Brandeis University

Democracy in America

Background

Professor Peter Woll










The Anglo-American Political Tradition.

The Eighteenth Century Model of Government



As Gary Wills has pointed out in his brilliant work, Lincoln at Gettysburg, our18th century governmental system is Roman, not Greek, What does that mean? It means that the Framers looked to the balanced government of Rome and not to the democratic model of Athens as their paradigm in Philadelphia in 1787. Hamilton in particular cites the Roman example time after time in The Federalist as he seeks to persuade the New York delegates to the ratification convention and those who chose them to ratify the Constitution.

By contrast Lincoln's Gettysburg address perfectly reflects what I call the 19th century model of government, by , for, and of the people. We will see that this model coincides with the emergence of political parties as the vehicles for democratic rule, which is rule by the majority, which the framers viewed skeptically to say the least.




The 18th Century Enlightenment



The 18th Century Enlightenment that began in France and spread to America spawned the ideas that form the basis of our political system and politics. Living as we do in a free and open polity we forget the extraordinary minds, events, and courage that ultimately produced our constitutional government with its intricate balance of powers and respect for freedoms of expression and natural rights. James Madison, Alexander Hamilton, Benjamin Franklin, John Adams, James Mason and the other signers of the Constitution are a galaxy of brilliant theoretical and practical leaders unparalleled in history. They gave us the freedom and open society we enjoy today, and their and our Constitution has endured with only a few significant formal changes for over 200 years.


What is the 18th Century Model of Government?



Read James Madison's Federalist papers nos. 47, 48, 51 carefully. Outline his premises and the institutions and processes he derived from those premises.

"Men are not angels," he points out in Federalist 51, a conclusion that John Roche used to call the doctrine of original political sin. That is politics is because of the nature of man a contact sport and one that does not follow Robert's rules of order. Politics is more like the NFL than Haverford cricket.

Now here is an irony. Madison and the framers above all believed that statesmen should govern, that government and particularly a strong national government was essential for the preservation of the national interest. While Madison's Federalist writings appear to support a skeptical view of government in fact Madison and the other framers believed in the Enlightenment and it's faith in reason, progress, and the ability of men to govern in a deliberative and selfless way. Advancement of the national interest was the goal.

The Constitution was a leap of faith rooted in 18th century ideals and ideas. It's mechanism, the separation of powers and checks and balances, reflected a strong belief in the possibility of deliberative government and at the same time was a realistic way of achieving that goal.

In summary then, what we call the Madisonian model and the 18th century model of government are one and the same. Students should not forget the dual aspects of Madisonianism, balanced government first to prevent selfish political interests from ruling including the selfish majority will; and second, balanced government to assure deliberative government that defines and carries out the national interest.



Where do John Locke and Thomas Jefferson Come Into the Picture?



Well, as Thomas Jefferson said, John Locke's "little book," Second Treatise, Of Civil Government is not only perfect but the perfect expression of critical but not all parts of18th century American political philosophy.

Jefferson embodied Locke's ideas in the Declaration Of Independence, almost but not quite word for word in some parts. Locke's work was published in 1689 to give theoretical support to The Glorious Revolution that had occurred in 17th century England resulting not in the disposition of the Monarchy but in parliamentary supremacy.

John Locke wrote that government must be derived from the logic of man's condition in the state of nature. There all men are created equal with natural rights to life, liberty, and property. Does this sound familiar? Jefferson put this Lockean concept into the Declaration substituting "happiness" for property.

Locke next stated that while all mankind possessed natural rights, and all men were created equal, the state of nature was inevitably uncertain because while individuals were not in a state of war there, and life was not nasty, brutish, and short (Hobbes), no institutions existed to protect natural rights.

Men ( I am of course using this term in the classic sense to refer in a gender neutral way to all "mankind") in a state of nature formed governments to protect their rights, resolve disputes among them, repel foreign invasions, and carry out other tasks in the public interest. By definition such governments were defined in a social contract that could always be abrogated if the government did not govern with the consent of the people. Note here for general reference purposes that government with the consent of the people does not necessarily mean that the people govern directly, that the government must follow the will of the majority even though "the people" can overthrow a government that does not act with its "consent."



The Higher Law and Natural Rights


Eighteenth century philosophy posited a higher law, the law of nature or natural law, as a norm or value from which all else flowed. Find the higher law and you have the basis of government. The higher law is, in the words of Sir Edward Coke, the Lord Chief Justice of England in the 17th century, determined by right reason. That is it is logically deduced , in Lockean terms, from man's natural state and in Coke's terms from reason and an understanding of justice to which judges, because of their learning, are privy. I'm introducing you to Coke here because the concept of a higher law in the Anglo-American political and legal tradition is intertwined with support for judicial review of legislative and executive actions to assure their conformity with the higher law. The higher law gives us natural rights, the freedom to consent to government and the right to revolution if governments act without our consent, rights and freedoms in other words that transend written documents whether they be laws or even constitutions. For example, in a modern context, the Supreme Court has proclaimed a right of privacy that supercedes legislative Acts and exists even though the Constitutiion does not define it.

Let's hear directly from Coke in the famous Dr. Bonham's Case in 1610:

"It appears in our books, that in many cases, the common law will control acts of Parliament, and sometimes adjudge them to be utterly void: for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such acts to be void. "

Coke's reference to the common law is particularly noteworthy here. The common law is judge-made law. It consists of general principles or "law" that common law court judges apply for the resolution of cases and controversies that come before them. In 17th century England the King created the common law courts of equity and Chancery but once created the courts proclaimed their independence and amazingly their authority to overrule not only the Parliament but the King himself. The principle of judicial review is deeply rooted in the Anglo-American legal tradition even though the Settlement Act of 1701 established parliamentary supremacy.

To Coke and his brethren judges define common law through "right reason" and through the definition and application of the "higher law." To understand this in a modern context consider Griswold v. Connecticut (1965) and Roe v. Wade (1973), cases in which the Supreme Court through "right reasoning" essentially found a natural right to privacy and applied it. As Justice William O. Douglas wrote for the Griswold majority the fundamental right to privacy predates the Constitution although it is implied in penumbras of parts of the Bill of Rights.