In Defense of the Constitution:1787-1987

THE OPEN MIND
Host: Richard D. Heffner
Guest: Professor James MacGregor Burns
Title: “In Defense of the Constitution: 1787-1987”
VTR: 5/10/87

Heffner: I’m Richard Heffner, your host on THE OPEN MIND. In these last years of the 20th century, we Americans have much to remember, much to commemorate both in our history and our heritage, which are, after all, different…the one marking simply what happened, the good and the bad, the other enshrining the best in our past, that to which Lincoln’s mystic chords of memory stretch out most meaningfully, touched, as he said, by “The better angels of our nature”. 1976 marked the 200th anniversary of our nation’s beginning, when a decent respect to the opinions of mankind required that we declare our independence in terms of the essential truths we held to be self-evident. Now in ’87, ’88, ’89, we celebrate our Constitutional Bicentennial, mark the framing of our national charter, its adoption finally by the 13 original states, and, as important – since it is and must always be for us a living Constitution – the gradual establishment (starting two centuries ago) of those procedures and precedents that would enable the more perfect union sought by the Founding Fathers to develop.

Yet, in all of this, ancestor worship has little real place. Indeed, the Founders likely were the last ones to permit filiopietism to obscure any realistic analysis of the public well-being, past or present.

Now, I’ve just read Crown’s fascinating A More Perfect Union — The Making of the United States Constitution, by William Peters, and was impressed all over again by the degree to which the most practical of concerns leavened the Founders’ conflicting interests and principles. No wonder pragmatism looms so large in our national character! I went back, too, to Yale University Press’ extraordinary records of the Constitutional Convention edited by Max Farrand…then to the Federalist Papers themselves…Hamilton, Madison and Jay’s brilliant case for the ratification of the Constitution…and hungered to discuss them here on THE OPEN MIND with my old friend, the distinguished American historian, political scientist, and Pulitzer Prize winning biographer, James MacGregor Burns, whose own massive trilogy on The American Experiment will soon be completed with the last volume of his splendid Alfred A. Knopf series.

Not so fast, though. I invited Jim Burns here to talk about the Federalist Papers…but things happen in life, like the front page headline that Supreme court Justice Thurgood Marshall has sounded “a critical note” on our Constitutional Bicentennial Celebration. So that simply has to be our point of departure today. And Jim, I think you’ll agree with me, it’s a fascinating one.

Burns: It is. And you’ve touched many important points already, but one I’d like to pick out, speaking of the Justice who’s said we should be more critical of the constitution, is this attitude we have toward the Constitution that it is sacred, it is God-given, and, as you know, it’s not. The Constitution was written by human beings. It has human greatness and human failings.

Heffner: But Marshall’s…Thurgood Marshall’s not attacking, it wasn’t an attack on the Constitution, but it was an attack on, as you suggest, this notion that it was struck off by the hand of gods, demigods, as had been said at the time. And there has been a refusal to understand that there are large segments of our population then that were read out by the Constitution.

Burns: Yes, I think people forget this today. They think everybody in this country gathered around this new instrument and put it into effect. And as you’re suggesting, there was tremendous opposition, and for good reason. A lot of people wanted to keep power local. They did not want a third government on their backs. They fought the adoption of the Constitution and they almost won.

Heffner: Suppose they had.

Burns: Well, you know, historians are told we must not think about what might have happened. But I love to raise the question because how can we evaluate what did happen unless we think about what did not happen. If the anti-Federalists had won, I think the whole problem would have come back in another twenty or thirty years. But their victory probably would have meant a weaker Constitution. And I could imagine the whole nineteenth century taken up with a tremendous struggle over the Constitution. We were saved that, except on the issue of slavery, which the Justice was very concerned about, of course. We should come back to that. Except for slavery the flexibility of the Constitution enabled us to adapt to the tremendous economic and social changes of the nineteenth century. So we were…as usual for Americans…we were darn lucky.

Heffner: Do you think that…we can’t read Thurgood Marshall’s mind, but do you assume that he was aiming his barbs at the celebration of the Constitution, the kind of blind filiopietism, worship of fathers, because of the strong position that former Chief Justice Burger had taken at the helm of this celebration in ’87, ’88, ’89?

Burns: Well, first of all, let’s be clear. At least in my view, he was attacking both our celebration of this instead of the cerebration that often is mentioned. But by implication he was being very critical of the Constitution itself. Particularly, its failure to address the problem of slavery during the first part of the nineteenth century and, indeed, one could say, after.

Heffner: Yet it did address the problem, but addressed it in a way that Justice Marshall would say indicates precisely why we should not be quite so excited about celebrating the 200th anniversary.

Burns: Yes, I would put it more bluntly, Dick. I would say that the Constitution absolutely failed us when it came to the most searing problem of the nineteenth century. We had to fight a war in stead of settling this through the usual constitutional processes. What more indictment of a constitution could there be than having to resort to war?

Heffner: At the time of the Statue of Liberty Centennial, when we were involved in the Centennial Conference, Liberty Conference, there had been some talk at that time, by some minority groups in this country, about being unwilling, really, to be that enthusiastic about that lady in New York harbor because it didn’t symbolize for them what it symbolized for white, middle-class Americans. Now, at that time that criticism appeared on the front page of The New York Times and then, sort of disappeared. Do you expect it will crop up again?

Burns: Yes. I’m sorry they were critical of Miss Liberty or the Statue of Liberty or the whole performance because some of us have major questions about the Constitution of 1787, but positively revere the Bill of Rights, which incorporates the idea of liberty. So I’m sorry they got into that and I’m glad they didn’t pursue it. I think it’s this year that minority groups and many others should stand back from the Constitution and try to show the kind of boldness, and this, I think, relates to all of us, Dick; to try to show some of the boldness of the framers, who, as we indicated earlier, were doing something very unpopular. They stood back from the existing constitutional system, there was one, under the Confederation, and they were willing, not only to evaluate it and to propose changes, but to make changes in that fateful summer of 1787 in Philadelphia. And what rally bothers me today, as I look at this pious attitude toward the Constitution, is a number of people, particularly lawyers, if I might say, who consider this a sacred document. They show none of the intellectual boldness of the framers or the political boldness of the framers. So this is the year, not ’76, but ’87, where we should argue about the Constitution and not just genuflect in front of it.

Heffner: Well, wait a minute. Without genuflecting, are you suggesting that, as others have in America, in the last decade, that we reconstruct the whole business? That we call in Philadelphia or some place else, perhaps back at Annapolis, a convention that is charged with the obligation to revise, with the hope that it might thoroughly reconstruct our instrument of government?

Burns: No. Now you’re going farther than I would. I do not want to reconstruct the Constitution. I do want to make some changes. Not very drastic changes. I think it’s essentially still a horse and buggy constitution in a nation that’s well into the space age. And it’s got to be modernized, but not reconstructed.

Heffner: Yes, but if there is…if we should be as bold here at the end of the twentieth century, as those men were there at the end of the eighteenth century, might we not do exactly what they did? Meet, charged with revising the Articles of the Confederation, now meet charged with making some changes, bringing up to date our instrument of government and totally turn it upside down? Because that’s what they did. Aren’t you afraid of that?

Burns: Of course. But what they might do, if you really want to talk reconstruction — I think the only alternative, practically speaking, would be to adopt the parliamentary system of government. Now the interesting thing about the parliamentary system of government, say, in Great Britain, is that it is majority rule. As you know, again as a historian, the framers were terribly worried about straight majority rule. They didn’t like minority rule either, but they were particularly concerned about the masses of people taking over. I think the parliamentary systems have shown that majority rule works. Do I then favor trying to import the parliamentary system? No. Because I think we have gotten so used to the system, it is now so much part and parcel of American life and attitudes we should not try to change it to that degree. But we might borrow some features from the parliamentary system, along the lines of a stronger majority system and much more teamwork in government. Dick, I just want to note something here that we’re talking about these framers, particularly the authors of the Federalists. And I was very struck coming down on the train today to be re-reading the Federalists because that, of course, is the great document. I am noting that Alexander Hamilton wrote the first Federalist Paper in October, 1787, coming down on a sailboat on the Hudson. I did not come on a sailboat. I managed to come on a train. But it does bring me back to something that was so crucial to the framers and I think did not work out for them. The very first Federalist Paper of Hamilton was about efficiency in our governmental system. I think we have one of the most inefficient constitutional structures in the world for a democracy, for a big democratic nation.

Heffner: Are you suggesting it worked then, it was defensible then as in the Federalists, but not now?

Burns: I think it worked well for about fifty years or so. It then failed in the face of slavery. It did not accommodate itself to the rising desire of women for the vote. For poor people it was very slow, obviously for the Black people. So, in my view, the Constitution has not prevented us, finally, from addressing great problems, like slavery or the whole civil rights problem. Finally we got around to it in the 1960s. But is slowed us up. Generations have gone by, whole lives have gone by, Dick, where men were still working fourteen hours a day for a pittance. Children were doing the same. It’s the delay, it’s the human suffering that, in part, I think resulted from the slowness of our Constitutional system to be efficient and to be effective and to be humane.

Heffner: Of course that slowness was purposeful. And the checks and the balances and you talk about the Federalist Paper and, of course, one thinks so often of the famous Federalist Paper Number Ten. What was the…what is the explanation for that incredible concern for checks and balances that one finds in the Federalist and in the Constitutional Convention?

Burns: Fear of government. Fear of government.

Heffner: Of government or of other human beings?

Burns: Oh, other human beings taking over government. You’ve got to remember as you well remember that in my neck of the woods, Western Massachusetts, the framers, the people who would shortly become framers were witnessing the mob…loose, attacking a Federal arsenal, pillaging courts and doing all sorts of outrageous things. It was really a rather minor rebellion. This is, of course, Shea’s Rebellion I’m speaking of. It struck terror in the hearts of George Washington and other people who believed above all in order…order. And here was this thing going on. So their great desire, of course, was to lessen the control of state governments that easily might fall under the rule of the mob, as they saw it, and raise it to a national level where there would be much more stability. So, of course, there would be more government, a whole third level of government, but it would be a stable and orderly government, particularly since they know it would be under the Presidency of George Washington.

Heffner: Is the assumption that…as Charles Beard and others noted in their studies of the Constitutional Convention and of the ratification procedures, must we conclude that, indeed, the Constitution was written by and then its ratification was fostered by a comparatively small, monied, influential group of Americans in opposition to these good backwoodsmen in your part of the woods?

Burns: Yes, it was written by essentially monied elements. But that does not mean that it was necessarily a money-biased instrument.

Heffner: Was Beard wrong then?

Burns: Well Beard was right in his findings by and large, although they have been somewhat corrected, that these people were monied people and they had a lot of real estate and property of various sorts. But propertied people of that stature with that kind of background don’t necessarily respond to their own crass self-interest. I think they were responding much more to a philosophical concern for representation. They wanted a republic, they wanted popular rule, but as I say, very much controlled by the checks and balances where you would have all these barricades against the mob taking over. And they were worried that in the states there were not these barricades that the states, as I say, would fall under the rule of the mob.

Heffner: You know you talk about the mob. It would be one thing to say that their essential political unity, philosophical unity came from that fear of the mob, something else to say that it was a general fear of power, from whatever source, mercantile interests versus other interests in the national community at that time. Would you not be willing to make that concern about conflict and the evil inherent in human nature the basic concern of the Constitutional Convention?

Burns: Well, you’re speaking like a good reader and devotee of Federalist Number Ten.

Heffner: Well, I am.

Burns: Well, you should be. We all should because that is the great paper in which Madison spells out the very problem you’re describing, the problem of faction. Now here though is something very interesting, Dick. And that is he’s worried about faction of the kind you describe, not just the mob…you’re right. He’s concerned about every kind of faction. He’s concerned even about silly factions that develop, that have no particular reason, because he knows that humankind is irrational and selfish and all things we’re familiar with. But the funny thing is that having denounced or warned against faction and having proposed this or defended this third level, the federal level of government, and having said that it would be much safer because all the factions would be blended together, extend the sphere and you will bring in so many factions, that they will counterbalance one another. In other words, a kind of a political check and balance. Then my question to Mr. Madison would be, “Mr. Madison, why the auxiliary checks and balances? If you’re saying that people will balance out on the national level, mercantile, farmers and so on, why do you build all these auxiliary precautions?” as he called them, “into the Federal government, with the checks and balances? Aren’t you overdoing this?”

Heffner: Of course those are the ones that you find destructive of efficiency, aren’t they?

Burns: Yes. I would say…I’m a majoritarian. I think that a majority of the people is often wrong, but I’m like Lincoln, I guess. I believe that in the long run, the majority has to rule and has to be trusted. And I think there’s a fundamental problem in the Federalist there, particularly since not only did they adopt this checks and balance system, but it’s been greatly augmented over the years in ways that you know, particularly, of course, with the power of the Supreme Court. If you add this incredible power of the Federal judiciary to intervene in the most sensitive social areas of life…every day now. I went by an ad today on the way to the Hudson, bud ad on a liquor store that said, “As a result of a recent Supreme Court decision we can offer you…”, I thought, my God you know, the Supreme court is coming in everywhere. So my point is that if you not only take the balance of factions, if you then add what they added, with the checks and balances then you greatly augment this, through all sorts of minority devices, what I call veto-traps, in the Federal system, you end up in the twentieth century with this incredibly convoluted, inefficient and I would argue, irresponsible system.

Heffner: But Jim, I wonder if,…coming to the twentieth century, coming to the twenty-first, we’re almost there, whether Madison’s fears weren’t borne out in terms of the creation of still another overwhelming power, the power of the media. Whether the checks and balances that were not auxiliary, that came from the nature of groups and parties and interests, whether they haven’t been evened out so that your trust and faith in majoritarianism mustn’t be questioned in terms of the potential for mass media to create those majorities, not based upon knowledge, not based upon understanding, but based upon the power of this tube, of the press, what have you.

Burns: I think that’s a very important point. And it does add this whole dimension, but it doesn’t…it bothers me in many ways, but it doesn’t bother me particularly in terms of majorities because I am not for plebiscitary majorities. That is, I don’t think we should try to run our government through the kinds of plebiscites that the Californians seem to like so much. I believe in orderly majority rule where the majority has to get control of the House of Representatives and the Senate and the Presidency. In other words, the majority is working through our electoral institutions and also working through a party system.

Heffner: But look what you’ve done. You put your Burns stamp of approval then upon the constitutional structure that is built upon these very checks and balances.

Burns: Not the electoral system. The electoral system, as I should add, I would like to see it changed, for example, the four year term for a member of Congress and that sort of thing. I believe in an electoral system where a majority has a chance to register itself in a Presidential election by choosing the President, by choosing the House of Representatives, and perhaps by choosing all of the Senate, or at least, half the Senate. In other words you have a chance in a Presidential election for the majority to execute its will through choosing the main offices of government. Give that government four years, no mid-term election for Representatives and so on. Give that government four years to show its stuff and then it goes again before the people as a test of majority support.

Heffner: Despite my great affection and love and everything for you…I find myself more comfortable with Federalist Number Ten and Madison. Hamilton is a little bit difficult for me to take. But it seems to me, as I was going through Madison’s notes again, I think these men had such a profound understanding of the nature of human nature and that it surfaced in the structure they molded.

Burns: But, Dick, let me point out one other thing that’s happening. You talk about the role of the media. There’s another important development. And that is we are changing the Constitution without doing it formally. Consider the rise of this imperial Presidency. That is not particularly written into the Constitution. In my view we have got this powerful Presidency because the government does not operate from day to day, year to year. It does not plan ahead. It does not deal with the great social problems in advance. It waits for crisis. The crisis comes and immediately, whether it’s a hostage crisis or a depression or war or an incident abroad, the people then turn to the Presidency. The Presidency must respond. The President must act. And, as you know, we built up this tremendous institution that goes against checks and balances, goes against elections, and all the rest of the things that you and I would want as safeguards.

Heffner: Of course, if we had Bob Bartley here, the editor of The Wall Street Journal, he would be saying just exactly the opposite. He would say that the President’s hands are tied by the Gang of 535; he would go on at great length, as he does so eloquently.

Burns: I hope he wasn’t saying that during Reagan’s first three or four years. Reagan was putting through program after program.

Heffner: Oh, I think it didn’t take long before that point of view surfaced. But you know, we just have a couple of minutes left. I wonder whether you felt, as I did in going back over the records of the Constitutional Convention, that these men were so wonderfully pragmatic. Thurgood Marshall doesn’t like the point of view they had about women, the point of view they had about Blacks, but it seemed to me that they were generally willing to subordinate their principles, which sounds awful on the surface, but generally willing to subordinate many of their principles in order to get this document, in order to get it out and ratified.

Burns: Yes, despite my criticisms of the Constitution, I am an unabashed worshipper of the framers. I think they displayed an intellectual brilliance without parallel in this world, in the history of the western world. In a time, you know, Dick, when we’re told that humankind can’t plan the future, that we’re just ships on the wave of great forces, there were a group of men who sat down and politically planned the next two hundred years. I think that’s a great tribute to what human beings can do.

Heffner: How sanguine would you be then, Professor Burns, about letting another group, fifty-sixty men and women, good and true, sit down and plan the next two hundred years, pre-empting what we have now?

Burns: I would not be at all sanguine against it. We do not have the creative genius today that could do that. I am not for that kind of new Constitutional Convention.

Heffner: But you want some changes.

Burns: But I want a few changes.

Heffner: And where does the wisdom come from to construct those changes without throwing the whole business out of kilter?

Burns: I think the kind of moderate changes that some of us are proposing will not throw the whole system out of kilter, it will simply produce more teamwork, efficiency and responsibility in government.

Heffner: Do you think there will be some fundamental changes in our instrument of government?

Burns: No I don’t, dick, because I think we’ll continue to take the cheap way out. We’re going to pour power into the Presidency and let the judiciary handle things and that goes against everything I believe in, in an orderly system.

Heffner: Then it is the legislature that you would strengthen, reflecting majorities?

Burns: Yes.

Heffner: James MacGregor Burns, thank you so much for joining me today in this discussion which we’re going to have to continue about the constitution, the Federalists and where we go from here.

And thanks, too, to you in the audience. I hope you’ll join us again. And if you care to share your thoughts about today’s program, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Mediators and Richard and Gloria Manney; The Richard Lounsbery Foundation; Mr. Lawrence A. Wien; and The New York Times Company Foundation.