"Who's to blame when situations degenerate?" That what's the B-52s wanted to know in 1979, sometime between the adoption of the U.S. Constitution and the Trump "acquittal" yesterday. Adam White, a resident scholar at the right-wing American Enterprise Institute and member of the Federalist Society, teaches at George Mason University's Antonin Scalia Law School. Yesterday at dawn, The Atlantic published an historical essay, A Republic, If We Can Keep It, he wrote as Trump was preparing for his acquittal and his State of the Union address. And while many might not find White's essay as incisive as the B-52's song, it is worth reading... after listening to the song. He begins by tying the end of the Trumpanzee impeachment trial to a little known-- other than by law students-- factoid about Founding Father John Jay, a governor of New York and the first Chief Justice of the United States.
In the days leading up to the Senate’s impeachment trial, some people hoped that Chief Justice John Roberts, presiding over the trial, would use his position to send a strong message to the senators on what the Constitution requires of them. He had, in fact, already sent such a message, just weeks earlier, on what the Constitution requires of all Americans. On December 31, in a letter accompanying his annual report on the work of the federal courts, Roberts called on federal judges-- and everyone else-- to invest themselves in the preservation of constitutional democracy.“Each generation,” he wrote, “has an obligation to pass on to the next, not only a fully functioning government responsive to the needs of the people, but the tools to understand and improve it.” For Roberts, this requires civic education-- and something more fundamental than that, too.He illustrated his point with a founding-era episode involving the nation’s first chief justice, John Jay. After Jay committed to joining Alexander Hamilton and James Madison in writing essays in defense of the proposed constitution, Jay was seriously wounded by a mob of New Yorkers who had been whipped into a frenzy by rumors of grave robberies. Jay’s wounds derailed his involvement in our nation’s greatest work of political philosophy, The Federalist Papers. “It is sadly ironic,” Roberts wrote, “that John Jay’s efforts to educate his fellow citizens about the Framers’ plan of government fell victim to a rock thrown by a rioter motivated by a rumor.”The connection between Jay’s day and ours is clear: “In our age,” Roberts wrote, “when social media can instantly spread rumor and false information on a grand scale,” there is even greater danger that political passions can turn us against one another, or against constitutional government itself. He emphasized judges’ particular role as “a key source of national unity and stability,” but his deeper point was that those values are needed among more than just judges.His letter invoked Jay, Hamilton, Madison, and John Marshall, but his ideas called to mind another Founding Father: Benjamin Franklin, who, on leaving the constitutional convention of 1787, supposedly told a curious passerby that the Framers had produced “a republic, if you can keep it.”What does it take to “keep a republic”? Nearly two and a half centuries into this experiment in self-governance, Americans tend to think that they keep their republic by relying on constitutional structure: separated powers, federalism, checks and balances. But constitutional structure, like any structure, does not maintain itself. Each generation has to maintain its institutions and repair any damage that its predecessors inflicted or allowed. This task begins with civic education, so that Americans know how their government works, and thus what to expect from their constitutional institutions.Yet civic education alone, though necessary, is not sufficient. For civic education to take root and produce its desired fruit, the people themselves must have certain qualities of self-restraint, goodwill, and moderation. Because those virtues are necessary for the functioning of a constitutional republic, they are often called civic virtue, or republican virtue. This is not morality writ large, but something more limited and practical. As the late Irving Kristol argued in an essay 45 years ago, republican virtue is fundamentally the virtue of public-spiritedness as the Founding Fathers knew it:It means curbing one’s passions and moderating one’s opinions in order to achieve a large consensus that will ensure domestic tranquility. We think of public-spiritedness as a form of self-expression, an exercise in self-righteousness. The Founders thought of it as a form of self-control, an exercise in self-government.Kristol further described this in terms of “probity, truthfulness, self-reliance, diligence, prudence, and a disinterested concern for the welfare of the republic.” A cofounder of the policy journal the Public Interest, he understood that in a republic there is such a thing as the public interest apart from-- and perhaps at odds with-- one’s own personal interests, and thus it requires citizens to restrain themselves in the slow, deliberative workings of constitutional and civic institutions, and even in their interactions with one another, as Roberts emphasized in his letter....These are themes that the Constitution’s framers knew well. Madison, for example, understood how much of his constitutional vision depended on republican virtue, and he wrote about it. But those writings have been overshadowed by his more famous quotes, on the need for constitutional structure to guard against mankind’s vices. “If men were angels,” he observed in “Federalist No. 51,” “no government would be necessary.” For people who aren’t angels, republican government relies on constitutional checks and balances, which redirect certain vices toward the public benefit: “Ambition must be made to counteract ambition,” he argued, and liberty is safer when one ambitious branch of government counteracts another.But to say that constitutional government does not need people to be angels is not to say that constitutional government requires no virtue at all. Madison himself warned against assuming otherwise. In “Federalist No. 55,” facing critics’ predictions of corruption in Congress, he observed that while “there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust,” there are also “other qualities in human nature which justify a certain portion of esteem and confidence.” But then, setting optimism aside, he warned:
Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.This was blunt. Madison knew that the Constitution could not be sustained if the country did not first sustain certain virtues of self-restraint among those who administer the government, and among the people who choose them....The necessity of virtue and self-restraint comes through even more clearly with regard to the presidency. The Constitution contains express provisions for presidential self-restraint: The president swears an oath to “faithfully execute the Office of President of the United States,” and he bears a constitutional duty to “take Care that the laws be faithfully executed.” By these vows the president is bound to enforce not just the statutes that he likes but also the inherited statutes that he dislikes, so long as the statute is constitutional.Defenders of presidential power-- recently Attorney General William Barr, in his address to the Federalist Society-- often quote Hamilton’s discussion, in “Federalist No. 70,” of the Constitution’s need for “energy in the executive.” But advocates for presidential energy should focus on both the president’s powers and on the president’s duties, and the ends to which presidential power is supposed to be directed. Hamilton championed energy in the executive not for its own sake but for “the steady administration of the laws” and “the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.” Rooted in the right republican virtues, a president’s energy reinforces our constitutional system; unmoored from those virtues, a president’s energy destabilizes it-- or worse.Hamilton made these points even more bluntly elsewhere. In “Federalist No. 68,” he argued for choosing the president through an electoral college, rather than by parliamentary election or direct democracy, in order to maximize the odds of electing presidents with “the requisite qualifications”-- not men with “talents for low intrigue, and the little arts of popularity,” but “characters pre-eminent for ability and virtue.”
Oops! Time to try something else, perhaps?
Perhaps Hamilton’s subtlest argument for republican virtue in the presidency is found in his famous essay on the judiciary, “Federalist No. 78.” Here, in his discussion of the judicial branch’s relative weakness, Hamilton observed that the courts “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” That is, the Constitution gives presidents at least some legitimate authority not to enforce judicial decisions with which they disagree, if only when necessary for presidents to carry out their constitutional duty to “take Care that the Laws be faithfully executed.” But Hamilton’s balance of judicial and presidential power is sustainable only if presidents restrain themselves from disregarding judicial decisions whenever they feel like it; presidents’ power can coexist with the Constitution’s judicial power and independence only if they use their non-enforcement power sparingly, if at all.The executive branch’s need for republican virtue is not limited to the president alone. It extends throughout the administration that he oversees. In “Federalist No. 76,” remarking on the Senate’s role in the appointment of officers, Hamilton observed that to give the president unfettered powers of appointment would free him to staff his administration not from merit in the public interest but “from family connection, from personal attachment, or from a view to popularity.”Constitutional government, by contrast, requires an administration staffed by the nation’s best servants, not by a president’s favorite friends. The steady administration of the laws requires an executive branch filled with officers who follow the president’s lawful orders but not before providing the constructive feedback that the president needs. Or, as Hamilton put it, constitutional administration requires officers who offer more than just the “pliancy to render them the obsequious instruments of [the president’s] pleasure.” Instead, constitutional administration depends on officers with both courage and fortitude, but also with the moderation and self-restraint necessary to follow lawful presidential orders with which they personally disagree.Finally, the Constitution needs republican virtue not just in the three branches of government but also in the people whom the government serves and is accountable to. Long before Roberts wrote his year-end letter, Hamilton and Madison filled The Federalist Papers with warnings about “passions” that inflame public opinion and prevent reasoned deliberation. Hamilton introduced this theme at the very outset, in “Federalist No. 1,” presenting the Constitution’s ratification debates as an opportunity to see “whether societies of men are really capable or not of establishing good government from reflection and choice,” and to decide the debates not as a competition of narrow interests but with a view to “patriotism, to heighten the solicitude which all considerate and good men must feel for the event.”Madison emphasized it, too. Recognizing that the public will always be impassioned by politics, he observed in “Federalist No. 49” that the process and structure of our federal government will help to transform the public’s passions into a less impassioned public reason, so the public’s “reason, alone” would “control and regulate the government,” while the government would control the people’s passions. But this approach presumes that an impassioned public is willing to be controlled. If the public persists in its impassioned state, it will eventually have the opportunity to overcome whatever limits the government tries to put on the impassioned majority. Only with the virtues of self-restraint urged by Madison and Hamilton in their time, Irving Kristol four decades ago, and Roberts and Gorsuch today, can the country avoid the national self-immolation that the Founding Fathers feared.The justices can do much to advance these themes in public, by writing or speaking about them and by modeling them in their own work: in the way they conduct themselves at oral argument, and in the tone and style of their judicial opinions. But on this, as in all things, judges can do only so much to save the country from itself. For the country to relearn republican virtue will require heroic efforts by parents, teachers, clergy, coaches, and statesmen. Benjamin Franklin did not promise “a republic, if your judges can keep it.” He promised something far more challenging: “a republic, if you can keep it.”