Hillsdale College Free Course on the Federalist Papers: One Question

Larry Arnn has offered a free course on the Federalist papers, and I have just finished the first lecture. This is good stuff! And Free! You too can sign up for these things for free, and their magazine Imprimis sends out one guest lecture per month to 2.3 million people. We love the stories about Martin Diamond and Harry Jaffa in the Question and Answer period.

Mr. Arnn considers the Federalist Papers to be the greatest American work of Politics, and possibly the greatest political work ever written. If I were a student in his class, one question I would ask is whether the Declaration of Independence is not at least equal to the Federalist Papers as a work of political theory. The Federalist Papers argue that we should accept this constitution, but the Constitution did not yet have a Bill of Rights. There is very little said in the Federalist Papers about the Bill of Rights. Madison assumed, wrongly, that the structure of the government would prevent it from doing what it had no power to do. But, of course, Jefferson, who was over in France at the time, wrote Madison a famous letter arguing that while some constitutions do not need a bill of rights, this one does. And now all Americans for the most part agree, and we could not imagine a Constitution with only Habeas Corpus and a couple other rights provisions.

This constitution allowed slavery, and apparently allowed a fugitive slave law. These were of course compromises with some states. But could one, for example, swear the oath required of adjunct faculty to uphold The Constitution if we were compelled to help enslave others in any way? Could we swear this oath prior to 1808, or just prior to the Civil war? The law required us, here in Michigan, to help return fugitive slaves, rather than to help the escapees in the underground railroad. Liberty (according to Montesquieu) consists in part in not being compelled to do anything wrong, and for the rest, not being forbidden from doing what is right. So the constitution, and hence the Federalist Papers, is a bit of a compromise.

But the Declaration is much less of a compromise. What we call the second sentence of the Declaration contains four assertions which make up more than half of the political theory that makes America great. The Bill of Rights spells out and codifies these assertions regarding, first, the equal creation, and second, the rights to life, liberty and the pursuit of happiness. The third assertion states that “To secure these rights” is the purpose of government, and government derives its just powers from consent. And of course, whenever a government becomes destructive of these ends, we, the spirited Americans, will put an end to it, and institute a new.  So we surely can amend the constitution to correct our little problem regarding gerrymandering and campaign finance.

As Lincoln, borrowing from the Biblical book of Proverbs, wrote, the Declaration is like apples of gold, while the Constitution is like a filigree of silver. I would ask Mr. Arnn if he believes in this, and what bearing he thinks this has on our current Fourth Amendment questions, and the excesses of the un-elected parts of the executive branch. How does this effect our slide toward tyranny on the issues of surveillance, property seizures, campaign finance, prescription drug and insurance fraud, jailing of fathers, police shootings, and the control of the internet by marketing forces that we are unwilling to limit, to the point of causing a crisis in national security? We will torture, but we will not say no to the lobbyists from Google and Facebook when national security is at stake? What does he think the Federalist Papers have to say about how there is no oversight, accountability and meaningful recourse when executive powers are abused?  And when political rights are prostituted to employers and information brokers?

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