Owens Rhetoric

In the Fury of Democracy post a couple down, I wondered about the difference between an aristocratic, old wealth versus a meritocratic view of the national leader class.  A few pages after those that prompted that question, Professor Ferling gave me a word for the former: squirearchy.

And this latest section of Ferling’s A Leap in the Dark prompts another, similar question: which is the more egalitarian, Hamilton’s vision of an industrial, merchant society, or Jefferson’s collection of minimally governed self-sustaining yeomen?

One can make the case for each.  A commercial society is (kindof)  inherently egalitarian, profits are status-blind, and so on.  Self-sufficient farms are egalitarian in the sense that they allow a family to live largely off the social-status grid; one need not be connected to grow sweet potatoes.  And they are, from Ferling, “uncorrupted by the snares of capital.”

For the cons of each, here is Ferling:

Jefferson foresaw, correctly, that the world Hamilton wished to create would consist of considerable pain, including widespread exploitation of white workers, among them very young children, unspeakable urban squalor, and the emergence of a commercial and industrial plutocracy that would ravage the promise of individual liberty that had been the cornerstone of the republican ideology of the American Revolution.  However, the world that Jefferson hoped to sustain was not without pain.  It included abused slaves, who lived without hope under the most abominable circumstances, and many free persons who eked out a living from timeworn lands while paying homage to a squirearchy that monopolized political power.

In any event, it strikes me as a good American History exam question: the respective visions of Hamilton vs Jefferson, which is the more egalitarian?

So you think Griswold taught judicial reviewers to read between the lines?  It seems, rather, to’ve been Demosthenes.

Textualists, intentionalists, and spiritualists (of the law) have long debated how we ought apply the lines of our Constitution and statues to specific cases.  Can we, for instance, infer a basic privacy right from the first ten amendments.

Here’s a glimpse of our American debate, via an exchange at the Ashbrook Center:

Peter W. Schramm: Another question. Justice Thomas, could you comment on the reasoning of Griswald, and tell us what you believe it could lead to in terms of the expansion of privacy rights?

Justice Thomas: Griswald has been around a long time. I will comment on it only to this extent. Of course you know that there the rights were supposedly emanated from these penumbras. So when I got to the court, a friend of mine, who will remain nameless, sent me a custom made sign that’s on display in my office that says, “Please do not emanate into the penumbra.” And I’ve tried to steadfastly avoid doing that.

I don’t know what it would lead to. I think that the scholars have reached different conclusions, but we of course know that that was one of the precursor decisions for Roe v. Wade. And of course, we’ve changed that reasoning a bit inCasey. But we’re already beginning to get, and I’m just talking about a class of cases–I’m moving a little bit away from privacy a second–we’re already beginning to get the reliance in the right to die cases, on some of those cases, certainly on Casey, and language in Casey. So I think you can begin to see that the big cases, and I’ve said this to others, that you’re going to begin to see, I think, some cases now talking about who gets to live, who gets to die, who gets to be born and all sorts of things like that. And that’s going to be hard, and I think they’re going to rely on some of these precursor cases. And how we come out, I don’t know.

So it was neat tonight to read Adriaan Lanni’s article on judicial review in ancient Athens.  The article describes the legal arguments that Athenians made against newly passed decrees and laws.  Mostly, the arguments used two lines of reasoning – (1) the law’s inception violated the process through which laws are supposed to come about; and (2) the law directly violates a previous law.  But then there was this:

Wolff’s landmark study, “Normenkontrolle” und Gesetzesbegriff in der attischen Demokratie, added a third category of legal argument: the statute under review contravened general principles that could be logically derived from existing statutes, as opposed to directly contradicting a specific provision.  Wolff viewed this third category of argument as most central to Athenian notions of constitutionality, and carefully traced the Athenians’ increasing sophistication at extracting fundamental principles from statutes over time. Two additional aspects of Wolff’s theory are important for our purposes: first, the fundamental principles involve moral and social values and institutions … as well as democratic political and legal norms … and, second, the general principles are always derived from statutes and are never appealed to as independent, abstract values.

A few Federalist essays have described a benefit to the scope of federal elections; in quick summation: with a nation-wide pool of candidates free from local squabbles, the very best policy and governance thinkers will rise to federal office.  (Each Publius has offered the argument; Jay in F3, Madison in F10, and Hamilton in F27.)  It has been, on my first impression, a meritocracy argument. And it is, tonally, a very different argument for national leadership than another theme that Professor Ferling describes in A Leap in the Dark. In the chapters covering the Articles of Confederation and the Constitutional convention, Ferling describes the creeping fear – buyer’s remorse? – that the Nation may swing from one problematic pole (monarchy) to another (hasty democracy). Ferling describes the eagerness of many delegates “to limit democratic impulses.”

I always think it’s worth remembering the neoclassicism flowering at the end of the Enlightenment; and, more importantly, really, the historiographical context. Then, as now, students of Greek history learned that while, yes, Athenian democracy was an important human development, the institution ultimately brought Athens down because the demos couldn’t govern. By the time I reached college, the story was that the voting poloi’s livelihoods relied overwhelmingly on war – so they voted for war all the time. And they voted myopically. And with blinders. The point being, the masses were not good at governing. Our Founders had basically the same understanding of that history, which reinforced a general notion that you don’t want straight democracy.

And so, this different theme regarding the makeup of the national leader class has a slightly different feel than meritocracy. Ferling writes that most founders, forgetting that they were upstarts by Londond’s standards, regarded the post-war Congress as a bunch of scrubs, elected by unthinking populist-driven localities. I actually think Sarah Palin may be a bit of an analogy.

Also, it was interesting to read about that fear now, during the Great Recession. The policies passing through state governments, so fear-provoking to several founders, sometimes resulted in creditors losing their claim to money because of debtor-friendly relief laws. Shay’s Rebellion started as a foreclosure protest. The big deal, among nationalists startled by these developments, was the need for a federal government that could protect property. The states, they felt, were unable to stand up for property rights (of creditors and land owners) against popular sentiment for debt-relief and redistributionists.

Ferling offers a few quotes:

“Our chief danger arises from the democratic parts of our constitutions.”

The “people … should have as little to do as may be be about the Government.”

The “evils we experience flow from the excess of democracy.”

Randolph urged checks against “the turbulence and follies of democracy” and maintained that ways must be found to restrain “the fury of democracy.”

The Constitution “embraced what Madison subsequently called the ‘republican remedy’ against radical change.” The factions (F10) would prevent any hasty, democratic policy-making. Here is Ferling:

Indeed, Madison boasted proudly that the system would “refine and enlarge the public views,” resulting in national policies “more consonent to the public good than if pronouced by the people themselves.”

…But somewhat cryptically he also explained why this new national government would not be susceptible to the sort of substantive changes that had occurred in several states. Few of the “new men” so visible in state politics, Madison said, were likely to rise to this higher level. The “vicious arts by which elections are too often carried” in the states would be unavailing in the national electoral systems by this convention. …National officials would be “a better class” of society….Madison’s communication, first to the majority that attended the convention, then to like-minded nationalists throughout the county, was that the way had been found by which to make radical change difficult, if not impossible. Change at the state level would be impeded by the national government. At the national level, the separation of powers and numerous checks and balances erected within the proposed new constitutional system were to constitute purposeful barriers to change. …If this Constitution went into effect, the “changeableness” that had been set afoot by the American Revolution would henceforth be unlikely or, at best, would occur at a glacial pace.

Fewer of the “new men” would rise to national leadership. In the context of these few quotes, that fear of the new man is a much different driver, regarding national leadership, than the big pool, meritocracy driver.

A meritocracy implies an egalitarian playing field and one in which particular talents are recognized with all other things being equal. The bigger the net, the better chance of finding the right fish. There is something quite different to the notion that we need national leaders to keep a status quo.

I cannot help but think of Hamilton and Madison. Hamilton, a foreign bastard, could become a national leader because of meritocracy. Madison, the wonk-gentleman, typifies the landed interests prominent among most other founders.

They both predict, in their Federalist essays, a finer breed of national leaders. But, I wonder if their assumptions and motivations for that leadership were quite unalike.

I finally got around to reading through the religion-of-the-founders article that’s been showing up in the top emailed NY Times section the past week or so. It’s good, but disjointed. The general outline is this: the Texas State Board of Education yields a lot of influence on national school policy – specifically, textbook publishers. Thus, Texas education policy is generally in the eye of whatever culture wars are going on in education curricula at a given time. Lately, and in focus for this article, has been the battle over the extent to which the Nation’s founders were Christian and, far less tangibly but nevertheless ultimately, the extent to which this is a Christian Nation. (That, by the way, the article has been up top in the emailed list for a while gives some heft to the notion that the issue is, indeed, culturally significant.)

That last bit is where the article purports to marinate, before returning us back to Texan education policy. And I was looking forward to some interesting historiography as the in-depth section kicked off with:

There is, however, one slightly awkward issue for hard-core secularists who would combat what they see as a Christian whitewashing of American history: the Christian activists have a certain amount of history on their side.

But the article didn’t give us too much more than a casual reader of American history already knows. The colonies were largely, and often officially, Christian. The folks that found themselves within the Continental Congresses were, for the most part, Christians. There were also several that manifested the Enlightenment detachment from Christian specificity, particularly the need to be saved via Jesus. The Declaration of Independence asserts that the Creator grants basic human rights. The Constitution does not mention that Creator. And all that comes back to this:

As Frances FitzGerald showed in her groundbreaking 1979 book “America Revised,” if there is one thing to be said about American-history textbooks through the ages it is that the narrative of the past is consistently reshaped by present-day forces. Maybe the most striking thing about current history textbooks is that they have lost a controlling narrative. America is no longer portrayed as one thing, one people, but rather a hodgepodge of issues and minorities, forces and struggles. If it were possible to cast the concerns of the Christian conservatives into secular terms, it might be said that they find this lack of a through line and purpose to be disturbing and dangerous. Many others do as well, of course. But the Christians have an answer.

Their answer is rather specific. Merely weaving important religious trends and events into the narrative of American history is not what the Christian bloc on the Texas board has pushed for in revising its guidelines. Many of the points that have been incorporated into the guidelines or that have been advanced by board members and their expert advisers slant toward portraying America as having a divinely preordained mission.

I didn’t feel like the conversations about religion, history, nor education were very much improved by the article; in sum, it seemed very much in the familiar pattern of some people say this and other say that. The article failed to ask the questions that lay hanging over the entire debate presented within it, namely: what would it mean to be a “Christian Nation” (what goal do these folks have in mind); is the Declaration of Independence a foundational document of the US government or does it, in a more limited way, simply shed light on statutory (and Constitution-atory) intent; and to what degree would the Texas School Board folks desire that schools proselytize?

The story prompts those questions; and to be fair, it is likely purposefully limited to politics. But these types of stories are worthwhile if can engage on the foundational issues and assumptions.

I would have enjoyed something a bit more searching; perhaps I still lean overly much to the type of treatment to these questions I found in Jacob Needleman’s The American Soul. Now, that’s a good read – but he had an entire book, so perhaps I’m being a bit unfair.

Heads up – I’m reading John Ferling’s A Leap in the Dark.  So far, it’s a great read.  The book covers American history approximately between 1750 and 1800; I wanted it mainly for more context with our Federalist project.  But I doubt I’ll write much more about this one on the forest scale; rather, I want to climb the occasional tree.

Yesterday, happily snowed home, I read about the first Continental Congress’s debates while drafting a note to the King.  Questions, wrote Ferling, “over the colonists’ rights has stirred a firefight.”

The radicals in the committee insisted that Americans had derived their rights from nature; two years later this would become the now familiar “truth” that “all men are … endowed by their Creator with certain inalienable rights.”  Conservatives argued that the rights enjoyed by the colonists had been bestowed by the English constitution and the colonial charters.  The differences were resolved by a compromise.  The eventual Statement of Rights and Grievances listed all three as sources of the rights of colonists.

(p120)

It the great old question, and always worth considering.  Do we, with Locke, believe that a human being possesses rights upon birth, regardless of the amount of and type of society and government the human pops out into?  Or, chuckling with Bentham, is that a bunch of nonsense on stilts?

It occurs to me the the word “rights” has no meaning without a society to define it.  And there are no “rights” without a government to set them apart for protection.  But, in governments such as ours, we identify rights by looking into the inalienable world of natural law.  So, government creates rights, but does so by looking for rights that government is powerless to create.  Sounds like a koan.

We’ve been thinking and talking about this Atlantic article on teaching lately.  Thought I’d pass it along.

it’s a hard, it’s a hard,it’s a hard,it’s a hard…

it’s a hard snow’s, gonna fall