“The Constitution gives every American the inalienable right to make a damn fool of himself.” I first heard this wise insight into the American way of life from Sam Ervin, who was, as I have since learned, quoting John Ciardi. I should not be surprised: Poets always get to the heart of the matter a lot quicker and cleaner than politicians do.
What Ciardi and Senator Sam meant by this, I believe, was that our original Constitution and Bill of Rights designed a very limited government that restricted the ability of the federal government to compel virtue. If an employer preferred to hire a less qualified white male rather than a qualified black female, it was his loss. But lurking behind this aphorism is an unspoken assumption that our Constitution embodies the American spirit summed up in the common phrase, “Mind your own business.”
We have a written Constitution, to be sure, but behind that Constitution is a set of assumptions that everyone once took for granted, such as the belief that no professing atheist can be elected president. The broadest set of these assumptions, one whose significance is still debated, was the acceptance of English common law in cases where no statute obviously applied.
It is often said that we are the first people to have a written Constitution. In the literal sense, this cannot be true. If we set aside such oddities as the constitution of ancient Thurii, drawn up by the philosopher Protagoras, patriotic Americans must still concede that every civilized people has had legal codes that were revised and amended until they covered much of what we think a constitution is supposed to do. While it is true that neither 19th century Britain nor (a.d.) second century Rome possessed a single document titled “The Constitution,” each had a series of laws, decrees, and legal decisions that collectively described how their political and legal systems were supposed to function.
When we read that Aristotle studied the “constitutions” of Athens and Carthage, we must not imagine that he was restricted to quoting documents. An intelligent Athenian knew how the Assembly and Council were constituted, but he may not have read the inscriptions that prescribed the procedures. In any event, there was no one document. Such a plan was usually restricted to the imagination of utopian philosophers like Plato or Thomas More, who legislated for demigods and angels rather than for men.
Our word constitution is simply the English form of the Latin constitutio, which can refer either to the settled and established order (from constituere, “to set up or establish”) or to a specific ordinance. Both senses may have been on the minds of Americans in the 1780’s, but it is the former, used to translate a similarly constructed Greek word (katastasis), that is fundamental. For the Roman or the Greek or the Englishman, the constitution was not a single document or a set of laws but the established way things were done. Cicero expressed reverence for the excellence of the constitutional system passed down from early times, not because he thought the Twelve Tables, though set in stone, could not be amended and augmented to fit changing circumstances, but because the basic outlines of the Roman order—the Senate, the magistrates, the fundamental laws—were the most stable and just order the world had ever known.
The Americans who put a constitution on paper were in some ways more revolutionary than the rebels who broke with the British Empire. Secessions are a common historical phenomenon, while constitutions put together from scratch are quite rare. As time went on, the document began to take on a sacred character, something like the tablets of the Ten Commandments. But it is not at all clear that Americans were committed from the outset to preserving either the letter or the spirit of the Constitution. Consider only the case of our country’s Founding Father.
George Washington had been a loyal British subject who fought for the Empire and the English Constitution in the 1750’s before fighting against it in the 1770’s. He agreed to America’s first written constitution, The Articles of Confederation and Perpetual Union, in 1781 and only six years later presided over a committee that was empowered to revise the Articles but which, without any real warrant, decided to replace them with a new Constitution. That Constitution was a masterful representation of the sectional, economic, and private interests of its Framers, who were not an assembly of Solons or demigods but were more like a high-level meeting of lobbyists and ward heelers, who saw to it that their constituents were provided for. That is why it worked for a time.
From the beginning, the new Constitution was undermined, as Jefferson noted, by John Marshall and the federal judiciary, and in later years it came to be so often amended against itself—redefining who citizens are, imposing the very taxation that had been forbidden, turning the Bill of Rights against the states and people it was supposed to protect—that it would be childish to speak of defending or restoring a document whose rules for over a hundred years have been more often honored in the breach than in the observance. We have shown even less reverence to our state constitutions, most of which have been rewritten completely more than once.
Constitutions written in imitation of the Constitution of 1787 sometimes express an implied critique of what were perceived as defects or deficiencies. Some Southern constitutions stipulated that only whites could be citizens, while the Constitution of Liberia (1847), written by former American slaves, declared that “all men are born equally free and independent” and thundered an anathema against slavery: “There shall be no slavery within this Republic. Nor shall any citizen of this Republic, or any person resident therein, deal in slaves, either within or without this Republic, directly or indirectly.” If a constitution could transform human nature, the prohibition on slavery might have worked. But when the former slaves who constituted the Liberian political elite were challenged by the natives they presumed to rule, the interlopers decided to kill two birds with one stone by selling the truculent natives to the Spanish. As late as the 1930’s Liberia was notorious for a system of forced labor that very strongly resembled slavery, and even today critics of the Liberian regime do not hesitate to condemn it for being a partner in the exploitation of child labor.
Constitutions tell us what the men who framed them and the men who ratified them wanted, but, as time goes by, they have less and less bearing on how people live and governments govern. If a constitution could create a free republic, Liberia would have become something better than a mulatto despotism that exploited and enslaved black Africans. It is a free people, as Clyde Wilson has reminded us, that creates a republican constitution and never the other way around.
In 1836, when Texans sat down to write a constitution for their republic, they were in no mood to waste time. The siege of the Alamo was grinding away to its bloody conclusion, and Houston’s gloriously improbable victory at San Jacinto was only a month and a half away. An educated Spaniard stood up and invoked an “eminent Roman statesman,” but he was cut off by Tom Rusk, with the admonition that the convention should “give less thought to dead Romans and more attention to live Mexicans.” Inevitably, the Texas Constitution was based very heavily on the U.S. Constitution and on the state constitutions of Southern states, all of which provided for a separation of powers and explicitly limited the overall power of the government.
Like the various state constitutions adopted after 1787 and like the Confederate Constitution passed in 1861, the Texas Constitution tells us a great deal about what Americans of succeeding generations meant when they spoke of republican government. The original Tennessee Constitution, for example, makes it clear that, while no religious test could be imposed on office-holders, “No person who denies the being of god, or a future state of rewards and punishments, shall hold any office in the civil department of this State.” By implication, this leaves out Universalists and most Jews, though Muslims, if there were any in Tennessee, would have still been eligible.
Both the Texas Constitution and the Declaration of Independence that preceded it (March 2) give us an insight into the republican mind-set of Americans in Texas. They made the status of Common Law explicit, and they were very clear that the right to bear arms is both a personal and a collective right: “Every citizen shall have the right to bear arms in defence of himself and the Republic.” It also granted Texans “the inalienable right to alter their government in such manner as they may deem proper.” Where every man went armed, this would not have been a difficult right to assert, as Texans did in 1861.
The most original aspect of the Texas Constitution is the large section devoted to the acquisition and possession of property. The validity of land claims was spelled out in detail, and a land office set up, but its operations were postponed until the men who fought for independence were given “a fair and equal chance with those remaining at home to select and locate their lands.”
Two years after the drafting of the Texas Constitution, Texas passed the first homestead act, enabling veterans of the war to acquire huge slices of territory. This land was sacred and could not be alienated for delinquent taxes. As T.R. Fehrenbach observes in his magnificent history of Texas, Lone Star, “Land . . . was assuming sacred proportions at law. Against the rights of private property, in Texas, even the public rights of eminent domain often were in doubt.” Even today, Texans lead the fight against eminent domain. Although a Texas law drafted before the U.S. Supreme Court’s decision in the Kelo case left a loophole for slum clearance, a major fight is shaping up over a possible amendment to the Texas Constitution.
In Texas there may be hope for relief from the threat of eminent domain and from unfair property taxes, because some Texans, including immigrants from other sections, apparently are still Texans. Constitutions do not make a people free any more than clothes make the man. Men, in fact, make clothes, and a free people makes a constitution that expresses its character. Republicans tried to destroy Texas during Reconstruction: They proposed breaking up the state; they forbade ex-Confederates to hold office or sit on juries; they tried to tax property out of existence and kept the money for themselves.
Texans responded to this tyranny with their usual exuberance. Decent ex-Unionists and Republicans joined forces with their former Confederate enemies to plan and execute a massive voter uprising that even the corrupt Grant administration could not ignore, and all over Texas ex-soldiers took the law, which had been usurped by carpetbaggers and scalawags, into their own hands by forming Vigilance committees, by lynching murderers, and by assuming personal responsibility for defending their honor and their families from the oppressor. This was the ugly period of the great Texas blood feuds, the decade that witnessed the rise to eminence of cold-blooded gunmen like John Wesley Hardin and Clay Allison. It was an evil time in which no sane man would want to live, but, to be fair to the shootists, they were living up to the code they had learned from their parents, who had inherited it from distant ancestors. As Wes Hardin, son of a Methodist (!) minister, explained: “Our parents had taught us from our infancy to be honest, truthful, and brave, and we were taught that no brave boy would let another call him a liar with impunity.” Forty-some killings later, Hardin would himself be murdered by a sheriff’s deputy of dubious reputation.
Hardin and Allison were probably not “natural-born killers.” Their casual attitude toward homicide was born of the troubled and violent conditions they experienced in growing up. In an earlier generation or in a more settled place, they might have ridden with Francis Marion or Jeb Stuart. The footloose Americans who left Virginia for Tennessee and abandoned homes in Tennessee for a perilous existence in Texas were not the products of a stable civilization. If their people had not been wanderers, they might have stayed home in the nooks and crannies of the British Isles from which they had swarmed to the New World.
An outstanding example of these men was Capt. Creed Taylor. Born in Texas to Alabama parents, Taylor fought for Texas independence and joined the Texas Rangers. He lived to see his country conquered, and his sons and several nephews murdered by supporters of the Reconstruction government. Before his death, Creed Taylor dictated a memoir whose title could serve as an epitaph for the bold Americans who conquered the West, Tall Men With Long Rifles. We should never forget that it is of such men—and not of even the best written constitution—that a republic is made.