Sotirios A. Barber Readdresses the Idea of Constitutional Failure

The Federalist proposes the electoral college and the system of checks and balances as safeguards against demagoguery in the American presidency. In a Washington Post OpEd of July 11, David Lay Williams, a professor at Chicago’s DePaul University, reports that Donald Trump’s administration has made his students doubt Publius’s claims and, therewith, the wisdom of the U.S. Constitution itself.

The current state of public-opinion polling makes it hard to say whether the views of Professor Williams’s students reflect a broader public opinion. Gallup reports that confidence in the national government has declined from 51% in 2007 to 41% in 2019, and the latest Rasmussen Report on the public’s view of the Constitution shows that support for some measure of constitutional change (from “minor” to “major”) rose from 39% in 2007 to 41% in 2015 and 52% in 2017.

Standing alone, these figures needn’t reflect solely on the Trump administration, for no administration acts in a vacuum and a different administration might have generated comparable numbers. What these figures do suggest is that the public’s attitude toward the national government will eventually affect public attitudes toward the Constitution. This is as it should be, for the Constitution is more than a collection of restraints on government; the Constitution is primarily a plan of government. The government is the “Constitution in practice,” in Jack Balkin’s phrase, and as support for the government declines, we should expect declining support for the Constitution.

In any case, David Williams’s OpEd, is worth dwelling upon, for it suggests that something good may come from the tragedy that dawned in the United States in November, 2016. The good in question would be the restoration of Publius’s constitutionalism to the status of a public philosophy. By Publius’s constitutionalism I mean the fundaments of his constitutional philosophy, as distinguished from the institutional strategies that became “supreme Law” in 1789. The latter include the electoral college and the so-called system of checks and balances, both of which have long failed Publius’s aspirations for the country. The governing principles of Publius’s constitutionalism are worth recovering not because they occupy some “originalist” moment or “original position,” but because they define the only constitutionalism that makes sense.

When Professor Williams’s students decry the Constitution’s failure either to prevent demagoguery or to expel it, they assume a crucial distinction, one on which everything turns, that between the public interest and the public’s inclinations. They assume corollaries of that distinction, namely, that the public can be wrong about its interests and that a good constitution designs a government to meet this problem. They imply agreement with a forgotten passage of the Federalist Papers, the 2nd paragraph of No. 71. Here Publius holds that elected officials have a constitutional duty to serve the public’s true interests, even at the expense of the public’s momentary displeasure. Williams’s students also assume the truth of a related statement in Federalist 57 (3rd paragraph), namely, that a good constitution is designed to fill political offices with persons wise enough to discern and courageous enough to pursue the common good of society — the public’s true interest, not its momentary inclinations. Such are the fundaments of Publius’s constitutionalism; where they influence political thinking, demagoguery fails.

The nation has lost Publius’s constitutionalism. Most Americans, including most constitutional scholars, hold that the Constitution designs a government to reflect public opinion, not educate it, save perhaps to the extent that public opinion threatens selected individual and minority rights. Ours is a constitution of negative rights, it is said, not positive benefits – rights like liberty from government, not liberty from private power, and no constitutional right to the blessings of liberty in a well-governed society. Negative constitutionalists admit that positive benefits make up the list of ends in the Constitution’s preamble, but, they say, the pursuit of these ends is a matter of discretionary policy, not constitutional imperative. Negative constitutionalists say policy pursuits depend ultimately on what the electorate wants or thinks it wants, not what some intellectual or moral elite says it ought to want or even what it would want if its constituents could discipline their impulses long enough to think straight. Such is the new constitutionalism that has replaced Publius’s old constitutionalism.

Demagoguery finds a home in this new constitutionalism. Because it recognizes no standard of truth or right beyond public opinion, the new constitutionalism has no real basis for condemning the demagogue’s fraudulent manipulation of public opinion. Confounding truth and opinion, the new constitutionalism can’t really condemn the liar, for the liar may yet persuade public opinion. Powerful forces support this new constitutionalism, including academic value-neutrality and historicism. More powerful support comes from an economic philosophy committed to growth through the relaxation of moral and aesthetic constraints on consumption. As powerful as this new constitutionalism is, however, its doom is assured by the hard facts of humanity’s situation in a world ultimately beyond human control. One example may suffice: If no person on earth faces the facts of global warming, if none endures the sacrifices needed to avoid its worst effects, those effects will still dawn, probably faster. A constitutionalism that reduces truth to opinion, scorns moral and intellectual competence as elitism, and promotes self-indulgence over self-restraint has no chance against problems like global warming, income inequality, and advancing oligarchy.

Though Publius’s old constitutionalism is the only defensible constitutionalism, returning to it is almost impossible precisely because of the forces arrayed against it. But where there’s life there’s hope, and some of the forgotten constitutionalism survives in the revulsion against demagoguery, like that somewhere on DePaul’s campus.

Sotirios A. Barber is professor of political science at the University of Notre Dame. He is the author of several books including Constitutional Failure, Welfare and Constitution, On What the Constitution Means, and The Fallacies of States’ Rights.