Straussian Misconduct, States Calling an Amendment Convention, Oliver Wendell Holmes, Jr.

By Peter Daniel Haworth for FRONT PORCH REPUBLIC

Exposing Straussian Misconduct; the States Initiating a Constitutional-Amendment Convention; Nomocracy and Oliver Wendell Holmes, Jr.; A Richard Gamble Review Revealing “Demonic Patriotism”; and a Barry Shain Review of “An Unconvincing Case” for the Common Law . . . Many important political, legal, and historical issues were discussed this week at Nomocracy in Politics. Further thoughtful analysis will be forthcoming. Please enjoy this mini-sampler:

(1) From Kevin R.C. Gutzman’s essay, “Exposing Unscholarly Straussian Conduct in American Political Thought,” this week at Nomocracy:

As my late mother used to say, I have a bone to pick. My gripe is with the Straussians. . . . [Michael] Zuckert laments that my book [, James Madison and the Making of America,] is “chary of conclusions, and generally bereft of broad lessons and reflections.”  He says I exaggerate Madison’s nationalism in the Philadelphia Convention, that I don’t understand what “national” meant to the delegates, that I “overly credit” Robert Yates’ notes of the proceedings, and that I “neglect. . .the important recent work on Madison and the Constitution.”  Finally, he wishes I had “better understood the principles of Madison’s reform efforts,” as then I might “have had more sympathy” with my subject. . . .  All of this is rather odd, particularly coming from a Straussian (of whatever clime).  Given his claim to authority, I might have expected him to note all of the major junctures (if not all of the minor ones) at which my book runs head-on into the most recent scholarship, particularly of the Straussian variety.  Thus, for example, Madison stepped onto the political stage in the Virginia Convention of 1776, which decided in adopting its Declaration of Rights (the first American declaration of rights) that blacks were not part of the American political society.  He went to Philadelphia with a well-developed plan for nationalist reform, virtually every element of which was rejected by his fellow delegates.  His and his co-authors’ Federalist Papers had exceedingly little effect on the ratification dispute, in New York or anywhere else.  Of his two chief coadjutors in securing Virginia’s ratification of the Constitution, one (Edmund Randolph) laid out a reading of the Constitution exactly opposite to the one John Marshall adopted in McCulloch v. Maryland by saying that the Congress’s powers were limited to those “expressly” granted even before the Tenth Amendment, while the other (George Nicholas) laid out a reading of the Constitution exactly opposite to the one John Marshall adopted in McCulloch v. Maryland in saying that Virginians were one of thirteen parties to a compact and could secede if they found the Federal Government’s exercise of its powers abusive. . . . How Zuckert can have missed all of this, and much more of similar historiographical significance, is beyond me.  (Since accusing me of incompetence, Zuckert has asked me to serve as referee of an article manuscript for a journal he edits once again; as before, I cheerfully accepted the request and performed the task.)  Note that the points about 1776 and Nicholas completely destroy Harry Jaffa’s account of American constitutional history.  Completely destroy it.  Perhaps this explains why a review in The Claremont Review of Books pretends that I say nothing, I don’t know what I’m saying, or I don’t say it clearly.  No one who has taken an introductory course in American constitutional history or constitutional law can have missed the significance of my chapter on ratification in Virginia, for example.  The nitwit who reviewed my PIG [(Politically Incorrect Guide to the Constitution)] for the CRB saw that.  He called me names for it. . . .When that Randolph article [, which was ultimately published by the Review of Politics,] was depending before the referees over a decade ago, I wrote to Kesler and told him I had come upon evidence that decisively disproved Jaffa’s view:  Americans did not ratify the Constitution as one people, and they did not do so in the understanding that secession is impossible.  My mistake, it seems, lay in thinking that we were all engaged in a search for truth.  Chastened by unhappy experience, I have since concluded that much of what goes on in academia is simple advocacy.  Despite their protestations, that goes for conservative academics too.  Exhibit 1: The Claremont Review of Books.

(2) From Allen Mendenhall’s essay, “Nomocracy and Oliver Wendell Holmes, Jr.,” this week at Nomocracy:

Although I submit that Holmes is nomocratic, I am mindful of Justice Felix Frankfurter’s admonition that “[o]nly the shallow would attempt to put Mr. Justice Holmes in the shallow pigeonholes of classification.”[6] A definition is therefore in order. By “nomocratic” and “nomocracy,” I mean the opposite of “teleocratic” and “telocracy.” Forrest McDonald explains the difference in this way:

[The idea behind nomocratic constitutionalism] is that the Constitution was designed to bring government under the rule of law, as opposed to achieving any specific purpose. . . .[T]he Constitution is primarily a structural and procedural document, specifying who is to exercise what powers and how. It is a body of law, designed to govern, not the people, but government itself; and it is written in language intelligible to all, that all might know whether it is being obeyed. The alternative, teleocratic view, is one that has come into fashion the last few decades and has all but destroyed the original Constitution. This is the notion that the design of the Constitution was to achieve a certain kind of society, one based upon abstract principles of natural rights or justice or equality or democracy or all of the above. It holds that the specific provisions of the document are of secondary importance or none at all; what counts are the “principles” it supposedly embodies, usually principles based upon the Declaration of Independence or Lincoln’s Gettysburg Address, neither of which has any standing in the law.[7]

Marshall L. DeRosa, working out of McDonald’s paradigm, offers additional clarification regarding the difference between nomocratic and teleocratic constitutional schemes:

If the Constitution is essentially nomocratic, then the federal courts would be restricted to the enforcement of constitutionally established procedures through which participants in the political process compete against one another in the attempt to have their respective interest prevail in the public policy-making process, whether those interests are economic, social, cultural, religious, regional, and/or political. Judicial review would be invoked when the procedures are allegedly breached, with the courts being responsible for upholding the constitutional integrity of the political process. Under this model political questions are nonjusticiable. This does not mean that the Constitution fails to place limits on nomocratic procedures for making public policy. It certainly does (see Art. I, sections nine and ten and the Bill of Rights), but these limits were nomocratically produced through the drafting and ratifying of constitutional provisions. . . .Nevertheless, if the U.S. Constitution is construed to be a teleocratic a priori embodiment of truth, justice, and righteousness, with U.S. Supreme Court justices serving as its privileged interpreters, then popular control over important areas of public policy becomes precarious and subject to the domination of exclusive interests—usually ideological in nature—which at any particular period of constitutional development may exercise control over the policy-making process through the institutional Supreme Court.[8]

Holmes favored a nomocratic approach to judging that is in keeping with these descriptions. His preference for nomocracy is evident in (1) his judicial restraint in the form of deference to legislatures; (2) his admiration for the common law system in which rules evolve slowly and incrementally while always retaining and reflecting the wisdom and values of our predecessors; and (3) his skepticism about natural law and natural rights that, as concepts, are vague and appropriable enough to justify vastly different and even radical approaches to judging. Let’s consider each position seriatim. 

(3) From Peter Haworth’s essay, “Article V’s Amendment Convention: Why It Has Not Been Utilized and How It Relates to States’ Rights,” this week at Nomocracy:

In a recent review of Mark Levin’s new book, The Liberty Amendments, at The American Conservative, Kevin R. C. Gutzman, a Nomocracy in Politics colleague, discusses Levin’s recent surprising conversion to now advocating an Article V amendment convention for proposing constitutional amendments to the several States. This strategy entails employing the never before utilized part of Article V that provides for “two-thirds of the several states,” calling “a convention for proposing amendments.” As with amendments proposed by Congress, those proposed by such a convention would have to be “ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress.” . . . In a special Mike Church Show radio broadcast, “The Federal Solution for a Federal Crisis,” Gutzman discussed how inertia against having an Article V convention and even for regularly amending the Constitution, developed quite early in United States history[.] . . . [According to Gutzman t]here has been a Madisonian prejudice against both Article V conventions and frequent amendments, and this helped set an early precedent against the legitimacy of changing the Constitution, even when the compact has proven (as it had been in the 1790s) inadequate for precluding its usurpation by power-seeking factions—e.g., many policies of  the early Federalist Party. . . . Coinciding with such precedent has been frequent and formidable opposition to an Article V convention whenever one appears to be in the making. Consider, for example, what occurred when the States came very close to calling an amendment convention to constitutionalize the direct election of senators: although many in Congress had previously been opposed to such a change, Congress eventually preempted the convention by proposing the Seventeenth Amendment, which provided for the desired change in the selection of senators.



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