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An Argument Open to All Reading The Federalist in the 21st Century
Sanford Levinson
New Haven: Yale University Press, 2015 Hardback. xiii+350 p. ISBN 978-0300199598. $38
Reviewed by Anthony A. Peacock Utah State University
Over the last generation there have been a number of interesting book-length treatments of The Federalist, the 85 papers written 1787-1788 by Alexander Hamilton, James Madison, and John Jay in defense of the original Constitution of the United States (the original document minus the 27 amendments that make up today’s American Constitution). David Epstein’s The Political Theory of The Federalist (1984), Morton White’s Philosophy, The Federalist, and the Constitution (1987), and more recently W.B. Allen and Kevin Cloonan’s The Federalist Papers : A Commentary (2000), and Michael Meyerson’s Liberty’s Blueprint : How Madison and Hamilton Wrote the Federalist Papers, Defined the Constitution, and Made Democracy Safe for the World (2008) have provided us a rich and highly differentiated scholarship on this seminal work. Sanford Levinson’s An Argument Open to All is a very different book. Not only is there virtually no reference to any secondary scholarship on The Federalist (including no references to the works above), Levinson makes it clear from the outset that he has little interest in addressing a number of the academic disputes that have consumed so much of the scholarship on the work over the last century. Issues such as how sincere the two principal authors of The Federalist, Hamilton and Madison, were in their defense of the Constitution or how indicative their contributions to the text were of their thought more generally and especially in the 1790s when the two became the leading spokesmen for contesting political parties are issues Levinson flatly states he will not be resolving. Rather, his intention is to interpret each Federalist number in a separate essay with a view to examining their relevance to issues dominant in twenty-first century American politics. Although there are problems with this approach, as I indicate later, it does have the virtue of avoiding the tedium of so much academic scholarship, focused as it so often can be on academic arcana of little interest to non-specialists (and even at times to the specialists themselves). Levinson also does a good job of illustrating the ongoing relevance of The Federalist to today’s political disputes, particularly issues in the area of constitutional law. Levinson is the W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law and professor of government at the University of Texas at Austin. He brings both a legal and political science perspective to The Federalist but especially the former. Levinson’s methodology in An Argument Open to All is to focus on a few of the major themes from each Federalist number. At times he points out the irrelevancy of these themes to today’s politics but more often he does the opposite: he selects themes precisely because they shed new light on current issues that the academic and media commentariat have overlooked. This works quite well. A few examples here might suffice to illustrate the point. A frequent theme throughout Levinson’s book is the skepticism Publius, the pseudonym under which The Federalist was written, expressed toward state governments. As an advocate of more energetic government, and specifically more energetic federal government, Publius had little sympathy for the states. Levinson recounts Publius’ critiques of their factious nature under the Articles of Confederation and the many petty disputes the states so frequently engaged in that threatened national order. Prior to the Constitution, the national government suffered from numerous restraints under the Articles. It was prohibited, for instance, from imposing direct taxes and had to submit ineffectual “requisitions” to the states. These too often went unpaid. Levinson highlights how Federalist 12 made a compelling case for why union would make it easier to raise those revenues essential to the federal government. And Federalist 13 similarly emphasized the economies of political scale that would obviate the requirement for needless duplications of administration in the new federal union. These are interesting elements of Publius’ teaching that Levinson does well to detail. More interesting perhaps is The Federalist’s unique approach to maintaining federal-state boundaries under the new Constitution. The method here, contrary to common accounts, was not that of closely reading the constitutional text. To the contrary, Publius points out the problem of the “cloudy medium” of words in Federalist 37, which Levinson emphasizes was meant to educate American readers in 1788 that the Constitution was not crystal clear. Nor could it be. Its meaning would be open to interpretation for a long time into the future. Moreover, The Federalist relies on what Levinson refers to as political sociology rather than the parsing of specific constitutional text for assuring its readers that members of Congress will not transgress the boundaries of the states’ powers under the Constitution. “The regulation of the mere domestic police of a state,” Federalist 17 proclaims, “appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository.” As Levinson points out, this passage not only underlines the petty nature of what state politicians consume themselves with, exercising mere police powers. It also points to the glory and honor that federal politicians seek. Ambitious as they are, they hope to be recognized as great warriors or statesmen or to be memorialized by magnificent public monuments. The same is true of Presidents, who pursue the “love of fame, the ruling passion of the noblest minds,” [275, citing Federalist 72] Levinson is on to something here. There is a hierarchy to governmental powers, with federal powers over commerce, finance, negotiation (or treaty-making), and war standing at the apex. So The Federalist suggests. What rarely gets emphasized in discussions about the modern federal administrative state, which has taken on an increasing number of state police powers for roughly the last century, is the evident pettiness of so much of what it does. This at least is implied by Federalist 17 and the full implications of the argument here are interesting. Levinson however does not pursue this line of reasoning. He does return eventually to the issue of The Federalist’s social and political psychology as the basis for its construction of the Constitution’s federalism in his review of Federalists 46 and 80. There Publius again offers us a host of reasons unrelated to the Constitution’s text for why Americans, and even members of their state judiciaries, will feel a closer attachment to state governments than to the federal government. This again is intended to reassure The Federalist’s readers that the new Constitution will not eviscerate state powers. Yet quite the opposite has occurred over time. Americans today identify more with the national government than with their local governments. Levinson suggests that if Americans seek strong state government, which he himself opposes, it cannot occur through appeal to the language of the Constitution. As Publius made clear, only an appeal to the hearts and minds of the American people could resurrect the role of the states in the American constitutional order today. However, given the increasing cosmopolitanism of American society, Levinson proposes that this eventuality is unlikely. The vibrant federalism The Federalist discussed seems to be an anachronism, on the wane in the twenty-first century as much as it was in the twentieth century. Another interesting aspect to Levinson’s analysis is the role of exigency in politics. The Federalist’s opening paragraph makes the theme of necessity central to the work when it reminds Americans that it has been reserved to them to decide whether “societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.” Levinson does well to dwell on the concept of “reflection and choice” as he does at numerous points throughout An Argument Open to All. Necessity is closely tied to the question of accident and force. Both Federalists 23 and 41, for instance, justify unlimited federal power over national defence because no barriers can be set “to the impulse of self-preservation” (Federalist 41 [153]) and because it is your enemies who establish the limits in warfare. As Federalist 23 framed the matter: “it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them.” (emphasis in original [85]) Levinson discusses the problems of necessity in the context of national security policy that he contends breached constitutional limits in such examples as Japanese internment during World War II, the Cuban Missile Crisis, and America’s response to the terror attacks of 9/11. These are common currency in scholarly treatments of national security policy, both in law and political science. Less common is the role of exigency in the context of domestic policy and constitutional interpretation. Here again Levinson asks some interesting questions. If constitutional limits can be breached in the case of national security crises, why should they not be susceptible to the same disregard in domestic policy disputes? If “rigid adherence” to mere “forms,” as Federalist 40 put it, had to give way to exigency in the case of the Constitution replacing the Articles of Confederation, why can we not say the same thing today about disregarding the Constitution’s limits where today’s political challenges in domestic politics require the same sober considerations? Levinson even uses the argument about exigency in his critique of “original understanding” jurisprudence, which he rejects in favor of “living constitutionalism.” [295] Levinson of course is well known for earlier books criticizing the Constitution and advocating the need for a constitutional convention to address what are in his opinion the Constitution’s many deficiencies. He suggests in the present book that his readers “should at least consider the possibility that the Constitution they have been taught to revere is itself an ‘imbecility’ ” [60] (paraphrasing the adjective used for government under the Articles of Confederation in Federalist 15). Later, he acknowledges being among those “critics of the Constitution who believe significant amendments are necessary in order to construct a system of government suitable to twenty-first century realities.” [161-162]. And when considering the “project of republican government” as it is presented in The Federalist, he animadverts: “There are many reasons to believe it is desirable, but very few to believe it is really sustainable.” [188] An Argument Open to All concludes by inviting Americans to make greater use of the Article V amendment mechanisms. Whether one agrees with Levinson’s advocacy here or not, he has produced an interesting and provocative interpretation of various components of The Federalist. But with all due respect the book might have been better. It has its flaws. The first is its partisanship. Levinson is a liberal academic who has little tolerance for conservative or Republican viewpoints and it shows from the very beginning of the book. Although he readily admits that it would be impossible to affiliate The Federalist with any specific political party today, virtually every example he cites to exemplify The Federalist’s modern relevance might be described as an affectation of the American left. Levinson boasts of being a Democrat, is an advocate of a number of Democrat President Barack Obama’s policies, and acknowledges, apparently with some remorse, having “used such terminology” as “monarch” and “dictator” to describe Republican President George W. Bush. [256] Yet despite this admission, Levinson exercises little restraint in repeatedly dismissing positions adopted by conservatives and Republicans. Reviewing Federalists 3, 20, and 63, for instance, he complains in all three cases about the United States Supreme Court’s Medellín (2008) ruling, where the Court’s more conservative members, joined by liberal Justice John Paul Stevens, rejected the applicability of an International Court of Justice decision to the state of Texas. The state was allowed to execute a Mexican national convicted of a brutal rape and murder of 14 and 16 year-old girls. Conservatives embraced this decision as a vindication of the Constitution in the face of an unaccountable World Court. Levinson makes no serious attempt to address this argument. Levinson is also critical of opponents of high federal taxes like Grover Norquist, President of Americans for Tax Reform, and those Republican members of Congress whom Norquist convinced to sign a pledge opposing any increases in federal taxes. Justice Oliver Wendell Holmes Jr. is quoted by Levinson with approval: “Taxes are what we pay for a civilized society” [115]. Time and again Levinson indulges the mantra that taxes are necessary to provide government services. This of course is a banality that no one, including Republicans, contests. Rather than address Republican complaints about excessive federal taxation, a bloated bureaucracy, a federal debt now approaching $19 trillion, and wasteful government spending, Levinson chooses instead to attack a caricature. In other cases he simply assumes readers agree with him. Discussing revenues in Federalist 30 he references President George H.W. Bush, who lost the 1992 presidential election presumably because he violated his pledge of “no new taxes.” Levinson maintains Bush’s approval of these increased taxes exemplified his self-sacrifice and commitment to the public interest. “Even his own sons,” Levinson complains, “have refused publicly to praise their father for doing what both he and most independent analysts believe served the national welfare.” [113] No citations are provided for just who these “independent analysts” are and it may well be the case that President George W. Bush and his brother, Governor Jeb Bush, did not support their father precisely because they genuinely believed raising federal taxes was not in the public interest. Levinson also disapproves of critics of the federal administrative state and refers to the advocacy of “states’ rights” as a “fetishistic piety” [170]. Yet when it comes to his own policy preferences like “climate change,” which many conservatives themselves believe to be little more than the fad du jour of the academic left, states’ rights are apparently acceptable. Citing with approval the Governor of Washington’s declaration that “the process in Washington, D.C., is strangled by climate deniers,” Levinson muses regarding a meeting of the Governor of California and the British Prime Minister over a potential environmental agreement: “there is good reason to wonder why [California] should be held prisoner to a national government that is increasingly incapable of making timely decisions on such crucial issues as climate change” [163]. Levinson even goes so far as to suggest that Congress should step aside and let the Environmental Protection Agency make environmental decisions that “Congress clearly does not have the capacity to make.” And he queries in this same instance whether courts too should just “ ‘defer’ to the decisions of the EPA rather than engage in any truly significant independent review of their basis?” [319]. This sort of Hegelian-style utopianism of rule by unelected, unaccountable experts is precisely the kind of proposal that mortifies not only conservatives but many other Americans who fear losing their rights of self-governance to a Leviathan federal bureaucracy. The partisan quality of Levinson’s approach runs throughout the book and although there are numerous counterarguments to his positions that might be drawn from The Federalist Levinson almost never considers them. The second problem with An Argument Open to All is its lack of theoretical depth. There is a significant literature on The Federalist but as I indicated earlier Levinson makes almost no use of it. He does in a couple of instances cite J.R. Pole, the editor of the edition of The Federalist that he uses, but most other references are to law review journals or popular press articles. There is of course a certain virtue to focusing on the text of The Federalist rather than interpretations of it and Levinson’s subject-matter is current affairs. But as he considers only a handful of issues from each Federalist number and many of these issues have already been addressed at length by this secondary literature, the discussion in the book might have been more capacious than it was. There are some obvious examples of where An Argument Open to All might have benefited from consideration of these secondary sources. Discussing Federalist 43’s reference to “nature and nature’s God,” Levinson remarks, “this, incidentally, may be the only reference to God in any of the 85 essays” [162]. In fact that is wrong. There is a second reference to God in Federalist 18 and this includes the Pole edition of The Federalist that Levinson uses. If Levinson was familiar with The Federalist Concordance, which provides an alphabetical index for virtually every word in The Federalist, he could have avoided the error he commits here with a quick consultation of this readily available secondary source. Readers may not agree with the politics of An Argument Open to All and at times Levinson himself suggests that The Federalist’s wisdom is overblown. Yet he is at least willing to take seriously the text of the work and reveals in a number of interesting cases its relevance to modern politics. Given that so many of his contemporaries in law and political science view The Federalist as of little more than historical interest, Levinson should be commended for his efforts to resurrect interest in a text too widely disregarded today.
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