By James W. Ceaser
This paper is based on the Walter Berns Constitution Day Lecture delivered by James W. Ceaser at AEI on Tuesday, September 16, 2014. Click here to view the event page.
- The body of thought that went into developing the US Constitution—and then into explaining and defending it during the debate over its ratification—comprises a notable contribution to political theory.
- The development of a written constitution was counted as a major innovation during the founding era, but the idea of a plan of government being contained in a written document is so taken for granted today that it is rarely noted and seldom seen as an innovation.
- Reminding Americans of the value of a written constitution is just as important as cultivating their reverence for it, because the respect for government this attitude engendered helped give birth to a community.
The Constitution of the United States of America is first and foremost a legal document. It serves as the supreme law of the land, establishing the basic structure or framework of the federal government, determining the powers of the federal government as well as certain powers of the states, and delineating a set of basic rights.
Yet, the Constitution has played another important, far less remarked upon role that is unrelated either to its status as law or to any connection it has to the United States. The body of thought that went into developing the Constitution, and then into explaining and defending it during the debate over ratification, comprises a notable contribution to political theory. The Americans who took the lead in this task engaged fundamental questions of political life, challenged a number of well-known philosophical positions, and offered new theoretical insights. The best of their work, which found its expression in The Federalist, merits a place alongside such classics in political theory as Locke’s Second Treatise, Rousseau’s Second Discourse, and Burke’s Reflections on the Revolution in France.
One of the main topics of reflection in constitutional thought grew directly out of the practical business at hand: making a new government. Two questions attracted attention: First, what is the best or recommended way to go about forming a government? And second, how does a government, once formed, shape thereafter the public’s epistemological premises? By this last term I mean the way in which people conceive of and process the political world about them—whether, for example, people lay claim to being able to figure everything out by the use of their reason or whether they allow themselves space for revering things past and things noble.
These questions are admittedly far removed from current concerns relating to the Constitution, such as the proper scope of the president’s power or the degree of protection that should be afforded to businesses claiming a right of free exercise of religion. With the usual academic pride I can therefore proclaim the irrelevance of the remarks to follow. Pushing perversity further, I can, in the Constitution’s own language, solemnly swear (or affirm) to avoid mention this afternoon of any of the major constitutional principles commonly referenced in public discussions, whether it be separation of powers, judicial review, federalism, or checks and balances.
Beyond that, I pledge never to refer to the text of the Constitution—neither to an amendment nor to an article or a clause nor even to a single phrase or word. I include here the now-famous-term “capitation,” which Chief Justice Roberts plucked from somewhere in Article I to salvage the Affordable Care Act. Needless to say, you will not hear a citation from any Supreme Court decision, current or past.
Perhaps, then, it would be appropriate at this time to pause in order to allow the law professors and policy experts in the audience to make a discreet exit. For those who have chosen to remain, who must be persons of a more theoretical disposition, I should offer a preliminary point of clarification about the meaning of political theory.
Political theory has been defined in a strict sense as the quest for truth or knowledge about political things. It has been distinguished from political thought, which is the exposition of political ideas, usually to support a given view or position. For example, most books and articles that appear on the subjects of liberalism and conservatism fall into the category of political thought, not political theory. Political thought may borrow arguments from political theory, but its goal is less the search for truth or knowledge than the furtherance of a political objective.
It turns out that by the exacting definition of political theory, many texts widely considered to be works of political theory are in fact works of political thought. Burke’s Reflections, which derived from a speech meant to awaken people to the dangers of the French Revolution, is a case in point. The Federalist, which sought first and foremost to secure ratification of the Constitution, is also a work of political thought. Yet, it has also been recognized that it relied greatly on arguments deriving from political theory and that it introduced many important theoretical ideas. In a preface to one of the earliest collected volumes of these papers, Alexander Hamilton concluded as follows: “The great wish is that it may promote the cause of truth and lead to a right judgment of the true interests of the community.”
The Federalist, to which I will be referring mostly today, has two other features to commend it from the perspective of those interested in political theory. First, because it addressed a real-life political event, it was compelled to treat many interesting issues that theoretical writers, who have full control of the content of their work, have ignored. Consent by the new instrumentality of ratification of a written document is an example. Second, because The Federalist hazards propositions of what will or will not take place depending on the decision of ratification, it allows us, looking back on the work, to assess the merits of some of the arguments. What we have is a kind of controlled experiment for analyzing certain ideas.