by Jeff Polet
Too often we are inclined to attribute our Constitution and its subsequent success — we should not forget that its 236 year continuing legitimacy is one of the great accomplishments of the modern world — to the genius of the particular set of thinkers and statesmen who gathered in Philadelphia in the summer of 1787. No doubt, it was an exceptional moment not only in American history but in Western history, but they didn’t create the document out of whole cloth. There were hundreds of years of trial and error that went into the creation of the document. We can trace the idea of Constitution-making to Aristotle, and it became a central feature of Medieval and Renaissance political thought. In the colonial period, many of the nascent states wrote new Constitutions, thus preparing delegates for the enormous task they faced in Philadelphia.
Imagine what it would be like if Americans today decided to trash the current Constitution and create a new one. I think such a convention would never be successful, especially if delegates and voters never familiarized themselves with the nature and structure of Constitutions. Nor are we inclined to digest history’s hard lessons, and our partisanship and ideas of the future would distort the process. A Constitution is always an effort to find that sweet spot between past and future, and a nation possessed of dreamy views of the future and dismissive views of the past would not be up to the task.
One of the important forerunners to the Constitutional Convention was a document we know as The Essex Result. In 1778 the Massachusetts legislature submitted to a plebiscite a new constitution. Citizens of twelve separate towns convened to review and ultimately to reject the proposed constitution, but what makes The Essex Result significant was the reasoning behind the no vote.
It would be worth going through the document point by point, which would tax the reader’s patience, but I want to draw attention to the first thing the authors say, apropos my point mentioned above, which is that the politics of the state were at that time not stable enough to allow for the making of a new Constitution, and that tells us something about political life. Sometimes our talk about perfect equality and perfect justice gets us too far over our skis. We have to get the basics right before we can discuss more advanced features of a political regime — and the most basic rule of politics is the creation and maintenance of order.
But the demand for order can quickly devolve into tyranny. Unlike the Philadelphia Convention, which presented a document without a Bill of Rights, The Essex Result insisted that no constitution could be passed that did not have one. The whole idea of rights has a fascinating history, but clearly the Americans were deeply influenced by the English Bill of Rights from 1689. Just as clearly they believed we had these rights by nature, and that they provided sanction against tyranny.
“All men are born equally free. The rights they possess at their births are equal, and of the same kind. Some of those rights are alienable, and may be parted with for an equivalent. Others are unalienable and inherent, and of that importance, that no equivalent can be received in exchange.”
Another important feature involves the distribution of power among government functions. First, “the executive power in any State, ought not to have any share or voice in the legislative power in framing the laws, and therefore, that the second article of the Constitution is liable to exception.” Madison would later describe the blending of executive and legislative power as “the very definition of tyranny.” Second, the document deals extensively with the problem of representation. Because we are used to the ways our system manages political representation, we take it to be almost in the nature of things. We forget that in many ways representation as we understand it was at that time a relatively novel idea, and political thinkers and actors were in the process of figuring out how it should work. Convinced they had made advances in the whole science of representation, Hamilton would borrow on these developments. In Federalist #9 he wrote:
The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times.
He clearly implicates The Essex Result here.
One of the most significant features of the Essex Result is its emphasis on political deliberation, an emphasis I think we would do well to reflect on. “Deliberate” has two ways of being pronounced, but also has two, albeit related, meanings. The word gets its meaning from Latin roots meaning “to weigh in the balance” but also means “careful consideration” or “to move slowly.” Thus we might deliberate with all deliberate speed. We tend to approach politics with our feet on the accelerator at all times. We do very little braking. In politics, the quick solution is almost always the wrong one. The authors remind us of the value of patience.
When they considered of what vast consequence, the forming of a Constitution is to the members of this State, the length of time that is necessary to canvass and digest any proposed plan of government, before the establishment of it, and the consummate coolness, and solemn deliberation which should attend, not only those gentlemen who have, reposed in them, the important trust of delineating the several lines in which the various powers of government are to move, but also all those, who are to form an opinion of the execution of that trust, your committee must be excused when they express a surprise and regret, that so short a time is allowed the freemen inhabiting the territory of the Massachusetts-Bay, to revise and comprehend the form of government proposed to them by the convention of this State, to compare it with those principles on which every free government ought to be founded, and to ascertain it's conformity or non-conformity thereto. All this is necessary to be done, before a true opinion of it's merit or demerit can be formed.
From time to time Americans like quoting Ben Franklin’s adage that “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” It’s typically misunderstood, because the operative words are “essential” and “little temporary.” The whole liberal project of rights-based individualism is built on the idea that we are trading off some of our natural rights for good governance, with close attention to the conditions under which such negotiation takes place. The authors of the Essex Result remind us:
The reason and understanding of mankind, as well as the experience of all ages, confirm the truth of this proposition, that the benefits resulting to individuals from a free government, conduce much more to their happiness, than the retaining of all their natural rights in a state of nature. These benefits are greater or less, as the form of government, and the mode of exercising the supreme power of the State, are more or less conformable to those principles of equal impartial liberty, which is the property of all men from their birth as the gift of their Creator, compared with the manners and genius of the people, their occupations, customs, modes of thinking, situation, extent of country, and numbers. If the constitution and form of government are wholly repugnant to those principles, wretched are the subjects of that State.
In what I think is the most interesting passage in The Essex Result, the authors draw attention to the necessity of morality and the insistence that only when the good of the whole requires it may individual rights be trimmed, but they also argue that has to involve the individual surrendering (voluntarily?) his rights.
When men form themselves into society, and erect a body politic or State, they are to be considered as one moral whole, which is in possession of the supreme power of the State. This supreme power is composed of the powers of each individual collected together, and VOLUNTARILY parted with by him. No individual, in this case, parts with his unalienable rights, the supreme power therefore cannot controul them. Each individual also surrenders the power of controuling his natural alienable rights, ONLY WHEN THE GOOD OF THE WHOLE REQUIRES it.
Part of what makes politics so difficult, as we well know, is this constant balancing of individual rights with the good of the whole, particularly when groups assume what is good for them is good for the whole. But not only that: how can we successfully navigate competing conceptions of what is moral without having such disagreements devolve into violence? In that sense, The Essex Result provides us with the useful reminder that we need to back off ordinary politics when we are failing at basic ordering principles. When an athlete struggles at the game, the only solution is the return to fundamentals. There can be so much accretion of habit over and against these fundamentals that they can be difficult to recover (which is why good coaches drill the fundamentals endlessly).
The fundamentals are difficult to learn in the first place, but even harder to recover once lost. It is “an arduous task, not to be compassed perhaps by any human powers.” What is required are the right kinds of persons to attempt the task. We need people of high moral character and deep learning of history.
The man who alone undertakes to form a constitution, ought to be an unimpassioned being; one enlightened mind; biassed neither by the lust of power, the allurements of pleasure, nor the glitter of wealth; perfectly acquainted with all the alienable and unalienable rights of mankind; possessed of this grand truth, that all men are born equally free, and that no man ought to surrender any part of his natural rights, without receiving the greatest possible equivalent; and influenced by the impartial principles of rectitude and justice, without partiality for, or prejudice against the interest or professions of any individuals or class of men. He ought also to be master of the histories of all the empires and states which are now existing, and all those which have figured in antiquity, and thereby able to collect and blend their respective excellencies, and avoid those defects which experience hath pointed out.
- The Declaration of Independence states that our rights are “inalienable,” yet the Essex Result suggests that we have to accept some restrictions on our rights in order to enjoy the security of civic life. Are these claims contradictory?
- How do the standards of history instruction affect a democratic polity? Do we carefully examine the “respective excellencies” of different regimes, or are we too focused on defects?
- How is “the good of the whole” to be determined? What extent of agreement among citizens do you need for such a determination, or is that determination to be made only by one who is “an unimpassioned being”? Put another way: to what degree must self-interest be put aside in order to make a republic work? How does self-deception play into that?