argument with history. The Federalist Papers
are deeply concerned with the justification of
this form of government by careful historical
argument, as has been alluded to repeatedly
and is part of the concern that Sandy has in reading
the essays themselves. I just want to
point to two areas where The Federalist Papers
are most obviously an argument about history, and that
therefore, to strip them from the past and to export
them to the present, as Adrian has suggested, maybe is not
a defensible intellectual maneuver. Would be the question
that we might ponder. In “Federalist 52,” the question
of the Constitution being defended on the
grounds that the time for blind veneration
of ancient laws and ancient forms of
government has passed. The framers of the
Constitution, and the men who wrote the Federalist Papers
were very clear that what they were doing needed
to be justified on grounds both of
novelty and of tradition. So at every point, there is a
contradiction between those two maneuvers to justify the new
form of government as new, and to justify it as old. And one way that plays out
in the papers themselves, because they were written
by different people, is that there are contradictions
from one essay to the other. In “Federalist 52,” it’s the
defeat of blind veneration. Veneration of forms of
government is itself a problem. But in “Federalist 9,”
veneration of government is exactly what’s required in
order for the new constitution to have stability. This is a problem for
Sandy in the text, and it’s one of the
places in the book where you very forthrightly
acknowledge that, were we to
think about the use that these papers were being put
to and the newspapers that they were printed in and by
the people who read them, was very much to exaggerate
the possible stability of this form of government for
the sake of the ratification debates. So there, you acknowledge
the historical role that the papers play
and the way that they can’t be read as written, but
need to be read in context, only to set it aside. So I guess there are
a lot of metaphors that Adrian has introduced,
the loose-fitting garment, the active mining. There are many metaphors
by which 18th century political thinkers
wrote about forms of government and the need
for writing down rules. But one way that I
think we might consider the work of presentism
in this book, is whether what we’re looking
at is the use of an accordion. That we can kind of
compress time the way you’d squeeze an accordion. Then we can, therefore,
slight the distance between now and then. There’s been a lot of political
argument in the United States that is opposed to
originalism, which is itself– originalism is presentism. That’s what presentism is. That’s not opposed
to presentism. But as I was reading this book,
I thought about the speech that Thurgood Marshall made in
1987, on the 200th anniversary of the Constitution, when he
said he refused to participate in the bicentennial celebration
of the Constitution, as if what was
written in 1787 ought to be read as if there were no
distance between now and then. And that what he was
willing to celebrate, in 1987, were the 200
years of struggle that came between 1787 and 1987. So there are political
dangers, I think. As much there is a great
deal to be illuminated in that act of compression, in
the accordionization of time, I think it very much goes
against the sensibility with which the
papers were written. And maybe the
political struggles that followed are
themselves ignored as much as the individual
identity of the authors of The Federalist Papers. ERIC NELSON: OK. Well, let me, very
unusually for me– I never do this– begin with captatio
benevolentiae. As Adrian was talking, I started
to get a migraine headache, having nothing to do with the
content of Adrian’s comments. So I’m not at my very
best at the moment. I’m going to persevere
mostly because I hugely enjoyed the book and I
agree entirely with Jill. It’s just a pleasure to read. I sincerely hope you
all will read it. It is witty. It’s extremely learned. It’s clever and panoramic. It gives you an
extraordinary vista on virtually all of contemporary
American political life, and I think that’s an
extraordinary achievement for which Sandy
deserves great credit. I’m not going to be
the historical stickler either, mostly because Jill
scooped me to some degree. But also because I’m
less skeptical than Jill is of the project that
Sandy has in mind. That is, I think one of the
things we can and should do when reading The Federalist
is just to ask if we find the arguments persuasive. Now, of course, it helps
to be a historian sometimes to figure out what
exactly the arguments are that we’re supposed to find
persuasive or unpersuasive. But for the most part, I think
Sandy gets the arguments right and is asking the right
questions about them. So really, all I’m going to
do is ask two very broad, and I hope
provocative, questions about what I take
to be the underlying thrust of much of Sandy’s
engagement with this text. The first and most
important of these has to do, very basically, with
the concept of self-government or democracy, which Sandy
uses interchangeably, I think. Right from the
beginning of the text from his really fascinating
essay on the first Federalist paper right the way
through to the end, we have an anxiety
about self-government which, I think, although I
would like to hear Sandy tell me if I’m wrong, makes use,
at least implicitly, of a very strong theoretical
claim about the relationship between freedom,
self-government, and most importantly, voting. Voting is a very important
topic in this book. And this comes
into play, really, across a wide range of the
different subject matters that Sandy is engaging with, and
I think animates his critique. His anxiety on the
one hand, first and foremost about
the Constitution as we experience the Constitution. That is, as something for which
we have not voted ourselves, which gives him
pause, and I think explains quite a lot of the
commentary in the book that looks favorably on things like
constitutional conventions and other devices for
direct popular engagement with the constitutional text. It also explains the
hostility running through the book to super
majority requirements, to weighted voting, in the case
of small states in the Senate, and a whole set of other
institutional mechanisms. So the question that I have
is really about the theory. What’s doing the work here? And if the claim is, as I take
it to be, that, in essence, in order to think of ourselves
as a free and self-governing people, what that
means is that we have to live in a constitutional
regime in which all of the people who make
decisions are slotted into positions
through mass suffrage elections in which we all
participate exactly equally. That is to say, with exactly
the same vote, no weighting. And that we can only
regard ourselves as free if the institutional mechanism
under which we are governed by magistrates, so chosen,
is itself voted on by us, approved directly by us. Then my question is
really about that. I’m going to come at it from
two different angles, which I think are suggested
by a throwaway remark that Sandy makes in a very
interesting discussion on page 141, which is his discussion
of “Federalist 39.” He talks very interestingly,
and I think perfectly correctly, about democracy as one of these
essentially contested concepts. That is, a concept that now
has such a positive normative valence that no one is going
to be willing to concede the term to an opponent. Everyone wants to
think, and describe, him or herself as a Democrat. Every government wants to
describe itself as democratic. Think of the Democratic People’s
Republic of North Korea, and so on. So we want this term. We disagree very much and
deeply amongst ourselves as to what it requires,
but Sandy says a very interesting comment that– so we all disagree, apart from
the bare minimum requirement of holding elections. And the reason this
struck me is, of course, that in the history of
democratic theory, quite a lot– if not the vast majority–
of democratic theorists would have rejected exactly
that description of what the bare minimum requirement
for democracy is. Namely, that it has something
to do with voting and elections. Elections, as many of you
will know, and certainly in the classical
tradition, were considered the archetypal anti-democratic
institution, an aristocratic way of choosing magistrates. The democratic
device is sortition in the classical
tradition, with which the authors of these papers
were extremely familiar. That is to say, they knew
that the democratic device for selecting
magistrates was lot. And this is an issue
that Sandy will discuss very briefly toward the
end when he discusses juries. So the first challenge to
Sandy in this very election and voting-centric
picture of what democracy and
self-government requires might be, as it
were from the left, from someone who
says, well, then why all this business about
elections if we’re just interested in
having the popular will converted into policy? If we’re not going
to govern ourselves by polls, which of
course we could do, why not a random sample in
the classic sortition model? I guess that would be the
line of dissent from the left. But there could equally be
a critique from, as it were, the right. Which would turn
around and say, well, I don’t understand why voting,
let alone equal voting, is a necessary condition
of self-government. Surely, the right way to
think about the concept– for example, of representation–
is just to suppose that what matters is whether
we as the people give our underlying consent
to the institutional scheme under which we are governed
and that this consent is delivered tacitly, rather
than via the ballot. And someone who takes
this view might, in fact, go on to say that the notion
that connects our consent to our voting– that is, the
notion that treats voting for something, or at least
voting for someone who is going to vote for something,
as a necessary condition of consenting to that thing– is going to be unable to
make sense of the idea that we, in our own– even in an ideally
democratic, in Sandy’s sense– government of entirely
elected magistrates with equal weighted
voting, is going to be able to make
sense of the fact that vast numbers of
citizens have consented even under that arrangement. Since obviously, just
to take a basic example, I’m a citizen of the
Commonwealth of Massachusetts who lives in Cambridge. I’m entitled to vote for
one member of the House of Representatives. If my guy wins, that
means one out of the 435 is someone for whom I voted. If my guy loses,
none of the 435 who are going to make laws that
bind me, are voted for by me. We need to explain why I
have consented, in some way, nonetheless, to be governed
by the law that emerges out of the process thus understood. It seems that the only way
to do that is to fall back on some idea of tacit consent. That is, that my
consent is delivered to the underlying scheme,
to the rules of the game, and that I agree to be bound. But if I can agree to be bound
to the rules of the game, couldn’t those rules
involve weighted voting? Even a hereditary
magistrate, as of course, many of the folks who
were writing these papers were very well aware
and had developed many of these
arguments precisely in order to defend the
extraordinary power they wished the hereditary monarch of Great
Britain to wield in the period before the American Revolution. So I guess that’s
question number one. That is, if it’s a
legitimacy critique that’s predicated on a particular
view of the relationship between freedom
self-government and voting, what would we say to these lines
of critique from, as it were, either side? The second– and
here’s where I’ll leave you– is, suppose
it’s not primarily a legitimacy critique. That is, the worry is not that
in being governed in the way that we’re governed as a result
of the Constitution as adopted, we are un-free, or less
free than we should be. But rather, simply a kind
of practical, or empirical, or pragmatic critique
about the institutions. That is, a sort of anxiety that
what they’re delivering to us, in practical terms, is less
good than we would want, or less good than we
might be allowed to expect under some alternate scheme. My question is,
really, very basically why we suppose that that’s true. Here, I guess I’d
say just two things. One is a naive person would
come in and say, well, if we’re just judging the
Constitution on the basis of the effects
that it’s produced, you can divide those
into two kinds. Let’s say the first kind
is just well-being, power, economic prosperity, and so on. Under the Constitution
as written, the United States has become
the most powerful and wealthiest country in the
history of the world. So what is the reason to
suppose that the Constitution is failing in that respect? And then, on the
other hand, we might worry not about the
sort of welfare results that it delivers, but
rather about the degree to which it protects rights, it
gives us the kind of liberal– small l– society that
we want to live in. Here, too, one
question that I had is just about the degree
to which we really ought to think that these
kinds of institutional debates will really matter very much. Or whether, in the end, what
is delivering the results that we all welcome and cherish
is rather a set of norms. That one of the causes of
our present discontents is that those norms, rather than
the institutions themselves, are breaking down. Here, you might just think
of a very simple comparison. If you can compare
the Constitution of the United States to the
Constitution of Great Britain– the unwritten constitution–
you could not imagine two more different constitutions. Here, we have basically
the Constitution that England had in
the 17th century, with suitable alterations. But structurally,
something like that system of coordinate mixed powers,
checks and balances, and all the rest. On the other side– up until, at least,
the ratification of the European
Convention– you have pure parliamentary sovereignty. Absolutely untrammeled
political authority in a single majoritarian
elected chamber. It would be very
difficult, I think– looking back, let’s say,
over the last century– to make the case that
one or the other of these has done spectacularly better
at protecting rights, liberties, the press, and so on. You could make an
argument, but I don’t think either side
would win it in a walk. So the question, I
guess, in the end is, if we have our norms
in place of restraint, and comedy, and consensus,
can’t we perfectly well get along with what we have? And if we don’t
have them, would it matter which
institutions we did have? SANFORD LEVINSON: Thank you. Let me make a few
comments going in reverse. And then there will be time
for some general discussion. With regard to what Eric is
saying, when I arrived here for graduate school,
now over 50 years ago, political science was divided
then between institutionalists and political culture buffs. The arguments, I think, in
the intervening 50 years– ERIC NELSON: I’ll leave you
to guess which side I’m on. SANFORD LEVINSON: Right. And I think, partly because of
rational choice and the like, I think institutionalism
is somewhat stronger than it was 50 years ago. But, the basic debate
continues that if you have the right
political culture, does it really matter what
kind of institutions you have? And if you don’t have it, then
can any set of institutions save that polity? That’s the most serious
question of politics. I think I have come to
believe that institutions matter somewhat. But when I put on my
political science hat– and in my sunset years, I will
confess that I probably define myself more as a political
scientist than as a lawyer– I think that institutions may
account for, what, 15% or 20% of what happens. But I’m fond of comparing them
to drug interaction effects. Generally speaking, it
might not matter if you take aspirin or something. It might even be
helpful to take aspirin. But under some circumstances,
taking aspirin can kill you. So under some circumstances,
malfunctioning institutions can really be dysfunctional. Now ironically, this
really is the topic of two earlier books, rather
than this one, at least in my mind. The first book was Our
Democratic Constitution. And what I discovered, in terms
of the response to that book, is that most people didn’t
care whether it was democratic or not. A lot of people
said it was never designed to be democratic. Other people said, well,
only academics truly care. The real question
is, is it producing? So my next book was Framed:
America’s 51 Constitutions and the Crisis of
Governance, in which the argument was much more
that, no, it’s not producing. That whereever you are in
the political spectrum, you are likely to believe
that the national government in particular, is not
responding to the issues that you think most important. One of the arguments
I made, it’s because of all the veto gates. This book is orthogonal to that. I’ve not become any fonder
of the Constitution. I still want a new
constitutional convention. But this is not intended
to be book number three in constitution bashing. Rather, it really is
designed more to say, OK, here is a classic that
I believe many more people cite than read. Or if they read– I don’t know how many
students at Harvard College, for example, are assigned more
than, at most, half a dozen essays from The Federalist. Including 10, 78, and
then some collection of three or four others. But not including, for example,
what Adrian and I agree, are in many ways the
most important two essays for a 21st century
audience, which are numbers 40 and 41. I’m a little bit surprised to
hear myself described as such a big fan of elections, per se. You might be right. Maybe that’s what I wrote. But in one of the
earlier books, I actually have a long discussion–
the political theorist who gets more pages than any
other single theorist is actually Jim Fishkin. Because I’m very taken
by his latter day re-discovery of a method of
lottery participation that, I think, offers real
advantages over elections. And also to pick up on a
theme, a marvelous essay that Jill had in
The New Yorker, I suppose either last week or two
weeks ago, on public opinion polling and whether
public opinion polls, ultimately, are basically
good things or bad things for a democratic system. I share her view, and
Jim Fishkin’s view, that there’s something very
pernicious about polls insofar as they make no
effort, actually, to find out if the
people they’re polling know anything at all
about the issues they’re asked to opine on. Where as, at least Jim’s
method of what he calls deliberative polls– I prefer deliberative
assemblies– allows some way of
overcoming that. But then that touches on– Adrian mentions some paradoxes. I think one central
paradox in the book, I would define it as a very
Jeffersonian, much more than linked to the
historical personages who actually wrote it. Because I do think,
in many ways, the most important
essay of mine is to number 1, which really
asks us to take seriously what it might mean to engage
in reflection and choice about how we’re governed
in the 21st century. And that it really can’t be
that this decision was made once and for all in 1787 and ’88. So our task is to do,
ironically enough, exactly what Publius
warned us not to do, except in 49, where you get
Veneration with a capital V. But the paragraph I love
is the end of 14, which talks about the
lessons of experience, not to be seduced by tradition,
or what Publius called names. And among those names
would be James Madison or any other founder
who was often linked, who’s often evoked. Rather, what are their arguments
and do they make sense today? It’s not that I
don’t think there is a real value to
placing The Federalist in its historical context. But if you view this as a
team operation, first of all, it’s not my
comparative advantage to write real history. Secondly, there are
more than enough people, certainly metaphorically,
and maybe even literally, who write endless books on
a relatively few framers, or a relatively few
historical documents. So this is an attempt to
say there’s another way you might approach The Federalist. And I’d like to think there’s
some real value to it. Now, would I wish this
to be the only book available on The Federalist? Probably not, but
it’s not going to be. And so I think the
central question, frankly, is the marginal
value that it might offer. Assuming that it is important,
at some point, to say, well, there were these real
people who wrote these essays. And one of the ways
of understanding some of the tensions
among the essays is to recognize that if you
fear that the people who are going to bring
down the Constitution are the ones who like
states, then Madison– who I think, at least in
1787, despised states, partly reflecting his
own service in Virginia. He writes in number 39,
and a few places elsewhere, a [? pay on ?] to
states because he can’t say, the critics
are absolutely right, this really does create
a consolidated government that is going to leave
states as a hollow core. So he writes the stuff that
Justice Kennedy likes to cite. So it’s not that I don’t think
that’s a valuable insight, it’s just not what I’m
primarily interested in. With regard to Adrian’s
metaphor of export, I’m delighted to run with that
because, as all of you know, one of the things that
I find so interesting is that the ABA and
the State Department apparently loves to export
The Federalist to constitution drafters around the world. And the question is, why? Have they read it? Because along with
the well-known essays about checks and balances
and stuff like that, and it is illuminating that
most constitutions drafted since World War
II have correctly rejected the American model of
17th century English government that we operate on. But that’s not all that
The Federalist is about. The Federalist includes these
remarkable essays putting the rule of law in its place. I think there, Adrian
is absolutely right. I think Federalist Number 41. And here, I think it might
be relevant to point out that it’s Madison who
wrote it, not Hamilton. Because I suspect many
people reading it will say, oh, this is Hamilton, the core. We always knew he
was authoritarian. But that Jimmy
Madison, he would want to preserve rights above all. And it turns out
number 41, Publius says, as Adrian suggests, do not
put constraints on government. That the government
would be forced to usurp when national
preservation is at stake. I think it is a
chilling sentence. One thing I do, with regard
to the presentist focus, is to bring John Yoo
and the torture debate into the conversation. But it does seem to me, in
all seriousness, whatever one thinks of Yoo and
the torture debate, and unpublished record,
that I’m not a fan. But one can not
simply dismiss Yoo as un-American or un-Publian
because the questions raised in a number of essays are
absolutely essential questions about what you want
government to do. And what an adequate design
for a government that does live in a basically
Hobbesian world. From my perspective,
Hobbes and Machiavelli, are the philosophers who
dare not speak their name. Montesquieu was the
one most often cited, but it seems to me that
the view of the world is a profoundly Hobbesian world. The international system
is a very cruel system. I’ll finish this
part of my remarks by saying that I think if
you want to understand why the Chinese are doing what
they’re doing in the South China Sea right now,
you could do worse than read “Federalist 11,” in
which Publius explains why rising nations
who look around them and see groups of other nations
who don’t wish them well– who want to keep the balance
of power just as it is– that a rising nation
should build a Navy. And should do it
very, very quickly. And that’s one of the reasons
we need a constitution and a strong government. So I think when the State
Department sends The Federalist to China, they really
don’t want the Chinese to read number 11, number
40, number 41, number 23. We have in mind
that they will read a very Americanized version
of 10 and 47 and 78, and let it go at that. But I do hope there’s time
for some further feedback or from the audience. SUZANNE WONES: We do
have time for questions, so June and I both have
microphones if anyone would like to ask a question. Just raise your hand and
we will bring one over. Do any of the panelists want
to add or ask more questions? ERIC NELSON: Well, could I– while you all make up your
mind to ask questions. Just to go back to the
point about the Constitution and whether it
should be accepted on the basis of tradition,
inheritance, is it the dead hand, and so on. In a way, that’s what
I was trying to get at. Because one way of putting
the objection is that, putting it like that
begs the question about how it is that
we can actually be said to consent to something. Right? So it’s certainly
true that we haven’t had a contemporary
ratifying– of course, as you point out with relish,
the Constitution was never ratified by the people,
unlike, let’s say, the Constitution of
this commonwealth, which was in a plebiscite. So there hasn’t been a
Constitutional Convention, let alone a plebiscite. But it seems to me,
the sort of teeth of this business
about tacit consent have to do with the claim
that, actually, we’re consenting all the time to be
governed by the Constitution. Now that’s a very
difficult argument to make, and yeah, Hume mocks
it relentlessly. It’s had its critics. The problem isn’t– I mean the issue isn’t that
the argument is not difficult. It certainly is. And it might be difficult
in an insuperable way. How do we tacitly consent? What are the meaningful
options to opt out, and all of that stuff. And it’s been
discussed endlessly. The problem is that it’s
going to look as if any theory that grounds government in the
actual consent of the people is going to have to rely on
a theory of tacit consent somewhere. Even in your plebiscite, the
losers will have to be bound. And they’re bound,
presumably, because they’ve agreed, in some tacit way,
to be bound by the result even if they lose. The alternative is
the well-known one in contractualist political
philosophy of leaving aside– just sort of conceding that
no one consents to anything, and asking about
hypothetical content. That’s really what I
was pushing you on. SANFORD LEVINSON: Right. Again, you raise a very,
very important question. Let me contrast one of my
favorite presidential election years with one of
my unfavorite years. That is 1912 and 2012. In 1912, you had three genuine
constitutional reformers. For present purposes,
we can put to one side the fact that Woodrow Wilson
was also a flaming racist. But he was a significant
constitutional reformer, as was Teddy Roosevelt
and Eugene Victor Debs. The incumbent President
was an extraordinarily able constitutional
conservative, so that one of the things you
had in 1912 was a real debate on the adequacy
of the 1787-88 constitution, as amended after the war. One of the things
you got in the teens were four very
important amendments. And so if you want to talk
about some process of reflection and choice, I would
argue that without going through the whole
process of a convention, the 1912 election,
in its own way, provided a serious and
substantial debate about how we were being governed. Whether there ought
to be changes. We got the very
important 17th amendment that strips the last
link of the US Senate with any plausible notion
of defending federalism, rather than merely the interests
of residents of small states. The 19th amendment,
obviously, transforms the nature of the republic. And the 18th amendment,
which is often derided– and maybe correctly so– nonetheless, was supported
not only by the religious, but also by lots of progressives
because they correctly believed that alcoholism was
a scourge that had really terrible costs for
the working class and for what we would,
today, call family values. So these sorts of
things were thinkable. In the 2012 election, you
had a former president of the “Harvard Law Review,”
who not once in his presidency has had an interesting
thing to say about the United
States Constitution as a structure of governance. Even though, for all
sorts of reasons, he has more reasons than most
of us, to be aware of the ways the structures of
governments make it nearly impossible for any
halfway innovative president, genuinely, to be a success. But he’s gone after
very bad Republicans. He has not gone after
a political system that makes it perfectly rational
for Mitch McConnell to behave as he did. Nobody expects the leader
of the opposition in the UK to do anything other
than to try to torpedo the chances of re-election
of the present government in power. But it doesn’t matter because
the present government can govern. That’s not the case here. We don’t have a government. Mitt Romney, who also
went to this law school, also had not an interesting
sentence to say. They wear the American flag
and talk about how much they love the Constitution. And so, this is
venerationism run riot. JILL LEPORE: Can I just actually
press you on that a little bit, Sandy? Because in drawing that
comparison between 1912 and 2012, you suggest
the way in which the question that Hamilton
asked in “Federalist 1,” whether this will be a
government where the people are ruled by reflection and choice,
or by accident and force? That’s a theoretical
question in 1787, but it is now a
historical question. It’s an empirical question
that can be answered by looking to the past. And I wasn’t quite
sure, at the end of this incredibly
illuminating set of reflections, what your
answer to that question is. SANFORD LEVINSON: I think it
has to be a continuing question. I think that if we’re to
take this enterprise really seriously, unless we
really and truly do believe that the
framers were demi-gods who got it just right in this
particular moment in time so that our function is simply
following the rules laid down. This is why I say that I
think that Publius, in 1– and that happens
to be Hamilton– but I think Thomas
Jefferson could easily have written the essay had
he been in the United States instead of France. Because it really does evoke
a sense of an engaged people. And it doesn’t say one time, and
once you make that discussion, you should know that your
descendants will simply carry on what has been
achieved and never genuinely think for themselves. In the second
book, Framed, which does focus on the 51
State Constitutions, Massachusetts is exceptional
among American states in that it continues
to be governed by the 1780 Constitution. Most states have had an
average of three constitutions, and several have
considerably more than three. One of the things I love about
14 of the state constitutions is that they have provisions
whereby the electorate can vote at stated intervals on whether
or not to have a new state Constitutional Convention. And that is going to be
the most important question on the ballot in
New York in 2017. I think it’s fair to
say that Publius has not only very little esteem for
what we, in the 21st century, call democracy. But he certainly does not
wish for an engaged popular sovereign. I don’t know how much it
comes through in the book, but one of the things that I
think makes me different from many of my colleagues in
the Academy and elsewhere– my friends and family– is that not only do I want a
new Constitutional Convention, but I also am willing to
give at least one and a half, and probably two tiers,
for direct democracy. There was a reason
that California, at the turn of the 20th century,
discovered direct democracy. It had been in several
states, [? others, ?] because they correctly
recognized that representative democracy meant
the rule by Leland Stanford and his friends. So it is true, that– I don’t understand,
at some level, a response to “Federalist
1” that would say, this is really inspiring. This really does capture
what is best, and maybe even most exceptional, if you
want to use the language of American exceptionalism. And then, say,
adopting a term that was used in the 1980s and
1990s with some frequency, where the transition
from authoritarianism to a Stenciled
democracy would be one person, one vote, one time. But after the
initial election, it would simply be hegemonic
rule by a single party. This is why, indeed, you
end up with a People’s Democratic Republic
in North Korea. I just cannot esteem a
view of “Federalist 1” that would say that this
group of people in 1787-88, did our thinking for us. And our task afterward
is to give tacit consent to what they did, rather than– ultimately, I agree with you. One will have to say,
at the end of the day, the consent is more
tacit than active. We’re not going to have
referenda every two years on whether
we would continue to ratify the Constitution. But there are ways of, more
or less, genuine engagement. The two earlier
books, the first was called Constitutional
Faith, ended with a chapter on the
1787 bicentennial exhibit in Philadelphia, where
the audience was invited to sign the Constitution. And I decided I’d sign because
in 1987, I was primarily focusing on rights. I ended up saying, well,
the Constitution included some really terrible
compromises, but if Frederick
Douglass could end up supporting the
Constitution, as he did in 1860, who am I to
say that I shouldn’t sign? So I signed. The book, Our
Undemocratic Constitution, began with a 2003 visit to the
National Constitution Center in Philadelphia, where,
in Founders Hall, which includes life sized statues
of all the 55 delegates, you’re again invited to sign. And this time, I didn’t. Because in the interim,
I came to the conclusion that the most important
parts of the Constitution are the structural parts. I really do agree with
Publius that a great deal of the Constitution is
mere parchment barrier. That can mean just
about whatever it is you want it to mean. And it’s the part we, in
law schools, focus on. But you can get
where you want to go with regard to the
magnificent generalities. But where one talks
about bicameralism, veto powers, a lot of the stuff
that Adrian has written about, I’m less inclined to believe
that one can simply interpret one’s way out of these. And so I liked the fact
that people were invited to engage in Philadelphia. I don’t know how
many actually did. I suspect I’m an outlier. But at least there was
a genuine opportunity. And Ted Cruz, a graduate
of this law school, not the University of
Texas, I always point out. Ted Cruz has memorized
the Constitution and talks it up whenever he can. I think it would be
wonderful if somebody said, OK, let’s really talk
about the Constitution. It defended slavery. Do you really think we
should have stuck with that? And then I assume that my
junior senator would say, no, actually it was
a good thing that we rejected the wisdom of the
framers with regard to slavery. What about the 17th amendment? In fact, I suspect that
Cruz agrees with Rick Perry that the 17th amendment
was a bad idea. But there are ways
that one could actually have an intelligent
discussion that would make it more
plausible to say that there is some process of
ongoing reflection and choice. SPEAKER 1: We have one question
here, do you have time? AUDIENCE 1: It’s not a question. It’s just a comment. I’m a philosophy
of law professor. I thank you so
much for the talk. I just want to say
that coming back from the 21st century
to the 400 years, or 300 years before
Christ, I would say that you said the same
thing Aristotle would say, who so much highlighted freedom. That we would never
be able to [? go ?] for self-determination
as citizens if we didn’t have a strong
institution to support us in this self-determination. Would you agree? SANFORD LEVINSON: Oh, sure. But I also think, just to take
advantage of your question for one last point,
that Aristotle, even more than Publius,
could not possibly have imagined a government with
simply the territorial domain of the United States. And one of the
recurring questions that I ask in this book, Publius
notably attacks Montesquieu. And the argument that
you can have a republican form of government, which is the
privileged form of government for most 18th century thinkers. James Wilson was an
exception in warmly embracing little d democracy. But that the condition
precedent for a republican form of government is
something relatively small and homogeneous. This is why I spent a lot of
space, relatively speaking, on “Federalist 2,” where
Publius offers this remarkably distorted understanding of
American political sociology by arguing that we’re
really one similar people. And I think that’s
necessary to the logic of Republican governance. But Publius is also
famous for arguing in behalf of the so-called
extended republic. So one of the paradoxes
I point to is, well, if we really can extend the
republic from 4 million people along the Atlantic coast in 1790
to 320 million people extending into the mid-Pacific– and depending on your
theory, into the Caribbean, with Puerto Rico– then could we have a much more
extended republic that would ultimately be world government? Is it plausible to say
that the United States today is just the right size? It’s achieved what I call
that Goldilocks Point. But if we can get from 4
million to 320 million, why couldn’t we
get to 800 million by incorporating all of
the Western hemisphere into a transnational government? This is one of the reasons why– ERIC NELSON: Now you’re
sounding like Hamilton. SANFORD LEVINSON: Well, yes. This is one of the reasons
that Europe comes up with not some frequency, but it
comes up on several occasions. The European Union is
a remarkable exercise in what could be called
Publian Government. But what I fear will bring it
down is precisely that it’s not a Publian Federation. That is, consolidated
government. It is, rather, a
confederation, which means that there is no
central European government and that people get extremely
angry at Germany for playing the role of the hegemon,
which brought down the ancient Greek confederations
and was problematic with regard to the Dutch Republic. But it does seem
to me that this is another one of the
unanticipated consequences of reading The Federalist
in the 21st century. Of wondering,
well, are there are limits to the expansiveness? And you say, well, no. We really can’t unite
with Mexico because Mexico doesn’t speak English. Or you could construct
other reasons why you might think that a US/Mexican– I assume everybody would find
a US/Canadian joinder at least plausible, whether or
not you’d be for it, or not, whereas Mexico would
present much more problems. But here you go straight back
to “Federalist 2,” where Publius says, quite remarkably, we
all speak the same language, we all have the same religion,
have the same background. And so is it the case that– and this comes back
to the culture– that there really are
limits on heterogeneity? But if you take that
question seriously, then you have to confront
such completely unattractive characters as Donald
Trump, who is– what is it? A first-time tragedy,
second-time farce. So that Trump is presenting
a farcical and really wicked version of the
arguments that can be located in “Federalist
2” about the importance of homogeneity. And this is, again,
why I think that one can read The Federalist
without having to pay that much attention to
the contextual questions that would explain why Jay would deny
what he had to know was true– that there were German
speakers in Pennsylvania and Dutch speakers in
New York, not to mention the ongoing conflicts
between Catholics and Protestants, et cetera. But it was
ideologically important that we be blended together
as part of his version of the Publian project. This, I think, simply
underscores Adrian’s point that he was not a
diversity-oriented liberal in the way that many of
us would embrace today. That doesn’t mean we
should not embrace it. This is a way of learning how
we might differ from Publius, which is just fine. I don’t view The Federalist
as wisdom literature that you simply open in
order to find out what to do. What I do view it as– to
a degree that surprised me, quite frankly– is as a compendium
of very smart people asking questions which continue
to have a surprising purchase for readers today, even
if the reader turns out to be somebody thinking about
expanding the Chinese Navy in 2016, rather than
an American taking a course in American history. SPEAKER 2: I’m afraid
we’re out of time, so please join me in thanking– [APPLAUSE]

One Comment

  • Houshang Nourmohammadi

    I have translated the Federalist Papers into Farsi and posted them on YouTube. I think these 85 Essays should be learned as the Alphabet of the Language of FEDERALISM in the United States. I believe our future PEACE AND PROSPERITY is most likely possible UNDER A FEDERAL SYSTEM for the Nations of the world in three to five Generations. We have to begin to study and learn from the strengths and weaknesses of the U.S. Federal System, the European Union's ongoing experience, and in a few generations UNITE.

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