The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
My reward for ten years of blogging is a guest post here. In all seriousness, I'm very grateful to Eugene and his co-conspirators for giving me the opportunity to write about my contribution to Our American Story.
Some of the essays in the book preach the faith that what makes our national experience special are the universal ideals of liberty and equality expressed in the Declaration of Independence and made concrete by the Constitution. My essay takes the opposite view. What made the United States distinctive was its political pragmatism. The emblem of that approach is Benjamin Franklin, the Founder who is rarely invoked by the Supreme Court. (Though, as Randy would surely point out, the Chief Justice did cite Franklin's line about "death and taxes" in his opinion upholding the Affordable Care Act.) Franklin famously said at the close of the Constitutional Convention that he supported the proposal in spite of its many flaws. And his literary alter ego in Poor Richard's Almanack once explained: "In the affairs of this world men are saved, not by faith, but by the want of it."
Why do I say that our true national creed is pragmatism? Part of the answer is that this was the conclusion of the leading European commentators on the United States well into the twentieth century. Let me give you three examples. In Democracy in America, Alexis de Tocqueville remarked: "Nothing has made me admire the good sense and the practical intelligence of the Americans," he wrote, "more than the way they avoid the innumerable difficulties deriving from their Federal Constitution." Walter Bagehot, the founding editor of The Economist and author of a classic book on The English Constitution, wrote in the 1860s: "Americans now extol their institutions and so defraud themselves of their due praise . . . If they had not a genius for politics, if they had not a moderation in action singularly curious where superficial speech is so violent . . . the multiplicity of authorities in the American Constitution would long ago have brought it to a bad end. Sensible shareholders, I have heard a shrewd attorney say, can work any deed of settlement; and so the men of Massachusetts could, I believe, work any constitution." And James Bryce, who served as Britain's Ambassador to the United States from 1907-13, said that he was dubious of what he called the "tools" provided by the Constitution, but "[t]he defects of the tools are the glory of the workman." What he meant was that "the American people have a practical aptitude for politics, a clearness of vision and capacity for self-government never equaled in any other nation." "Such a people," Bryce concluded, "can work any Constitution."
I doubt that any foreign observers would say the same thing about the United States now. Political practice today more closely resembles Jefferson's uncompromising ideals rather than Franklin's common sense. Indeed, we are approaching the point where Barry Goldwater's adage: "Extremism in the defense of liberty is no vice. And moderation in the pursuit of justice is no virtue" will be a description and not a slogan. The problem with even the best ideals is that they become dangerous fictions when taken literally. (Jefferson himself said many crazy things but almost always acted cautiously.)
Since a shared identity probably must be rooted in the nation's Founding, my modest suggestion is that we elevate the Founder who was not a lawyer or a theorist. Franklin's experience came from the most practical of pursuits–first as a publisher, then as a scientist, and finally as a diplomat. He was the pioneer of what we now call civic society in his adopted hometown of Philadelphia. As Franklin said in his proposal for what became the University of Pennsylvania, education should cultivate "an inclination joined with an ability to serve mankind, one's country, friends and family." So should politics.