What we call the U.S. Constitution is really our second constitution.  The first, drafted during the War of Independence, was called the Articles of Confederation.  So the battle over the ratification of the Constitution was not over whether the thirteen colonies should unite, because they were already united.  It was about how to improve their cooperation.

Amending the Articles of Confederation was quite difficult.  After the Continental Congress called a constitutional convention to streamline the process of drafting amendments, the convention violated its instructions, threw the Articles out the window, and drafted a completely new instrument of unity without a ghost of authorization.  One side in the ensuing controversy, which came to be called Federalists, favored ratifying the new document.  The other, called Anti-Federalists even though they believed even more fiercely in federalism, favored rejecting it.  In the Anti-Federalist view, the proposed new Constitution was not only the product of an illegal conspiracy, but also dangerously flawed.

We know which side won.  But which side’s guesses were closer to the mark?   Judge for yourself.  Here are some Federalist and Anti-Federalist expectations about what would happen if the new Constitution was ratified.

Judicial power.  Federalists believed the judiciary would be the weakest branch of government; Anti-Federalists were convinced it would become ever stronger and more arbitrary, and that Congress would fail to keep it in check.

Judicial activism.  Anti-Federalists thought judges would become activists, continually increasing their own jurisdiction, ruling with less and less attention to what the Constitution actually says; Federalists denied this would happen

Legislative power.  Federalists thought the legislature would be the strongest branch; Anti-Federalists thought the other two branches would be much stronger than the Federalists expected.

Elasticity.  Anti-Federalists thought Congress would abuse the "necessary and proper clause,” also called the “elastic clause,” to make laws about all sorts of matters that were supposed to be left to the states; Federalists foresaw no such thing.

Sensitivity of Congress to popular opinion.  Federalists thought the House of Representatives would be sensitive to every little change in the mood or opinion of the people, so that a wiser, more experienced, and more stable Senate would be necessary to keep the House in check; Anti-Federalists thought both Senate and House of Representatives would become increasingly distant from the people and indifferent to their concerns.

Popular confidence in Congress.  Federalists thought Congress, especially the House of Representatives, would enjoy the people's supreme confidence and sympathy; Anti-Federalists thought it would fall into distrust and disrepute.

Congressional turnover.  Federalists thought there would be a great deal of turnover in every election to the legislature; Anti-Federalists though extreme turnover would be the exception, so that Congress would come to resemble a closed aristocracy.

Congressional power to raise an army.  Federalists thought that the Congressional power to raise an army would be used only when necessary because of the threat of war; Anti-Federalists thought it would be used to raise a standing army of permanent soldiers ready for action even in peacetime, and put to use for questionable purposes.

Whether the army will be safe.  Federalists thought any army that may be raised from time to time would be well-regulated and safe for the republic; Anti-Federalists thought that it would be destructive to liberty, because it would be distinct from the people, operating under its own laws and discipline.

Manipulation of elections.  Anti-Federalists thought that in order to manipulate electoral outcomes, Congress would abuse its power to revise state-drafted electoral regulations; Federalists denied this would happen.

Concurrent general powers of taxation.  Federalists thought giving a "general" power of taxation not only to states but also to the federal government would work fine; Anti-Federalists thought it would lead to such high federal taxes that the states would find it difficult to use the same methods to raise revenue, so that their independence would be placed at risk.

Cancellation.  Federalists thought the rise of majority factions – including political parties – would be prevented by the competition of opposing factions in Congress.  Anti-Federalists didn't buy this argument.

Presidential power.  Anti-Federalists thought the vagueness of the definition of the chief executive’s power would encourage abuse; Federalists thought the executive would be sufficiently controlled by checks and balances.

Presidential elections.  Federalists expected that in almost every presidential election, there would be a crowd of candidates, so that the Electoral College would merely winnow the field, with the final decision being made by the House of Representatives -- the result being a compromise in which large states would dominate in the first phase of selection, but large and small states would be balanced in the second.  I don't know whether any Anti-Federalists expressed views on the matter.

“Who can give it any definition which would not leave the utmost latitude for evasion?  I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.”

So wrote Alexander Hamilton in The Federalist, No. 84.  He was speaking of one of the items proposed for a federal bill of rights, the freedom of the press.  I am not thinking of that, but of a different item.

I believe we have crossed the Hamiltonian line in the defense of conscience and religious liberty.

Once upon a time, it may have been effective to put abstract guarantees of liberty of conscience and free exercise of religion in bills of rights and statutory enactments.  If it was ever effective, however, it no longer is now, because terms like “conscience,” “religion,” and “liberty” have been so thoroughly vitiated.

The judgment of conscience, separated from the knowledge of natural law, is viewed as meaning feelings of indignation that anyone should dare to judge my conduct.

The duty of religion, alienated from the Creator to whom honor and obedience are due, is viewed as meaning personal eccentricities and baseless scruples in the name of which I demand special treatment.

The boon of liberty, torn asunder from the duties it empowers us to perform, is viewed as meaning getting to do what I want to.

We must not play that game.

Conscience must be protected, and yes, in the long run we must rehabilitate these compromised terms.  But in the short run, we must admit that the terms are compromised, and stop using them in the laws.  Statutes which do employ them will at best confuse people, and at worst backfire.  They will endanger the very things they are meant to protect.  For example, if I say that my conscience forbids me to give support to the killing of babies, immediately someone will say that his conscience demands compelling everyone to pitch in for “health care,” by which he means the killing of babies.

Therefore I say to lawmakers:  Do not throw pearls before swine.  Do not implore respect for such things as “conscience,” “religion,” or “liberty” from people who have no idea what these terms means.  Yes, find ways to protect authentic conscience and religious liberty – scarcely anything could be more important.  But find ways to do so without using the terms.  Do not forbid abstract categories of acts; forbid acts.

This will require that evils be targeted more closely.  For example, one of the greatest contemporary threats to genuine conscience is that health care workers can be required to take part in abortion, euthanasia, and suicide.  Forego the word “conscience.”  Simply propose that no one may be required or commanded to take innocent human life, or to participate formally in its taking.  The same approach may be taken toward attempts to coerce people to commit other evils.

Such a law will be difficult to enact and even more difficult to sustain, but may mean a great deal.  In our favor is the fact that even though the people no longer understand what conscience is, they still have consciences -- and they do still understand what killing is.

We interrupt this series of blog posts for an important announcement.

As many readers of this blog know, my Commentary on Thomas Aquinas’s Treatise on Law was published a few months ago.  There were some glitches with its partner volume, but I’m glad to say that the unglitched Companion to the Commentary is now available for download.  The two books work together, and the Companion -- the supplement to end all supplements – is free.  So if you’re interested in the Treatise at all, this is a big deal.  Please tell your friends, teachers, students, and acquisitions librarians.

Here’s the backstory.  Many moons ago, when I had finally sent my promised manuscript on Thomas Aquinas’s Treatise on Law to Cambridge University Press, all seemed well.  Cambridge liked it.  The reviewers liked it.  There was one problem:  Without realizing it, I had submitted a manuscript almost twice as long as it was supposed to be.  It would have produced a book of about 800 pages.  Can you imagine curling up in front of the fireplace with a granite block like that?  You would have needed a forklift to carry it.  And who could have afforded it? 

The editors and I hit on this solution:  The book would be divided into two books.  The Commentary on Thomas Aquinas’s Treatise on Law would still include the all-important line-by-line commentary on Questions 90-97 – the hugely important, central sections on law in general, the types of law, eternal law, natural law, and human law.  But two big chunks of the book would emigrate to a second book which we would call the Companion to the Commentary:  First, all the thematic discussions I provide over and above the line-by-line commentary, and second, additional line-by-line commentary on excerpts from Questions 98-108, on divine law. 

The Commentary is published both in print and electronically, and you have to pay for it.  The Companion is available only as a PDF, but distributed for free -- a huge bonus.  Of course both books are under copyright.

You can find more information, including samples of the text and endorsements by other scholars, here.

Yesterday I considered whether anything about God’s general providence can be gleaned apart from revelation, just by the use of natural reason.  The more difficult case is His particular providence.

For example:  Certain formidable minds have believed that when time and time again, contrary to all reasonable expectation, the things human beings do to keep something from happening not only fail to prevent it but actually help bring it about, then we may reasonable conclude that more than human agency has been at work.  Abraham Lincoln makes an argument something like this about the Civil War in his Second Inaugural Address.  An even more well-known example is Alexis de Tocqueville’s reasoning about the replacement of aristocracy by “democracy,” by which he means equality of inherited ranks.  He writes in the introduction to Democracy in America,

“The various occurrences of national existence have everywhere turned to the advantage of democracy; all men have aided it by their exertions: those who have intentionally labored in its cause, and those who have served it unwittingly; those who have fought for it and those who have declared themselves its opponents, have all been driven along in the same track, have all labored to one end, some ignorantly and some unwillingly; all have been blind instruments in the hands of God .... The gradual development of the equality of conditions is therefore a providential fact, and it possesses all the characteristics of a divine decree: it is universal, it is durable, it constantly eludes all human interference, and all events as well as all men contribute to its progress.”

Notice the similarity between this mode of reasoning about human history, and the reasoning of intelligent design theorists about natural history.  If time and time again, events which should have been almost impossibly unlikely by natural processes have happened anyway, then we may reasonably include that more than natural processes have been at work.

Among the various difficulties of such arguments – difficulties conceded even by their sympathizers, like me -- is that in order to be confident that a certain cause couldn’t have brought about a certain effect without assistance, one must have a very thorough knowledge of how that cause works.  We do know a great deal about how random variation interacts with natural selection to bring about changes in finch beaks.  However, we know far less about how human choices interact with each other to bring about historical events.  So it is one thing to infer particular instances of design in biology, and quite another to infer them in history.

Perhaps this is why arguments like Tocqueville’s and Lincoln’s are so seldom attempted in our day.  However, I think they merit much more serious examination from philosophers than they receive.  In recent decades, the philosophy of religion has resurrected itself and taken a new look at such things as the possibility of miracles; perhaps it is time for the philosophy of history to resurrect itself and take a new look at such things as the possibility of inferences about particular divine providence.