Grasping the nettle
We have personally witnessed conversations that went something like:
“Washington needs to do something about <X>.”
“The Constitution doesn’t give Washington the power to do anything about <X>.”
“The Constitution was written by a bunch of white slave-owning men, so I really don’t much care what the Constitution says.”
It would be difficult to find a way to compress more sloppy thinking and talking past each other into three sentences. Nevertheless, this is at the heart of a disheartening number of political exchanges nowadays. We will therefore risk giving it more analysis than some readers doubtless believe it deserves.
“Washington needs to do something about <X>.” Here <X> represents some perceived problem for which the first speaker wishes to find a remedy. It could be a pandemic, or rising crime rates, or wealth inequality, or potholes in the streets. There is nothing wrong with opening a political discussion with such a statement. However, two questions should immediately come to mind when one hears such a statement, and the person making the statement ought to be prepared to answer them:
1. Is <X> actually a problem? The first speaker very often assumes this is self-evident. But in an imperfect world, there are a great many suboptimal aspects to life, and, as social philosopher Thomas Sowell has written, there is a profound difference between solving problems and managing trade-offs. We do not deny that sometimes a real problem appears that is a reasonable target for fast action. The appearance of COVID-19 comes to mind. We also recognize that a trade-off can become unbalanced over time and need adjusting. But it is rare for a truly novel problem to appear out of the blue that requires immediate political solution. When we investigate, we find in almost every case that the problem has been around for a while, and that there are already mechanisms in place to mitigate its effects. We sometimes find that the problem is not even getting significantly worse, as measured by reasonably objective criteria.
2. Is <X> actually something falling within the competence of the government? Governments are not omnicompetent. For example, few now question that government should not resolve theological disputes. Nor do governments have unlimited resources, because the nations they govern do not have unlimited resources. To the Framers, the sole function of the federal government was to defend the rights of its citizens. State governments had more expansive powers, and it was appropriate for local governments to provide some public goods. A notable trend in American politics has been for the provision of public goods, once focused almost exclusively at the local government level, to gradually migrate to the state and federal levels. This may be defensible in some cases (we are unabashed supporters of the National Weather Service, for example) but not in most. And expansion of the role of the federal government into provision of things that are not public goods is almost impossible to defend by any textualist argument. We will revisit these topics again in future posts.
There is nonetheless a problem with the second speaker’s reply to the first speaker. It is not that it is wrong. It is that it is too legalistic.
A common fallacy, deployed routinely against proponents of constitutionally limited government, is that opposition to government action to mitigate a problem is the same as opposition to mitigating the problem. According to this fallacy, opponents of government welfare cannot possibly care about the poor. But we are strong advocates of charitable assistance to those who are disadvantaged, whether by accident of birth or by sheer bad luck. We should not hesitate to assist the children of the poor or to provide for a neighbor disabled by cancer. However, we oppose most federal programs for doing so, because we doubt the competence of the federal government — both in the legal sense that the Constitution gives the federal government no such authority, and in the the economic sense that we believe the federal government is ill-suited to do a good job of providing charity. We believe in a civil society that promotes voluntary association and the organization of numerous private institutions, including charitable institutions such as churches, that are suited to provide charitable assistance. And there is such a thing as life insurance, which has its roots in fraternal organizations where a member was expected to look out for the widow and orphan of a dead brother. We do not doubt these solutions are imperfect; but we believe perfect solutions are not an option in an imperfect world.
We quote Thomas Sowell:
“Eternal vigilance is the price of freedom.” We have heard that many times. What is also the price of freedom is the toleration of imperfections. If everything that is wrong with the world becomes a reason to turn more power over to some political savior, then freedom is going to erode away, while we are mindlessly repeating the catchwords of the hour, whether “change,” “universal health care” or “social justice.”
…
Let’s go back to square one. The universe was not made to our specifications. Nor were human beings. So there is nothing surprising in the fact that we are dissatisfied with many things at many times. The big question is whether we are prepared to follow any politician who claims to be able to “solve” our “problem.”
If we are, then there will be a never ending series of “solutions,” each causing new problems calling for still more “solutions.” That way lies a never-ending quest, costing ever increasing amounts of the taxpayers’ money and — more important — ever greater losses of your freedom to live your own life as you see fit, rather than as presumptuous elites dictate.
Ultimately, our choice is to give up Utopian quests or give up our freedom. This has been recognized for centuries by some, but many others have not yet faced that reality, even today. If you think government should “do something”…
But it is a lot of work to explain all that, and the first speaker may not be much interested in listening. And with the first speaker’s rejoinder to the second speaker’s reply, all logic and good faith is left behind.
Had the first speaker rejoined that the Constitution needed to be amended to give the federal government the power to fix <X>, then we might have the basis for a decent political discussion. For example, the Constitution gives the federal government no power to manage pandemics. We think a good case can be made that it should have that power, and we would support a well-crafted constitutional amendment legitimizing the Centers for Disease Control. Meanwhile we are disinclined to waste political capital trying to disband the CDC. But it would be nice to put a proper constitutional imprimatur on its activities.
But the second speaker does not call for amending the Constitution to give the federal government responsibility to deal with <X>. Instead, the speaker tries to delegitimize Constitutional barriers to the federal government dealing with <X> by delegitimizing the Constitution itself. And the basis for that delegitimization is an ad hominem.
There are a number of ways to address an ad hominem argument. The most direct is to point out that the moral qualities of a thinker are utterly irrelevant to the quality of his thoughts. Put another way, if it were discovered that Pythagoras was a pederast, it would not change the correctness of the Pythagorean Theorem in the slightest. If the Constitution is the supreme law of the land, enjoying legitimacy both from its original ratification, its subsequent lawful amendment, and its continued support by most citizens, then the failings of Hamilton, Madison, and Jay are simply not relevant.
But, of course, the Constitution is not a mathematical theorem, and its legitimacy does not lie in formal proof. Its legitimacy rests on the respect it is given by the body of citizens. And, while that respect should be founded on the Constitution itself being good, rather than its Framers being great men, the fact is that a great number of citizens either are not actually familiar with the Constitution, or are not textualists and regard the Constitution as being something other than a legal document. There seems no alternative to grasping the nettle and addressing the argument that the Constitution cannot be good because some of its framers were slaveholders.
Our argument will consist of three points: 1. The Framers were not all slaveholders, and those who were were not like the “fire eaters” who brought the country to civil war nor like those few who still seek to perpetuate slavery today; 2. The Constitution uncomfortably accommodated some federal aspects of slavery, but by no means ratified it; and 3. The post-Civil War amendments turned it into a Constitution that emphatically rejected slavery.
Hamilton owned no slaves and Jay was an abolitionist. Yet, together with Madison, these men were the strongest advocates for the new Constitution. Jay certainly did not see the Constitution as extending the scope of slavery. And some of the strongest opponents of the Constitution, such as Patrick Henry, were slaveholders. The status of slavery was not seen as a significant issue during ratification, because the Constitution was rightly seen as deferring that question for later resolution.
Many Southern slaveholders believed slavery was an institution that should be ended — including George Washington, Thomas Jefferson, and Patrick Henry. The Framers could not anticipate the invention of the cotton gin and the explosion of the worldwide market for Southern cotton. This breathed new life into slavery in a way that could not have been foreseen. Human nature being what it is, this led to the development of a moral philosophy in the South that justified slavery — after the Constitution was framed and ratified, and, ultimately, in opposition to it. It was not the North that abandoned the Constitution when the division over slavery became unbearable; it was the slave states of the South.
No Constitution calling for an immediate end to slavery would have been ratified in 1787. We recognize that pragmatic political arguments of this kind may seem repugnant, especially on an issue on which the moral consensus is today so nearly universal. Likewise, in our progressive era, it is sometimes difficult to make the argument that humans should be judged in the context of their time and culture. Nevertheless, we must speak against temporal and cultural chauvinism. We seriously doubt many of the critics of the character of the Founders would have done any better had they been born into their culture. The lessons of history are painfully bought and we believe a certain respect should be shown those who paid that price. We ought not to think ourselves better than Benjamin Franklin because we have a theory of relativity and he did not. We should not even think Einstein a better scientist than Newton because Einstein had a theory of relativity and Newton did not. Newton himself understood that the accomplishments of today are built on the accomplishments of yesterday, as he wrote to Robert Hooke in 1676: “If I have seen further it is by standing on ye sholders of Giants.” If Lincoln saw further than Madison, it is because he stood on Madison’s shoulders.
The Framers did the best that was humanly possible at the time and under the circumstances in which they found themselves. The Constitution they ratified never used the word “slave” or “slavery”, and only three sections bear implicitly on slavery. The federal government was empowered to end the slave trade in 1808, and did so. The slave states were permitted to count each slave as three-fifths of a person for purposes of apportioning of representatives in Congress. The free states were forbidden to give sanctuary to fugitive slaves.
The end to the slave trade is unobjectionable, unless one objects that the Constitution should have ended the slave trade sooner. The three-fifths clause was the kind of compromise that is inevitable in representative government. The free states would have preferred to omit slaves entirely from the calculation of apportionment. The slave states wanted them counted as if they were free persons. Oddly, some modern activists have tried to condemn the three-fifths formula on the grounds that it only counted a slave as three-fifths of a person; would these activists really have preferred for the slave states to have the greater political power that would have come from counting them as whole persons?
But the fugitive slave laws were the most obnoxious, and were a major cause of the subsequent civil war. The conclusion of that war made possible the adoption of the Reconstruction amendments, which emphatically ended slavery and sought to protect the rights of freedmen. With their adoption, the Constitution became what it remains today — a profoundly antislavery and anti-racist Constitution. That the southern states of the Jim Crow era worked diligently to find ways around the Constitution, as amended, does not change that fact. The end of Jim Crow did not require additional amendments; only a willingness to enforce what the Constitution already said.