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The Beard Thesis and Franklin Roosevelt The Beard Thesis and Franklin Roosevelt
Cass R. Sunstein
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Cass R. Sunstein, "The Beard Thesis and Franklin Roosevelt," 56 George Washington Law Review 114
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The
Beard
Thesis
and
Franklin
Roosevelt
Cass
R.
Sunstein*
I.
Of
the
numerous
writings
surrounding
the
debate
over
the
Amer-
ican
Constitution,
The
Federalist
No.
101
is
probably
the
most
impor-
tant.
In
that
essay,
Madison
set
out the
somewhat
surprising
thesis
that
a
large republic
would
be
better
able
than
a
small
one
to
pro-
mote
traditional
republican
goals.
According
to Madison,
a small
republic
would
likely
be
ridden
by
factional warfare.
In
a
large
re-
public,
by
contrast,
public-spirited
representatives
would
emerge.
Such
representatives,
Madison claimed,
would
have
the
wisdom
and
the
virtue
to
escape
parochial
pressures
and
to
promote
deliberation
in
government.
A
large republic
would
contain
so
many factions
that
they
would
effectively
offset
each
other.
The
result
would
be
an
increased
likelihood
that the
system
will
be protected
against
the
effects
of
factionalism
and
that
republican deliberation
will
actually
occur.
Interest-group
trade
offs
-
the
grant
of
wealth
or
opportu-
nity
to
A
rather
than
to
B simply
because
of
A's
political
power
-
would
therefore
be
reduced
or
eliminated.
These
aspects
of
The
Federalist No.
10
are
highly
congenial
to
many
modern
readers.
2
But
other
aspects
are
more
controversial.
*
Professor
of
Law, Law
School
and
Department
of
Political
Science, University
of
Chicago.
Some
of
the
ideas in
this
essay
are
discussed
in
more
detail
in
Sunstein,
Consti-
tutionalism
After
the
New
Deal,
101
HARv.
L.
REv.
-
(1987).
I
am grateful
to
Martha
Mi-
now
and
Kathleen
Sullivan
for
helpful comments
on
a
previous
draft.
1.
THE
FEDERALIST
No.
10
(J.
Madison).
2.
But
not
for
all;
a
belief
in
local
self-determination
is
a
prominent
theme in mod-
em
political
and constitutional
thought.
See,
e.g.,
B.
BARBER,
STRONG
DEMOCRACY
117
November 1987
VoL
56
No.
I
HeinOnline -- 56 Geo. Wash. L. Rev. 114 1987-1988
Sunstein
THE
GEORGE
WASHINGTON
LAW
REVIEW
Madison
suggests
that:
The
diversity
in
the
faculties
of
men
from
which
the
rights
of
property
originate,
is
not
less
an
insuperable
obstacle
to
a
uni-
formity
of
interests.
The
protection
of
these
faculties
is
the
first
object
of
Government.
From
the
protection
of
different
and une-
qual
faculties
of
acquiring
property,
the
possession
of
different
degrees
and
kinds
of
property
immediately
results
.... 3
And
Madison
doses
the
essay
by
emphasizing
the
advantages
of
the
proposed
constitution
in
countering
"a
rage
for
paper
money,
for
an
abolition
of
debts,
for
an
equal
division
of
property,
or
for
any
other
improper
or
wicked
project."
4
In
this
respect,
there
are
powerful
antiegalitarian
and
anti-
democratic
dimensions
in
The
Federalist
No.
10.
The
insulation
of
representatives from
popular
will
appears
to
be
intended
not
only
to
promote
deliberation,
but
also
to
protect
against
popular
desires
for
the
redistribution
of
wealth
and
entitlements.
Indeed,
the
two
themes
were
merged
in
much
of
the
thinking
of
the
Framers.
Fac-
tionalism
was
sometimes
thought
to consist
precisely
in
changes
in
the
existing
distribution
of
property.,
In
this
sense,
constitutional-
ism
was
designed partly
as
a
self-conscious
check
on
democracy
- a
notion that
came
up
frequently
in
the
constitutional
convention.
It
is
instructive
to
compare
Madison's
claims
in
The
Federalist
No.
10
with
a discussion
by
President
Franklin
D.
Roosevelt
in
accepting
the
Democratic
nomination
for the
presidency
in'1936.
Roosevelt
said:
[l]t
was
to
win
freedom
from
the
tyranny
of
political
autocracy
that
the
American
Revolution
was
fought....
The
royalists
of
the
economic
order
have
conceded
that polit-
ical
freedom
was
the
business
of
the
government,
but
they
have.
maintained
that
economic
slavery
was
nobody's
business.
They
granted
that
the
government
could
protect
the
citizen
in
his
right
to
vote
but
they
denied
that
the government
could
do
anything
to
protect
the
citizen
in
his
right
to
work
and
live.
Today
we
stand
committed
to
the
proposition
that
freedom
is
no
half-and-half
affair....
Better
the
occasional faults
of
a
government
that
lives
in
a spirit
(1984)
(stating
that
"[s]trong
democracy
is a
distinctly
modern
form
of
participatory
democracy
[that) rests
on the
idea
of
a self-governing
community
of
citizens
who
are
united
...
by
civic
education
and
who
are
made
capable
of
common
purpose
and
mutual
action
by
virtue
of
civic
attitudes and
participatory
institutions").
3.
THE
FEDERALIST
No.
10,
at
58
(J.
Madison)
(J.
Cooke ed.
1961).
4.
Id.
at
65.
5.
This
is
of
course
an
overgeneralization,
for
the
Framers
were
welldisposed
to
some
kinds
of
redistributive measures,
particularly
the
poor
laws.
1987]
HeinOnline -- 56 Geo. Wash. L. Rev. 115 1987-1988
of
charity
than
the
consistent
omissions
of
a
government
frozen
in
the
ice
of
its
own
indifference.
6
Ideas
of
this
sort
contributed
to
Roosevelt's
eventual
endorse-
ment
of
a
"second
Bill
of
Rights,"
available
to all
"regardless
of
sta-
tion,
race,
or
creed,"
and
including:
The
right
to
earn
enough
to
provide
adequate
food and
cloth-
ing
and
recreation;
The
right
of
every
family
to
a
decent home;
The
right
to
adequate
medical
care;
The
right
to
adequate
protection
from
the
economic
fears
of
old
age,
sickness,
accident
and
unemployment;
[and]
The
right
to
a
good
education.
7
The
New
Deal
understanding
of
the
functions
of
constitutional-
ism,
embodied
in
Roosevelt's
program
for
constitutional reform,
thus
departed
dramatically
from
the
original conception.
In
the
New
Deal
reformulation,
constitutionalism
was
no
longer
to
be
re-
garded
as
a
check
on
popular
demands
for
the
redistribution
of
wealth
and entitlements.
On
the contrary,
constitutionalism
was
in-
tended
to
promote
at
least
a
certain
degree
of
redistribution.
Roosevelt
was
of
course
no
socialist;
he
believed
strongly
in
both
private
property
and
private
industry.
His goal
was
to
soften
the
harsh
edges
of
the
economic
system,
not
to
overturn
it.
But
a
prin-
cipal
purpose
of
the
New
Deal
was
to
protect
the
poor
and
the
dis-
advantaged
from
the
risks
of
the
marketplace.
In
the
New
Deal
period,
such
efforts
at
protection
did
not
appear
to be
a
product
of
"faction,"
or
to
represent
raw
interest-group
transfers,
but
were
in-
stead
a
plausible
outcome
of
a
deliberative
process
among
citizens
and
representatives.
The
point
holds
even
though
some
of
the
in-
novations
of
the
New
Deal
period
turned out
to
be
difficult
to
de-
fend
on
economic
or
noneconomic
grounds.
Thus
the
insulation
of
administrative
officials
from
political
pres-
sure
- a
prominent
New
Deal
theme
- was
designed
to
allow
for
a
measure
of
government
intrusion
on
the
privileges
of
powerful
pri-
vate
groups.
In
this
respect,
Roosevelt's
version
of
constitutional-
ism
endorsed
the
Madisonian
belief
in
the
insulation
of
political
actors
from
parochial
pressures,
but
to
bring about,
rather
than
to
prevent,
collective
action
to
redistribute
resources.
The
refashioning
of
the
constitutional
structure during
the period
of
the
New
Deal
sheds
considerable light
both
on
the
original
frame-
work
and
on
current
constitutional
predicaments.
Indeed,
the
New
Deal
period
furnishes
some
basis,
though
partial and
indirect,
for
understandings
of
the
original
system
that
can
be roughly
associated
with
the
work
of
Charles
Beard
- a
conclusion
that
should
not
be
6.
Acceptance
Address
by
President
Franklin
D.
Roosevelt, Democratic
National
Convention
(June
27,
1936),
reprinted
in
2
VITAL
SPEECHES
OF
T-r
DAY
634,
634-36
(1935-1936).
7.
State
of
the Union
Address
by
President
Franklin
D.
Roosevelt
(Jan.
11,
1944),
reprinted
in
10
VITAL
SPEECHES
OF
THE
DAY
194, 197
(1943-1944).
[VOL.
56:114
HeinOnline -- 56 Geo. Wash. L. Rev. 116 1987-1988
Sunstein
THE
GEORGE
WASHINGTON
LAW
REVIEW
surprising
in
light
of
the
fact
that
Beard
was
a
part
of
the
progres-
sive
movement,
which
provided
much
of
the
underpinning
of
the
New
Deal.
In
this
essay,
I
explore some
of
the
central economic
commitments
of
the
original
constitutional
design,
not
by
offering
biographical
data
about
the
Framers,
but
by
pointing
to
a
number
of
features
of
that
design
and
by
providing
a
comparison
of
the
origi-
nal document
with
the
New
Deal
reforms.
During the
celebration
of
the
bicentennial,
it
is
important
to
ap-
preciate
not
only
the
achievements
of
the
Constitution's
original
drafters,
but
also
those
of
others
who
have
affected
the
meaning
and
structure
of
the
Constitution.
One
need
look
no
further
than
the
founding
generation
itself for
counsel
of
this
sort.
It
was
Thomas
Jefferson
who
asserted
that
members
of
the
preceding
age
were
"very
like
the
present,
but
without
the
experience
of
the
present,",
and
who
criticized
those
who
"look
at
constitutions
with
sanctimoni-
ous
reverence,
and
deem
them
like
the
ark
of
the
covenant,
too
sa-
cred
to
be
touched."
9
Jefferson
advised:
"Let
us
...
[not]
weakly
believe
that
one generation
is
not
as
capable
as
another
of
taking
care
of
itself,
and
of
ordering
its
own
affairs....
[T]he
dead
have
no
rights."
10
Of
those
who
followed
this
advice,
those
associated
with
the
New
Deal
reformulation
-
above
all
Franklin Roosevelt
-
oc-
cupy
a
singularly
important
place.
II.
Three
basic
commitments
underlay
the
original
constitutional
de-
sign.
The
first
was
to
some
form
of
"limited government,"
under-
stood
in
a
vaguely
libertarian
fashion;
the
second
was
to
a
system
of
checks
and
balances;
the
third
was
to
federalism.
The
three
commit-
ments
were
closely
allied.
The
institutional
principles
of
the
system
were
designed
to
serve
the
substantive
belief
in
rights
of
private
property
and contract.
The
substantive
commitment, reflected
in
The
Federalist
No.
10,
was
to
a
degree
of
immunity
from
government
incursions
into
the
private
realm -
whether
those
incursions
were
supported
by a
mi-
nority
or
a majority.
Thus
the
original
Constitution
singled
out
pro-
tection
of
private
contract
as
one
of
its
rare
safeguards
of
substantive
rights;
and
the Eminent
Domain Clause,
protecting
pri-
vate
property,
was
a
prominent
feature
of
the
Bill
of
Rights.
It
would
be
a
mistake
to
suggest
that the
Framers
intended
to
abolish
all
of
what
we
would
currently describe
as
redistribution
of
prop-
8.
Letter
from
Thomas Jefferson
to
Samuel
Kercheval
(July
12,
1816),
reprinted
in
THE
PORTABLE
THOMAS
JEFFERSON
552, 559
(M.
Peterson
ed.
1977).
9.
Id. at
558-59.
10.
Id.
at
559-60.
1987]
117
HeinOnline -- 56 Geo. Wash. L. Rev. 117 1987-1988