At the Federalist Society Review, Jonathan O'Neill (Georgia Southern – History): A Response to the Constitution's Critics (reviewing Dennis Hale & Marc Landy, Keeping the Republic: A Defense of American Constitutionalism (University Press of Kansas 2024). From the introduction:
Keeping the Republic: A Defense of American Constitutionalism defends the Constitution against historical and recent critics who reject its constraints on simple majority rule and its alleged inability to resolve deep conflicts in American society. The co-authors are political scientists at Boston College, so their treatment of the subject is more in the realm of political theory and political culture than constitutional law as such. There is no sustained treatment of courts or jurisprudence (although the Supreme Court receives some attention).
The book’s title is taken from the famous anecdote about the question posed to Benjamin Franklin after the Philadelphia Convention: “‘What kind of government have you given us, Dr. Franklin?’ To which Franklin replied: ‘A republic, madam, if you can keep it.’” Dennis Hale and Marc Landy show that a true constitutional republic is a rare and somewhat fragile thing, and most certainly not a machine that would go of itself absent citizens’ informed understanding of its purposes and limits and their own responsibilities. The American republic was designed to protect human liberty and local self-government in a diverse and far-flung federal polity—not to empower a national numerical majority to enforce whatever conception of justice or progress the zeitgeist happens to announce.
The book first lays out the positive case for the Constitution as a successful approach to governance of a large geographic area under the conditions of post-Enlightenment modernity. Next, it relates the history of attacks on the Constitution up to the present, and then it rebuts the critics via reference to the initial defense and with additional data. A final section considers the distinction between governance in accord with established constitutional norms and the typical contemporary practice of ignoring or reversing them. This review will follow the same general pattern of the book, with the preponderance of attention to the first part.
And here is the book description from the publisher:
Keeping the Republic is an eloquent defense of the American constitutional order and a response to its critics, including those who are estranged from the very idea of a fixed constitution in which “the living are governed by the dead.” Dennis Hale and Marc Landy take seriously the criticisms of the United States Constitution. Before mounting their argument, they present an intellectual history of the key critics, including Thomas Paine, William Lloyd Garrison, Henry David Thoreau, Woodrow Wilson, Robert Dahl, Sanford Levinson, and the authors of The 1619 Project. Why, they ask, if the constitutional order is so well designed, do so many American citizens have a negative view of the American political order? To address that question, they examine the most crucial episodes in American political development from the Founding to the present.
Hale and Landy frame their defense of the Constitution by understanding America in terms of modernity, where small republics are no longer possible and there is a need to protect the citizens of a massive modern state while still preserving liberty. The Constitution makes large, popular government possible by placing effective limits on the exercise of power. The Constitution forces the people to be governed by the dead, both to pay the debt we owe to those who came before us and to preserve society for generations yet unborn.
The central argument of Keeping the Republic is that the Constitution provides for a free government because it places effective limits on the exercise of power—an essential ingredient of any good government, even one that aims to be a popular government. That the people should rule is a given among republicans; that the people can do anything they want is a proposition that no one could accept with their eyes wide open. Thus, the limits that the Constitution places on American political life are not a problem, but a solution to a problem.
Hale and Landy offer both a survey of American anti-constitutionalism and a powerful argument for maintaining the constitutional order of the nation’s Framers.
(Note: Professor O’Neill is the author, among other works, of Originalism in American Law and Politics: A Constitutional History (2005))
Posted at 6:02 AM