A Capital Dynamic to Do the Framers Proud, Part II

THE OPEN MIND
Host: Richard D. Heffner
Guest: James MacGregor Burns
Title: “A Capital Dynamic to Do the Framers Proud”, Part II
VTR: 3/17/95

I’m Richard Heffner, your host on THE OPEN MIND. And this is the second of two new programs with my old friend, Williams College Pulitzer Prize winning historian and political scientist James MacGregor Burns, biographer of Franklin D. Roosevelt and John F. Kennedy, and continuing chronicler of what he still sees as “The American Experiment”.

Now, Jim Burns is a wonderfully and typi8cally optimistic American. Probably that’s why he’s such a fine historian. But one time at this table together back in the 1980s, I think I kind of flummoxed him by biding my time and them, a few minutes into the program, saying, “You know, Jim, we’ve known each other for a good many years. We’ve done a number of programs together. And I wonder – this is a strange question, you’ll feel – why did it take us, oh, maybe ten, 12 minutes into our program for you to make that kind of statement that sounds so much more pessimistic about the lot of freedom today”?

Well, on that OPEN MIND I waited the ten, 12 minutes. This time I’m not going to wait, but rather just start out reminding Professor Burns that he has told us of historians who have studied the personal or leadership qualities of the founding fathers, explaining those qualities in terms of the founders having been “well-bred, well-fed, well-read, well-led, and well-wed”. And I want to ask how that explanation of 18th and early 19th century leadership conforms with what Professor Burns sees now as he surveys the political landscape of today.

BURNS: I feel very strongly that great leadership comes out of great conflict. And the striking thing about these farmers, about – speaking of collective leadership – about 50 or 100 of them, even more, newspaper editors and lawyers and theologians, ministers, and so on, is how wonderfully, at least, the elite was educated. They were educated in the Enlightenment, but then they had to face the test of revolution and the test of building a new nation, building new states, and so on. So the greatness of these people, I think, comes from having to make their values that came out of the Enlightenment, help them plan a new political system. And it was quite wonderful what happened. Because they planned, as we know, a new frame of government in 1787, the Constitution, then they looked at it and said, or at least Jefferson said, “You don’t have a Bill of Rights, guys. Let’s get” – I have to say “guys”, I’m afraid – “get going on a Bill of Rights”. So a Bill of Rights was added. And then the most amazing thing to produce a wonderfully balanced government was the building of a party system in the 1790s in the decade after the Constitution. So that you end up with a rather strange system, but a working one, for the first century or two, with checks and balances over here, a Bill of Rights in the middle, and a party system over here. The checks and balances keep government from doing too much, keeps naked majorities from taking over. The Bill of Rights lets you and me and millions of others talk as we wish. And the party system knits the system, all these divided units of government, together into some kind of coherent form so that there can be a government.

HEFFNER: But, you know, as you say that, with a smile on your face, as you look back and think of their accomplishments, it’s almost as if you had set aside your own criticisms of the 20th Century manifestation of that genius.

BURNS: Simply because that was good for 100 or 200 years. And I think that’s a wonderful tribute to the framers. After all, we have survived as more or less of a democracy, we are a great nation. They planned very well for that period. But I think, as soon as we think we can go into another century, or into a new millennium with the same old system, we have to rethink ourselves. I’m asking Americans to be the framers of the late 20th Century.

HEFFNER: It’s clear that you’re doing that, Jim. But do we have those personal qualities? Do we have 100 or 150 persons in our much, much larger, quarter of a billion population, who have the qualities, the personal qualities that led these men to do what it is that they did in 1787 and thereafter?

BURNS: I don’t think we have at the governing level. I think we have, by and large – a very sweeping statement – the best word of our governing level is “mediocrity”. We did have it at the governing level then. The Washingtons and the Jeffersons and the Madisons and the Hamiltons and so on were all at the governing level. I do think we have it at the sub-government level. I think throughout this society there is an enormous talent. I am constantly impressed by people in my own community who are thinkers, planners with very broad views. And I think one of the toughest questions that you might have some views on is ”Why don’t thinkers, real, thoughtful people, rise to the top the way they rose to the top 200 years ago”?

HEFFNER: Well, it’s really the question I was putting to you. And I think we probably agree that it is too dangerous, it is too threatening to one’s sense of what makes sense in life, the way one wants to live. Does one subject oneself to the vicissitudes of contemporary politics? I mean, you’re so right in saying that the framers didn’t just come out of the blue; they were people who were at the top level of government at that time. Do you see any changes that might take place in our times that could entice, induce the kinds of good, thoughtful people you refer to into government?

BURNS: I am very pessimistic about that. I had my own crack at it, which I…I ran for Congress, as you may recall…

HEFFNER: I do recall.

BURNS: It was a wonderful learning experience. I found the campaigning part, in terms of appealing to people, wonderful. But I never wanted particularly to be a congressman in the sense of taking on the role of a congressman, because I worked on Capitol Hill and I already was seeing the extent of the compromises and the dealing and the negotiating and the slowness and all the other failures that were so evident even back at that time. So I don’t know if I’m a very good example or not. But I think, if I am, it was a feeling that I wouldn’t be a very thoughtful person in government; that I would be subjected to lots of pressures and temptations.

HEFFNER: You mean that there couldn’t be a very thoughtful person in politics?

BURNS: That I’d be thoughtful in a very practical way. I’d be thoughtful all the time. How do I get money from somebody? How do I get this vote? Or how do I get labor to support me? At least those people – and this may sound rather undemocratic – were operating at a level where they were able to communicate among themselves in the brilliant way they did, as you know, by endless correspondence and many meetings, and to think through the problems of that age, which they did in those three ways I mentioned. I don’t think we could do that today.

HEFFNER: Well, you know, as I was rereading this wonderful book that I referred to on our other program today, “The Deadlock of Democracy”, and it’s 30 years old, your description of those exchanges, of the letters, of the letters between Madison and Jefferson and back and forth, I think you’re quite correct that that could not happen today. And if it could not happen today, and if the pressure of dollars is such today, then how could you anticipate, as I think you do, a resurgence, not necessarily a resurrection of the understanding that led to the construction of the constitution in the first place? But you in your optimism seem to feel we are coming into a time when we can gain back what the founders created, not in terms of deadlock, but in terms of putting one’s capacities to work, one’s reason to work.

BURNS: I think you’re making me out to be more optimistic than I really am. I see the possibility in the next few years that with this powerful challenge by the Republicans to the old Democratic Party, that it will force the Democrats to make up their mind as to what kind of party they are. And I see the possibility of a grand confrontation at the end of this century between two programmatic, principled parties. I think that may be the last chance, because often what comes out of the grand confrontation, given our, what we call “Madisonian” system, that Madison so brilliantly helped devise, nobody really winds. Hence, anybody who does win can say, “Well, I tried. I did my best. But Congress wouldn’t let me, or Congress says the President wouldn’t or the courts wouldn’t, or that state governments get in the way”. So you get this mess of a political system where there’s very little accountability and responsibility. So I’m worried that if we don’t make it in the next decade, that the cynicism and desperation among the American people will be so acute that we’ll go into a whole different world where our own democracy is so distrusted, as it is so much distrusted today, that people will be turning to other and perhaps terribly dangerous alternatives.

HEFFNER: Jim, in our last program we touched upon your majoritarianism. Which you really do embrace, don’t you? We also, you also touched upon the role of the courts. Now, isn’t there some real conflict between those enthusiasms?

BURNS: Yes, it’s not total conflict because, after all, the judges are chosen by politicians who are elected in state and national elections.

HEFFNER: Oh, come on, Jim, that’s…

BURNS: But they have an indefinite term. And I would go back to Theodore Roosevelt’s…If we did a grand reconstruction, the kind of thing that I would favor would be term limits for judges, four-year or six-year or eight-year or ten-year terms for judges, which they have, of course, in some states. But I’m speaking at the national level.

HEFFNER: Why would you do that?

BURNS: Because I don’t think it’s democratic for a court to hang on as the Republican court really – only way to describe it – the conservative court hung on into the 1930s and tried to destroy the New Deal. I think that’s terribly dangerous. On the other hand, what I want is their being powerful enough to protect civil liberties but not powerful enough to overcome economic and social legislation that’s been passed through a new majority. Now, you have a very interesting point about that because it does who some ambivalence on my part. I am absolutely obsessive about the Bill of Rights. That’s the main thing. I keep asking: How do we protect the Bill of Rights? Through Roosevelt’s way…Remember his Economic Bill of Rights, and how he said we need another Bill of Rights to expand rights? But he never said anything about curbing the first Bill of Rights. So I think there’s a way to do both. And getting back to the role of the courts, one thing we have done which is quite remarkable – and I must say I did not anticipate it – the courts themselves, after the great war that Roosevelt started against them, the courts themselves have retreated to the position that they have a right to veto economic and social legislation, but they do not have the right…I beg your pardon. I’ll put that the other way around. They have a right to veto any legislation that infringes on the Bill of Rights; they do not have the right to veto economic and social legislation.

HEFFNER: Jim, do you see areas in which those things have come together, and the unwillingness to see infringements upon free speech have given at the same time free reign to economic interests that…

BURNS: I think that’ a big, murky area. And you very tellingly pointed that out in our previous discussion. Very murky area where these meet. But I don’t think it’s that difficult to resolve. And I think one of the amazing things about this new court position on social and economic legislation is that they have more or less followed that, at least a majority has, and, I mean, thy will not, for example, declare Social Security unconstitutional, nor will they declare other economic and social legislation unconstitutional. But they will do it with the Bill of Rights kind of thing. And they seem to be able to find that. And I think that’s where judges, if they have the right overall idea, which I think they do, I think they would be very effective at drawing the line between the two areas.

HEFFNER: Do you think that ability might be chilled somewhat by term limits on judicial terms in the Supreme Court?

BURNS: Well, it raises the question, I suppose, of when they get through their eight or ten years, would they feel that, would they feel during their eight or ten years that if they took certain positions they might be attacked or murdered in this day and age for positions they had taken. I don’t think they probably figure it from that level. But otherwise I don’t see why they should be very inhibited in what they do. I don’t think it would curb the members of the court in following their own conscience. What I want is to make way for new people with a different conscience that comes out of a new age.

HEFFNER: You mean a new philosophy? A different philosophy? A counterphilosophy?

BURNS: Well, it might be. Yes. If you have a conservative court, give them their eight or ten years, or individual, conservative judges get their eight or ten years on the court, then let them have their day, do their thing, appointed by a conservative president, like Reagan, say. Then they have to make way for a new group of judges who are appointed by a new, majoritarian president.

HEFFNER: It’s wonderful how you separate out the economic and social matters in which you are willing to see things move and move back, and move…In fact, you see that as most desirable.

BURNS: Experiment.

HEFFNER: The continuing experiment that is America. But in the one area you want there to be stability, and absolute stability: don’t touch liberties, don’t touch the Bill of Rights. And it’s still so hard for me to see how you can have that chanciness in the area of economic and social legislation without having that impinge upon our liberties. Have you ever thought about a way of structuring such a division of judicial responsibilities?

BURNS: Not really beyond the present Bill of Rights versus economic and social. Most of these cases come up in a tremendous variety of forms, as you know. But take your own area of interest, the whole question of pornography, if I am right, that you continue to have a central interest in this question of regulation.

HEFFNER: Well, the pornography of violence in media.

BURNS: Yes, of course. Sure. I, you know, there’s a limit, very severe limits to my own knowledge. (Laughter) I haven’t thought my way through that question. I have children. I am terribly upset by what I see occasionally, the degradation of so much of our communication, in every way, on the street as well as in the movies or in the home video and so on. And I don’t know what to do about that. Except, if in doubt, protect individual liberty.

HEFFNER: Jim, you mentioned before something about restructuring. Do you think it’s time for there to be a constitutional convention?

BURNS: I would love to see a constitutional convention. You know, again, the flip statement made about a constitutional convention is that they would meet, repeal the Bill of Rights, and go home, even if they were supposed to meet on something entirely different. In other words, a runaway constitutional convention.

HEFFNER: Well, the first one was, wasn’t it?

BURNS: It was, that’s right. (Laughter) But you had somewhat better people in those days, as we’re saying, at least more cautious people. I prefer this plan that some people in Washington and elsewhere are working on, which is a series of amendments that would do some rather simple things like trying to straighten out the system of getting back to this two-year term which, you know, you get into Congress, you try to pay your bills from the last election, and you’re already thinking about the next one. And so on. And maybe ways, in terms of what you’re so concerned about, that you wouldn’t have to wait for a full four-year term for some kind of recall. You might actually recall a president, as, let’s say, in the case of Nixon where the impeachment system for some reason didn’t seem to work out. Or a president has so completely, I mean, so devastatingly lost the confidence of the people that something’s got to be done. And he or she won’t resign. So, the idea of a possible recall arrangement. And above all, ways that the Constitution might come to the aid of the parties. I think that thing that I’m most concerned about in terms of problems is the decline of party. And I’ve talked about this over the years. It’s continued to decline. And there might be ways, for example, that Congress could establish methods of voting that would help parties, methods of financing parties rather than just individual candidates. So there are a lot of very interesting ideas.

HEFFNER: Jim if we start to go down that path of amending the Constitution, aren’t we in even greater danger than if we had a constitutional convention? Once you start, where do you stop? Doesn’t it become, don’t you trivialize the process by saying, “Well, let’s pick this one, and then pick that one”, and go on that way?

BURNS: I think you trivialize it if you try to bootleg policy questions into the Constitution. As you know, the Constitution is not a policy document. It doesn’t say to have a national, federal income tax, and things like that. It gives the power. The Constitution sets out powers and processes. I think we have to amend the Constitution to modernize our processes. We must not amend the Constitution to do something like the balance-the-budget bill, which is really a fiscal policy. The worst experiment we have, an experiment we learned a lot from – you don‘t go far enough back to remember – but back in Prohibition days…

HEFFNER: The noble experiment, as Herbert Hoover referred to it?

BURNS: (Laughter) The noble experiment. Right. But you see, at least we got that out of the Constitution. So, as I say, if we keep clear about process versus substance, I don’t think there’s that danger.

HEFFNER: What danger is there? I shouldn’t say “what danger”. What chance – only I say “danger” sarcastically – what chance is there that the kinds of steps that you feel we should take, we shall take?

BURNS: None.

HEFFNER: So that optimism isn’t really there.

BURNS: Not on this score, no. That’s an extreme statement. It’s partly because I’ve been working on this for 20 or 30 years, with some very interested people. For example, Senator Castlebaum, as you know, the daughter of Alf Landon, a real, old-time Republican and a wonderful person, been very much interested in this. It’s a bipartisan thing. No one’s interested. The media, you can’t bore them more, because if there’s anything that bores the media more than a political party, it’s the constitutional system. And the people don’t think in terms of political change. They think, I think, in terms of other changes.

HEFFNER: Do you think that the balanced budget amendment has a chance? Whether, at the moment we’re talking together, in March 1995, or three months from now when this program may be seen, or a year from now? Do you think that’s what’s going to make, start the ball rolling?

BURNS: Well, it depends a lot on what happens in 1996, obviously. It could be that a strong, Republican candidate will bring an even stronger, Republican, conservative Congress. And if you get a very strong push at the top through our amending process, and you have a lot of very conservative state legislatures, and probably still will for the next two or three or four years, I think the sky is the limit. The irony will be, from my standpoint, is that I have waited for constitutional reconstruction, as you put it, for all these decades (laughter) and I finally may get it in terms of terrible policies like repeal, or like prohibition, bootlegged into the Constitution.

HEFFNER: Which brings me, when we have a minute and a half or so left, to go back to the question of leadership, and to your enthusiasm for a strong, idea-based, if not ideological, but maybe both, leadership. Would you be pleased if Newt Gingrich should surface as the candidate of the…or Phil Graham, consistent conservatives?

BURNS: Well, I think they have to have other skills besides what we’re mentioning. I think Gingrich is impressive because he does have a set of ideas. I don’t know about some of these other candidates. But you also have to have skill, and you also have to have restraint. I do see the leaders, no matter how ideological, they must have restraint. And the restraint comes back to the dear old Bill of Rights. But aside from that, yes, to use the term you used earlier: Let it rip. Let ‘er rip. Let there be an experiment in conservatism. We’ll survive it. And then I would like another experiment in liberalism.

HEFFNER: You know, Jim, I’m going to come back to you when that happens, because it may very, very well happen, and see whether your enthusiasm for this kind of strong, consistent party statement will hold up under what you might consider the wrong candidate.

Anyway, James MacGregor Burns, thank you so much for joining me today on THE OPEN MIND.

And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, my distinguished guest, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $4.00 in check or money order.

Meanwhile, as another old friend used to say, “Good night and good luck”.

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