Students of the U.S. Constitution would benefit from paying closer attention
to the framers for many reasons, of which I will list a few:
1) their first principles were good. The framers believed that the proper
purpose of government is to serve the common good of all those subject to its
rule (hence "republic"). In this they were correct. So it is worth attending
to how they tried to do so.
2) their secondary principles were good. The framers proposed popular
sovereignty, bicameralism, federalism, the separation of powers, an
independent judiciary and several other checks and balances as methods of
guiding public deliberation towards the common good. These are good
techniques, which have worked well over time.
3) they had broader education and experience than most contemporary law
professors and have much to teach us, even when they were wrong. The founding
generation had experienced more than twenty years of constitutional turmoil
and experimentation by 1787. They had governed states and read widely. We
have a lot to learn by attending to their philosophy.
This is not to say that the founding philosophy cannot be improved upon.
The framers invited such improvements by putting morally-charged words such as
"liberty" and "justice" into the document, but it would be foolish to overlook
the philosophy that created the Constitution, and animates most of its
provisions with a commitment to doing what is right for the people as a whole.
Tim Sellerss
>===== Original Message From Discussion list for con law professors
<[EMAIL PROTECTED]> =====
>In response to RJLipkin's last post:
>
>I agree that what a few dozen delegates at the Philadelphia convention
thought ought not be the cornerstone of modern constitutional interpretation.
>
>However, I am not convinced at all that the Founders' conception of self-rule
was contemptuous of ordinary people. The concept is that of agency. The
People are the sovereign, but delegate day-to-day governing authority to an
agent government. There is nothing contemptuous of the
>People in this arrangement. It just seems to be based on the reality that
the People are not and (due to time and other constraints) cannot be
sufficiently focused on or expert in the issues involved in every day
governance.
>
>Principal-agent relationships are commonly used to deal with situations where
the principal lacks the time or expertise to manage some particular matter.
Nothing in the principal-agent arrangement presumes a contemptuous attitude
towards the principal.
>
>Thus, one who is not an expert (and does not have the time to become an
expert) in investing might hire an investment advisor to manage one's assets.
Or a group of shareholders in a company (who are not really able to manage the
company themselves) hires a management team to run
>the enterprise. Or a client needing legal advice hires an attorney. None of
these agency relationships presuppose that the principals are incompetents.
Instead they are based in the reality that the principals simply do not have
the time, expertise, etc. to manage some particular
>matter. None of this implies a contemptuous attitude towards principals (be
they investors, shareholders, consumers of legal advice or the People). The
Founder's conception of popular sovereignty and self rule gives the principal
People ultimate authority, but the People delegate
>day-to-day governance to an agent government. If the agent gets out of line,
the People have the right to alter the agency relationship (via constitutional
amendment or revolution). Moreover, periodic electoral checks by the People,
an independent judiciary, separations of powers,
>and federalism offer (imperfect) safeguards against the agent getting too far
out of line.
>Nothing in this arrangement is contemptuous of the People.
>
>I guess that some of the comments in this thread are reminiscent of the never
ending (and recently quite active) debate over the anti-democratic nature of
judicial review. Some get quite lathered up about the countermajoritarian
difficulty. Others respond (quite rightly to my
>mind) by admitting that the judiciary is undemocratic, and pointing out that
the American system of government is not now nor ever has been all about
democracy or popular day-to-day governance. It is instead a government based
on elements of democracy, elements of separation of
>powers, elements of federalism, and even elements of things that are quite
undemocratic such as the federal judiciary and the federal reserve. It is a
federalist/pluralist/democratic/bureaucratic republic, and so what if it is
not just about populist democracy.
>
>The same basic response applies to those who advocate populist governance and
heavy popular involvement in day-to-day governance. In short, our version of
popular sovereignty does not permit heavy populist involvement in day-to-day
governance. No problem. The system was
>designed to have some democratic elements, and other non-democratic elements,
and that is the kind of system that works best.
>
>Look, it seems to me that the burden of proof is in those who advocate a
populist democratic form of government. Highly populist governments that
involve the people too much in day to day governance do not have a strong
track record.
>
>In addition, I'm not so sure that the Founders intended or that our modern
government completely exclude the People from day to day governance, but I've
been going on too long so I'll fry that fish another day.
>
>Carlos Gonzalez
>Associate Professor of Law
>Rutgers School of Law
>
>
>
>RJLipkin wrote....
> I agree. Moreover, I do not think that we are compelled to endorse the
>interpretation that regards the (famous) Founders as embracing a conception
>of self-rule contemptuous of ordinary people. And if we are so compelled, my
>response is that the (famous) Framers' view is simply incoherent. I do not
>understand, even in theory, how the people can be the normative source of
political
>power and self-rule, yet be totally excluded from self-governing as it occurs
>on a daily basis. Or even if we refrain from rejecting such a view out of
>hand, we must, at least, explain how the people can be fit as the normative
basis
>of self-government and similarly fit every two, four, or six years to elect
>the elite politicians, yet must be excluded a prior from a more active and
>permanent role in self-government. The central point here is that if the
(famous)
>Founders' conception of self-rule is canonically contemptuous of ordinary
>people, that conception is not easily distinguishable from the monarchist
>conception, the Founders fought against. Instead of one King, we now have
several
>Kings to govern a grateful polity.
>
> Distinguish between two possibilities: (1) For pragmatic reasons
>existing at the time of ratification, the American constitutional system was
>designed in a particular way giving ordinary people a say only in elections
and in
>times of revolution, and (2) This design is canonical; it can be altered
>through an Article V change, but if it is, the new system will nevertheless
pervert
>the true (best, sacrosanct, take your pick) theory of the (famous) Founders
>that ordinary people have no (permanent political) role in the day to day
>vagaries of self-government. I might be persuaded to accept (1). But I think
(2) is
>anathema to the notion of self-rule (even as the (famous) Founders understood
>this), and a perversion of the same.
>
> In the final analysis, if I embraced a Founding-centered
>constitutionalism, I'd be more interested in the Founding population,
including of course
>the Founding Fathers, but in no way limited to them. But as I indicated
earlier
>I agree with Bob Sheridan's suggestion that we must question whether a
>Founding-centered constitutionalism is anything more than one indicia of the
>appropriate conception of American self-rule. And after two hundred years of
American
>constitutional development, a Founding-centered constitutionalism, though
>still relevant (though decreasingly so), is hardly dispositive of what the
>American conception of self-rule includes.
>
>Bobby Lipkin
>Widener University School of Law
>Delaware
