Today marks Constitution Day. On 17 September 1787, in Philadelphia, the Framers of the American Constitution added their signatures to the document they had produced, and soon thereafter it was dispatched to the Continental Congress for consideration by the states. On this day, it is appropriate that we, their heirs, reconsider their handiwork and ask whether ours is still a constitutional government.

In their deliberations, the Framers confronted one great question, and it was largely on this question that the debate between the Federalists and the Anti-Federalists during the ratification period turned. Can one establish an enduring republic on an extended territory? This is the question that Americans in this crucial period wrestled with.

As I have argued in earlier posts here and here and, in much greater detail, in my recent books Montesquieu and the Logic of Liberty and Soft Despotism, Democracy’s Drift, the Americans had reason to worry. In the late eighteenth century, it was almost universally agreed that what they were attempting could not succeed. Such was the argument that Montesquieu advanced in the first part of his authoritative book The Spirit of Laws, and he had grounds for advancing such a claim. Athens and Sparta were situated on territories of no great size, and the same could be said for early Rome and for Lucca, Florence, and Venice in the Middle Ages and the Renaissance.

Of course, late republican Rome was an exception to the rule. Under the late republic, nearly everyone in Italy was a citizen, and that polity ruled the Mediterranean and beyond. But – as both Machiavelli in his Discourses on Livy and Montesquieu in his Considerations on the Causes of the Greatness of the Romans and their Decline and Spirit of Laws had pointed out — Rome was also the exception that proved the rule. It was a small republic that, by dint of conquest, came to be situated on an extended territory; and soon after it had expanded, it collapsed. The Framers of the American constitution faced a great challenge, and this they and their opponents among the Anti-Federalists knew all too well.

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We have come a long way in the last twenty months. The President of the United States, his Chief of Staff, the Speaker of the House of Representatives, and the Majority Leader in the United States Senate have done for the Republican Party what no Republican could have accomplished. Just as rigor mortis was about to set in, they brought the old corpse back to life. For their efforts on our behalf, we should be forever grateful.

It is easy to lose perspective. It is easy to forget the dire straits in which the Republicans found themselves in and for some time after November, 2008. On the first Tuesday of that month, they were soundly defeated. The Democrats controlled the Presidency and both houses of Congress. In time, when Al Franken was seated and Arlen Specter turned coat, the Democrats would attain El Dorado – a commanding majority in the Senate capable to bringing a filibuster to a screeching halt.

The Republicans initially thought that to get along they would have to go along. Had Nancy Pelosi thrown a little patronage their way when the so-called “stimulus” bill was being put together, had Barack Obama intervened to insist that she include earmarks for compliant Republicans in the House, a great many of them would have voted for the measure. It is to her that we owe their solidarity on the occasion of the vote. She is responsible for the fact that on that occasion they presented themselves to the world as a party of principle. If the Tea-Party Movement, which sprang up in the immediate aftermath of the bill’s passage, was not as resolutely hostile to the Republicans as it was to the Democrats, it was because Pelosi and her minions wanted vengeance, sought it, and got it.

Even when the Tea-Party Movement had emerged, the Republicans were not quick to realize what was in the offing. On 2 May 2009, some six months after the election, Jeb Bush emerged from a meeting with Mitt Romney and House Republican Whip Eric Cantor to announce that it was time for the Republicans to give up “nostalgia about the past” and to leave Ronald Reagan and all that he stood for behind. “You can’t beat something with nothing,” he observed, “and the other side has something. I don’t like it, but they have it, and we have to be respectful and mindful of that.”

Jeb Bush, Mitt Romney, and Eric Cantor may have been slow to grasp what was going on, but it would be a mistake to assume that they are dopes. It was not until early August in that year that I was willing to admit to myself that a political realignment in the Republicans’ favor was a serious possibility; and, as I noted in a piece posted in the aftermath of the annual meeting of the American Political Science Association in early September, I was even then almost entirely alone. At that convention, I had attended a panel on Barack Obama’s first year as President at which not one of the distinguished students of American politics on the panel had in their prepared remarks even mentioned the Tea-Party Movement. And when I asked a question about it, I received a perfunctory answer. It was odd, my interlocutor remarked, that such a movement had emerged in the absence of institutional support. It was, I thought, very odd, very odd, indeed.

Now, thanks to Barack Obama, Rahm Emanuel, Nancy Pelosi, and Harry Reid, the Republicans appear to be on the verge of an historic victory.

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I get a sense of the threat we may face, from a Supreme Court influenced by Elena Kagan, in her vow to defer to the political branches of government when interpreting the Constitution. This is a stance now being trumpeted by, e.g., environmental(ist) trade press outlets like E&E News. E&E runs a headline right now: “Kagan stresses deference to Congress, agencies” (subscription required).

That curious turn of phrase is Kagan’s own. It is not one nuanced with, say, a concern for divining legislative intent, but instead is a broad expression of deference to bureaucrats and politicians. Not to the Constitution. This is illuminating.

Taken in context, it is chilling. As Yahoo News writes:

“In her opening statement to the Senate Judiciary Committee, Elena Kagan vowed to show restraint and deference to Congress and the will of the people if ultimately confirmed to the Supreme Court, emphasizing the court “must recognize limits on itself and respect the choices made by the American people.”

“The Supreme Court is a wondrous institution,” Kagan said. “But the time I spent in other branches of the government reminds me that it must always be a modest one — properly deferential to the decisions of the American people and their elected representatives.”

The reporter first conveys the by now de rigueur implication of the attitude of restraint. But presumably in seeking to preempt claims that as someone with an extensive political history she would be an activist justice, Kagan manages to nonetheless betray the feared disregard for the Constitution.

The Supreme Court’s role is to apply the Constitution to laws enacted by the legislature, and to how those laws are being executed (or otherwise as the political branches choose to interpret or assert authority). It is the Constitution to which our non-political branch of government the courts, and certainly Supreme Court Justices, must defer.

Not the political branches. Political branches give us, say, Power Grabs. Courts are a check, to apply the Constitution to rein politicians and bureaucrats in.

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Republicans ought politely to decline President Barack Obama’s invitation to a summit on health care reform. It’s not just a potential “trap,” as House Minority Leader John Boehner suspects, aimed at fast-forwarding a modified health care reform bill through Congress under a smokescreen of superficial “bipartisanship.” It’s also a violation of the spirit of our Constitution’s separation of powers.

The President has no legislative authority. He can propose laws—indeed, we expect him to do so—that are then introduced by legislators in Congress. He can sign a bill or veto it once it has been passed by both the House of Representatives and the Senate. He can mediate disputes among legislators to broker agreements. But the President cannot intervene directly in the legislative process until it is over.

The discussion that President Obama has proposed with Republicans for February 25th was, no doubt, inspired by his success at a question-and-answer session with the GOP last month. However, the new event is beginning to assume the trappings of a formal legislative session. Republicans will be asked to propose changes to the Senate version of the health care bill, and the President will offer compromises.

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In earlier posts – here, here, and here – I drew attention to the pre-eminence of Charles-Louis de Secondat, baron de La Brède et de Montesquieu in and for a time after the eighteenth century, and I suggested that at least two of the reasons for his pre-eminence are still pertinent today. There is at least one other such reason, and it, too, deserves careful consideration.

In The Spirit of Laws, Montesquieu pays exceedingly close attention to the political psychology regnant within the various forms of government that he examines. Republics have as their psychological principle, he tells us, virtue or love of the fatherland and its laws; and, when this fails, they collapse. As we have just seen, monarchies have as their principle the love of honor; and, when monarchs make holding public office degrading and demeaning, they subvert their own authority. And by the same token, despotisms have as their principle fear, and they are corrupt through and through. In The Spirit of Laws, all of this is made crystal clear.

But when it comes time for Montesquieu to specify the principle or passion that sets in motion “the republic concealed as a monarchy” that he discovered when he visited England, he is ostentatiously silent. Eventually, however, in oblique fashion, he will tiptoe around the question.

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Several state attorneys general have been asked, or plan, to investigate the deal struck by Senator Ben Nelson to permanently exempt Nebraska from paying Medicaid expenses in exchange for his voting for Obamacare.

An investigation of the Nelson deal would likely have two focuses. First, is the Nebraska exemption unconstitutional under Article I, Section 8, Clause 1 of the Constitution, which requires “all Duties, Imposts and Excises shall be uniform throughout the United States?” Secondly, did the deal constitute a form of corruption?

Whether the Nebraska exemption constitutes unlawful corruption obviously depends on the facts surrounding how Senator Nelson cut his deal. However, even a pure constitutional challenge would benefit from a clear understanding and presentation of the facts underlying how and why the Nebraska exemption was reached.

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Every once in a while one gets an insight into the sad state of higher education in the United States.

Back in 2008, when my agent was attempting to market the manuscript of what recently appeared in two companion volumes under the titles Montesquieu and the Logic of Liberty: War, Religion, Commerce, Climate, Terrain, Technology, Uneasiness of Mind, the Spirit of Political Vigilance, and the Foundations of the Modern Republic and Soft Despotism, Democracy’s Drift: Montesquieu, Rousseau, Tocqueville, and the Modern Prospect, he ran into an unexpected snag.

None of the editors at the trade presses he approached had ever even heard of Charles-Louis de Secondat, baron de La Brède et de Montesquieu.

That came as a shock to me; and when I repeated the story to other students of the eighteenth century, they expressed amazement and dread.

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