In this Wall Street Journal ($) book review, Northwestern University Law Professor John O. McGinniss reviews Stanford Law Dean and Professor Larry Kramer‘s new book — “The People Themselves” — in which he argues that the notion that the judiciary is the sole true arbiter of the Constitution under the American government is a fairly new and inaccurate view. As Professor McGinnis notes from Professor Kramer’s work:

. . . the men who wrote the Constitution would have been aghast at a judicial monopoly on its interpretation. At the time, judges did not claim some exclusive power of constitutional settlement. They believed that judicial review stemmed from their duty to interpret all relevant laws in the course of litigation. But they did not dispute that the White House and Congress had their own duty to interpret the Constitution in the course of their own official actions.
Only later, when the Federalists feared that they would be voted out of office, did the doctrine of judicial supremacy come into play, to insulate Federalist court decisions from correction. But Mr. Kramer shows that presidents from Jefferson to Lincoln refused to yield all authority to judges. They embraced “departmentalism” — each branch of government claiming an equal right to discover the Constitution’s true meaning.

Professor Kramer notes that the doctrine of judicial supremacy has serious implications to American government and society:

Because the court is selected from a narrow social class, he notes, it tends to reflect the views of a modern “aristocracy.” Only the willingness of other branches to disagree with the court prevents our constitutional republic from degenerating into a constitutional oligarchy — with a priestly caste ruling, in effect, by fiat.
Mr. Kramer goes even further. He believes that “the people themselves” should be principal enforcers of the Constitution, as they long enforced the British Constitution through such devices as jury nullification and mobbing — i.e., disturbing the peace. But the American Constitution differs from that of George III. In the U.S., the people themselves can reconstitute all branches of the government — by voting for certain candidates instead of others, of course, and by thus affecting political appointments. Electoral accountability is the essence of popular constitutional control. Thus Americans have not typically resorted to mob violence. The contrast with the British Constitution is striking.

But Professor McGinnis is not completely sold on Professor Kramer’s theory that varied interpretations of the Constitution protect our society against the tyranny of the majority:

The American Constitution also differs from the (unwritten) British one in its source of authority. In 1789 the Framers drafted a specific text that the people themselves ratified in every state. It is this consensus that gives the Constitution its power and justifies the disregard of even democratically made laws that conflict with it. But the meaning of that consensus can be discovered only by referring to the words themselves and to their historical context — not by relying on the “political-legal” interpretation that Mr. Kramer suggests. Constitutional interpretation based on politics places the people’s own considered judgments at the mercy of rash and temporary majorities. Only a document fixed by law — and subject to strict rules of amendment — can protect, in the words of Justice David Brewer, “Peter Sober from Peter Drunk.”

Read the whole piece. Good stuff.

Gordon Wood is the Alva O. Way university professor at Brown University and one of America’s foremost authorities on the history and philosophy of the American Revolution. His brilliant books “Radicalism of the American Revolution” and “Creation of the American Republic” are essential for an understanding of American politics and its political system from the Founding Fathers era to the present. The subject of this previous post is Professor Wood’s review of University of Pennsylvania professor Walter A. McDougall’s new book, ”Freedom Just Around the Corner,”which is a fine book that I am currently enjoying greatly.
Now, Professor Wood has produced what it appears to be another fine book. In this NY Times Review of Books review, the reviewer points out that one of the most intriguing aspects of Professor Wood’s new book on Benjamin Franklin — “The Americanization of Benjamin Franklin” — is the approach in which it was written:

This study is not a biography, at least not a conventional one. Wood focuses on Franklin’s personal development and constructs his narrative around various turning points in the life, almost like a bildungsroman. We learn the choices Franklin made, the conflicts he had to resolve. This is the most dramatic of the recent Franklin books.

One of Professor Wood’s points is that Franklin was hard to pin down as a personality. For example, many of today’s politically correct on the left would have a hard time dealing with Franklin:

The politically correct would most likely hector him if they could. For Franklin was a slaveholder. It’s true he turned against slavery, and ardently so, at the very end of his life, but he took a long time getting there. He could be a bigot as well. He wrote nativist diatribes against the large German population in his own colony of Pennsylvania. In 1751 he argued for excluding everyone from Pennsylvania except the English; Morgan calls him ”the first spokesman for a lily-white America.” Franklin loved the company of women, but he was no feminist. He treated his wife miserably, and he admonished young brides to attend to the word ”obey” in their vows. He worried that handouts to the poor would encourage laziness, and he was a fervent supporter of a strong military.

On the other hand, those on the right of the political spectrum would also have a difficult time embracing Franklin:

Modern right-wingers would probably be even more uncomfortable with him than left-wingers. Take his religious views. Franklin was a deist; God, in his opinion, was a distant presence in the affairs of men. He was no churchgoer. He accepted neither the sacredness of the Bible nor the divinity of Jesus. His ideas about property rights were similarly unorthodox. Beyond basic necessities, he said, all property belonged to ”the public, who by their laws have created it.” Brands calls such remarks ”strikingly socialistic.”
What most sets Franklin apart from contemporary conservatives, however, is his attitude toward that panoply of issues gathered under the heading of ”family values.” As a young man he consorted with ”low women,” and fathered an illegitimate child. In 1745 he wrote a letter to a youthful friend — long suppressed — offering advice on choosing a lover. (Older women, he declared, were preferable to younger ones.) Franklin was always an incorrigible flirt. How much actual sex was involved is anybody’s guess, but one incident stands out among the rest. When he was in his 70’s and living in Paris, he became enamored of the captivating 33-year-old Mme. Anne-Louise Brillon, one of the leading lights of Parisian society. Even the puritanical John Adams was enchanted by her. She was no less taken with Franklin, and their vivacious correspondence consisted of a determined campaign on his part to bed her and her equally stalwart resistance, based on the customs of the day and what was proper between a widower and a married woman. Their bantering give-and-take, as quoted by Brands, constitutes one of the most charming episodes in early American history and — since as far as the historians can tell they never did sleep together — also one of the most poignant.

As a result of Franklin’s extraordinary nature and accomplishments, Americans tend to sentimentalize him, which Professor Wood cautions against:

The other problematic theme concerns Franklin’s ”Americanness.” He seems almost a checklist for those national qualities Americans take pride in — and others despise us for. Yet Wood alerts us to be careful in how we think about this aspect of his character. For he was the most cosmopolitan of the founders, at home anywhere. Twenty-five of the last 33 years of his life were spent abroad, and those years were anything but a hardship for him. He was wined and dined and celebrated by the Europeans more than he ever was by his own countrymen. Soon after arriving in London he was complaining about the provinciality and vulgarity of Americans. In Paris he was quite simply a superstar, acclaimed as the equal of Voltaire, and he gave thought to settling permanently in ”the civilest Nation upon Earth.” These sentiments did not go unnoticed back home, and Franklin fell under suspicion of being a foreign agent, first for the British, then for the French. When he returned to Philadelphia for the last time in 1785, it was in part to clear his name.

In the end, Professor Wood’s book attempts to answer the difficult question: What changed Benjamin Franklin from a citizen of the world to a citizen of the United States?

The Revolution was not a conflict over taxation or home rule, not even a dispute over the rights of Englishmen. For him it represented something universal, a world-historical event, ”a miracle in human affairs.” That is, Franklin never stopped being the urbane cosmopolitan, the ultimate sophisticate. He stayed true to himself. But by 1776 he had concluded that the only way to remain a citizen of the world was to become an American.

Gordon Wood on Ben Franklin. Don’t miss it.