NOW WE MUST THINK MORE SPECIFICALLY ABOUT CONSTItutions. In one way, the questions about constitutions are hardest because constitutions provide the form according to which the law is shaped, and the law is nothing less than the most forceful of human influences. When we discuss a constitution, we reach the place where orders are given that must be obeyed upon pain of human compulsion. We reach the proximate authority for all such orders.
What is the place of a constitution? A constitution is something different from the Declaration of Independence, so grand in its phrases, providing a purpose and a guide for the operation of a government, but not arranging the processes by which it operates. It is something different from the regular ordinances of governments local and national, different also from the rulings of a court or the actions of an executive, different from the elections and appointments that put officers in place. A constitution differs from other human laws in its generality and supremacy. It differs from those ultimate laws named in the Declaration, those “Laws of Nature and of Nature’s God,” in its particular and binding application on a people that has adopted it. It is somewhere between these things. It forms a bridge between them.
A constitution is not only described in the Declaration of Independence; it is necessary to it. The Declaration claims that the people may not be governed except when they have given their consent. They must agree that some particular offices must be occupied by some particular people who may do some particular things. The Declaration describes what kinds those offices ought to be and how they should be related to one another, but it does not provide the offices themselves or any way for their occupants to be selected. A constitution like the one we have is then a necessary element of the American government.
Think of the Founding of America as a work of art, in fact as a statue, something sculpted and made by the art and hands of a man. A constitution is the highest kind of statute, which means “law.” It is no coincidence that the word constitution, the word statute, and the word statue are connected from ancient sources through the idea of setting a thing firmly in place or setting an imposing thing in place upon a firm basis.
The Founding of the United States is, more than any other parallel event in history, a work of art. Of course there were chance events of huge significance. Of course there were doubts and disagreements, misinformation and ignorance plaguing all the key actors in the drama. Still the key actions of the Founding were deliberately chosen through a process of debate, conducted by officers who had been selected by the people to do what they did. In this debate reasons were given pro and con, then decisions reached and reasons given for the decisions. We have therefore the speeches and the deeds in close association. There had never been anything like it, and it is hard to see how it can ever recur. Even when the speeches are in error, even when they are deceitful, we have the precious opportunity to compare them with one another and with the deeds to which they give rise or from which they proceed.
The Declaration of Independence and the Constitution are the prime examples of this pattern, and as the prime examples occurring amidst these unique events of the American Revolution, there is nothing quite like them in the history of the world. They are the products of careful crafting, and they state specific reasons for the decisions they represent. The fact that these decisions have proved to be monumental in scale and longevity makes it hardly credible that they were chosen for reasons that can be traced, and yet manifestly they were. The Declaration of Independence is little else than a list of the reasons why it came to be. The Constitution gave rise to a debate full of reasons pro and con, and several documents in that debate are among the most profound political statements in history. The Declaration of Independence and the Constitution were both surrounded by debate and disagreement, and yet both were adopted, and both are still in force two centuries later and more. The debate reached a decision, and the decision still stands, even if the ground beneath it has sometimes shaken and even if it shakes now.
What are the factors that made the Constitution possible? We might as well ask, what makes a statue possible? To begin with, there must be material, say marble. The final result depends very much on the material. A bronze statue looks different from a marble one, even if they have the same form, and a plastic statue looks different still. The equivalent in the making of America would be the people of the nation and the land upon which they live. Just as the marble in the statue, so the people and the place of the United States have an effect on the nature of the country. In the first Federalist, Hamilton says that it is reserved to “the people of this country” to decide for all time “whether societies of men are really capable or not of establishing governments by reflection and choice.”1Madison refers to the “genius” of the American people.2 This people had lived a certain way and learned certain things. They were different from other peoples. Because of them and other factors, the country was, and I argue still is, different from other countries. The difference between one people and another is of essential importance. Still, it is not the only difference between countries, just as the differences in the material are not the only differences in a statue.
Someone must work on the material to make it into an artifact; that is what art means. Sculptors make statues, and the sculptor matters very much to the outcome. In Rome and Florence there are several statues by Michelangelo. It is worth the journey to those cities just to see those statues, even if one ignores the other wonders there. The sublime and tragic gentleness of his Pieta can be compared to the gravity and potency of his Moses. His David is massive and yet perfectly poised, a picture of human beauty befitting, if a man could make anything so, an image of one chosen directly by God. The people who can make works of art so wonderful are “much rarer than the largest and purest diamonds.”3 What can we say of the people who made and justified the Declaration of Independence and the Constitution of the United States? These documents have many critics today. What have the critics done to match them? It matters very much that it was Michelangelo who set out to make the David. It matters very much that George Washington, Thomas Jefferson, and James Madison lived and worked during the American Revolution. Ours would be a different nation without them.
Works of art are made for a reason. Something moves the artist. It is so hard to make any work of art, and the difficulty is much greater than simply the hard work of carving and shaping stone or of forging metal. A work of art must live in the mind of the artist, and human beings are so contrived that a great thing in their minds places a strain upon their bodies too. No one can read the life of Michelangelo without seeing the cost he paid to produce what he produced.4 Neither can anyone miss the fire in the hearts of those who made the United States, those who pledged their lives, their fortunes, and their sacred honor. It was not just risk of death and dishonor: it was also years of anxious calculation amidst unknowns; it was responsibility for things they could not be certain to control; it was the burden of carrying the hopes of millions. What called this forth from them? The sculptures of Michelangelo are so different one from the other. Each represents not only a thing and its beauty, but also a kind of thing and its kind of beauty. There is the beauty of broken yet eternal love in the Pieta, the image of the mother of the crucified Son at the moment of her bereavement. There is the beauty of an agent of God, rendering the law in its firmness and indestructibility, in Moses. There is the beauty of another divine agent, chosen when a boy to do an act so brave that it changed the world, his chief virtue at that moment was calm obedience. This is apparent in the David. These things were apparent to Michelangelo, apparent in a way that few of us can see. He was moved by them to make an image so that the rest of us could see better too. The work of art would not exist if something had not moved the artist so powerfully.
If Michelangelo was moved by this beauty in its various aspects, what moved those who made the American Revolution? Of course many things, but they chose one of them at the moment of the official act of Founding, a serious moment. They found this thing to be and to be within those “Laws of Nature and of Nature’s God.” They found it in the natural station of man. They found it in his right to be ruled by no other man except by his consent. They found it in that combination of assertion and obedience that is proper to a being beneath God and above the beasts. The right of each human being to consent to the government over him is unmistakable in the Declaration; so, too, is the subordination of each human being to laws not by man; so, too, is the superiority of the divine to the human; so, too, is the sanction of the divine and the natural for justice among humans. The Founders wanted to recognize, and for all to recognize, the right and duty of all who are human to occupy the human station. What moved in the American Revolution moved to this purpose. Called by this purpose, it moved with a mighty force.
Even after we name these three powerful things, we still do not have enough to make our statue, and also we do not have enough to make our country. The material, the artist, and the object supplying the motive in the artist are not enough by themselves. ThePieta is not just about motherhood in its essence, sublimated to heaven; it is also about Mary (and her son), a young woman of whom we have some physical description. The David is not just about the heroic boyhood chosen by God as his instrument; it is also about a boy named David who lived and of whom we have extensive physical descriptions. God, being omnipotent, might have chosen some pony (blessed with reason), or some old man, to kill some giant as David killed Goliath, and if He did that, an artist could sculpt that pony or that old man to show some of the qualities that David possessed. But the sculpture would not look like David; it would look like a pony or an old man. The apostles must have been devastated by the crucifixion, and an artist with sublime ability could depict that devastation with sublime result; but the statue would then look like a man, not Mary. Similarly in the United States, the Founders might have set up an executive branch with two presidents (some wanted this), given the states little power (some wanted this), or made the judges electable and changeable (some wanted this). The country does not have its shape as a recognizable thing until it has its shape. And once it takes its shape, it is hard to alter it. Once the David is sculpted, the marble that would be needed to make a pony or an old man has been destroyed. Once the Constitution begins to operate, it makes other possibilities more difficult or impossible.
What is the parallel, in making up the United States of America, to the person of the maid Mary or the boy David who gives definition to the Pieta or the David? When we think of the United States, we think of so many things. It is a vast country with stunning coasts, staggering mountains, and limitless prairies. Its people come from every kind of background and show it in their appearance, and yet there is a coherence to them that makes it meaningful to speak of an American as an American. These details and every other detail large and small about the nation are part of its identity or being.
But when we think of the United States doing something specific, when we think of it acting as the unit it is, we think of its government. That government, the patterns by which it acts, and the offices occupied by those who act are established in the Constitution. The Constitution gives the nation its shape, and by doing this, it exercises a powerful influence constantly on all that we do. In an earlier chapter, we described the Speaker of the House, Nancy Pelosi, revealing so plainly her contempt for the Constitution. It was a serious moment, but it does not mean that the Constitution is gone. She would soon be making heroic or scandalous efforts, depending on how one thinks, to maneuver her health care bill through two houses of Congress and the executive branch, and this she did by the skin of her teeth and through many sleepless nights for her and thousands of others. It would have been easier for her to succeed without the separation of powers, without even representation.
No doubt she thought and thinks the bill a worthy and fine thing, and so one can see why she might resent the Constitution. One can see just as well why those who oppose her would resent the fact that the subsequent election could not suffice to overturn her work: under our Constitution it takes two elections or three to make a major change and make it stick. Even after the election, the courts are looking at the matter of the health care bill, and other elections are coming. If the Constitution persists, these activities will continue right on schedule, and they will do that even if some of us do not want it. The Constitution does not give any of us the power to do what we want, right now. The Constitution may be in danger, but it is not gone. Not yet.
The Constitution then gives the nation its shape and its ability to act. It or something like it, we have said, is required by the Declaration of Independence. Therefore this question of the relationship between the two documents is really a question of the meaning of the nation. If the two documents are necessary, and if they mean different things, then the nation is not an integrated but a divided thing, and it was from the beginning.
Joseph Ellis writes that the Constitution differs from the Declaration of Independence in valuing “social balance over personal liberation.” Freedom, he means, must give way to the requirements of society. Our personal good must be sacrificed for the public good. The grand ideas of the Declaration must be compromised or abandoned in order to achieve balance in the society. The Founders ran up against hard necessity, it seems, and so they had to learn to do different things than the things they set out to do at the beginning.
Sure enough the situation had changed very much in the eleven years that passed between the Declaration in 1776 and the Constitutional Convention of 1787. In 1776 a band of unknown commoners had undertaken war on the mighty British Empire. They were hardly able to keep an army together for most of the conflict, and what army they had was mostly kicked about the battlefield as if for sport. When the Americans were not running away from the fight, they were starving, freezing, and bleeding out their winters in the snow, or else they were hightailing it home to safety, away from the army and the cause it defended. Yet somehow the band of commoners won. They found a way to stand in front of professional armies and trade blows. Finally they came to listen to the cry of General Washington that they were free men, and the enemy soldiers were only servants, and servants should be the ones to run.5 And then the servants did run, and also they surrendered.
Then the great Washington, now covered in honor, astonished the world by laying down his sword and retiring rather than claiming the right of the conqueror to rule. He and his rabble achieved a glory in the cause of human freedom never seen before, shining brighter for its emergence from forlorn hope. Hardly any scene in history is more touching than the farewells said among the commanders of the Continental Army at Fraunces Tavern before they broke up their ranks. Washington toasted them: “With a heart full of love and gratitude I now take leave of you. I most devoutly wish that your latter days maybe as prosperous and happy as your former ones have been glorious and honorable.”6 Then they said good-bye. Grown men wept. Washington held each one in turn in his arms. They were heroes, never overcome except by their love for each other and their wonder at the victory they had won.
After that the glory began to fade. The new nation sank into a muddle. Pledged to the contrary, states made their own wars, signed their own treaties, and violated those signed by the nation. They did not pay the taxes they had agreed to pay. They stiffed the faithful lenders who had stood by them in their darkest days. They expropriated the rich and victimized the poor; they flaunted each other’s laws. The young nation that fought like a Titan to win its independence became infantile in the exercise of it. Aristocrats in Europe sniffed that they had known all along that common people could not manage their own affairs without the benefit of kings and nobles. And they kept their European armies hovering around the edges of the new nation, waiting to seize their bit of the continent. The splendor of the Revolution faded toward shame.
This was an emergency of a new kind, and it is plausible that new means, and perhaps new principles, would be required to meet it. Who could blame the Founders if they were to change their minds about the ideas behind government, given that the problem of government presented to them after the Revolution was different from the one presented before it? Who could blame them for writing the Constitution in a way that departed from the Declaration?
Yet James Madison, for one, denied that the Constitution takes any step away from the Declaration of Independence. Arguing that the Constitutional Convention did indeed have the power to write a constitution of the kind that it produced, he said that the authority comes from several places, but finally from the “transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’”7 This is a quotation from the Declaration of Independence itself; it claims the direct authority of the Declaration to justify the work of the Constitutional Convention.
Moreover, Madison denied that the Constitution takes any step away from the purposes of the Declaration in the source of its authority or in the manner of its organization. It does, after all, follow precisely the major features of constitutionalism suggested in the Declaration: it is representative, its powers are separated, and it forms a government limited both as to scope and to methods of operating.
Madison wrote that the Constitution must be “strictly republican.” Nothing else “would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government.”8
Madison then defined that republican form. A republic is “a government in which the scheme of representation takes place.”9 It is “a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure for a limited period, or during good behavior.”10 He continued, “It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans and claim for their government the honorable title of republic.”11
In other words, representation is necessary, and people may be represented indirectly. Also terms of office must be limited, but they can be as long as life, so long as that depends on good behavior. And the people broadly must be represented. The scheme of representation cannot favor any specific class; there is to be no nobility among the Americans.
These are the essentials. If they are not present, one does not have republican government. It is “sufficient” if these essential provisions are all present, that is, if the persons administering it are “appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified.”12
Madison made this argument in Federalist 39, a document composed to advocate the ratification of the Constitution in the state of New York. With it he justified all those devices that give the Constitution its structure and make it seem to many modern historians “undemocratic”—indirect elections, longer terms, and the unequal representation of persons in the Senate. Does this prove that James Madison turned against the principles of the Declaration?
That does not seem plausible when one thinks who precisely this James Madison is. When Madison speaks of a “political experiment,” he does not mean a thing happening in a sterile laboratory where quiet figures move calmly in white smocks. He means a thing involving war and costing lives. Madison was not a soldier in the American Revolution, but he was a politician on the side of Thomas Jefferson, a wanted man. He put his own labor into the composition of the Virginia Declaration of Rights, passed by the Virginia Convention less than a month before the Declaration of Independence. The Virginia Declaration is nearly as eloquent, and fully as treasonous in the eyes of the king, as the Declaration of Independence. So by the time he was writing the Federalist in 1788, Madison had already a long experience among the votaries of freedom in resting their “political experiments on the capacity of mankind for self-government.”
The Virginia Declaration of Rights is an interesting document for our purposes. It was passed by one of the most consequential legislative bodies in history, the Fifth Virginia Convention, which convened in Williamsburg on May 6, 1776. It was the fifth and final successor to the original Virginia Convention that met for the first time in August 1774. That Virginia Convention came into being when the royal governor dissolved the Virginia House of Burgesses, at which time the House retired to a tavern and resolved to continue its work. It quickly issued the first call for a congress of all the colonies. This congress, the Continental Congress, would eventually adopt the Declaration of Independence and the Articles of Confederation to form the American Union. The seed of that Union was therefore planted in the first Virginia Convention, which began with an expulsion from the state house and proceeded through a tavern toward the founding of the greatest of modern republics.
The seed that was planted in the First Virginia Convention sprouted in the Fifth. On May 15, forty-four days before the Declaration of Independence, it declared the Virginia colony independent of Great Britain. That same day it instructed its delegates to the Continental Congress to move for independence for the whole nation, which Richard Henry Lee did on behalf of Virginia on June 7. On June 12 the Virginia Convention adopted the Virginia Declaration of Rights, written mainly by George Mason, but also by a drafting committee that included James Madison. Thomas Jefferson observed the work from Philadelphia, where he was representing Virginia in the Continental Congress and would soon write the Declaration of Independence. He sent plentiful advice, including draft language, all of it consistent in all major respects with the product of the committee. The Virginia Declaration of Rights uses much of the same language, and carries the same meaning, as the Declaration of Independence. It begins, for example:
SECTION 1. That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.13
The Virginia Declaration is similar to another document too. Much of it reads like a constitution—indeed, like the Constitution. And it turns out that the committee working on the Virginia Declaration was also working on a constitution for the new state of Virginia. The Virginia Convention adopted this new Virginia Constitution on June 29, seventeen days after it adopted the Virginia Declaration of Rights. The same committee wrote both documents.
There is significant overlap between the text of the Virginia Declaration and the Virginia Constitution, and both overlap significantly with the Declaration of Independence and the Constitution of the United States. So if the latter two documents are “incompatible,” the Virginia Convention instituted this incompatibility in two documents that are as close as hand and glove. And then two of the people responsible, if one counts Jefferson as a collaborator, went on to write the Declaration of Independence and the Constitution of the United States, all the while remaining the closest of political friends. And they managed, somehow, to make those two documents incompatible as well? Modern scholars ask us to believe this.
The Virginia Declaration of Rights makes explicit what the Declaration of Independence says implicitly about separation of powers:
SEC. 5. That the legislative and executive powers of the State should be separate and distinct from the judiciary; and, that the members of the two first may be restrained from oppression, by feeling and participating in the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part of the former members, to be again eligible, or ineligible, as the laws shall direct.14
This means that the government of Virginia is to be close to the people, true enough. But it also means that the whole government will not be under the immediate influence of the people at any time because the people must do different things to change the executive than they must do to change the legislature, and they may not do anything directly to change the judges. Close to the people, we see, is a relative term. This is the first American Declaration of Rights to be passed by a legislature, and because such documents are an American invention, it is the first simply. And in this document, as radical as any written, it is not imagined that the whole government should be under the immediate control of the people.
The Virginia Constitution begins with a section almost identical to the middle section of the Declaration of Independence. It seems curious to a modern reader, if he is accustomed to the Constitution of the United States, for this to be so. When the Constitution of the United States was written, the end of the War for Independence was four years in the past. When the Virginia Constitution was written, the war was just beginning. And so the Virginia Constitution begins with a series of charges against the king that justify the making of a new government for a former colony. These are arranged in twenty-one paragraphs, most of which are the same in substance, and most nearly identical in language, to their equivalents in the Declaration of Independence.
The Virginia Constitution was ratified less than three weeks after the Virginia Declaration and organized the legislative, executive, and judicial departments to be “separate and distinct.” No person could be a member of both, except that county judges could enter either house of the legislature. The legislature would be bicameral. The lower house would represent counties, cities, and boroughs, and the upper house districts that were larger and made up of groups of counties. Members of the upper house would have longer terms, and they would be staggered. Both houses would indirectly elect the executive, or governor. Both houses would also indirectly elect a Privy Council, or Council of State. Both houses would indirectly elect judges. Jefferson, by the by, submitted his own draft of a constitution during this process. His draft had substantially the same features, except the property requirement to vote was rescinded, and the separation of powers and the strength of the upper chamber were fortified.
In other words, the Virginia Constitution, written at the time of the Declaration of Independence, with the collaboration of the author of the Declaration and of the Father of the Constitution, employs the same kinds of devices of indirect election, extended terms, and separation of powers that restrain the ability of the people to have direct and immediate control over the government. If Joseph Ellis is correct that the Declaration of Independence and the Constitution of the United States are incompatible, then so are the Virginia Declaration of Rights and the Virginia Constitution. But this means that those two documents are incompatible with themselves because they are essentially the same document.
Section XV of the Virginia Declaration contains not so much a declaration of the rights of the people as an admonition about what is required, in them, to secure those rights. It reads: “That no free government, or the blessings of Liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by a frequent recurrence to fundamental principles.”15
To produce and preserve this condition, we shall see, is one of the prime purposes of constitutional rule. To do this requires considering something more about the people than merely their will. And it is in considering this additional thing that the need for these devices of limited government arises.
Another person close to the Declaration of Independence also wrote a constitution. John Adams, one of the prime movers of the Declaration, was not present at the Constitutional Convention in 1787 because he was on the business of his country in Europe. But between 1776 and 1787 he wrote the first constitution to be written by representatives of a free people and then ratified by popular vote.
The Massachusetts Constitution was ratified four years after the Declaration of Independence, in 1780. The people of Massachusetts had turned down an earlier draft constitution, written by the state legislature, on the ground that they did not get to appoint its authors. Fearful of “legislative encroachments,” the people of Massachusetts called for a special convention in which delegates would be elected for the sole purpose of drafting a constitution.16 These delegates in turn elected a committee of three from among their number. John Adams, who wrote most of the document and gave it its genius, led this committee. It is a work of beauty and inspiration. Like the Virginia Declaration of Rights and the Virginia Constitution, it fulfills in one place for the people of one state the purposes that the Declaration of Independence and the Constitution of the United States fulfill together for the American people.
As in Virginia, the Massachusetts Constitution begins with a statement of principle that echoes the Declaration:
The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquility their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.17
Article 1 continues:
All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.18
These are the themes, and almost the words, of the opening of the Declaration of Independence and also of the Virginia Declaration of Rights. And as with the Constitution of the United States and the Virginia Constitution, the Massachusetts Constitution proceeds to separate the powers of government; to build a bicameral legislature; to elect one branch from one kind of district, and another from another; and to increase the terms of office of the upper house to a longer duration. The judges are independent of the popular branches, and they serve during good behavior, which makes them independent also of the immediate opinions of the people themselves.
The Massachusetts Constitution, like the Virginia Constitution and the Constitution of the United States, uses elaborate devices to qualify the direct control of the people on the government. And yet precisely like the Virginia Declaration of Rights that precedes the Virginia Constitution, and precisely like the Declaration of Independence that precedes the Constitution of the United States, it names as its bedrock principle the equality of all human beings and their irreducible right to consent to the government under which they live.
Now we have three constitutions before us. One was made in Williamsburg for the people of Virginia. One was made in Boston for the people of Massachusetts. One was made in Philadelphia for the people of the United States. They all contain the same kinds of indirect, divided, and even competing grants of power. They all say they are built on the authority of the people, but they all restrain, qualify, and moderate the ability of the people to use that power. They all describe a government that is representative, limited, and separated in powers. It does not, therefore, seem to be an accident that these constitutions are written in the way that they are.
Moreover, the Virginia Constitution is contemporaneous with the Declaration of Independence. It is signed by some of the same people who signed the Declaration. The Virginia Declaration of Rights, passed at the same time as the Virginia Constitution, contains the same doctrine of rights and consent of the governed as the Declaration of Independence. Somehow then these rights that are named so gloriously in the Declaration of Independence inspire the very authors of that document and their friends to make, at the same time, constitutions that feature the same major devices that are suggested in the Declaration and are the hallmark of all constitutions in the Founding era.
It is time to ask, therefore, why these devices are necessary. Is it because the people cannot be trusted and some other body or group must be given the power to control or restrict what they do? Or is it rather that the people can be trusted in certain ways and not in others?
The answer is there to be found, and it is not so very hard to find. There is a clue in that curious Section XV of the Virginia Declaration of Rights, which says that the people must possess and exercise certain qualities in order to preserve free government and the blessings of liberty. There is another clue in Article III of the Massachusetts Constitution, which says that the “happiness of a people” and the “preservation of civil government essentially depend upon piety, religion, and morality.”19 Those who cannot control themselves, these clues suggest, cannot control their government. But to control oneself means that one part of oneself must be in control of another part. Which part might that be?
John Adams wrote the Massachusetts Constitution three years after the Declaration of Independence, but he wrote something a few weeks before the Declaration that reveals his mind on this matter. It is called “Thoughts on Government.” During the writing of this essay, he was working with all his heart to bring the Declaration of Independence to be. One might think, therefore, that at just this moment his chief thought would be about the principles of government. But the principles of government are not the only thing on the mind of Adams.
“Thoughts on Government” begins by saying that forms of government are important. Adams quotes (or slightly misquotes) a famous couplet of Alexander Pope: “[F]or forms of government let fools contest, / That which is best administered is best.”20 He then says of this couplet that Pope “flatters tyrants too much.”21 He means that tyrants could not, or could not easily, overcome some forms of government. Forms are powerful.
To know what form is best, Adams says that we must first study the purpose of government. He states that purpose twice, a little differently each time. First, he calls it happiness, which consists in “ease, comfort, security.”22 Then, based on certain higher authorities, he reformulates to say that happiness is virtue. This kind of happiness, he says, is higher than honor because honor is only a subset of it. Government, he says, must encourage virtue and also depends on it.
Adams argues, then, that republican, representative government, built on separation of powers, will be most likely to achieve happiness of the people, which includes their ease and comfort and their possession of virtue. And he writes, “The foundation of every government is some principle or passion in the minds of the people. The noblest principles and most generous affections in our nature then, have the fairest chance to support the noblest and most generous models of government.”23
To Adams, the city is the soul writ large. He quotes both classic and modern authors in this essay; he quotes authorities from revealed religion and from philosophy. He finds agreement among them on certain fundamental points. One of them is that the purpose of politics is the well-being, the good of the people. At the same time, politics depends on the well-being, the good of the people. It is not easy to be a good citizen in a bad country; it is not easy to have a good country full of bad citizens. The relationship makes a circle. What happens in the soul happens in the city, and what happens in the city happens in the soul.
This word virtue makes another circle. It comes from a classical word, meaning in the Latin “manliness,” “valor,” or “worth.” That Latin word for virtue comes then from another Latin word meaning “man.” The word for worthiness in a man and the word for man come from the same place. It sounds as if it might be redundant to say that a man is a “virtuous” man. If a man is a man, then he has, at least in some sense, the virtue of the man in him.
There is an old argument to explain this circularity. If you use that older root meaning of the term virtue, Adams might be saying that happiness in a man involves being a man, perhaps being fully a man, or perhaps being a good or a worthy man. We have discussed that word good already; it is full of rich meaning for organizing constitutions. Here let it be said that happiness, according to a classical argument known to all of the Founders we are discussing here, involves being the right kind of man, the kind that is most like a man or most fully a man. It seems then that a good political system would depend on, and also help to produce, goodness in its citizens.
We begin to form a picture now of certain grand requirements for constitutionalism. These requirements aim just as high as the purposes of government stated in the Declaration of Independence. These purposes are stated twice, first “to secure these rights,” meaning the unalienable rights with which we are endowed by our Creator. They are stated second to be “safety and happiness.” Rights (including all freedoms proper to man), safety, and happiness are the goods for which government aims. These goods depend on our practice of certain virtues. They depend therefore on the best things in us, and they depend on those best things being in control. In a government based on the will of the people, they depend on those qualities existing in all or in the great majority of the people, and they depend on those qualities being in control in all of the people or in the great majority of them. But we know that these qualities are not always in control, certainly not in all of us or in any of us all the time.
It stands to reason that no government can secure these elevated goods for any sustained period unless it is contrived in some excellent way. Very few governments in history have provided them for a sustained period. Moreover, no government, before the American government, had been based purely on the consent of the governed. To institute a constitution on this basis and to achieve these ends is a formidable task, an occasion of high hope and vast portent for the whole of mankind. Aware of this, Hamilton writes in the first Federalist:
It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.24
If we conceive the Founding of America as an artful act, then it stands to reason that it must have the attributes of artistic achievement. If we conceive it as a successful work of art, then its attributes of matter and form must be consonant with the purpose that calls forth the skill of the artist, and of course that skill must be advanced. Moreover, each component of success must be capable of contributing what it must for the work to be complete. We would not look then to the Constitution to contribute what was contributed by the Declaration. It has its own work.
The challenge of constitutionalism is to provide a form of government that will sustain effort in the direction of the proper end of government. It is not enough to proclaim the principles of government, even if those principles are inspiring and their proclamation vital. The Federalist begins with the assertion that popular government is nothing short of vital and also that it has never been fully accomplished. Here, he says, in this new nation, all the causes have come together to make an opportunity never seen before. Now at last the capacity of mankind to self-government can be vindicated. It would require a document of special quality to make that vindication.
This, argue the Framers of that document, is the quality of the Constitution of the United States. Let us see what they argue is special about it.