Balkinization: An Argument Open to All: An Interview with Sanford Levinson

An Argument Open to All: An Interview with Sanford Levinson

I recently spoke with Sanford Levinson about his new book, An Argument Open to All: Reading The Federalist in the Twenty First Century.

JB: Your last two books were on constitutional structure. Why did you decide to a series of commentaries on the essays in The Federalist?

SL: Framed spent quite a few pages on specific Federalist essays with regard to their justifications for the institutional structures I was discussing. A central question in my book was whether we in the 21^st century agreed or disagreed with the arguments put forth by Publius (though in that book I referred to the “real” author of the essay in question, unlike my strategy in An Argument Open to All). In any event, I realized two things: I really hadn’t carefully read The Federalist in years, probably since I was in graduate school, save for some chestnuts like Federalist 10 and 78, and, more importantly, that the essays as a whole were a lot more interesting than I had thought they were. So I was interested to see if that was in fact true of each and every one of the 85 essays. And the answer, at least to my satisfaction, is that each one does have something of genuine interest to a 21^st century reader, independent of the question of agreement or disagreement.

JB: You've been outspoken in calling for a new constitutional convention, or at the very least, a series of new constitutional amendments. But you've written a book on the most famous advertisement for our present constitution. Do you think that The Federalist supports your views on the need for constitutional reform?

SL: Sure! The two most important essays in this regard are Nos. 1 and 14. The very first essay sets out what I consider to be the most important question of our time: Do we really believe that our fellow citizens are capable of sufficient “reflection and choice” about essential matters of governance that we should trust their decisions? Publius says yes. Whether or not the actual author, Hamilton, believed this is irrelevant to me. And in Federalist 14, Publius emphasizes the importance of learning from experience and rejecting “tradition” and “names” (i.e., arguments from authority, including the authority, presumably, of “The Framers”) in favor of thinking for ourselves. Again, if we believe this, we should be more receptive to the idea of holding a convention that would in fact subject the Constitution to rational scrutiny. The central problem, I am convinced, is that most Americans—and I’m tempted to say especially those who consider themselves “liberals,” “progressives,” of “leftists”—are scared to death of their fellow citizens and most certainly do not believe they have the capacity to engage in intelligent discussion of our constitutional order. That may be true, of course, but if it is, democracy—and not merely the prospects for a new convention—is doomed.

JB: What most surprised you about The Federalist in writing your commentary?

SL: How much there is to disturb both contemporary conservatives and liberals. The Federalist, especially No. 10, surely the most widely-read of the 85, is an unrelenting attack on local government and autonomy. The smaller the governmental unit, the more likely the capure by factions. The opponents of the Constitution who accused its supporters of advocating a “consolidated government” were, by and large, absolutely right. The Federalist Society should explain that the Madison they use as their logo is the Madison of 1798 and most certainly not the co-author of The Federalist. On the other hand, contemporary liberals concerned about what you and I have called the “national security” and “national surveillance” states should realize that Publius was obsessed with threats to America’s survival and, especially in Nos. 40 and 41, but in other essays as well, basically endorsed unlimited national power to do whatever necessary to meet such threats. Of course, one can say, as I assume both of us would, that Republicans greatly over-emphasize the nature of the threats posed to American security by the international system today, but that is, in some way, to beg the question. I.e., to what extent are we willing to accept the proposition that in times of existential threat, the law really should be silent?

JB: Why did you treat Publius as one person rather than as three people? Did you come away from your book with a different sense of any of the three authors behind the pseudonym?

SL: I really am concerned only with whether or not these essays from long ago do (or should) engage us today when we grapple with issues of constitutional design or the overall project of constitutional government. (Note, incidentally, that I don’t say “constitutional interpretation.” As a matter of fact, I think there is astonishingly little in the 85 essays that is really useful to practicing lawyers trying to figure out the meaning of debated clauses.) Why does it matter who wrote the essays? And, inevitably, if I had referred to the actual authors, I would have had to address the “sincerity” question, since it’s crystal clear that some of the specific arguments are in tension with what Hamilton and Madison had said in Philadelphia or would go on to say when the new government got up and running.

I suppose my principal “different sense” is that with regard to the issues raised in my last answer, there is remarkably little difference between Hamilton and Madison on the subordination of legal niceties to the “exigencies” of the situation.

JB: Most law students read only a few of the essays in The Federalist. What parts of The Federalist are most relevant today that people don't pay enough attention to? What parts do you think are least relevant today?

SL: I have discovered, while teaching these materials at Harvard and giving a lecture at Chicago, that very few law students have read many of the essays. I take this as evidence that almost no history or political science courses, even at the elite schools from which Harvard and Chicago draw their students, bother any longer to assign more than a very few of the essays. If any are assigned, they are likely to be ##10, 47, 51, and 78. I think this is a shame. For starters, I would certainly assign ##1, 2, 6, 14, 15, 17, 23, 37, 40, 41, 46, 49, and almost all of the essays on executive power, including the veto and the pardoning power. All are relevant in quite different ways. I’ve already mentioned Federalist 1. Federalist 2, built around a preposterous notion that there was a singular homogeneous American people in 1787, offers a vital entry-point into the debates today about immigration, multiculturalism, and diversity. Nos. 40-41, as already mentioned, offer real challenges to anyone inclined to read Publius as an unabashed admirer of “the rule of law” in times of emergency. Even some truly esoteric essays on ancient and medieval confederations (##18-20) are altogether relevant to thinking about the tensions facing Europe today, inasmuch as the EU is, at bottom, a mere “confederation” and not a US-style consolidated government. Those essays are full of shrewd points on why no “confederation,” including the US under the Articles of Confederation, can really be effective. And I have become especially fond, in a way, of Federalist 11 inasmuch as it explains why countries like China and Iran are altogether rational in trying to build a strong military to defend themselves against would-be hegemons that are certainly unfriendly to their desires to play a stronger role in the international political-military order.

The fact is that Hamilton, Madison, and Jay were unusually able political thinkers and masters of the rhetorical arts, and each of their essays, if read carefully, can easily generate productive discussions even today.

JB: Americans like to emphasize the greatness of The Federalist as a work of political and constitutional theory, and recommend it to people in other countries. For some time now you've been teaching courses on comparative constitutional design. Do you think other countries have something to learn from The Federalist? If so, what parts?

SL: I think they do have something to learn, but, as I’ve already suggested, it might not always be what the State Department intends when it sends copies abroad. I think that Publius writes from what we might regard as a basically Hobbesian-Machiavellian perspective, even though, interestingly enough, neither of these great political thinkers is ever mentioned. But I think one message is that in the absence of a strong world government or the kind of “natural protection” that it was thought, at the time, was provided by the Atlantic Ocean, any country has to mobilize and even, in some sense, adopt a militaristic culture. One of the most fascinating essays is No. 8, in which Publius inveighs against such cultures, which he sees as inevitable should the thirteen states not united behind the new Constitution and instead establish two or three separate countries that would constantly be fighting one another.

JB: Lawyers and judges love to cite The Federalist, and as Frank Cross notes, the number of citations to The Federalist in the Supreme Court started to explode during the Warren Court era. How important is The Federalist to contemporary constitutional interpretation?

SL: I think it would be interesting to look at precisely which of the Federalists are cited. Anthony Kennedy loves to cite one or another of the very few sentences that offer any real succor to federalism fans like himself. To my knowledge, he’s never acknowledged the arguments in Federalist 10 about states being dens of factional iniquity. And, of course, there’s also citation by fans of executive power of the ostensible advantages set out in Federalist 70 and elsewhere about the energetic lone executive. I’m not sure, though, whether you’re asking an empirical or a normative question. That is, I think that The Federalist is, descriptively, more important than it should be to Supreme Court judges who like to mine it for support for their own pre-ordained positions. They give wildly undue importance to the essays, which is, I suppose, not surprising inasmuch as none of them is at all a trained historian with an appreciation for the genuine range of views that were contending with one another at the time. And they pay no attention to the fact, for example, that the first Congress rejected Publius’s assurances that Congress would play an important role in the removal of cabinet officials or, something that I find especially interesting, that John Marshall in McCulloch swept aside the argument in Federalist 33 that the inevitable tensions that would arise vis-à-vis concurrent taxing authority would be handled politically rather than treated as issues to be decided by judges.

So it should be clear that my hope that more attention will be paid to The Federalist (and, by the way, to my book) has nothing to do with their instrumental usefulness in constitutional interpretation as that subject is defined in the contemporary legal academy.

Posted 8:30 AM by JB [link]