Positive Liberty

In his magisterial work America’s Constitution: A Biography, Akhil Reed Amar declares his intentions early: “If this be Whiggism,” he writes, “Americans should make the most of it (p 19).”

Amar keeps his Whiggish tone throughout the book. His message is that while the document and its various writers have certainly made their share of mistakes, the good of the Constitution far outweighs the bad. He resists — at times with a fair bit of bluster — the academic temptation to describe our founding document as a simple power grab by the wealthy. He also resists criticizing the Constitution, as some libertarian commenters have, for being an imposition upon state sovereignty. In Amar’s view, the people, not the states, are sovereign (a view that I share). And for the most part, Amar finds that the Constitution has served its sovereigns as well as anyone might reasonably expect.

One key argument that Amar repeats throughout the work is that the Constitution of 1787 was remarkably democratic for the era in which it was approved, that it was approved through a process that was still more democratic, and that, even on those topics where it erred most appallingly — the failure to prohibit slavery, for instance — the document could not have done otherwise and survived. Nearly everything worked out as well as one might hope for, and it put us on the path to better and better things.

By now, the professional historian may be permitted to scoff.

Go ahead, don’t be ashamed. Scoff. It’s largely a conditioned response, so there’s no need to be bashful about it.

Whig history — loosely speaking, the tendency to think that things usually improve over time — is the bane of the serious (read academic) historian. Our preferred response is to scoff, to recall some recent atrocity, and to change the subject as though all that had been settled long ago. If budding historians show up at grad school with any significant Whiggishness about them, these tendencies are scoffed quickly out of existence. Even undergrads soon learn which way the wind blows in the academy. And by at the third year at the latest, most of them are scoffing, too.

Perhaps Jean Bethke Elshtain put it best: “Somewhere along the line, the idea took hold that, to be an intellectual, you have to be against it, whatever it is. The intellectual is a negator. Affirmation is not in his or her vocabulary.” We may only write about it critically, as cynicism is a lesser evil than hagiography. Yet Amar clearly has not chosen the lesser of two evils: Even while he concedes that the original Constitution encouraged both democracy and slavery, he happily observes that the first tendency worked against the second in the long term, and that all ultimately worked out for the best.

While I admire Elshtain for being cynical about cynicism, there are many things to be said in its favor, and I would like to digress upon them before returning to America’s Constitution. It may take a while, but I promise I’ll return.

The first argument in favor of the critical worldview is to note that the world really is full of outrages and injustices, and that the motives of historical actors, both past and present, are seldom so pure as they might claim them to be. In many cases, it’s not merely a matter of academic style or habit to be “against it;” on the contrary, being “against it” is quite often the only decent response to “it.”

The critical stance also has a long history. Perhaps we academics owe our cynical tendencies to the grandfather of all modern, engaged intellectuals: Voltaire, who opposed great many things that bounteously deserved opposition, including unfair trials, religious intolerance, censorship, slavery, and superstition. In this account, scoffing emerges as a valuable cultural immune system. It seemingly requires a good number of people to scoff almost by habit; disagreeable as autoimmune diseases may sometimes be, we are better off on the whole.

Not only does the critical stance have a long intellectual pedigree, but a critical history is certainly preferable to the official chronicler’s view, in which the ruler can do no wrong, in which his loyal supporters stride happily, prosperously, sinlessly through time toward the Last Judgment — and woe unto his enemies! In other words, those who think cynicism is uniformly bad would do well to recall how long it’s been around, how much good it’s done us, and just what awful, unreadable dreck came before it.

But lastly, I suspect we academics owe our critical tendencies to a peculiar set of unexamined premises. And here’s where the scoffers don’t quite look so good anymore.

As I see them, these unexamined premises may be stated as follows: All other things being equal, criticism is harder than triumphalism. Praise may be added, almost as a template, to virtually anything at all. Meanwhile, a work of the mind may go awry in a million different ways, and detecting and describing a hidden fault is difficult. It’s a challenge precisely because most things worth reading or writing about usually do seem halfway decent at first glance, and (we feel) the foolish man applauds far too readily. To be cynical, and to be right in one’s cynicism, is therefore an intellectual challenge of the first order — and it is better to try at this challenge and fail, then never to try at all.

(Of course, it is a similar matter to applaud when you are entirely alone. Any libertarian in the academy can back me up on this one. And there is also that peculiar form of pride that accrues to those who applaud precisely because others are righteously disgusted — The less said about this phenomenon the better.)

In any case, to succeed at criticism takes erudition and courage in large and equal measures. To cheer amid the crowd requires neither, and it is automatically suspect. As such, Amar’s book should fail. Its feel-good Americanism means that we have to be against it.

But I’m afraid I can’t. He’s done his homework; the book is copiously footnoted; the arguments are clear, and the explanations are persuasive. I daresay he’s earned the right to cheer.

What then about Amar’s subjects, the founders and their Constitution? Now, we may give the founders failing marks compared to a document that we would write today — but we certainly have to give them an ‘A’ for effort. And with only a few key changes, I suspect I’d prefer the original Constitution over the alternatives that even the best legal scholars could produce today. It seems a safe bet that Amar feels the likewise. And simply being in a critical mood, or thinking that criticism must be harder, is not argument enough to think differently.

As to the book itself, I would teach it if I ever got the chance. I would teach it even despite the passages where Amar applauds a bit too loudly and stridently, as in his defense of the founders’ democratic impulses on page 151:

The notion that the framers disdained democracy runs counter to much of the data we have seen thus far — an extraordinarily democratic constitutional-ratification process; the direct election of House members; a broad suffrage for House elections; national salaries for all lawmakers; fixed elections and regular reapportionments; and a complete absence of federal property qualifications. If Federalists truly loathed democracy, why did Article II permit states to choose electors by direct popular vote — as a substantial number os states did from the very beginning?

I find the argument that the founders uniformly “loathed” or mistrusted democracy somewhat of a strawman. Does anyone seriously claim this anymore? Or is it just an excuse to feel good, yet again, about our wonderful, wonderful Constitution — and to hate those mean, mean cynics? I must say I have never encountered this idea in any history or political science class I have taken, attended, or taught. On the contrary, in my experience the typical classroom presentation more or less gets things right: The founders sought out a mixed government, one that contained elements of democracy, aristocracy, and monarchy (minus the inherited office, of course). The founders mistrusted the unchecked exercise of any one of these principles. Together, though, the three would unite when united power was necessary — and counterbalance each other when one aspect’s worst tendencies threatened to upset the system. This mixture of power bases, combined with the strict separation of legislative, executive, and judicial powers, would give liberty and limited government their best possible chances of survival.

Most classes I have seen on the subject have managed to communicate this understanding quite clearly, and some of the best have even traced these ideas to their roots, to Montesquieu and Polybius (taking things back to Aristotle is asking a bit much, but the argument can certainly be made).

Whether Amar overstates or caricatures the naysayers is one of the few nagging doubts I have about the book (the commerce clause section, mentioned by Sandefur below, is another). I suspect that the tendency to bash the critical types a bit too much is one of the dangers of Whig history in general — which is not to say that critical history doesn’t caricature the Whigs, either. And where Whig history is often condemned for reading present concerns into the past, and for smiling that our wise ancestors brought us to the happy conditions in which we now live, critical history suffers woefully from presentism, too, in the way it assigns praise and blame as though these were the most important part of the historian’s task.

In the end, the conflict between Whigs and cynics is a meta-debate, much like others we’ve seen before: between nominalists and realists, rationalists and empiricists, lumpers and splitters. It’s a debate about how to set up the pieces before the game itself begins. What is unique about this debate is the degree to which one side has so completely dominated it. Yet both sides have their undeniable weaknesses.

Where do I stand in all of this? I teach my students that evaluation is the easy part of historical thinking. Research, explanation, and understanding come first, because they are harder. They come first even if your subject is a flat-out monstrous evil — or a universally recognized good. Do the hard work first; the evaluation will come in time.

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