Congress is where “We the People of the United States” are confronted by themselves, but in a more elevated form.
George Anastaplo1
Leo Strauss wrote of the strengths and weaknesses of liberal democracy, but little about the specifics of American government and nothing explicitly about the Congress of the United States.2 Though he spent much of his time cultivating his own garden, he repeatedly endorsed both “the old saying that wisdom cannot be separated from moderation” and the understanding “that wisdom requires unhesitating loyalty to a decent constitution and even to the cause of constitutionalism.”3 He recognized the dignity of American constitutionalism and kindled in his students a profound interest in the philosophical and constitutional foundations of the American regime. It is typical of Straussian constitutional scholars that they take the Constitution seriously even as they concentrate on the Founding and the Civil War and the Cold War. In this essay, I draw upon various scholars who have been influenced by Leo Strauss or by Leo Strauss’s students.
Some Straussian scholars, in taking the Constitution seriously have depended considerably upon The Federalist. Thomas Jefferson identified The Federalist as “the best commentary on the principles of government, which ever was written.”4 The quality of The Federalist alone would be sufficient to make it particularly attractive for Straussian scholars. (The Strauss-Cropsey History of Political Philosophy contains a chapter on The Federalist.) It is in The Federalist that one can notice significant treatment of conflicting ancient and modern approaches: the fame and glory of the few and the liberty and self-preservation of the many. These contrasting approaches reflect the distinctions Leo Strauss drew between ancient and modern political thought. In these approaches one can see as well his understanding that American constitutionalism draws support from political principles that are not simply modern.
So successful has The Federalist interpretation of the design and intention of the Constitution been that it is sometimes difficult to distinguish between the Constitution itself and The Federalist interpretation of it.The immediate purpose of The Federalist was to gain ratification for the proposed Constitution in the State of New York. It can be wondered whether the views of Publius can be assumed to be representative of the Federal Convention. For example, Alexander Hamilton’s speech of June 18th may have effectively dampened his influence in the Constitutional Convention. Willmoore Kendall was perhaps the first to coin the term “The Federalist Constitution”—that is, the understanding of the Constitution one has upon reading The Federalist. It is “The Federalist Constitution,” he observed, that is characterized by separation of more or less equal powers, by judicial review, by ambition countering ambition, and by “energy in the Executive.” While “the Philadelphia Constitution”—that is, the Constitution as it came from the Convention—is characterized not by three coordinate and equal branches, not by judicial review, and not by “energy in the executive.” Rather the “Philadelphia Constitution” is characterized by the supremacy of the legislature, a Congress that was “hardly less ’powerful’ than the Parliament of Great Britain.”5
This should not be surprising. The Declaration of Independence said that “the History of the present King of Great Britain is a History of repeated Injuries and Usurpation, all having in direct Object the Establishing of an absolute Tyranny over these States.”A decade later the Constitution, exhibiting the American people’s continuing concern with executive power, hedges in executive authority even as it expanded legislative authority.6Yet The Federalist can be read as emphasizing the need for the monarchic elements of secrecy, dispatch, and “energy in the executive” even as it soft-peddled new changes in the understanding of Federalism and Union. Unlike The Federalist, the Constitution is silent about separation of powers, executive prerogative, and judicial review.
The allocation of governmental authority in the legislative, executive, and judicial articles does encourage the opinion that separation of powers is the most distinctive feature of the Constitution. This is reflected in the common understanding of separation of powers shared by those who favored and by those who opposed the Constitution. That understanding may be seen by Madison’s paraphrase, in Federalist No. 47, of the well-known warning of Montesquieu: “the accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.”7 Separation of powers is also described in Federalist No. 51 as the great “auxiliary precaution,” that is, the great aid of the principle of representation in the prevention of tyranny, either of the majority or of the government.8
Another feature of Straussian scholarship, derived at least in part from The Federalist, is the idea that limited constitutional government is not the same as weak government. Straussian constitutional scholars, while not always in agreement, have tended to look to the Presidency and to the Supreme Court rather than to the Congress for the authoritative principles of the American republic. The Supreme Court is seen as the “republican schoolmaster” providing the ongoing education and constitutional morality required for an effective rule of law. The Presidency is seen as the office capable of attracting persons with the highest political ambitions, including that love of power and that pursuit of glory thought necessary to provide the unity, energy, and dispatch required of leadership for a competent modern democratic government.9
Martin Diamond, in challenging the Progressive historians’ view that the Constitution was an anti-democratic document supporting an economic elite, spelled out how The Federalist accommodated the multiplicity of interests that would make possible the conditions for a decent and stable democratic-republic. For Diamond the separation of powers was part of that improved science of politics which provided for elements of energy and competence in a manner fully compatible with a wholly popular government.10 Diamond recognized that an effective separation of powers depended, at least in the United States, upon a society formed not only by the principle of representation but also by the extended commercial life that would encompass a diversity of economic interests based on private property.
Paul Eidelberg disagreed with Diamond’s democratic interpretation. He, too, drew upon The Federalist, finding in the separation of powers the means by which the Framers provided for a Mixed Regime. The Framers, according to Eidelberg, limited popular sovereignty to the House of Representatives. The smaller Senate, with its longer terms, was designed to provide the aristocratic/oligarchic check upon the democratic House. The President, shielded somewhat by the Electoral College from the demands made by popular election, would supply the monarchical motivation of fame and glory, the motivation of the “noblest minds,” to pursue grand (however unpopular) policies, serving thereby as a check upon the Congress. Eidelberg also argued that judicial review, whatever the original intentions of the Framers, is an aristocratic and necessary protection for the rule of law.11
More recently Harvey C. Mansfield has combined and expanded upon both Diamond and Eidelberg. He has, from the perspective of modern democratic “necessity,” drawn the issue even more sharply: separation of powers is the means for the constitutionalism of democratic modernity “to appeal to virtue.” He looks to The Federalist understanding that separation of powers—most particularly the executive’s quest for honor and glory—is the means by which modern popular government secures for itself energy, deliberation, and competency while, at the same time, “compell[ing] Americans to abandon the supremacy of the legislature.”12 Mansfield thus endorses, in effect, the notion that The Federalist Constitution was meant to replace the Philadelphia Constitution.
Was separation of powers a means of introducing non-democratic elements into the constitutional order? Was it the means of reining in Congress while emancipating the Presidency? While all agreed, during the framing and ratification of the Constitution, that separation of powers was a good thing, did both the Framers of the Constitution and the Anti-Federalists have one view of separation of powers while the authors of The Federalist, though sharing perhaps that view, had another understanding of separation of powers?
Publius was correct in his observation that “enlightened statesmen will not always be at the helm,” however mistaken he may have been in his prediction “that the office of president will seldom fall to the lot of any man, who is not in an eminent degree endowed with the requisite qualifications and who are not pre-eminent for ability and virtue.”13 Every President is not a Washington or a Lincoln. The Presidency has had accidental occupants, and perhaps even more often has been demeaned by self-aggrandizement and crude Machiavellian maneuvering. The decline of the party system and the increasingly plebiscitary hue of the presidency should caution against an undue emphasis on the Presidency at the expense of the Congress. However well the Supreme Court has served as “republican schoolmaster,” it is also appropriate to recall that during the constitutional crises related to slavery and to civil rights legislation in the nineteenth century and in the constitutional crises related to the Great Depression in the twentieth century, the Congress was superior in judgment to the Supreme Court.14 Moreover, the Supreme Court has, for nearly a century, often depended upon a jurisprudence of legal positivism about which Straussians tend to be critical.
Leo Strauss made two observations that can be said to point to Congress and away from the President and the Court. For Machiavelli, the origin of the Roman Republic was a fratricide. On the other hand, Strauss points out that “the United States may be said to be the only country in the World which was founded in explicit opposition to Machiavellian principles.”15 The evidence for Strauss’s observation is found in Natural Right and History where he recognizes: “The nation dedicated to the proposition ’We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of happiness’ has now become, no doubt partly as a consequence of this dedication, the most powerful and prosperous of the nations of the earth.”16 The moral principles of natural right articulated in the Declaration of Independence, the first of the Organic Laws of the United States, reflect an explicit opposition to “Machiavellian principles.” It is the Declaration’s principles, drawn from Revelation and from natural right, that make compelling the political principles of the Constitution.17
Harry V. Jaffa, who has looked primarily to the character of Abraham Lincoln, and to Lincoln’s understanding of the Declaration of Independence, to explain America, reminds us that the supremacy of Congress is the direct result of the doctrine of unalienable rights and natural equality of all men taught by the Declaration of Independence.18 In a government based on consent of the governed, competent majority rule compatible with minority rights is the goal of democratic decision-making. It is the natural equality of man that is the foundation upon which rest the consent of the governed, individual rights, and constitutional rule by the majority. The Southern attempt at secession challenged this understanding.
George Anastaplo, in his unique commentaries on the text of the Constitution, has emphasized the supremacy of the legislature, concluding that “the supreme authority of the people in a regime ’dedicated to the proposition that all men are created equal’ is recognized in repeated indications by the Constitution that the legislature is ultimately the controlling branch of government.” Anastaplo (drawing upon the work of William Winslow Crosskey) has made a persuasive case that the powers of government listed in Article I, Section 8, the “enumerated powers,” are listed not simply to limit Congress, but in part to make sure that powers once claimed by the executive or by courts or even by the states would be clearly recognized as belonging to Congress.19
The Constitution created a government of extensive powers. Most of those powers were entrusted to the Congress. Article I is the longest article by far, nearly one half of the Constitution of 1787. The powers and limitations provided for in the legislative article affect everything else found in the Constitution of the United States. The Constitution makes it clear that “in republican government the legislative authority, necessarily, predominates.”20 Presidents and Justices of the Supreme Court may be impeached by Congress but members of Congress as such may not be similarly disciplined by the Executive or the Court. The Supreme Court is established by the Constitution but Congress has the authority to shape the Court by providing for its size and for regulating most of its important activities. The Presidents’ provisional veto can be overridden as can be, in effect, the Court’s exercise of judicial review. And neither the President nor the Court is given a role in the amending process.21
The Framers of the Constitution were partisans of representative democracy and majority rule; they were not simple populists. An independent executive executing the laws enacted by the Congress and an independent judiciary which insures that the legislature is not exempt from the laws it makes were critical to the Framers’ constitutional design for a stable, just and competent government. The Constitution provides for a division of governmental labor. The assumption behind such a division of labor, Herbert J. Storing noticed, is “that all governments perform certain kinds of functions, which are best performed in distinctive ways and by distinctive kinds of bodies.”22 The boundaries called for by the separation of powers have developed over two hundred years largely as a result of the day-to-day exercise of authority by Congress, the President, and the Courts. For example, it has been recognized (at least up to the Second World War) that deliberation by a representative legislature is safer and better suited for changing the status of the country from peace to war, whereas executive authority exercised by a single person is better suited to commanding the armed forces necessary to fight a war. Similarly, it has been recognized that although foreign affairs in general are negotiated better by a single representative, they are rendered safer if some legislative body must approve the treaty that has been negotiated. In addition, domestic legislation can be expected to be less parochial if the executive, who often may have a larger view, is fortified by a conditional veto. In these ways separation of powers works toward stability and efficiency even as it serves as a barrier to governmental oppression.
Representation, law-making, and deliberation all require “a detailed knowledge of the diverse interests, opinions and passions of the people. Many representatives, frequently elected, can perform this function better than one individual.”23 Unlike the British Parliament, Congress is the powerful legislative body it is because its authority is in principle independent of Executive leadership. Separation of powers in the Constitutional scheme works within Congress somewhat as it does in the relations between Congress and the President. The Constitution gives the power of the purse to Congress and especially to the House of Representatives, the chamber closest because of its mode of election to the people. This was done, James Madison recognized, because Congress’s authority over the nation’s purse “may in fact be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”24
The fact that the executive and the judiciary contribute to effective and decent government does not nullify the dominance of Congress in the Constitutional design; nor does it subtract from the republican principle of dependence upon the people through representation.25 The Constitution does not depend principally upon the separation of powers or the President’s veto or the Court’s exercise of judicial review to check Congress. The primary check on Congress is supplied by popular elections, with supplementary checks supplied by the requirement that all legislative and amendment proposals be approved by both houses of Congress.The agreement of both the House and the Senate, but not that of President or of the Court, is required for these proposals to be approved. There is, on the other hand, nothing in the Constitution which prevents one chamber of Congress from refusing to go along with proposed legislation or amendments emanating from the other chamber.26
The primary protection against both governmental tyranny and majority oppression, as well as the means for effective and efficient government, is found in the quality of representation in Congress that the continental democratic republic would make more probable. In the decade between the Declaration of Independence and the Constitutional Convention it became apparent that the smaller and homogenous state legislatures could be as oppressive and foolish as the Articles of Confederation Congress was inefficient. The great object of the Convention of 1787 was to achieve for the Union a stable, decent and democratic government. It was apparent by 1787 that even the smallest states were already too large for that “direct” or “pure” democracy in which all citizens could assemble to conduct the affairs of the community. The democratic traditions of the people required a scheme of representation. Any proposed government, it was recognized, had to be “strictly republican” and “wholly popular.”Thus Publius could acknowledge that the fundamental remedy provided by the Constitution was “a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking.” It was in recognition of population, democratic traditions, and geography that The Federalist speaks of representation resulting “in the total exclusion of the people in their collective capacity” from the government but not “in the total exclusion of the representatives of the people” from the administration of government.27
Representation then was necessary and, though a threat sometimes to stability, representation was also an opportunity.28 For the Framers of the Constitution representation was the major means for reconciling the requirement of consent of the governed with the requirement of political wisdom.29 A representative Congress would provide the arena for the workings of decent democratic-republican government. 30 The republican principle demands rule by the majority, but decent republican government depends upon deliberative rule. The extended commercial republic made possible by the modern principle of representation would provide that society of diverse interests necessary to blunt and moderate the interests and ambition, the injustice and foolishness endemic to the “majority faction” already evident in the thirteen states. James Madison, writing to Thomas Jefferson, lamented his inability at the Constitutional Convention to persuade a majority of the Convention to give to Congress a veto over state legislation.
A constitutional negative on the laws of the States seems... necessary to secure individuals agst. encroachments on their rights.The mutability of the laws of the States is found to be a serious evil. The injustice of them has been so frequent and so flagrant as to alarm the most steadfast friends of republicanism.... A reform therefore which does not make provision for private rights, must be materially defective.31
A similar sentiment can be found throughout The Federalist. The legislatures that Madison feared were the faction-dominated legislatures of the states. A national bicameral Congress, large enough to be representative and small enough to be deliberative, would provide an institution favorable enough to disciplined discourse to blunt the injustice and shortsightedness that often characterized the legislatures of the state governments. The Constitution thus seeks to remedy the kinds of defects seen in the relatively homogenous state legislatures, not to circumscribe the authority of the Congress.
In opening his defense of the proposed Constitution, Publius gave voice to what was widely recognized: that “it seems to have been reserved to the people of this country to decide the question whether or not good government could be established through reflection and choice.”32 This suggests that one characteristic of this democratic people was their ability to discern in some of their numbers the best in themselves. Implicit in this claim was the idea that the larger the body from which to choose, the better would likely be the choice of the people. Willmoore Kendall was echoing this sentiment of Publius when he described Congressional elections as the choosing of the most “virtuous,” that is, those “whose merit may recommend [them] to ... the esteem and confidence” of their fellow citizens.33 This is not, however, the Burkean notion of an aristocratic uninstructed trustee representative. What is being represented is the voice of the community, organized in a variety of capacities, each directed toward the safety and happiness of the community. When we elect a representative we are electing someone to act for ourselves in place of ourselves. We elect representatives not simply because we cannot all be in Washington ourselves but also because we think that those elected, because of time, knowledge, and interest, will be able to act at least as competently as we ourselves can act, especially when tempered by the competency, interest, and arguments of their fellow representatives. We believe therefore that both our individual interests and the common good of the community, in the long term as well as in the short, will be more adequately served by our representatives than they would be served by ourselves directly.34
Even during a time such as ours of relatively weak political parties, Representatives and Senators are still elected as Republicans or Democrats. They seek election to the Congress with at least some known minimal legislative policy preferences corresponding in general to the broad views of their party. Party allegiance, however weakened, remains one of the indicators of policies that serve to recommend present and potential members of Congress to the “esteem and confidence” of the electorate. In this manner Representation holds out the promise of aligning consent of the governed both with the views of the governed and with practical wisdom. The virtue of representation is, then, the virtue of prudence, the practical wisdom to decide what is the best that can be done here and now in the circumstances we find ourselves.
The application of principles to policy requires knowing what are the best ends to be obtained. But no less so, in most if not in all circumstances, prudence may amount to the equitable and skilled regulation of opposite, diverse and often rival interests.Thus it was underscored that in the Congress “the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for that purpose.”35 It is in the Congress where the reason of the people is brought to bear upon the passions of the people. And it is in the Congress where the views of “We the People” are to be refined and enlarged into the “deliberative sense of the community.” 36 Understood in this manner, both necessity and principle combine to remove many sources of conflict between popular rule and representation. In short, representation offers a substitute for the direct popular rule of the people without ignoring the opinion or the authority of the people.
Vital to a democratic republic is ruling and being ruled in turn. In a democratic republic those who make the laws live under those laws. Modern representation is not intended to be a perfect reflection of each and every subset of “We the People.” Any principle of selection, including free democratic elections, will prevent that. Ancient democratic elections sometimes combined universal suffrage with selection by lottery. Modern democratic elections add to universal suffrage the aristocratic element of merit. Every election asks the voters to choose who is the best candidate.37 In this manner modern democratic elections certainly can produce representatives who are an enhanced reflection of those represented. But we should not expect routinely to find in Congress men and women of a higher order than the people who elect them. The strength of the representatives lies not in their superior virtue, but in their skills (however developed and recognized) in achieving the public policy required for the ends of safety and happiness.
In a liberal democracy public policy and public opinion must go hand in hand. Abraham Lincoln, who again and again linked the moral principles of the Declaration of Independence to the political principles of the Constitution, observed, “In this and like communities, public sentiment is everything. With public sentiment nothing can fail; without it nothing can succeed.”38 The irreducible core of republican government is found in the forming, as well as in the following, of public opinion by deliberation in a representative assembly. Representation is the means for making more likely that “We the People” at our best will be the public voice. It is a misreading both of the Declaration of Independence and of the Constitution to suppose that because the Framers feared the rule of the faction-dominated state legislatures, they also feared rule by the majority in Congress. Certainly, the design of the Constitution does not suggest that the Framers sought a remedy for the problems of democracy in the monarchic or aristocratic elements associated with the executive of the court.
It is the Congress that talks, deliberates and decides, reflecting thereby the role of practical wisdom in governmental affairs.39 But many accounts, both scholarly and journalistic, suggest that deliberation in both chambers of Congress has declined dramatically since the 1960s. Members of Congress are widely portrayed as the captives of special interests willing to sacrifice the common good in pursuit of the funds vital to securing reelection. Neither principles of representation nor principles of deliberation, but logrolling, compromise, bargaining and side deals, are believed to be decisive in the Congress.40 For too many citizens Will Roger’s cynical witticism, that “Congress is the best money can buy,” has never seemed more accurate.41 Deprecation of Congress is so widespread that during the presidential campaign of 1996, Lamar Alexander, a presidential candidate, could suggest, without a trace of humor or fear of correction, that the Congress be sent home after six months so as to limit the harm they do.
The case for decent self-government rests not with the Executive, nor with the Court, but with the representative Legislature. No one denies that Congress must be, as well as that it must appear to be, more responsible.42 Fundamental to this essay is the opinion that self-government may not survive if the feeling becomes widespread either that the people are unworthy or that their representatives are incapable of conducting themselves sensibly. May we not wonder whether scholarly and journalistic indignation towards the Congress is justified? For instance, most people when asked, respond that their Representative or Senator is hardworking and energetic, a faithful representative and a good legislator. It is too many of the other Members of Congress who are the problem.43
Both scholarly and popular dissatisfaction with the President or the Supreme Court is nearly always connected with a particular President or a particular opinion of the Court or a particular Justice, but not with the Presidency or the Court itself. It is otherwise with Congress: “Congress bashing is a venerable part of American political discourse.”44 The apparently moribund term-limits movement as well as the short-lived line-item veto and the “ratification” of the 27th Amendment are only the most recent forms of Congress-bashing.45 Journalists and academics, it seems, are teaching the general body of citizens to identify the partisan maneuvering of the political parties or the foolish antics of this or that member as defects of the Congress. This perspective is enhanced by journalists and scholars who shy away from, if they do not disdain, that interplay of congressional and electoral politics, public policy, and special interests which characterizes the robust democratic politics of the United States. Congress is expected to transform often fractious public opinion into acceptable public policy, without public disagreement or dissent, without bargaining or compromise, and without appearing to be enthusiastic Democrats or enthusiastic Republicans.
The tendency to focus on the wheeling and dealing of democratic politics in a large and diverse republic has been encouraged by television. Simply put, modern presidential politics “plays” much better on television than does Congressional politics.46 A century of war and economic dislocation has helped create for the Presidency a dramatic if not imperial aura never intended by the Framers. Television routinely portrays the President as possessing information, insight and hence prerogatives not available to the Congress. He is shown offering leadership and taking charge in the name of the people. Presidential elections, the President, his family and friends are now the most pervasive feature of American politics and government. George Anastaplo has asked, “Is there not something demeaning to a republican people to make what we now do of our Presidents and of their families and other intimates? ...Among the consequences of our unbecoming obsequiousness, which the mass media ’naturally’ exploit, is that we are diverted both from serious politics and from a proper reading of the Constitution.”47
Even as television enhances and dramatizes the presidency, it portrays Congress as a vacillating and confused multitude, unable to do much itself but skilled at crippling presidential initiatives and programs. In the early 1960s one Congressional observer noticed that at least since the early years of this century it is nearly routine for the American people to send to Washington a Congress and a President at odds with respect to their agenda, perspectives, and goals. Divided government, with one or both houses of Congress controlled by one party and with the presidency controlled by the other party, has been the rule in the latter half of the twentieth century. The issues change, the parties switch sides, as do Presidents and Congresses. What remains constant is the tension between the President and the Congress and their respective supporters.This tension results, at least in part, from the tendency in some quarters to identify the position of the President with “high principle” in politics. Consequently, as Willmoore Kendall argued, the task of politics and of intellectuals is somehow to “educate” the Congress and, beyond the Congress, the electorate to acceptance of the President’s programs. Almost by definition, gridlock is understood to result from Congress’s unwillingness to accept, as the concrete manifestation of“high principle,” the political and legislative agenda of the President.48
Does Congress still “refine and enlarge the public views” into “the cool and deliberative sense of the community”? It has long been something of an insiders’ joke to observe the dismay of tourists in Washington as they watch the often distracted activities on the floor of the House and Senate. Woodrow Wilson faulted Congress for not being a more parliamentary body, seriously and openly debating the issues of the day and enacting national legislation on the basis of clear ideological choices. But even Wilson recognized that the serious work of deliberation and law-making in the Congress is carried out mainly in Committees and SubCommittees.
Recent sober Congressional scholarship, combining sound theory with a sensible evaluation of important legislative case studies, has taken a more favorable view of the Congress. Joseph M. Bessette has called into question the easy assumptions and explanations that often portray Congress simply as an institution of side-deals, logrolling, and bargaining, a place ruled by mere self-interest in pursuit of reelection. His analysis of important legislation and important Legislators in both Houses recognizes that there is some truth to these charges. But he also shows that partisan party politics and self-interest cannot alone account for the outcome of the most important legislation. As with so many other areas of contemporary life, it may well be that institutional constraints on self-interest in Congress have declined since the 1960s. Still, Bessette shows that a considerable high-minded devotion to the common good remains the goal of a significant number of members of Congress. Deliberation, particularly by those in the Committee and Subcommittee leadership positions, continues to play a more important role in the legislative process than is generally acknowledged. No doubt Congress may not deliberate in all cases as thoroughly as it ought, but Congress deliberates much more than is usually believed.49
Congressional deliberation is defined by Bessette as “reasoning on the merits of public policy” for “some public good—some good external to the decision makers themselves.”50 As Bessette demonstrates, deliberation on the merits of proposed legislation is not necessarily at odds with the self-interest of individual Members or with their efforts to maximize benefits to their constituents in order to improve their prospects for reelection. Legislators, even in the pursuit of the narrowest self-interest concerned only with reelection, must deliberate on what truly benefits their constituents or the interest groups they support. The most homogenous legislative district will include a variety of conflicting opinions about what benefits the district. Often on major issues in domestic policy, and in foreign affairs as well, there is not a clear division of opinion to guide legislators. The variety of opinion that is to be expected in a diverse country requires legislators to exercise a substantial degree of independent judgment. Members of Congress are forced to seek information and to determine the best course of action.
Congress is a complex organization made up of independently elected members who have to take into account other complex organizations including political parties and “caucuses” guided by sectional or economic interests or ideological views of government. The Committees and Subcommittees of Congress form an intricate system that requires significant amounts of deliberation. Bessette highlights Congressional deliberation in diverse contexts and forums. For instance, one aspect of deliberation rarely noticed, he reminds us, begins at the earliest decision stage in the legislative process, when members of both Houses, their staff, representatives of concerned interest groups, and executive branch staff come together, in both formal and informal settings, to begin discussions about sponsoring proposed legislation. Even at this early stage choices are made and positions are taken, if only tentatively, which need to be defended on some basis other than mere self-interest.
Bessette reminds us that essential to the deliberative process, from beginning sponsorship to the successful vote on the floor, is the gathering of information, a task for which Congress is well suited. Five hundred and thirty-five legislators from different parts of the country are supported by thousands of staff members. Each Committee and Subcommittee has the support of professional staff, as do the Congressional Budget Office and the Congressional Research Service. The significant increase of professional staff in the contemporary era has allowed Congress to keep pace with the expertise found in the executive branch and to provide Congress an independent source of information with which to judge proposed legislation and to oversee the vast bureaucracy.51 Lobbyist for special interests, as they attempt to persuade Committee and Subcommittee members of the merits or defects of proposed legislation, offer a significant means by which members of both Houses can become knowledgeable about important legislation.
Congress is a complex institution because modern legislation in a vast and diverse commercial republic is complex. No member of Congress can expect to have personal expertise in more than a small part of the legislative agenda that Congress deals with each year. Committees and Subcommittee augmented by the variety of caucuses dealing with economic, party and regional issues, are the places where considerable information and legislative expertise are acquired and where substantive deliberation goes on. As Bessette observes:
Although newly elected members may carry with them into the legislature policy preferences on some subjects, they will face many issues there for the first time. It is unlikely that their prior experience will have exposed them to the range and breadth of issues they will be forced to confront in Congress, especially in the areas of foreign and military policy, which have no direct corollary in state and local government or in the private sector. Moreover, even veteran members of Congress are forced to address new issues as they move to new committees or as the legislative agenda changes over time.
Thus, the members of Congress are often required to make decisions in areas where they do not have settled views. Unless the representative or senator simply defers to others on these new issues, he or she must become sufficiently informed to make reasoned decisions in committee or on the floor.52
Information, while necessary, is not sufficient for good or successful legislation. The prospects of success for major proposed legislation lays in the building of majority coalitions. At each stage of the legislative process, from the first informal setting to a successful vote on the floor of each chamber, ever-larger coalitions of majorities comprising very different interest in Congress are required.53 It is well recognized as befits a Congress of independent representatives, that power is widely dispersed in both Houses with many points at which proposed legislation can be modified, derailed or defeated. Most bills die in committee.
Facts, and reasoned arguments required to explain the facts, must be offered to persuade legislators who may have different even conflicting views and interests. Such reasoned argument need not always, or even most of the time, appeal to a simple homogenous common good or to one or more overarching national interests. Most often the reasoned appeal is to principles of equity and justice on behalf of a part of the whole. The practical effect, however partisan, slow, expensive or sloppy it may be, comes near to Publius’s observation and hope in The Federalist, that representation in the extended republic will make it more likely that “a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good” that arise out of the “permanent and aggregate interests” of the parts.54
Tactics of compromises, side deals, and bargaining over the division of government “pork” are not incompatible with considerable deliberation. There are certainly higher and lower grades of pork. Besides, “pork” may be, at least in part, in the eye of the beholder. As one astute observer has remarked, pork also can be “the necessary glue that holds political coalitions together.”55 Aid to depressed maritime industries in Maine necessary to stabilize employment there may have the appearance of pork in Nebraska. Similarly price supports for farmers in Iowa may seem less than compelling to residents of New York City. Opposing pork in principle means thinking that outside observers always know what is better for the state or district than do its representatives in Congress. Or, put another way, is the common good or the public interest best served only by thinking about what is good for the country from a national perspective? The Constitution assumes that majority coalitions will be formed between “opposite and rival interests.” It is these opposite and rival interests, including the bargaining, compromise, and side deals over pork, that help serve as sentinels against “unjust combinations of a majority of the whole.” In this manner the pursuit of pork can make it more likely that members of Congress will be able to provide a voice for those they represent.
Popular and scholarly disdain with Congress suggests a misunderstanding of what it is that Congress is designed to do and how Congress is to do it.To be sure, journalists and scholars alike are devoted to democracy in theory, but often do not wish to be confronted by the rough and tumble of the democratic process. Contrast an older and more realistic view of democratic legislative practice:
The regulation of these various and interfering interests forms the principal task of modern Legislation, and involves the spirit of party and faction in the necessary and ordinary operations of government.
... what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens; and what are the different classes of legislators, but advocates and parties to the causes which they determine?56
The common good is not simply the sum total of the parts. Neither is it something apart, and recognizably distinct, from the good of the parts that make up the whole. Should we not wonder how it is that one person can claim, or can be expected to represent, the common good of a nation as large and as diverse as is the United States? In Federalist No. 2, Publius observed that “Providence has been pleased to give to this one connected country, to one united people, a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs.”57 That people and that country no longer exist. In some Congressional districts, scores of languages are spoken and nearly as many religions are practiced. Our manners and customs are becoming ever more diverse. Nor is the United States any longer one connected country, but extends from Maine to Maui, from Key West to the Aleutians. We do remain one people to the extent that we remain dedicated to the principles of republican government.58 Just as no legislative body can act with the dispatch of a single executive, so no single person can be expected to represent the diversity or to possess the flexibility to deliberate about the vast number of legitimate interests that make up the common good of democratic politics as well as Congress.
We have noticed that among those influenced by Leo Strauss there have been differences of emphasis about where the authoritative principles of American government reside. Even so, the perspective common to those influenced by him is that the United States is superior to any viable alternative.59 However parochial and irresponsible Congress may sometimes be, the remedy for republican government is not an undue dependence on a monolithic Presidency The republican remedy is a more disciplined and responsible Congress demanded by a more disciplined and responsible people.
One example would be ending the repeated recourse to threats of filibustering in the United States Senate. The recourse to what is called a “supermajority” is now required or threatened to be required for routine legislation. Both the Framers of the Constitution and members of the First Congress restricted the use of such supermajorities to the few instances identified in the Constitution. It is a “perverse use of party discipline” to require supermajorities to resolve issues in either house of Congress. One scholar has suggested that “the current Senate rule that keeps a bare majority from ending debate, even after a reasonable time for discussion of the relevant issues, is probably unconstitutional.”60 A second example is the extraordinary amounts of money now necessary for election campaigns and too often spent for miserable negative television sound bites.This is a particularly corrosive element of contemporary politics which cannot help but harm our republican institutions.61
Both the restoration of responsible majority rule in the Senate and of responsible political campaigns depends upon an informed public opinion. Changes in theories of constitutionalism or in the structure of the Constitution cannot counteract for long, if at all, the long-term effects of undisciplined character and undisciplined politics. In short, “We the People” have to revive and insist upon, a reliable standard both of electoral politics and of constitutionalism in this country. A proper respect for the political philosophy resurrected by Leo Strauss should contribute to the general education needed for “We the People” to play our part in sustaining Republican government.
George Anastaplo, The Amendments to the Constitution: A Commentary (Baltimore: Johns Hopkins University Press, 1995), p. 185.
See Kenneth L. Deutsch and Walter Soffer, eds., The Crisis of Liberal Democracy (Albany, N.Y: State University of New York Press, 1987), p. 1.
Leo Strauss, “Liberal Education and Responsibility” in Liberalism Ancient and Modern (New York: Basic Books, 1968), p. 24.
Thomas Jefferson Letter to James Madison (November 18, 1878), in The Life and Selected Writings of Thomas Jefferson, eds. Adrienne Koch and William Peden (New York: Modern Library, Random House, 1944), p. 452.
Willmoore Kendall, “How to Read ’The Federalist’” (with George W. Carey) in Willmoore Kendall Contra Mundum, Nellie D. Kendall, ed. (Lanham, Md.: University Press of America, 1994), pp. 411-13. Willmoore Kendall was an established political theorist with a national reputation when Leo Strauss began to publish his work in the United States. In what must be regarded as a unique occurrence in the discipline of American political science, Kendall, in a series of book reviews and essays devoted to Strauss and his early students, indicated his increasing attraction to, and the importance of, the work of this new group of political theorists, as different from the old political scientists, he said, “as chalk from cheese.” See Willmoore Kendall, The Conservative Affirmation (Chicago: Henry Regnery Company, 1963), pp. 202-3, 249-52, 257-60. See also Willmoore Kendall, review Ancients and Moderns: Essays on the Tradition of Political Philosophy, ed. Joseph Cropsey 61 American Political Science Review (September 1967), pp. 783-84. See as well Willmoore Kendall, “John Locke Revisited,” in Willmoore Kendall Contra Mundum, pp. 418-56. On both the limitations and the usefulness of The Federalist, see George Anastaplo, The Constitution of 1787: A Commentary (Baltimore: Johns Hopkins University Press, 1989), pp. 225-26;Anastaplo “The Constitution at Two Hundred: Explorations,” Texas Tech Law Review 22 (1991), pp. 1053, 1036-37; Anastaplo, “Notes toward an ’Apologia pro vita sua,”’ Interpretation 10, no. 1 (1982), p. 331. See as well John A. Murley, “Our Character is Our Fate:The Constitutionalism of George Anastaplo,” Political Science Reviewer 26 (1997), pp. 56-57.
For a different interpretation of the Declaration’s indictment against George III, see Joseph M. Bessette and Gary J. Schmitt, “Executive Power and the American Founding,” in Separation of Powers and Good Government, Bradford P. Wilson & Peter W. Schramm, eds. (Lanham, Md.: Rowman & Littlefield Publishers, 1994), p. 52.
See James Madison,Alexander Hamilton, and John Jay, The Federalist, ed. Jacob E. Cooke (Middletown, Conn.:Wesleyan University Press, 1961), No.47. p. 324. All references are to this edition.
For a wide-ranging discussion of The Federalist including the ends of separation of powers, see the essays in Saving the Revolution: The Federalist Papers and the American Founding, Charles R. Kesler, ed. (New York: Free Press, 1987.) See also the essays in Separation of Powers and Good Government. See as well Separation of Powers—Does It Still Work? Robert A. Goldwin and Art Kaufman, eds. (Washington, D.C.: American Enterprise Institute for Public Policy Research, 1986).
See David F. Epstein, The Political Theory of The Federalist (Chicago: University of Chicago Press, 1984), pp. 184-85.
See Martin Diamond, As Far as Republican Principles Will Admit, William A. Schambra, ed. (Washington, D.C. :The AEI Press, 1992), pp. 47-49. Martin Diamond identified the Founders in large part, with Publius/James Madison. More recently the tendency of Straussian scholars has been to identify the Founders with Publius/Alexander Hamilton. For example, see James W. Ceaser, “Doctrines of Presidential-Congressional Relations,” in Separation of Powers and Good Government, pp. 92, 94, 97, 101.
See Paul Eidelberg, The Philosophy of the American Constitution (New York: Free Press, 1968), pp. 3, 19-28, 55-67, 197-99, 203-11.
Harvey C. Mansfield Jr., America’s Constitutional Soul (Baltimore, Md.:Johns Hopkins University Press, 1991), pp. 140, 148.
The Federalist No.10 (p. 60) and No. 68 (p. 460).
See Anastaplo, The Constitution of 1787: A Commentary, pp. 142-43.
Leo Strauss, Thoughts on Machiavelli (Glencoe, Ill.: Free Press, 1958), p. 13.
Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953), p. 1. See also Harry V. JaSa, Original Intent and the Framers of the Constitution: A Disputed Question (Washington, D.C., Regnery Gateway, 1994) (with Bruce Ledewitz, Robert L. Stone, and George Anastaplo), p. 23.
See Four Pillars of Constitutionalism: The Organic Laws of the United States, Introduction by Richard H. Cox (Amherst, N.Y.: Prometheus Books 1998).
See Harry V. Jaffa, “Defenders of the Constitution: Calhoun versus Madison, A Bicentennial Cerebration” (Constitutionalism In America: The Bicentennial Project of the University of Dallas), p. 5.
See Anastaplo, The Constitution of 1787, pp. 32, 26-73. See also Anastaplo, “The Constitution at Two Hundred: Explorations.” See as well Anastaplo, “Mr. Crosskey, the American Constitution, and the Natures ofThings” 15 Loyola University of Chicago Law Journal 184 (1984), Anastaplo, “Lessons for the Student of Law: The Oklahoma Lectures,” 20 Oklahoma City University Law Review 19 (1995),Anastaplo,“We the People:The Rulers and the Ruled,” The Great Ideas Today (Chicago: Encyclopaedia Britannica, Inc. 1987) 52-72, and Anastaplo,” Robert’s Rules of Order and the Conduct of Deliberative Assemblies in the United States,” The Great Ideas Today (Chicago: Encyclopaedia Britannica, Inc. 1996) 232-57.
The Federalist, No. 51 (p. 350). For a different perspective on Congress, see The Presidency in the Constitutional Order, Joseph M. Bessette and Jeffrey Tulis, eds. (Baton Rouge: Louisiana University Press, 1981). See also Gary J. Schmitt, “Jefferson and Executive Power: Revisionism and the Revolution of 1800,” Publius, The Journal of Federalism, No. 17 (Spring 1987).
See Anastaplo, The Constitution of 1787, pp. 111, 181. This is not to deny that at any given time the President may exercise considerable political influence.
Herbert J. Storing, What the Anti-Federalists Were For (Chicago: University of Chicago Press, 1981), p. 60.
William F. Connelly Jr., “Congress: Representation and Deliberation” in The American Experiment: Essays on the Theory and Practice of Liberty, Peter Augustine Lawler and Robert Martin Schaefer, eds. (Lanham, Md.: Rowman & Littlefield Publishers, Inc., 1994), p. 175.
The Federalist No. 58 (p. 394).
For a different view, see William Kristol, “The Problem of the Separation of Powers: Federalist 47-51,” in Saving The Revolution, pp. 100-130.
See Anastaplo, The Constitution of 1787, pp. 32-36, 40, 46,179-91. Compare the dominance of the House of Commons in the British Parliament. If the House of Commons insists on having its way it will eventually have it.
The Federalist, No.10 (p. 62), No. 63 (p. 428). For different views, see the suggestion by Walter Berns that representation was a means of keeping the people out of government. “Does the Constitution ’Secure These Rights’?” in How Democratic Is the Constitution?, pp. 65-66; Bradford P.Wilson, “Separation of Powers And Judicial Review,” in Separation of Powers and Good Government, p. 69. See also David F. Epstein, The Political Theory of The Federalist, pp. 81-107; Paul Eidelberg, The Philosophy of the American Constitution, pp. 225-27, 317 n.37. See as well The Federalist No. 63. (p. 428).
See Storing, What the Anti-Federalists Were For, p. 43.
See Strauss, Natural Right and History, p. 141.
See Diamond, As Far as Republican Principles Will Admit. This was summed up by Martin Diamond’s felicitous phrase, “decent even though democratic,” ibid., p. 220.
Quoted in Robert A. Goldwin, From Parchment to Power (Washington, D.C.:The AEI Press, 1997), p. 59.
The Federalist, No. 1 (p. 3).
Willmoore Kendall, “The Two Majorities,” in Willmoore Kendall Contra Mundum, p.216, n. 29.
See Joseph M. Bessette, The Mild Voice of Reason (Chicago: University of Chicago Press, 1994), pp. 2, 45; Harry V. Jaffa, The Conditions of Freedom (Baltimore:Johns Hopkins University Press, 1975),p. 159. See also George Anastaplo, “A Return To Bristol With Edmund Burke,” in “Lectures for the Student of Law,” 20 Oklahoma City University Law Review 69-85 (1995).
The Federalist, No. 10 (p. 62).
Ibid., No. 63 (p. 425), No. 71 (p. 482).
See Laurence Berns, “Our Political Situation: Good Government, Self-government, and American Democracy” The Great Ideas Today (Chicago: Encyclopaedia Britannica, Inc. 1997), p. 83.
Collected Works of Abraham Lincoln, Roy P. Basler, ed. (New Brunswick: Rutgers University Press, 1953), III, 27.
Anastaplo, The Constitution of 1787, p. 42.
See Bessette, The Mild Voice of Reason, pp. 55-66.
See L. Peter Schultz, “Congress and the Separation of Powers Today: Practice in Search of a Theory” in Separation of Powers and Good Government, p. 185; William F. Connelly Jr., “Congress Representation and Deliberation,” p. 171.
For useful critiques of many contemporary Congressional practices: see John Alvis, “Willmoore Kendall and the Demise of Congressional Deliberation,” The Intercollegiate Review (Spring 1987), pp. 57-66; Gordon S. Jones and John A. Marini, eds., The Imperial Congress: Crisis in the Separation of Powers (New York: Pharos Books 1988); L. Gordon Crovitz & Jeremy A. Rabkin, eds., The Fettered Presidency: Legal Constraints on the Executive Branch (Washington, D. C.: American Enterprise Institute 1989); Edward J. Erler, The American Polity: Essays on the Theory and Practice of Constitutional Government (New York: Crane Russak, 1991).
See Richard F. Fenno Jr., “If, as Ralph Nader Says, Congress is ’The Broken Branch,’ How Come We Love Our Congressman So Much?” in Norman J. Ornstein, ed., Congress in Change: Evolution and Reform (New York: Praeger, 1993). See also John R. Hibbing and Elizabeth Theiss-Morse, Congress as Public Enemy (Cambridge: Cambridge University Press, 1995), p. 43.
L. Peter Schultz, “Congress and the Separation of Powers Today,” in Separation of Powers and Good Government.
At the end of its June 1998 term, the Supreme Court, in Clinton v. City of New York declared, by a vote of 6-3, the Line Item Veto Act unconstitutional. Justice Anthony M. Kennedy, concurring with Justice John Paul Stevens’s opinion for the Court, reminded all citizens, “Abdication of responsibility is not part of the constitutional design. Failure of political will does not justify unconstitutional remedies.” Justice Kennedy also said that the primary end of separation of powers is liberty, not energy, economy, or efficiency. The line-item veto “compromises the political liberty of our citizens.” “Liberty is always at stake when one or more of the branches seek to transgess the separation of powers...”
See Anastaplo, The Amendments to the Constitution, p. 214. See also George Anastaplo “The Pentagon Papers and the Abolition ofTelevision,” in The American Moralist (Athens, Ohio: Ohio University Press, 1992), pp. 245-74. It should be recognized that Anastaplo’s proposal to abolish television was not offered with an expectation that it would be adopted, but rather to dramatize a diagnosis.
Anastaplo, The Constitution of 1787, pp.122-23.
Kendall, “The Two Majorities,” pp. 202, 226-27.
See Bessette, The Mild Voice of Reason, pp. 67-149.
Ibid., pp. 77-149.
The importance of individual members of Congress as compared to the British Parliament can be seen when one compares the resources and staff support provided a member of Congress with the resources provided to the typical member of Parliament. A member of Parliament may receive “a desk, a filing cabinet, and a telephone, but not always in the same place.” James Q. Wilson and John J. Dilulio Jr., American Government, seventh ed. (New York: Houghton Mifflin Co., 1998), p. 302.
Ibid. pp. 54-55.
See ibid. pp. 46-51. (Italics omitted.)
See The Federalist, No. 51 (p. 353), No. 10 (p. 57). For the trail-blazing analysis of the relationship between the extended republic and multiplicity of interests in The Federalist, see Diamond, As Far as Republican Principles Will Admit.
James Q. Wilson, “Democracy Needs Pork To Survive,” Wall Street Journal, August 14, 1997, p. 16.
The Federalist, No. 10 (p. 59).
Ibid., No. 2 (p. 9).
See John A. Rohr, “The Legitimacy of the Administrative State,” in Constitutionalism In Perspective, ed. Sarah BaumgartnerThurow (Lanham, Md.: University Press of America 1988), III, 96;William F. Connelly Jr., “Congress: Representation and Deliberation” p. 176.
See Leo Strauss, What is Political Philosophy? (New York: Free Press, 1959), p.113.
George Anastaplo, “The Spirit of the Law,” Chicago Sun- Times, November 11, 1998, p. 18. See also Anastaplo, “Robert’s Rules of Order and the Conduct of Deliberative Assemblies in the United States.”
Everyone knows what is corrupting our political process: huge campaign expenditures that force conscientious legislators to spend far too much of their time in the dispiriting activity of raising money, far too much reliance on public opinion polls and talk about the “horse race,” attack campaigning and journalism, the decline of political civility, “the demoralizing happenstance found in the primary system we now have,” rampant demagoguery, and so on. See Berns, “Our Political Situation: Good Government, Self-government, and American Democracy,” p. 92. The fundamental political issue of our time has been well framed:
The significance of the natural is again and again considered, and sometimes denied, in these readings. This bears upon the question of what the best way to live is, which depends in part upon what the permanent nature of the human being is. This may be seen in a problem, implicit in many of these readings, which is particularly important in a commercial republic: the problem of the use and abuse of the desire for gain. It is intriguing to notice how often the problem of avarice crops up in one setting after another, especially when (as could be deen in the history of the great Roman republic) the threat of foreign danger recedes. The problem of avarice, or the status of“natural liberty” and hence of acquisitiveness, is critical to the question of the best way to live, and hence of the best way to order a community. (Virtually the last word in Plato Apology is directed to this problem.) An understandable concern for a reliable prosperity, supported by the stern discipline of the the Market and stimulated by the ever-changing temptations of Globalization, can neglect the legitimate concerns of the community both for the character of its citizens and for the stability of social rala-tions. Here as elsewhere the proper role of religion, and of religious liberty, in the governance of the community can be debated.
From the General Introduction of the two-volume Liberty, Equality and the Modern Constitutionalism: A Source Book, ed. George Anastaplo (Newburyport, Mass.: Focus, 1999). For a different perspective, see the essay by Thomas G. West, “The Decline of Free Speech in Twentieth-Century America: The View from the Founding,” in Liberty Under Law: American Constitutionalism Yesterday, Today, and Tomorrow, Kenneth L. Grasso and Cecilia Rodriguez Castillo, eds. (Lanham, Md.: University Press of America, 1997).