By Derek Webb*
Constitutional Law Center Fellow, Stanford Law School
**This is the second installment of a series on civility in public discourse – a joint project of ConSource and the National Constitution Center’s Constitution Daily.
[Author’s Note: In my first post in this series, I discussed the importance of civic friendship in setting the tone to the deliberations of the delegates to the Philadelphia Constitutional Convention. In this second post, I reflect upon the role attentive listening, openness to argument, and intellectual humility played in the substance of their deliberations.]
On August 30, 1787, Thomas Jefferson wrote from Paris to his friend and colleague John Adams, expressing his utmost confidence in the delegates who had assembled in Philadelphia for the Constitutional Convention. They were, he said, “really an assembly of demigods” and he therefore had no doubt that “all their … measures will be good and wise.” Jefferson’s heady assessment of the Convention, made from the comfortable distance of 3,700 miles and surrounded by the architectural, literary, and romantic exhilarations of life in high society Paris, into which Jefferson had thrown himself headlong, may give us more of a window into Jefferson’s head and heart at the time he wrote these famous words than the inner workings of the convention itself.
For while it is undoubtedly true that the delegates who had assembled in Philadelphia from May through September of 1787 were the cream of the political crop of their respective states, the day to day dynamic of the convention required that, time after time, these “demigods” had to sacrifice their own considered judgments of what was best, true, and good for their country, judgments developed from decades of public service and lengthy consideration, and be open instead to learning from, and even accepting, the views of their colleagues. The Greek demigods were known for their godlike intelligence, savvy, and physical prowess, capable of outsmarting opponents on the battlefield and slaying monsters no mere mortal could hope to challenge. The Philadelphia demigods, by contrast, prevailed not so much by the inevitable unfurling of their collective brilliance and learning, but by their willingness at points to put aside their brilliance, occasionally even doubt their own learning, and be open to changing their opinions in light of new arguments and better information.
One of the keys, as it turns out, to remaining open to argument and persuasion was the importance the delegates placed upon paying careful attention to one another. On the very first day of real business for the convention, the delegates laid down a set of parliamentary rules designed in large part to encourage attentiveness. First, whenever the full Assembly met, the delegates were expected to attend all sessions. By imposing this strict attendance requirement, the delegates tried to ensure that when the members spoke to one another, they were not pontificating for the history books or their constituents before a mostly empty chamber, but were actually talking to each other, in front of each other.
Second, whenever a speaker had been recognized and held the floor, another rule provided that “whilst he shall be speaking, none shall pass between them, or hold discourse with another, or read a book, pamphlet or paper, printed or manuscript.” Whether it was the magisterial Madison rising to discuss the benefits of an extended republic, the extreme Hamilton urging complete consolidation of the states under a quasi-monarchical President for life, or even the inebriated Luther Martin rambling on about Locke and Vattel, the delegates were expected to stop talking with each other, put away newspapers like the Pennsylvania Packet and the Daily Advertiser, stow away their copies of Henry Fielding’s novels, and pay attention. In other words, when someone held the floor, they could not drift away into their eighteenth century version of laptops, iPhones, iPads, and Blackberries. No “tweeting,” “texting,” or “status updating” was allowed while the business of forging e pluribus unum was underway.
But beyond simply passively listening to each other, the delegates placed a premium on learning from each other as well. To help delegates float novel ideas, change their minds, alter course, and flexibly respond to better arguments, evidence, and proposals from their colleagues, they laid down two additional rules.
First, they agreed not to keep an official record of their votes on particular measures. The delegate who proposed this rule, Rufus King of Massachusetts, argued that “changes of opinion would be frequent in the course of the business and would fill the minutes with contradictions.” George Mason seconded King’s motion, noting that “a record of the opinions of members would be an obstacle to a change of them on conviction.”
And second, the delegates chose to keep their proceedings secret, not publishing the minutes in newspapers or even permitting delegates to notify others of the proceedings through letters. In 1830, Madison would observe that the combination of these two rules had proved essential to the success of their deliberations in Philadelphia:
Had the members committed themselves publicly at first, they would have afterwards supposed consistency required them to maintain their ground, whereas by secret discussion no man felt himself obliged to retain his opinions any longer than he was satisfied of their propriety and truth, and was open to the force of argument.
These institutional rules helped ensure that the delegates would enjoy the freedom to think. Unburdened of the need to maintain a surface consistency with their earlier statements or appease distant observers, they were free to rationally respond to the ideas of their colleagues and, thus, in Madison’s words, remain “open to the force of argument.”
Not all of the delegates, of course, took advantage of this freedom. Benjamin Franklin observed that “when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish opinions.” And several of the assembled demigods seemed intent to prove him right, preferring stirring statements of fixed principles to the process of reasoning through differences. William Patterson of New Jersey early on insisted that “New Jersey will never confederate on the plan before the Committee” which departed from the basic model of the Articles of Confederation and that “he had rather submit to a monarch, to a despot, than to such a fate.” Edmund Randolph of Virginia stated that he would never consent to anything other than a strict and complete enumeration of all the powers enjoyed by Congress, and that “he did not think any considerations whatever could ever change his determination. His opinion was fixed on this point.” And Rufus King declared that “he never could listen to an equality of votes” among states in the Senate.
But enough delegates did listen to and learn from each other to make a difference. On the very first day of substantive discussion of the Virginia Plan, Pierce Butler of South Carolina said that “he had not made up his mind on the subject [the Virginia Plan], and was open to the light which discussion might throw on it.” And Franklin prefaced one of his comments to the Assembly with the observation that “The Committee will judge of my reasons when they have heard them, and their judgment may possibly change mine.”
It is Franklin’s assessment of the Convention, in the end, which more reliably captures the real “miracle at Philadelphia.” While Jefferson looked at the Convention from Paris and saw an assembly of demigods, Franklin, present at the creation throughout the long, hot Philadelphia summer, sensed that the key to whatever success they might enjoy was not really godlike omniscience but nearly its opposite – a healthy dollop of epistemic humility. Early on in the summer he made the point that “we are sent here to consult, not contend, with each other; and declarations of a fixed opinion, and of a determined resolution, never to change it, neither enlighten nor convince us.”
And on the final day of the convention, September 17, 1787, Franklin, in his final effort to secure as many votes for the Constitution as possible, returned to this theme of intellectual humility. “I confess that there are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others.” And in a final flourish, he observed that while “Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error,” he urged each delegate to “doubt a little of his own infallibility” and sign the Constitution.
But for the ability of the delegates in Philadelphia to listen to each other, directly encounter alternative positions, free themselves to think through arguments, and in the end even doubt a little of their own infallibility, the “republic of reasons” created by the Constitution might never have been launched.
Derek A. Webb is a fellow in the Constitutional Law Center at Stanford Law School. He recently won the American Inns of Court’s 2012 Warren E. Burger Prize for his essay, “The Original Meaning of Civility: Democratic Deliberation at the Philadelphia Constitutional Convention.”