UniBrow

Here’s a good column from 2001 by Michael Kinsley: a short history of the flag-desecration-amendment movement and some choice remarks about flag worship, “the emptiest form of patriotism.”

Comments on the daily declensions of official Washington do not as a rule turn up here at UniBrow. Your humble servant has neither the interest, the energy, nor the stockpiles of Prozac he would require for this. But I can’t resist a few remarks about the flag-desecration issue, which boiled up into an acrid spume this week just as it has every year for the past god knows how many running. Look at The Federalist Papers for an example of how our national leaders, some of them anyway, reasoned with us once upon a time. Look at Wednesday’s New York Times to see how they do it now.

On Tuesday the U.S. Senate defeated, by just one vote, a bill that would have sent a proposed constitutional amendment outlawing flag desecration to the state legislatures for ratification. Now when I say the bill lost by one vote, understand that it required a two-thirds and not just a simple majority to pass. (And keep in mind that the bill reached the Senate only because it had already passed the House.) So it failed because only–only!–66 senators out of 100 voted for it. Fifty-two Republicans and 14 Democrats, members one and all of ”the world’s greatest deliberative body”–men and women who have sworn an oath to protect and preserve the Constitution–rose punctually on Tuesday afternoon, eager to foul and vandalize an ingenious and still revolutionary national charter by imposing on it a Twenty-Eighth Amendment that would invalidate its First. Many of them surely know better than to believe such a bill is Constitutional, and I imagine a number of the Spineless Sixty-Six would have voted against it if given the chance to do so in a sterile, consequence-free environment. But they needed their names attached to a yes vote on the flag bill as a prophylactic against the mindless attacks on their patriotism that they know will otherwise greet them in the fall congressional elections. I mean, what do you expect from these people? Courage? Reason? Articulacy? And Hillary Clinton’s name–even though she voted against the bill–ought to have a star next to it on this roster of upper-chamber invertebrates. Clinton introduced her own measure, ostensibly a compromise, that would also have criminalized flag desecration, though without amending the Constitution. As though that makes any difference to the free-speech issue at the heart of this whole embarrassing annual ritual of flag worship. Clinton’s bill failed also (64-36), and I’m very glad to say so–not because it clears my afternoon for an Old Glory bonfire but because outlawing flag desecration, whether by statute or by debauching the Constitution itself, treats a political symbol as a holy relic and codifies an already prohibited abridgement of free speech (which is to say, as court after court has said, that it’s unconstitutional).

But flag desecration isn’t speech, you say. It’s an act. As the recently departed Supreme Court Chief Justice William Rehnquist put it, flag desecration is “no essential part of any exposition of ideas”; it’s “the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others.” This is beautiful–as though a statement must achieve some minimum of expository development to qualify for protection under the Constitution, or deserves protection only if its primary goal is something other than antagonism. Flag desecration is both act and speech at the same time, indivisibly. It’s speech that manifests itself through an act. Take the example of flag burning, the form of desecration most people have in mind when they discuss or contemplate this issue. Simply consider the fact that when any branch of the military disposes of a flag that has worn threadbare or become tattered, it does so by burning it. So it can’t be that burning a flag is per se offensive. You can burn a flag out of reverence for the United States; you can burn one out of hatred for it. The difference between the two instances isn’t the act itself, therefore, but the sentiment, the message, the item of speech that the act is expressing. Political statements are involved in both cases–one of those statements would be endorsed, the other despised, by most of us. Which is of course irrelevant. You don’t have to like what the flag burner is doing–that is, what he’s saying when he torches a flag. You can speak out against it all day long. But you can’t outlaw it if the First Amendment is to mean anything at all.

“Old Glory lost today,” the repellent Bill Frist said after the vote on Tuesday, according to the New York Times. Of course the opposite is true. Old Glory won, though by the slimmest of margins.

I’ll stop after one more minor thing. A few people have reminded me recently that UniBrow bills itself, up at the top there, as offering a mix of highbrow and lowbrow fare, and that I’ve been light on the lowbrow for a while. Sorry about that. I’ll try to make amends. This report on the vision and discourse of your Congressional representatives will have to do in the meantime.

From here forward, each of my posts on the Federalist will link to the full text of the paper under review, the better to facilitate reader inspection of the primary documents and to encourage dialogue with such as may find my analysis wanting. I’d have done this sooner, but it didn’t occur to me until recently to look for a website loaded with the text of all the papers. I have now located one. I can’t vouch for its complete accuracy, but I’m reasonably confident considering it’s operated by Yale–the law school, I should say, not the manufacturer (since 1840) of reliable locks, latchkeys, deadbolts, and a selection of doorknobs and handles that comfortably assimilate security and ornamental grace to the contours of the hand. So here’s the text of No. 7, to which we now turn.

This paper can be dealt with briefly, since by focusing on the strictly internal causes and effects of self-destructive factionalism under a confederation versus a Union it only augments the arguments of the preceding few. Possession of as yet unpopulated lands is the first danger that Hamilton deals with. There had remained to this point large swaths of unsettled territory in the United States, much if not all of it the focus of disputed claims between states. These territories would constitute, Hamilton writes, ”an ample theater of hostile pretensions, without any umpire or common judge to interpose between the contending parties.”

Commercial rivalries between the states, or confederacies, would be more fraught and cutthroat without Union, and more apt to render commercially weaker states “tributary” to the stronger, thus offending against “habits of intercourse, on the basis of equal privileges, to which we have been accustomed since the earliest settlement of the country.” Each state, as we’ve had occasion to note before, would be in effect an independent nation and would prosecute its economic policies accordingly. But the prior history of fraternal cooperation among the states would make these ”justifiable act of independent sovereignties” seem like unjustifiable ”injuries.” Trade regulations between the states would be flouted when expediency dictated; this ”would naturally lead to outrages, and these to reprisals and wars.”

A third source of friction would be the Union’s public debt–namely, the difficulty of finding a scheme of apportionment suitable to all states, and one that, in ensuing years, would not become a larger burden for some states than others. States that later find their share of the debt difficult to bear would inevitably petition the richer ones for relief, and these wealthier states would just as naturally refuse. The overburdened states would surrender to the temptation of withholding their payments, or they would fall delinquent for any number of other reasons–one of which I can’t resist giving verbatim as I suspect it will hit home with anyone who has ever felt the mercenary pinch of credit-card debt: ”the reluctance with which men commonly part with money for purposes that have outlived the exigencies which produced them, and interfere with the supply of immediate wants.” (A point for the Federalist side–wouldn’t you say, Providian customers?) He adds:

There is, perhaps, nothing more likely to disturb the tranquillity of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit. For it is an observation, as true as it is trite, that there is nothing men differ so readily about as the payment of money.

Finally, there is the friction that will stem from laws enacted by states that violate private contracts. Considerable tension had already arisen between Rhode Island and Connecticut from just this source, Hamilton writes–though I wish he had given a few more details about this one because I’m not sure exactly what he means. I’m going to have to trust him about the likely occurrence of such conflicts and the special dangers they would pose in the absence of Union, and that makes me uncomfortable. It cuts against my whole M.O. I sure as hell didn’t trust my way to this pinnacle of American cultural criticism.

I don’t think I need to say anything more about this one. It’s the same sort of argument we’ve seen in the preceding several papers–the use of historical precedents to illuminate the way ahead–and I see nothing else remarkable in the way of rhetorical technique. With No. 8 the focus shifts slightly, as Hamilton imagines the situation of war between the disunited states.   

First, let me acknowledge that this Federalist commentary is going slower–oh, it is going a great deal slower–than I had thought it would when I started out. My last Federalist post was April 28, more than three weeks ago. But do not repine; my commitment is not flagging. We will march onward to the end, to the very last of the 85 papers. It may take years, but so what. UniBrow has other quarry in the bush, after all, and delays of this sort are only to be expected when you have (undiagnosed) ADD.

What was I talking about? Oh yes. We come now to the 6th Federalist, which shifts the focus from the external threats facing America to the dangers of “domestic factions and convulsions.”
Hamilton is back, and I couldn’t be happier. Jay is a much milder sort: an estimable intelligence, of course; a keen student of history, to be sure–but a toothless tiger next to his two pamphleteer comrades, and especially compared with Hamilton, the Hotspur of the trio. At times Jay’s prose seems too tranquil for the occasion; he never gets your blood up the way Hamilton can. On the evidence of the last three papers, at least, you can’t imagine from Jay anything like the tight blasts of misanthropy we count on Hamilton for:

A man must be far gone in Utopian speculations who can seriously doubt that if these States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other. To presume a want of motives for such contests as an argument against their existence would be to forget that men are ambitious, vindictive, and rapacious.

He’s talking about you, pal. That golden-rule benignity you show the world is all shtick, a paper-thin dissimulation. Underneath it you’re a roiling cauldron of aggression, and so’s the guy next to you. And your mother. Go ahead and flinch if you have to, but that’s one of the reasons we’re not looking at your mug every time we unbelt a ten-dollar bill.

Hamilton comes prepared, naturally, to back this verdict up (though he’s already sold me), and there follows a brief historical inventory of catastrophes ignited by personal ambition and vice. Pericles–even the great Pericles!–succumbs to ”private pique against the Megarensians” and touches off the Peloponnesian war, which destroys Athens. Cardinal Wolsey, covetous of the papacy and not above exploiting his post as Henry VIII’s prime minister to further that ambition, plunges England into war with France–”contrary to the plainest dictates of policy” and at enormous risk of subjecting England to French rule. Don’t get Hamilton started on what there is to show for the “bigotry” of Madame de Maintenon, the “petulancies” of the Duchess of Marlborough, and the “cabals” of Madame de Pompadour. And even America, still in its infancy, furnishes examples consistent with those observed abroad: Shays’ Rebellion–the 1786-87 tax revolt in western Massachusetts led by Revolutionary War veteran Daniel Shays–probably wouldn’t have occurred, Hamilton argues, had Shays himself not been ”a desperate debtor.”

And still, says Hamilton, Americans are abused by men too shamelessly self-seeking or too fantastically ignorant to heed these transparent lessons of history. Still there are those “visionary or designing men” who will tell you with a straight face that lasting peace is possible in an America comprising independent or loosely affiliated states–an America, says Hamilton, in whose splintered edifice the incorrigible venality of men will continually find fresh pretexts for mischief. The anti-Federalists say nothing of the sort will happen, that America is effectively inoculated against such toxins. A “commercial republic” like America, so the argument runs, is invulnerable to these dangers because “the genius of republics … is pacific,” and “the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars.” Lunacy, says Hamilton. The avarice and vainglory in our natures is a lot more stubborn than that.

Have republics in practice been less addicted to war than monarchies? Are not the former administered by men as well as the latter? Are there not aversions, predilections, rivalships, and desires of unjust acquisitions that affect nations as well as kings? Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities? Is it not well known that their determinations are often governed by a few individuals in whom they place confidence and are, of course, liable to be tinctured by the passions and views of those individuals? Has commerce hitherto done any thing more than change the objects of war? … Have there not been as many wars founded upon commercial motives since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion? … Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries.

More historical examples of the belligerence and cupidity of republics (Sparta, Athens, Rome, Carthage, Venice et al) duly follow. Whatever the form of government, says Hamilton, whatever the system of commerce, it’s still filthy humans pulling the levers. Dedication to the greater good and adherence to fundamental principles, when these conflict or fail to promote our private interest, are virtues that just don’t come naturally to us. Those who argue otherwise, who say that America is immune from the laws of history–there we will find the Madame de Maintenons and the Cardinal Wolseys of the moment.

Hamilton’s perspective on America’s historical situation should be noticed before we leave this paper. What Tocqueville would later call American exceptionalism, the belief (still very much in evidence today, I’d say) that America is to be distinguished qualitatively from all other nations because of the unique circumstances of its founding and the character of its institutions–that it is immune, really, from the laws of historical development–is unmistakably rejected here by Hamilton. ”Is it not time,” Hamilton writes, “to awaken from the deceitful dream of a golden age and to adopt as a practical maxim for the direction of our political conduct that we, as well as the other inhabitants of the globe [italics mine], are yet remote from the happy empire of perfect wisdom and perfect virtue?” Americans did awaken long anough to ratify the Constitution and unify, but you wonder what Hamilton would make of us now on this score, particularly in view of the Iraq war. Certainly ”the attachments, enmities, interests, hopes, and fears of leading individuals”–not to say their deceit–played a role in our decision to invade Iraq (as opposed, say, to concentrating on capturing bin Laden and destroying Al Qaeda), and the Bush administration’s rhetorical flourishes about an American mission to spread democracy around the world could be seen as a symptom of a belief in American exceptionalism. I suspect that Hamilton would be disgusted by it. 

Jay, still worrying about interventionist foreign powers, carries the homeland-security case for union into the 5th Federalist, and he brings gouty old Queen Anne (at left) with him. The paper opens with extracts from the Queen’s 1706 letter to the Scotch Parliament concerning the impending union between England and Scotland. Her message is essentially this: England and Scotland together people a land mass that is separated by water from either kingdom’s nearest adversaries. Owing to this fact alone the national-defense interests of the two kingdoms are identical, and only through union under a single standard can they protect their common island from “all its enemies.” Failing that, the debilitating jealousies and rivalries of the past will continue–disunity guarantees it–and will invite aggression by foreign powers whose “arts and policy and practices” (Jay’s words) will keep those jealousies in full flame.

This brief paper is a straight-forward and convincing argument from precedent, though the invocation of Queen Anne is curious. You wonder for a second at least why Jay would make any kind of appeal, however qualified, to the authority of the English Crown on a point so fundamental to sovereignty. The War for Independence is hardly a distant memory in 1787. Does the federalist cause really require the gaudy sponsorship of the English monarchy? Would any of Jay’s countrymen not already disposed toward union be impressed by this, scarcely a decade after shaking off their colonial oppressor?

On the other hand this appeal to Her Majesty’s authority–if that’s what it must be on some level–is very strictly limited. The Queen’s letter vindicates no distinctly monarchical principle; her lesson is a hard-boiled, unillusioned, geo-strategic one. And it’s a lesson that holds for America since it, too, enjoys terraqueous isolation from its principal adversary nations in Europe. A disunited America, Jay argues, would only re-enact the confusions and distresses of pre-unification England and Scotland.

[E]nvy and jealousy would soon extinguish confidence and affection, and the partial interests of each confederacy, instead of the general interests of all America, would be the only objects of their policy and pursuit. Hence, like most other bordering nations, they would always be either involved in disputes and war, or live in the constant apprehension of them.

Entanglement with foreign powers would succeed rapidly. European nations would easily and inevitably embroil themselves in American affairs as the separate American confederacies, riven by “invidious jealousies and uncandid imputations,” form alliances with them as bulwarks against each other. To believe that the confederacies would be more likely to form alliances with each other than with European powers is a utopian fantasy, Jay suggests. Each confederacy would be in effect an independent nation and would operate under its own distinct set of military and commercial treaties with other nations. And the determinative influence of commercial arrangements should not be overlooked. ”Different commercial concerns create different interests,” Jay writes, “and of course different degrees of political attachment to and connection with different foreign nations.” Americans must remember at all costs, Jay cautions, ”how much more easy it is to receive foreign fleets into our ports, and foreign armies into our country, than it is to persuade or compel them to depart.”

The fount of all this turmoil is inequality, Jay observes–inequality that is as natural and inevitable as it is ruinous if not properly channeled. ”For it cannot be presumed that the same degree of sound policy, prudence, and foresight would uniformly be observed by each of these confederacies for a long succession of years,” Jay writes. Should one confederacy rise in political importance or commercial strength over the others,

that moment would those neighbors behold her with envy and with fear. Both those passions would lead them to countenance, if not to promote, whatever might promise to diminish her importance; and would also restrain them from measures calculated to advance or even to secure her prosperity. … Distrust creates distrust. … Considering our distance from Europe, it would be more natural for these confederacies to apprehend danger from on another than from distant nations, and therefore that each of them should be more desirous to guard against the others by the aid of foreign alliances, than to guard against foreign dangers by alliances between themselves.

It’s while considering the potential occasions of inequality among the confederacies that Jay comes to an observation about North and South that’s worth pausing over in light of later events. Jay exposes a fault line that the union he’s arguing for couldn’t mend–one that had a lot to do, of course, with the difference in commercial interests between the two regions.

The North is generally the region of strength, and many local circumstances render it probable that the most Northern of the proposed confederacies would, at a period not very distant, be unquestionably more formidable than any of the others. No sooner would this become evident than the Northern Hive would excite the same ideas and sensations in the more southern parts of America which it formerly did in the southern parts of Europe. Nor does it appear to be a rash conjecture that its young swarms might often be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors.

With that memorable image, Jay is pretty much done. He’s written the last four papers and needs to step out for a Chesterfield. He’ll return only once more, and not for a long while. We will be floating along the current of Hamilton’s uncompromising pessimism about human nature for the next several papers.

From the last paper’s consideration of safeguards against the triggers of justifiable attacks on America (i.e., treaty violations by America or its unprovoked aggression against foreign powers), Jay turns in this paper to the causes of–and surest means of preventing or defeating–unjust foreign aggression.

Safety from this hazard will be a matter of taking care ”not to invite hostility or insult” in a new climate of economic rivalry that could spark war at any time with any of several European nations. American competition in fisheries, navigation, and shipping, Jay declares, must inevitably cause “jealousies and uneasiness [to] slide into the minds and cabinets of other nations.” But the combination of civil solidarity, uniform law and policy, and the consolidated resources of the whole of America would deter most aggression and give America the best chance of repelling any attacks that are mounted in the face of those deterrents. Union, therefore, will create “such a situation as, instead of inviting war, will tend to repress it.” On the other hand, Jay cautions, if foreign nations

find us either destitute of an effectual government (each State doing right or wrong, as to its rulers may seem convenient), or split into three or four independent and probably discordant republics or confederacies, one inclining to Britan, another to France, and a third to Spain, and perhaps played off against each other by the three, what a poor, pitiful figure will America make in their eyes! How liable would she become not only to their contempt, but to their outrage; and how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves.

And there, with a much more acute characterization of the drawbacks and dangers of partition than of the blessings of union, Jay concludes–bringing me to a general point about the tenor of the papers we have so far considered. The slant of argumentation so far has been negative in a way; the stress has been falling rather on the prudent avoidance of harm than on the spirited exercise of liberty. The portrait is that of a fortified America, one that, having lately cast off the conditions of colonial domination, is in another way still in harness, its fortunes conditioned by an economic and military horizon crowded with potent and possibly deadly adversaries. Security and freedom are anything but opposing principles, of course; one is the necessary precondition of the other. But this is not the place to speak to Americans of the Edenic New World they are laboring to create. Reveries about America as a sunlit upland of reason and self-determination belong to another day. This being so–and though the last two papers have begun, as we’ve noted, to put forth logical arguments for union–a strong emotional charge is evident still.

One stylistic feature common to all the papers we’ve read thus far is the nearly perfect absence of any of the rhetorical techniques or tropes that are known for creating an effect of spontaneity. There are several of them, but one of the most tried and true is achieved by forging a chain of consecutive statements all beginning with the same word or words (think of Martin Luther King’s many repetitions of the phrase ”I have a dream” in the March on Washington speech). The technical term for this is anaphora, and in proportion as it seems spontaneous, a deft flight of anaphora can seem to illuminate the speaker with an aura of sincerity–as though he’s arguing from the deepest conviction, or simply receiving the direct promptings of a force or power much greater than himself, and using only the words that come to him on the spot. In either case the impression created is of a speaker who doesn’t stop to “compose” his words, who hasn’t the luxury really to even think about what he’s saying much less to concoct deceptions or rhetorical tricks. He is in the grip of inspiration; he is the passive vehicle of ineluctible moral truths that are simply welling out of him. Rhetorical technique would seem to be the last thing on his mind. With one possible (and very interesting) exception–of which more in a moment–we have seen nothing remotely like this here, at least so far. These arguments could have appeared to their audience as nothing if not thoroughly cogitated and carefully wrought; to that extent they are, I would say, beautifully in accord with the modest democratic spirit of the whole enterprise. Publius has arguments and opinions–at most convictions–not moral commandments, to share with his countrymen. He enters the fray as a man reasoning with fellow citizens who are in every way his equals. He has access to no oracle that they, at least in principle, do not have access to themselves.

In this light, however, recall the way Hamilton laid his cards on the table near the end of the first Federalist:

Yes, my countrymen, I own to you that after having given it attentive consideration, I am clearly of opinion that it is your interest to adopt [the Constitution]. I am convinced that this is the safest course for your liberty, your dignity, and your happiness. I affect not reserves which I do not feel. I will not amuse you with an appearance of deliberation when I have decided. I frankly acknowledge to you my convictions, and I will freely lay before you the reasons on which they are founded.

Hamilton’s use of anaphora here in the first paper is in the service of that essay’s overall appeal to ethos, and it’s apt that this particular rhetorical figure comes into play as he speaks of himself, as he strives to establish himself as an authentic patriot and fellow-traveler in the enterprise of American democracy. It’s especially appealing that he seems to speak unguardedly–without art, without recourse to techniques that could be instruments of manipulation or deception–when laying bare his convictions and promising plain dealing.

Finally, I should note that despite Hamilton’s disarming renunciation of any ”appearance of deliberation,” these papers would still have to be considered an exercise in deliberative rhetoric (as opposed to forensic or epideictic rhetoric). There is a question yet to be settled, and though Hamilton (and Madison and Jay) have already deliberated for themselves and come to a definite conclusion on that question, deliberation is what’s required now of the American citizen; and these essays are his means of carrying out that responsibility. But just as pathos was found operating somewhat beneath the surface of the primary appeal to logos in Federalists 3 and 4, so too do we find that the mainly deliberative character of The Federalist is qualified from the start by a subordinate forensic mode of argumentation. The deep knowledge of civil government and statecraft that’s evident throughout The Federalist is the fruit of a long and careful study of history–a forensic investigation, in other words. Historical precedents are the forensic materials that will enable Americans to deliberate intelligently upon their future course.

Persuasive appeals that conform in essentials to the classical model turn up everywhere–even today, though few people study rhetoric as such anymore, and even in the crudest and most mercenary piece of marketing drivel that gets into your mailbox. Just look at the next piece of junk mail you get. Its contents may be distinguishable from a primal yawp only on second inspection, but it will probably make some claim, at least an implicit one, for the sender’s credibility or expertise; it will likely also make a frantic play for your emotions before it floats anything resembling–and it may do no more than resemble–a logical reason for taking the recommended action. Often one statement will perform the first two offices at the same time, and sometimes all three. From the burdensome pile of mail received just today in the UniBrow offices, for example, I draw forth the following exemplary instance of ethical persuasion from the Sears, Roebuck clothing and household-appliance concern: “We know your home products are an important part of your household. After all, you depend on them every day.” Great Caesar’s ghost! How did they know that? We’ve never even met! The people at Sears must be just like me! What else have they got to say?

So we don’t have to study rhetoric, or strategize when and how to deploy the various forms of persuasive appeal, in order to generate this pattern when we’re trying to get someone not under our direct authority to do something: it seems to be hard-wired, instinctive in some way–even to a direct-mail copywriter. But of course the nimble controversialists behind The Federalist Papers would have been immured in rhetorical study from one end of their fancy-pants 18th-century education to the other, more or less. So we won’t be surprised to see them hewing pretty closely to the prescriptions laid down in antiquity by Aristotle, Cicero, and Quintilian–all of whom emphasized the importance of preparing the ground for logical arguments with ethical and emotional appeals. Accordingly we saw that the burden of the first Federalist was to establish the speaker’s credibility on the issue under consideration and his fitness for the task of elucidating the arguments for union–making that paper, in rhetorical terms, an appeal to ethos. The second, an appeal to pathos, urged on its readers an emotional investment in the prospect of union. By the time we come to the third Federalist we find the field suitably manured, so to speak, for an appeal to logos.

Jay’s first logical argument in support of his position–which, with disarming humility, he continues to call an “opinion”–is that union reduces the occasions for provoking foreign hostility. Jay observes that treaty violations are among the most common causes of armed conflict between nations, and America’s ability to adhere to the laws of the treaties it has entered into with other nations “will be more perfectly and punctually done by one national government than it could be either by thirteen separate States or by three or four distinct confederacies.” In the first place, ”an efficient national government” will be led by better men than would likely get the top posts in the individual states or confederacies, since the national government would be able to draw its leaders from across the entire nation and not just from one local area. Second, the treaties entered into by these wise and superior men would be subject to one interpretation only and could be consistently enforced throughout the union. Because any state that violates the terms of a treaty can be stopped–and the guilty officials punished–by the national government, the likelihood of foreign conflict arising from a treaty violation on America’s part is considerably lessened.

When it comes to eruptions of unprovoked “direct violence” against a foreign power (the other major cause of hostilities), Jay notes that “the present federal government, feeble as it is,” had never itself instigated a single conflict with Indian tribes, though “there are several instances of Indian hostilities having been provoked by the improper conduct of individual States.” These occurrences, too, would be much less likely under union, not least because the national government would be less impulsive, less prone to “sudden irritation,” less tempted to “swerve from good faith and justice.” A national government, Jay asserts,

will be more temperate and cool, and in that respect, as well as in others, will be more in capacity to act with circumspection than the offending State. The pride of states, as well as of men, naturally disposes them to justify all their actions, and opposes their acknowledging, correcting, or repairing their errors and offenses. The national government, in such cases, will not be affected by this pride, but will proceed with moderation and candor to consider and decide on the means most proper to extricate them from the difficulties which threaten them.

True, I’m sure, in the long run, if not in every instance. But before ending I want to go back to Jay’s point about the national government being better able than the local ones to recruit the wisest and most capable men for leadership positions. Some of what he says here doesn’t seem to consort so well with what’s been happening in recent years, even decades, in presidential politics:

When once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed to manage it; for, although town or country, or other contracted influence, may place men in State assemblies, or senates, or courts of justice, or executive departments, yet more general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government. [My italics]

State “executive departments”–governorships–figure here among the examples of offices from which national leaders would not necessarily be expected to emerge. And yet four of our last five presidents have been governors or ex-governors (Bush II, Clinton, Reagan, Carter), and the governor of any decent-sized state seems by virtue of that alone to be at least a hypothetical presidential candidate these days. Do even Dubya’s most ardent supporters believe that their man had–prior to his election, or whatever you want to call it, in 2000–a “general and extensive reputation for talents and other qualifications”? Bloody unlikely, I’d say. Whatever concerns John Jay may have had about the fitness for national office of these particular local eminences, we appear to have gotten over them. Watch out for Jeb. 

Two recent articles, a Feb. 12 New York Times op-ed piece by Stanley Fish and Leon Wieseltier’s evisceration of it in The New Republic of March 20, form a useful sidelight to our ongoing commentary on The Federalist. Both articles attempt to assess the fundamental character of liberal humanism and what we might consider the moral and cultural norms associated with constitutional government.

The riots that broke out in various places among Muslim fundamentalists after a Danish newspaper published cartoons depicting the prophet Muhammad (all such depictions are proscribed by Islam) roused Stanley Fish in praise of the rioters, believe it or not. Their “strongly held faith” is a “strong, insistent form” of morality that ought to shame the free-speech sissies in the West, according to Fish. Never mind that the rioters carried with them to the streets an explicit threat of violence against the Danish paper and any other publication unholy enough to reprint the cartoons; never mind that a number of people did actually die in the riots. Leave all that to one side. The offended parties, wrote Fish, were acting out of a specific “religious or political vision,” while the effete Danish editors and their sympathizers were “[c]oncerned only to stand up for an abstract principle–free speech.” And so the violent zealots, in the world of Stanley Fish, merit a respect that is to be withheld from those who don’t believe it’s justified to physically harm or kill a person who has said something that offends you. At one point Fish ponders what it means in liberal society to “respect” political and confessional differences:

The thing about respect is that it doesn’t cost you anything; its generosity is barely skin-deep and is in fact a form of condescension: I respect you; now don’t bother me. This was certainly the message conveyed by Rich Oppel, editor of The Austin (Tex.) American-Statesman, who explained his decision to reprint one of the cartoons thusly: ”It is one thing to respect other people’s faith and religion, but it goes beyond where I would go to accept their taboos.”

Clearly, Mr. Oppel would think himself pressured to ”accept” the taboos of the Muslim religion were he asked to alter his behavior in any way, say by refraining from publishing cartoons depicting the Prophet. Were he to do that, he would be in danger of crossing the line between “respecting” a taboo and taking it seriously, and he is not about to do that.

No, I guess he isn’t. Nor does Fish offer a coherent reason why it should be otherwise. This account might lead you to suppose that Oppel came upon these cartoons in a vacuum, by accident–that there hadn’t swirled up around them a worldwide storm of hysteria, that they hadn’t become a legitimate and indeed inescapable news story. You would think Oppel had his contentless bias toward free speech in one hand, in the other a handful of cartoons no one had seen before that had floated in over the transom. But of course the whole world was talking about these cartoons by the time Oppel would have come to this moment of decision, and if he was going to deal with the issue at all he would naturally feel obliged to show his readers the cartoons at the center of all the storm and stress. To his belief in free speech should be added, in other words, the canons of his profession. Why he should subordinate an imperative of his own profession to the taboos of somebody else’s religion escapes me.

Wieseltier, whose column appeared a few weeks later, saw in Fish’s argument ”an ancient slander against liberalism … the belief that liberalism is invertebrate, purely procedural, lacking in fervent beliefs about what is true and what is false, what is good and what is evil.” Religious belief is what the political philosopher John Rawls called a “comprehensive doctrine.” Free and open societies are characterized by the simultaneous presence of many such doctrines, which are by definition incompatible with each other to some degree at least. In Political Liberalism (Columbia University Press, 1993), Rawls describes how such fundamental incompatibilities coexist in a democratic society:

Political liberalism assumes that, for political purposes, a plurality of reasonable yet incompatible comprehensive doctrines is the normal result of the exercise of human reason within the framework of the free institutions of a constitutional democratic regime. Political liberalism also supposes that a reasonable comprehensive doctrine does not reject the essentials of a democratic regime. Of course, a society may also contain unreasonable and irrational, and even mad, comprehensive doctrines. In their case the problem is to contain them so that they do not undermine the unity and justice of society.

Violent intolerance–the inevitable issue of the ”strongly held faith” that Fish admires–is the one thing that can’t be tolerated, precisely because such conduct does “reject the essentials of a democratic regime.” The Danish paper certainly could have declined to publish the cartoons without transgressing any great principle; newspapers exclude all sorts of things from their pages every day, for all kinds of reasons including the possibility of giving offense unnecessarily. But that ship has sailed. The cartoons were published, and the fundamentalists responded with savagery–so what now? When they turn up in a Texas newspaper, do we expect American Muslims, how offended soever they might be by them, to behave “within the framework of the free institutions of a consitutional regime”? Or don’t we? And is liberalism really as neutral and relativistic as Fish suggests? Wieseltier–marveling at Fish’s ”exhilaration at the vitality of the crowd, his contempt for the restraints of reason, his discovery of personal integrity in physical violence”–reminds us that

free speech is the beginning of a liberal order, not the end. And rights are not the enemies of passions, and passions are not most stirringly represented by violations of rights. … The refusal to burn a book or a flag or a person, the renunciation of brutality in political expression, is not a sign of infirmity of purpose.

So with many thanks to Professor Fish for the counterintuitive interlude, sometimes things are as simple as they look.

John Jay, a somewhat lesser-known Founder (knock yourself out on his Wikipedia entry), wrote only five of The Federalist Papers, having fallen ill just at the time of their appearance. He probably wouldn’t have managed even that many had he not front-loaded them as he did. He gets four of the five out of the way starting now, with No. 2, a mainly emotional appeal calculated to awaken or at least reinforce feelings of fraternity and common destiny among his countrymen.

Jay immediately contrasts the enlightened partisans of union with their exploitive careerist adversaries. The ”best and wisest of our citizens,” he declares, have always favored union under a single federal government–but now a plague of self-seeking “politicians” (a potent epithet then as now) has slithered into view to “insist that this opinion is erroneous.” The slight (and sly) modesty of this remark is worth noticing: for a quivering moment Jay claims for his position nothing more than the status of opinion, but then he immediately confers on it the sanction of Nature by making a chthonic argument for union: the geographic character of America’s birthplace is itself a verdict in favor of the oneness of the American people. “[I]ndependent America was not composed of detached and distant territories,” he says. On the contrary,

one connected, fertile, widespread territory was the portion of our western sons of liberty. Providence has in a particular manner blessed it with a variety of soils and productions and watered it with innumerable streams for the delight and accommodation of its inhabitants. A succession of navigable waters forms a kind of chain around its borders, as if to bind it together …

The ties of history and culture succeed and complement those of lake and loam: a people bound by common ancestry and language, of nearly identical religious and political outlook–a people who planted liberty in American soil “fighting side by side throughout a long and bloody war”–can’t be splintered into ”a number of unsocial, jealous, and alien sovereignties” without perverting the natural order and disputing will of Providence.

Emerging from this common patrimony were the men who, keeping faith with the earliest wishes of “the people at large” to preserve Union, drafted the Constitution. And while not omitting an account of the remarkable qualities and unique suitablity of these men for that “arduous task,” he won’t let them seem a superior class. As Hamilton was in the preceding paper, Jay in this one is at pains to remind Americans that, as free citizens exercising reason under self-rule, final authority and responsibilty are theirs. No master stands above them. They and they alone will decide the fate of the Constitution.

Admit, for so is the fact, that this plan is only recommended, not imposed, yet let it be remembered that it is neither recommended to blind approbation, nor to blind reprobation; but to that sedate and candid consideration which the magnitude and importance of the subject demand, and which it certainly ought to receive.

Jay concludes by proposing, in the papers to come, to reveal the “great and weighty reasons” for Union.