I talk about James Madison all the time, so I appreciate and strongly agree with Ed Kilgore's point today: We shouldn't idolize the Framers.
Kilgore is responding to a column by E.J. Dionne that calls for liberals to fight to reclaim the Constitution from self-styled “constitutional conservatives.” Kilgore is right. The Constitution is no more a formula for social democracy (or whatever liberals want) than it is for a libertarian paradise. To the extent that it works (and it works extraordinarily well), then it’s appropriate to praise those who wrote it. But that’s all. We should use the Constitution with eyes wide open, aware of its problems and limitations.
That’s true regardless of of whether we believe “originalist” interpretations of the Constitution should be binding for us. To take one basic one: the Senate is malapportioned, for no good reason, and there’s nothing anyone can do about it. But it’s perfectly fine to deplore the Senate's flaws and still like the Constitution as a whole and admire those who wrote it.
When it comes to our views of the Framers and the Constitution, there are a lot of judgments to keep separate. Begin with our views of the Framers, individually and collectively, as political actors. Then add how we feel about them as political theorists. Next are our views of what the Constitution of 1787 said and meant, and then our views of what the Constitution of 2014 says and means (given that even the strictest originalist must include the Amendments). And our views of what democracy really is, and what the Constitution does or doesn't do to fulfill it. We also should be careful not to conflate what we believe the Constitution allows with what policy choices would be best.
There’s nothing wrong with using these separate things to inform one another -- by consulting Madison, for example, to develop our own views on democracy. We get in trouble when we look for a straight line: Madison thought such-and-such, so that‘s what the Constitution meant then, which is unalterably what the Constitution means now, which tells us what policies we should follow.
More broadly, I’m no fan of any outcome-based justifications for democracy. That is, democracy isn’t a good system because it produces policy outcomes we like, or because it makes winners of groups we want to win. Democracy, self-government, involves giving everyone the ability to do politics, and that means the outcomes are unpredictable because politics is inherently unpredictable. So neither conservatives nor liberals nor anyone else should support democracy because they believe it will yield the policy results they want. Nor should anyone assume that a system that produces policy outcomes they oppose must be less democratic than one that produces outcomes they support.
The Framers were brilliant, and deserve praise. But inserting them into today’s policy fights, or even ideological fights, is a mug’s game. The fight over who owns the Constitution is fundamentally flawed. It either belongs to every citizen, or to no one.
To contact the writer of this article: Jonathan Bernstein at Jbernstein62@bloomberg.net.
To contact the editor responsible for this article: Max Berley at firstname.lastname@example.org.