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In his last comment on his own recent post on the most important of the Federalist Papers, Carl Scott asks that more attention be given to Federalist 38, which is often overlooked. I concur. And since I gave a Constitution Day lecture at Middlebury last week, and spent some time on Federalist 38, I would like to offer a few thoughts on that sleeper. Below are a few comments culled from the lecture.

The Constitution contains a theory of politics. One of its elements is found in the concept of a “founder” (or founders), or what was sometimes called in political philosophy the Legislator or Lawgiver. The founder represents the pinnacle of political greatness; no other function in politics enjoys a similar status. A prince or statesman, however brilliant, works within the mold forged by the founder.

The founder refers to the one who sets in motion the plan for a new order, who conceives or designs the plan, and who carries it into execution. There is a theory of politics that denies the possibility (or desirability) of the function of founding. It is known as the organic model. In Federalist 1, Hamilton presents the dichotomy between a government established by “reflection” and one established by “accident.” Contrary to what many assume to be the case, it is not at all clear that reflection is preferable to accident. According to the greatest proponent of the organic model, Edmund Burke, his beloved constitution of England was not “formed upon a regular plan or with any unity of design,” but developed “in a great length of time and by a great variety of accidents.” Its parts “gradually, and almost insensibly accommodated themselves to each other.” Great Britain has no founder. One of the purposes of the organic theory to deny (or to downplay) the function of founding.

Many of those involved in establishing the Constitution were conscious of this function or “office” of founders. The Federalist, in particular Federalist 38, is one of the important reflections in political theory on the theme of founding and founders. It should be studied along with the treatments of this theme by Machiavelli and Rousseau, where there is discussion of such figures as Moses and Romulus. In Federalist 38, James Madison likewise surveys some of the great Lawgivers of antiquity, including Lycurgus, the founder of Sparta, and Solon, a founder of Athenian democracy. The authors of The Federalist, by the very act of treating this subject, were inviting a comparison of America’s founders to these greatest of political figures of the past. The American founders are the only moderns in this category—and they are perhaps offering themselves as models to replace the ancients.

The existence of individuals of such high rank in America is a paradox. A Constitution that abolishes rank and nobility and that begins to establish popular government is paired with a view that suggests an expansive hierarchy in the realm of our thought about politics. Greatness is a concept that asks the rest of us to “look up” to something, in this case to the founders. The idea of founders underwrites the concept of greatness in America politics. We are an egalitarian people, but a people that looks up to something. This notion is still sufficiently powerful to supply on its own a rebuke to the political pigmies who slight the Constitution, like the previous Speaker of the House of Representatives, or to the haughty intellectuals, like the young Woodrow Wilson, who from ambition or envy would replace it.

The only persons in the world today who merit the title of successful Lawgivers are America’s founders. Others who have vied for this status and may have held it for a time have mostly fallen by the wayside. In the former Soviet Union, the outsized statues of Lenin have mostly been torn down and their stone turned to dust. Mao, though still formally credited, does not supply the model of China. Even Attaturk, the modern lawgiver who went so far in transforming the habits and mores of his people, is now seeing his project challenged and undermined. Only one set of persons in modernity enjoys the real status of founders: It is the Americans.

Finally, Federalist 38 elaborates on the way in which the founding took place. Publius takes note of the improvements made by America on the ancient mode of preparing and establishing regular plans of government.” The adoption of the new government was by “choice” (or consent), rather than “force.” Here was an important point of difference between the American case and most of the classical foundings. The American founders were not, like many of the ancient founders, acting from a position of command, able to compel acceptance of the Constitution by physical force or by manipulation of superstition. The founders embraced this limitation, even as they acknowledge its costs. Consent took a toll on wisdom. The requirement that the Constitution had to be ratified by the large body of the people is one of the decisive facts in the establishment of popular government in the modern world. There is no example more powerful than the initial one; it sets the precedent of what comes after. Compare the American case to the European one, where various versions of the European Union have been submitted to referenda in a number of countries, including Denmark France, Ireland and Netherlands, where it has been rejected. Never mind, the elites continue to “build” Europe and even to implement a Constitution. Does this not reveal the spirit or manner in which governance takes place?

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