“If our halls of power are rife with mini Aaron Burrs, what does that say about us?”
Democracy is grounded in a great moral truth: the equal dignity of humankind. There was a whole lot of intellectual legwork that preceded Thomas Jefferson’s penning of that truth in the preamble to the Declaration of Independence. Nowadays, we do not have to spend much time reflecting on democracy’s foundational premise of equal dignity and the merits of democracy itself. It is a given. “The people,” we say, are sovereign. A truly radical sentiment in the past, a cliché today.
Constitutionalism tells us that our democratic platitudes are largely correct in the end, but the principle of popular sovereignty requires some tempering. Even as we affirm majority rule in principle, we ought to acknowledge that majoritarianism alone is not the sole supreme value of our system of government. Imposing non-negotiable limits on the powers and processes of government, even democratic government, is the essence of constitutionalism. While democracy speaks to the inherent worth of each and every being, constitutionalism acknowledges that humans are not all sunshine and rainbows. That is, given our nature, humans are not to be trusted with unrestrained power, even if they are acting as part of a majority. Constitutionalism tells us that we must be wary of ourselves.
There are many frames through which we can view American political history and contemporary politics, and this democracy-constitutionalism tension is a helpful one. In his 2007 book, Revolutionary Characters: What Made the Founders Different, the eminent Brown University historian Gordon S. Wood analyzes the life and times of the founding generation through a similar lens. Wood finds that the founding generation operated in an entirely unique political environment—one quite unlike our own: “Somehow for a brief moment ideas and power, intellectualism and politics, came together—indeed were one with each other—in a way never again duplicated in American history.” This merger of political intellectualism and practice, says Wood, will not be returning to our democratic republic anytime soon: “They were intellectuals without being alienated [from the rest of society] and political leaders without being obsessed with votes. They lived mutually in the world of ideas and the world of politics, shared equally in both in a happy combination that fills us with envy and wonder. We know that something happened then in American history that can never happen again.” But why not? Why must our Founders be different?
This is not to say that the Constitution simply dripped of anti-democratic elitism, as some of its foremost critics have alleged over the years.
Wood’s answer is revealing. The Founders’ intellectual world of politics could not persist for long since it spawned a nation that grounded its political legitimacy in the people:
“If we want to know why we can never again replicate the extraordinary generation of the founders, there is a simple answer: the growth of what we today presumably value most about American society and culture, egalitarian democracy. In the early nineteenth century the voices of ordinary people, at least ordinary white people, began to be heard as never before in history, and they soon overwhelmed the high-minded desires and aims of the revolutionary leaders who had brought them into being. The founders had succeeded only too well in promoting democracy and equality among ordinary people; indeed, they succeeded in preventing any duplication of themselves.”
It is essential that we reckon with the fact that the United States Constitution represented the apogee of the Founders’ harmonization of intellectualism and political practice. The Constitution represented the Founders’ intellectual politics in its purest, best form. This is not to say that the Constitution simply dripped of anti-democratic elitism, as some of its foremost critics have alleged over the years. Indeed, Wood’s chapter on John Adams’s misguided defense of the Constitution as a mixed system of government where the executive balances the interests of the aristocracy (embodied in the Senate) and the masses (embodied in the House) is instructive on this point. Adams “misunderstood the meaning of the Constitution,” writes Wood, as he tried to force this document that was in fact grounded in the simple principle of popular sovereignty into the classical mold of mixed government.
But even if the Constitution was grounded in the rule of “we the people” and not in an Adams-esque desire to balance the interests of various social classes against one another, it was informed with too rich a sense of history and human nature to mistake the vox populi for the vox dei. And, fortunately, much to the chagrin of small-d democrats like Thomas Jefferson, the work of formulating the Constitution was carried out behind tightly sealed doors. Such secrecy empowered candid political debate between rational, deliberative actors. Thoughtful politics, not pandering, would carry the day.
But over time, the sway of the intellectualism of the Founders in American politics receded. By the early 19th century, the franchise (at least for white men) had exploded, and the character of American politics catered to the newfound power of the voting people. The cool, reasoned, private debate on public affairs among “gentlemen” gave way to the passions of popular politicking—newspapers, street speeches, and the like. Thomas Paine stands out as a seminal figure in this development, per Wood’s telling. While we do not often think of our “first public intellectual” as one of our Founders, Paine’s straightforward exposition of radical democratic ideas played an instrumental role in ushering out the elitist 18th century mode of politics practiced by the Founders and ushering in the more accessible and passionate democratic politics of the 19th century. Paine “saw it as his mission to make political and religious criticism accessible to the common reader.” In doing so, he helped to undermine the unquestioned rule of publicly committed gentleman elites like Washington, Adams, and others.
While we may share Paine’s distaste for rule by elite in a republic such as ours, we must admit that the Founders were a peculiar kind of elite—a virtuous one. Take the greatest among them, George Washington, for example. As Wood writes, “Washington epitomized everything the revolutionary generation prized in its leaders.” What they prized was character: a selfless commitment to the public good, a scrupulous maintenance of one’s public virtue, honor, and reputation. This, says Wood, explains Washington’s “anxious queries about how would this or that look to the world, his hesitations about serving or not serving, his expressions of scruples and qualms—all were part of his strenuous effort to live up to the classical idea of a virtuous leader.” Influenced heavily by the classics, Washington and the other Founders went to great lengths to cultivate their public virtue. From virtue flowed esteem from one’s fellow civically-minded elites and, thus, from the wider public as well.
Again, we can and should critique the elitism at work here, but we would do well to ask ourselves a difficult question: Whether it is preferable to have (1) a governing elite that is democratically constrained yet principally driven by the desire for esteem from other publicly minded elites or (2) an elite that caters to politically potent blocs of the people, no matter the rectitude nor rationality of their whims, for the sake of political power?
But our Constitution still stands as the Founders’ enduring introduction of moored reason into the maelstrom of popular politics.
Here the example of Aaron Burr is striking. Wood includes an entire chapter on Burr, a figure we do not readily think of as a Founder given his sketchy, perhaps traitorous dealings in the American West and his killing of Alexander Hamilton in a duel. Wood includes Burr because he attained immense amounts of political power (he was a United States Senator and a Vice President when the role was more politically potent than it is now) yet embodied everything his fellow Founding elites were not.
Burr’s operating principle was his own self-interest and not public virtue. Burr was willing to do whatever he had to—including throwing in his lot with the more populist, ascendant Jeffersonian Republicans even though he lacked veritable ideological beliefs of his own—in order to amass power. His single-minded pursuit of power was so brazen that it brought together political foes like Thomas Jefferson and Alexander Hamilton in opposition to him. “In their minds,” writes Wood, “Burr posed far more of a threat to the American Revolution than either of them ever thought the other did. Burr threatened nothing less than the great revolutionary hope, indeed, the entire republican experiment, that some sort of disinterested politics, if only among the elite, could prevail in America.” What is most striking about Burr is not the brief alliance between Hamilton and Jefferson that he spawned but rather this observation from Wood: “Burr may have represented what most American politicians would eventually become—pragmatic, get-along men—but to Hamilton and Jefferson he violated everything they had thought the American Revolution had been about.”
If our halls of power are rife with mini Aaron Burrs, what does that say about us? What does that say about the democratic culture that Wood sees as displacing the elitist yet public virtue-laden world of the Founders?
I am not entirely sure, but it seems that the lesson here is that we ought to repossess some of the world that the Founders inhabited. Maybe the once tight connection between reason, intellectuality, and politics can be recovered still without sacrificing democratic principles?
There is one obvious way to start that work, which brings us back to the question of constitutionalism versus unrestrained democracy. There are many elements of American politics where the passions of momentary mobs can and do hold sway. But our Constitution still stands as the Founders’ enduring introduction of moored reason into the maelstrom of popular politics. Especially when in the hands of competent and principled judges, our Constitution has, on net, stayed afloat. But no self-respecting republic can pride itself on the maintenance of its constitutional order if unelected men and women in black robes are doing the bulk of the maintaining.
So, perhaps as a first step towards recovering the virtues of the lost world of the Founders without resurrecting their vices, we can each do our part to engage in principled, constitutional deliberation and discourse. That is, we can take stock of whether our own political opinions and desired public policies may run afoul of constitutional constraints, and we can hold our fellow citizens to the same standards. Doing so could reintroduce constitutionalism back into public discourse but not in the nakedly partisan manner of today—namely, the bad faith claims that whatever my side desires is constitutional and whatever the other side seeks is unconstitutional. Rather, it would force us to reckon with the reality that the dictates of democracy may run afoul of the restraints of constitutionalism. Majority opinion, even a majority we ourselves may be a part of, may not be in accord with the Constitution. The question becomes whether it is both possible and prudent lawfully to amend the Constitution.
This is a more deliberative, rational way of doing politics. Wood does not seem to think or even desire that it be recovered, but I cannot help but wonder how long veritable self-government can persist in the United States if we cannot make the Founders a bit less unique—if we cannot introduce just a tad of reason and reflection into our political debate and action. Revivifying constitutionalism is one obvious way in which we can—and should—do precisely that.
Thomas Koenig is a recent graduate of Princeton University and will be attending Harvard Law School in the fall of 2021. He can be found on Twitter @TomsTakes98