Jeffrey K. Tulis

THE RHETORICAL PRESIDENCY IN RETROSPECT

ABSTRACT The Rhetorical Presidency is not, principally, a book about rhetoric or the presidency. Rather, rhetoric and the presidency are windows on the American constitutional order as a whole. Critics have greatly enhanced the historical narrative but have not undermined the principal historical and theoretical claims. Recent changes in the American polity are best understood as exacerbations of problems described in the book, rather than as fundamental alterations of our political world. Contemporary political pathologies can still be diagnosed as a product of the contending imperatives of the new constitutional order that has been layered on top of the old one. And while problems may be attenuated by a creative melding of the old and new orders, they cannot be solved within the confines of American constitutionalism, as it has been traditionally understood.

The Anti-Federal Appropriation

The Anti-Federalists lost the battle to defeat the Constitution but won back through interpretation what they lost in constitutional construction. To counter Anti-Federalists’ accurate depictions of the proposed constitution as one that would radically alter the existing regime, The Federalist adopted a rhetorical structure that facilitated an opposing political tradition layered over the constitutive logic of the Constitution. Our analysis of the developmental logic embedded in founding political thought, the rhetoric used to defend that political logic, and the subsequent appropriation of Federalist rhetoric by the losers of this debate illustrates the mutual dependence of American political development and political thought.

The Demon at the Center

In the puzzle about whether there can be unconstitutional constitutional amendments, one can notice a problem inherent to all views of American politics. All understandings of the American polity presuppose a distinction between core and peripheral elements. The lawyer who believes that some amendments to the Constitution are unconstitutional, even though the new text satisfies all the procedural provisions of Article V, rests her case on the claim that the proposed amendment offends some fundamental value or principle of the Constitution. On the other hand, those who believe that any amendment that surmounts the hurdles of Article V is therefore constitutional are making the claim that procedure is the core of the Constitution.1 The puzzle is no mere academic conundrum but rather an avenue into the meaning of America. The larger literature of American political culture can be read, too, as an extended debate over the definition of America. Because students of political culture have addressed the question of collective identity explicitly, their work should be helpful to constitutional theorists, whose arguments regarding the defining elements of the polity often remain implicit. Moreover, by addressing collective identity as an explicit theme, one is led quickly to see more clearly the extra-constitutional aspects of Americas constitutive thought. Although it is difficult to characterize as a whole, much of the

Introduction Constitutional Boundaries

Our large theme is failure and success in constitution making, or the limits of constitutional democracy. The convergence of recent scholarly work in political science and law and political events throughout the world make this a timely project inside and outside of the academy. The number of new constitutional texts written in support of regime formation in the past thirty years is astonishing. The profusion of ideas and scholarship on constitution making also marks a milestone for social science, which had long neglected the study of laws and constitutions, and for legal studies, which recently added the study of constitutional design to its usual emphasis on constitutional interpretation and analyses of court doctrine. This worldwide effort in political and academic arenas is, however, marked by a kind of ambivalence. On the one hand, there is considerable optimism that constitutional democracy represents a high point, if not a culmination, in the history of political life. The attractiveness of this political idea is so powerful that even countries such as Russia, whose long anticonstitutional pedigree continues to shape politics as it is experienced there, claim to be constitutional democracies. On the other hand, for all the attractiveness of the idea of constitutional democracy, establishing it in practice has proved difficult in many new regimes throughout the world, as the Russian case and the conflicts in Iraq and Afghanistan vividly illustrate. Constitutional democracy is at once an attractive idea and a daunting enterprise. There are limits to the possible establishment, to say nothing of the flourishing, of the idea of constitutional democracy. This book takes up the concern about the limits of constitutional democracy by returning to its most basic questions: What is constitutional democracy? What does it mean for constitutional democracy to succeed or fail? To address issues so fundamental that they are often overlooked or taken for granted means that one can no longer assume the attractiveness of the idea of constitutionalism but must interrogate the meaning, limits, and appeal of the constitutional idea. Our usual way of talking about the limits of constitutional democracy is to discuss the variety of indigenous circumstances—ethnic and tribal traditions, lack of 2 Copyrighted Material INTRODUCTION. TULIS AND MACEDO commitment to a rule of law, religious strife—that hinder its development. For many who adopt this usual approach, constitutional democracy itself is unlimited in its appeal, but circumstances limit its establishment. In this book, we reverse …

Comment: Riker's Rhetoric of Ratification

Over the past decade, William Riker has written a series of articles that reinterpret the founding of American politics in light of insights gleaned from theories of rational choice. In the course of these efforts, he has invented a new subject, “heresthetics,” having “to do with the manipulation of the structure of tastes and alternatives within which decisions are made.” With Evelyn C. Fink, for example, he has shown more systematically than previous analyses how the federalists structured the the ratification process by attaching an informal promise of future amendment to a formally unconditional ratification. In the present essay, Riker moves from heresthetics to rhetoric: “Rhetoric and heresthetic are both techniques of winning. But they are different kinds of techniques. Rhetoric is persuasion.… With heresthetic, on the other hand, conviction is at best secondary or not involved at all.” Riker describes federalist and antifederalist ratification rhetoric in an effort to display the persuasiveness of “negative” campaign appeals for those who wish to attract the support of marginal voters.

On the State of Constitutional Theory: [Commentary]

Stephen M. Griffins effort to redefine the enterprise of constitutional theory is certainly commendable. He seeks to move constitutional study away from narrowly legal analyses to broader political concerns that animate all serious efforts to make, revise, or even interpret constitutions. Griffin understands that courts are but one institution in a constitutional system and as a part of an ongoing polity can never stand for the whole. He understands that rationalizing Court doctrine is not a reasonable substitute for an analysis of a polity and its political development. He seeks to wed the concerns of constitutional theorists with those of scholars of American political development. From the perspective of constitutional theory as it is currently practiced in law schools, Griffins article is a breath of fresh air.