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Searching The Federalist Papers to Resolve a 21st Century Dispute

Each side in the fight over Merrick Garland’s Supreme Court nomination has found support in The Federalist Papers. But they overlook what the Founders said about amity and goodwill.

April 8, 2016

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

As the momentous political battle between the President and Senate over the Supreme Court nomination of Judge Merrick Garland drags on, partisans on both sides have turned to The Federalist Papers, seeking wisdom from the Founders.  

So I wasn’t surprised to read the following a few days ago by the Brennan Center’s Dorothy Samuels and Alicia Bannon in The Huffington Post:

We can discern from Hamilton’s own words what he probably would have thought of Senate Republicans’ vow not to consider any Supreme Court nomination President Obama puts forward….The best guess, based on the historical evidence, is that Hamilton and other of the Constitution’s Framers would have been appalled by the confirmation antics of McConnell & Co.

Nine days later I read this in the New York Post, a paper founded in 1801 by Alexander Hamilton no less:

Somewhere Alexander Hamilton is smiling. For the battle that’s beginning over President Obama’s nomination of Judge Merrick Garland to the Supreme Court vindicates the famous Founder’s assurances on judicial appointments….

For today, Hamilton puts paid to the notion being slyly advanced by President Obama and the Democrats that the Senate has a responsibility to give an up-or-down vote on the nomination of Judge Garland. That is constitutional poppycock.

More than 20 years ago, the editors of the New York Post protested the paper’s acquisition by a real estate tycoon with a front page image of Alexander Hamilton shedding a tear.

Would Hamilton cry or laugh at this throwdown between The Huffington Post and New York Post over what he would have thought about the Garland nomination?

I suspect he probably would have just smirked. After all, there’s something for everyone in his writings. For Hamilton was part political philosopher, part cool pragmatist, part dreamy utopian, and part dystopian fearmonger. When he wrote his share of The Federalist Papers, he was all marketing guru for the Constitution. And he was always a bundle of contradictions.

There is something unsettling about the tendency to turn to The Federalist Papers for guidance on 21st century political disputes, as if we’re appealing to a font of quasi-religious wisdom that everyone — even recalcitrant Republicans — should bow to. Does anyone really think that a definitive answer to what Hamilton would think about the Garland matter would persuade President Obama or Senate Majority Leader McConnell to behave differently?

As it happens, I agree with Samuels and Bannon and not the New York Post. Nothing brought that home more than recently reading An Argument Open to All: Reading The Federalist in the 21st Century by Sanford Levinson, a professor at the University of Texas Law School.  Levinson’s book is a series of 85 commentaries on each of the 85 essays in The Federalist Papers.

Levinson’s tack is simply to leave to one side stock debates about originalism or whether the essays are sacred democratic texts. He asks, in effect, whether there is any reason to read them today. If you knew nothing about who wrote the essays or the role they played in our history, what would you learn from reading the essays?

I think you would learn that if Hamilton and his co-authors of The Federalist Papers were the holy architects of our Constitution, then their edifice is gothic. It is filled with gargoyles. It is perilously buttressed up, each element straining against another. Renovations since its construction have been haphazard. But always there is that rose window–bursting with light and color, beckoning us to democracy’s promise.

Above all, good will — or faith, if you want — is the mortar holding the creaky edifice together. You might object: Madison, Hamilton, and John Jay, or Publius as we probably should refer to them, were committed structuralists in the papers. After all Publius was advocating a proposed government structure designed to prevent tyranny not singing Kumbaya. But a close reading reveals that he did not fully trust “parchment barriers against the encroaching spirit of power.” As Levinson draws out in essay after essay, the eternally relevant Publius knew that any constitutional structure is heavily reliant on personal virtues and integrity, more than we might want to admit.

Publius acknowledged the fear expressed by opponents that the structure might not work and that one branch might gain the upper hand: “The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.” But he noted approvingly the assertion by New Hampshire’s constitutional drafters that that this danger could be avoided via the “`chain of connection that binds the whole fabric of the constitution in one indissoluble bond of unity and amity.’”

Let’s face it. The Garland contretemps is very disconcerting. But not necessarily because it is an abdication of Senate duty or a proper assertion of Senate power against an overweening executive. It’s most disturbing for what it reveals about the crumbling bonds of unity and amity in our federal government. Sadly, Publius offers little guidance on how to rebuild trust.

(Photo: Thinkstock)

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