“I assert that the people of the United States . . . have sufficient
patriotism and intelligence to sit in judgment on every question which has
arisen or which will arise no matter how long our government will endure.”
—William Jennings Bryan
As citizens it is fitting that we engage in acts of civic piety while celebrating the bicentennial of the federal Constitution. That celebration acknowledges that in some sense the Constitution is a success. Given the long record of the crimes, follies, and misfortunes of mankind and the perishability of free and popular governments, it is a success in which we can take great satisfaction. But as a historian and even as a conscientious citizen, I cannot put aside a disquieting question: Which Constitution am I being asked to celebrate?
Even if we do not subscribe to an “evolutionary” rendering of the Constitution (as opposed to “original intent”), we are forced to recognize that the Constitution has a history. Besides many lesser scars, it carries on its face the great and bloody gash of Civil War and Reconstruction, an unparalleled social upheaval which was in its essence a question of constitutional interpretation. Even if, carried away by the moment and the warm glow of patriotism (not something to be despised), we can put aside the complications of history, still, we are confronted with a Constitution that means different things to different people—things that are sometimes mutually exclusive.
Opposing the Bork nomination, someone recently wrote to the “Letters” column of Time (August 3, pp. 8-9): “His reliance on original intent precludes the notion that the Founding Fathers originally intended us to evolve as a people into something better than we were. The nation, and indeed the President’s legacy, would be better served by a Justice who views the Constitution as a living part of the present rather than a relic from the past.”
This passage encapsulates a vast region of mischief and misunderstanding, which includes both the proponents and the opponents of “original intent.” A few obviously political points can be made: Would we be a better people by having more abortions? by executing fewer murderers? by having fewer prayers in fewer places? by oppressing more people with reverse discrimination? But it is more interesting that the letter-writer does not reject “original intent.” Indeed, logically, no one can. Rather he has supplanted the “original intent” of the written Constitution with an “original intent” of the Founding Fathers, for us to “evolve as a people into something better than we were.” Those realistic republicans, the Framers, skeptical of human nature and anxious to construct a power that was both effective and limited, content with compromise, have been converted into a priestly caste who bequeathed to us a secret mission of evolving into better beings.
This appeal to the higher law is legally, logically, and historically an absurdity. It traces back not to the Founding but to transcendentalism, which was a 19th-century vulgarization, by a small but influential group of Americans, of German philosophy. Carlyle took Emerson around the London slums again and again, but he could never make him believe in the reality of the Devil. This letter-writer could be taken around history again and again but could never be convinced that the Framers did not share his aspirations. They were sensibly hopeful men and principled republicans, which is not the same as devotees of national “evolution.”
This confusion of the Constitution with some sort of subjective higher law, one way or another, is nearly pervasive among both the “liberals” and the “conservatives,” though it takes different forms at different times. Though a good deal more clever and circumstantial about it, the faculty of the Harvard Law School (and thus the Supreme Court for the last 40 years) present essentially the same view of the Constitution. They have read into it an intent, or at least a natural tendency, to evolve into meanings that extend the ideological program of social democracy. The Constitution evolves, but only in the direction they say. Although evolution is presumably by definition open-ended, it cannot evolve in directions they do not approve of, even if such an evolution is compatible with its letter and history. The Supreme Court is supposed to read the election returns, but only if the returns turn out their way. Once the Court has discovered something in the Constitution, no one else is allowed to discover something that contradicts it—a curiously limited and controlled form of evolution. Thus there is a federal right to prevent the states from prohibiting abortions, but there can be no federal right to prevent the states from allowing them. In fact, both propositions are nonsense because the real “original intent” of the Constitution (even with the 14th Amendment added) is not a matter in which there is any federal power, nor any judicial power except in the most limited sense.
The simple truth is that the Constitution of our forefathers is not very compatible with the commercial progressivism by-way-of-federal-power of the “conservatives” and not compatible at all with the programmatic egalitarianism by-way-of-federal-power of the “liberals.” Since these have become the foremost American values (at least in effective political terms), the Constitution has had to give. The question is not between “original intent” and interpretation, it is who will interpret; not whether the Constitution will give, but how much and in what direction.
So incompatible is the Constitution with programmatic egalitarianism that we have had to invent a secret history of abolitionism on the part of the Framers (which has been alluded to in every bicentennial statement I have seen, with greater zeal by “conservatives” than by “liberals”). On the flimsiest evidence, against both the letter and the substantive history of the instrument, we have postulated that the Framers intended to do away with slavery but could not quite manage it immediately. It is true that some, not all, had vaguely antislavery sentiments which in general had a lower priority than the interests of the Maine codfish industry, but no one believed—neither the Framers nor the public—that they possessed the power to abolish slavery. (It is one thing to be pleased that the 13th and 14th Amendments did away with slavery three generations after the Founding; it is another to attribute false motives and anachronistic powers to the Founders.) Judging from the number of times this false history is alluded to, our self-esteem seems to be bound up with it. Perhaps we have a secret, unacknowledged fear to admit the Founders were really not entirely like us, because we would then have to throw them out completely.
Anyone who has honestly and closely studied the Founding years and the period that followed knows how large state rights loomed in the understanding of the Constitution in those days. Although there was some disagreement, some ambivalence, and even a few cases of disingenuousness among the Founders about the locus of sovereignty, there can be no doubt that most of the Founders and the subsequent two or three generations of statesmen accepted as natural and right the broadest possible idea of state rights. To most of the Founding generation, the Bill of Rights meant primarily a binding of the federal government by the states. To most people of the time, the victory of Jefferson and his friends in 1800 signified primarily the defeat of a too assertive federal power. Throughout the first half of the 19th century, the absolute central principle of the Jeffersonian Party and of the Democratic Party which came along later was state rights—the belief that the states were the truest representatives of the people’s will and the best guardians of the people’s liberty. And this belief was matched by democratic sentiment—the more faith one had in the people the more allegiance one gave to state rights. As recently as 1932 the Democratic Party went on record against the dangers of an overextended federal government.
It is not likely that state rights will be affirmed during our current bicentennial, even in a historical context What would the Founders, or indeed anyone before 1932, have made of a situation in which the states have all but disappeared except as administrative units and electoral counters of the federal machinery? And all in the name of freedom and the rights of the individual. Today the federal government, and usually the unelected parts of it, determine the qualifications of the voters and the apportionment of the legislatures of the states. It determines the curriculum and student assignments of their public schools, the rules of proceedings in their criminal courts, the speed limits on their highways, and the number of parking spaces for the handicapped in their public and private buildings. We observe the strange spectacle of legislatures required to pass laws according to specifications drawn up by federal judges and federal bureaucrats, which, of course, is not lawmaking at all. The states may have larger budgets and do more things than ever before, but their constitutional authority has never been lower.
In the perspective of American history or of the Founders, this is an absolutely amazing development, a revolution consummated entirely since 1960, which has had less impact on the public consciousness than the Super Bowl or Michael Jackson. (Because, I think, the predominant strain in the national character has become utilitarian—it cares only for ends and does not care how they are accomplished—the idea of principles simply doesn’t exist. This may be good or bad, but it is utterly incompatible with the Constitution.)
The appeal to federally guaranteed individual rights as the chief [evolutionary] feature of the Constitution is essentially antidemocratic. It takes the Constitution away from the people, whose Constitution it is, and gives it into the keeping of an elite class that considers itself the master of mysteries that no majority, either state or federal, can tamper with. It is not the dead hand of the past (“a relic from the past”) that the advocates of an evolutionary Constitution fear. What they fear is the restraining hand of consensus, that is, of democracy.
An evolutionary Constitution implies a path of evolution, either inevitable or actively pursued. But who is to discern the path? The Supreme Court of the later 19th century thought the path was illuminated by Herbert Spencer; more recently egalitarian social democracy has been the beacon. In either case we have a guardian class of savants privileged to lead the way. The status of such men rests not on talents or public services but on claims to special revelation. In other words, they are not republican delegates of the people but priestly oracles—what the Founders would have immediately seen to be clever usurpers, and to us hardly distinguishable from the vanguard of the proletariat.
It is true that majorities can be wrong and that minorities have indefeasible rights enshrined within the spirit of the Constitution. But make no mistake, our elitist interpreters and molders of the Constitution are not talking about the rights of minorities to be defended and to defend themselves. They are talking about the rights of a minority, themselves, to rule, to be the sovereign, the ultimate authority. And this is not a theory, but a fact.
It is a curious truth that those who claim rationality, the liberals, with their permanent revolution and reliance on the supposedly objective spirit and findings of social science, always resort to the most irrational view of the Constitution—on the one hand to a mystical and disembodied appeal beyond the letter, and on the other to the most petty and deceitful manipulations of the plain sense. One of the most obvious results of this is to remove the Constitution from the people and have it perform as a cover for elitism.
But in fact, the Constitution, properly considered, does not give any rights at all. The most essential point of a written constitution is that it is a limitation of government. The people establish institutions and give up to them certain powers, and no more. The government is not presumed to give the people their rights; and indeed the Bill of Rights is cast in a negative form: “The Congress shall make no law . . . ” That is, our rights are not a grant from the federal government, and the chief duty of the federal government is to refrain from interfering with them and leave to our real communities their day-to-day definition and application. By this analysis, all that the 14th Amendment “intended” was to make the freed men citizens.
There is a certain liberal spirit, genuinely American and legitimately derived from Jefferson, which says that the earth belongs to the living generation, which must be free to make its own arrangements. But our current evolutionists represent the exact opposite of this spirit—they represent not a forthright amendment by popular consent (which can be completely compatible with the spirit of traditions and institutions) but an essentially rigid and disguised manipulation of the existing Constitution.
I have said that the appeal over the Constitution to the higher law is pervasive. For example, I have before me a Reader’s Digest (Sept. 1987) containing the reflections of the ex-Chief Justice Burger on how our Constitution should be viewed and celebrated. It is impossible to imagine anything more “mainstream.” I set aside the silliness of the tide, “The Birth of a True Nation.” (Was the United States an “untrue” nation before the Constitution?) I quote the blurb, which is not the language of Burger but is a not-unfair representation of his sentiments expressed on this and other occasions; “Two centuries ago in Philadelphia, one of the most extraordinary events in all human history occurred, and America—and the world—were thereby transformed.”
The framing of the Constitution was a remarkable event, but I will have to reflect a little on the invention of the wheel and the appearance of Jesus before conceding “one of the most extraordinary events in all human history.” Further, the Constitution was not a unique event but a part of a series of events which ought to be understood not as “a miracle at Philadelphia” (to quote the title of a popular work—one does not know whether the pseudo-religion or the pseudo-history is more odious), but rather as a realistic human achievement. Every clause of the Digest‘s statement is, in fact, either a falsehood or a gross exaggeration.
America was not transformed by the Constitution, except in a limited sense that a new governmental machinery was launched at the highest level. It remained the same society, essentially, as it had the year before. The Constitution did not create republicanism, which had already been created by the people of the States as the first step in the Revolution. It did not create the idea of the written constitution, which also had already been done by the states, which is why John Adams wrote his A Defence of the Constitutions of the United States.
But we have here not only America transformed but also the world! Now it is true that the Founders sometimes appealed to Mankind. However, they did not deal in emotions, ideologies, and fantasies, but principles. They had a modest hope that by the successful operation of republican principles they might provide an example and inspiration for other peoples. Nothing could have been further from them than the spirit of making the world “safe for democracy.” If someone had blathered “global democracy”—the official rhetoric of the chosen intellectuals of the Reagan administration—to General Washington, he would have reached for his sword. (Unfortunately, aside from rhetoric, the actual practice of the administration in foreign policy is in the hands of the same stuffed shirts who have “managed” the State Department since William Jennings Bryan resigned in 1915.) “Global democracy,” in specific historical terms, goes back to the 1930’s, when it was created as a melange of Wilsonism and Soviet popular front propaganda. Given the propensity of American governments for dropping high explosives on the “enemies of democracy,” such propaganda can do nothing in the 1980’s but make every intelligent foreigner feel uneasy and render prudent discussion of the national interest nearly impossible. In the past 50 years, a great achievement in the founding of government for Americans becomes a cover for the dreams of “conservative” politicians and intellectuals for world transformation.
I am less offended by the factual license of the ex-Chief Justice’s blurb than I am by its spirit. The tone is all wrong, for a bicentennial statement. It smacks of a spoiled child congratulating himself on Daddy’s riches. The Framers, I believe, would not want to be worshiped as workers of a miracle. What they would want is the “decent respect” of sensible men for the hard-won achievements of their fathers.
The glorification of the Framers as demigods is a form of mystification that naturally lends itself to elitist rule. If the Constitution is a miracle, then it has to be treated as a holy object and handled only by the priests, not by the common run of humanity. To treat the Philadelphia Convention as a gathering of demigods is worse than foolish and undemocratic; so far it prevents any real appreciation of their achievement.
The members of the Convention, the Framers, were an able lot; some were great. Yet, in the final analysis, they were not omnipotent or omniscient but merely the delegates of the states. Some very able men who were selected by the states refused to go, either because they had more pressing business or were suspicious of the proceedings. Others were quite desultory in attendance, and several of the best men there refused to sign the finished product.
Nor did the Framers establish or proclaim a new Constitution, something they had no authority to do. What they did was draw up a convincing and appealing proposal—convincing and appealing because it tended to meet the occasion and to anticipate the future—a proposal that, after a considerable amount of explanation and qualification and amendments promised, was approved eventually by an effective majority of the people in each of the states—that is, by the people of the United States as already defined by existing political communities. Those who ratified the Constitution are its real Founders (as opposed to its Framers). It is wrong, therefore, to cite the debates in Philadelphia as definitive of “original intent,” or as useful and illuminating as they may be in a subsidiary sense. It is the powers that ratified it that determine, in the final analysis, what the “intention” of the Constitution is. Fortunately, to declare this is merely to declare the validity of democracy and of federalism.
How far we fall short of their achievement. In truth, in the Framers’ Constitution, one of the things they took for granted (that we have lost) was an adequate supply of intelligence and honor. Reflect on that magical period in the history of self-government during the last decade when we had Gerald Ford for President, Nelson Rockefeller for Vice President, Warren Burger for Chief Justice, and Tip O’Neill for Speaker. At the time of the Framers the justices of the peace of any small county in Virginia or the selectmen of any town in Connecticut could have mustered more intelligence (I leave aside less measurable virtues) than the whole of the government today.
By intelligence I mean learning, wisdom, foresight, digested experience, detachment, ethics. Not shrewdness in self-promotion, conceit, visionary schemes, and vague good intentions. The Founding Fathers did not anticipate the ravages of the two-party system and its ability to deter the best from public life and foist vocal mediocrities on the public. The Constitution presupposed an inexhaustible supply of able and honorable and independent public men (whose ambitions needed to be watched). Almost all of our leaders are now the creatures of political parties (what percentage of the people believe the Democrats and Republicans are part of the Constitution?), which means that ipso facto they are more adept at winning office than at filling them, at manipulation and self-promotion than at statesmanship.
The replacement of the independent gentleman by the professional politician beginning in the 19th century, a reflection of changes in society and of the capacity of clever men to manipulate even wisely constructed institutions to their advantage, provided as serious a distortion of the Constitution as did the concomitant rise of lawyers. It would astound our politicians today to learn that at the time of the Founders and even long after, people held public office for the honor and that in most cases, rather than filling their own snouts at the public trough (except for a few securities speculators), they actually made a sacrifice of their private interests to serve in public office. The Constitution presupposed an aristocratic rather than a bourgeois class of office holders and aspirants, members of Congress, and Presidential Electors, who would always be capable of independent judgment. That is, the operation of the Constitution rested in part on something that has ceased to exist. The essence of republican government was that the will of the people prevailed but that it was formulated by able and independent delegates. When we say the will of the people, we have to avoid the mystical and high-flying references to something strongly akin to the General Will, which we all know is not the will of the people but the will of the vanguard of the proletariat on behalf of the people—what the people would want if they were as smart as their masters. This too easily merges over into “all mankind,” so that everyone in the world becomes by extension an American citizen—something which if taken too literally constitutes a grave threat both to the United States and mankind. The will of the people under the Constitution can only mean the deliberate sense of the political communities, that is the states, that make up the United States, expressed through the republican mechanisms that are established. This suggests that judicial review must be relegated to a subsidiary role.
Original intent, properly speaking, is a legal and not a constitutional idea. The original intent of a piece of legislation may be juridically determined by reference to its legislative history (though given the trickery and evasiveness of recent Congresses this is not as simple as it might be). However, “original intent” of the Constitution is not similarly determinable because the intent was given to the Constitution by the people who ratified it. An appeal to the Philadelphia convention, known chiefly through the partial notes of Madison, is not strictly analogous to an appeal to legislative history. The Constitution can be finally interpreted only historically, not juridically. It is also important to note that the “original intent” of a particular provision of the Constitution and the “original intent” of the Constitution in the large sense are different questions.
I have often heard members of Congress and other public officers answer a constitutional question with the quip that they are not constitutional lawyers. Nonsense! Members of Congress, the President, and more importantly, the people and officials of the states have just as much standing in interpreting the Constitution as any panel of lawyers or law professors, whether or not the latter have yet been appointed to the federal bench. The Founders never intended that the high political questions of constitutional interpretation would be at the mercy of lawyers’ tricks.
The Federalist justices of the early 19th century—Marshall, Story, etc.—were legalists and devotees of the British common law. In one of the most misguided feats in American history, they infused judicial review into the constitutional fabric, believing they were providing a check to unruly popular passions and lending stability to the institutions of self-government. But while they did inject a type of stability that was useful in the progressive commercial sense, the law had a pragmatic and centralizing tendency that carried the emphasis away from the historical rights of the states and from the consent of the people. It is not difficult to understand why Jefferson feared the judiciary as the greatest of all enemies of republican government. There is a piece of erroneous folklore, again dating to 19th century distortions of the Founding, that the Constitution is in the special keeping of lawyers. In fact relatively few of the Framers were practicing lawyers. Primarily they occupied their time as owners of plantations or other large estates or as merchants (that is, not counter-jumpers but traders on a large scale). They were also clergymen and educators, among other represented professions. It is true that a good many were trained in law. Law was considered a useful study which enhanced one’s ability to manage one’s own interests and participate in public life because it was a storehouse of English traditions of order and liberty. However, it was not considered, except by a few of the Framers who were not the most trustworthy, that a decent man would devote his primary attention to the daily practice of law.
The Founders recognized no aristocracies except those of talent, service, and social weight. They would regard the Constitution today as the tools of an aristocracy of federal judges, drawn from a class of lawyers and law professors whose study is not of noble traditions of liberty and order but of the defense of large vested interests, whether of big business or the established left-wing causes of the New Class. It would be difficult to imagine any group, taken as a group, more dissimilar to the great landowners and republican gentlemen of the Founding than the choice legal scholars of late-20th-century America. The former were representatives of their communities and the bearers of wisdom and vision. The latter are the representatives of vested interests and of arcane manipulations.
We have here more than the elitist tendencies of 20th-century liberalism or “guardian democracy.” We are going to have to go back a lot further than the Warren Court or the New Deal to remedy the ill. An evolutionary captivity of the Constitution was inevitable once the Constitution was given over largely into the hands of lawyers and treated primarily as a legal document, the understanding of which was to rest on the reasonings of judges.
This was a major mistake that the Framers, for the most part, did not expect. The Constitution was not intended to be, except in a subsidiary sense, a legal document. It was not expected that it would be interpreted by lawyers (people who argue cases for pay) much less by law professors (people who teach others how to argue for pay). The Constitution is a political document. Lawyers and judges are qualified to deal with legal matters. Study of the law per se, or pursuance of legal procedures per se, will never yield an accurate or lasting interpretation of the Constitution in the large sense. Justice O’Connor recently observed that every Supreme Court decision becomes, at the hands of clever lawyers, raw material for a hundred new eases.
This would be no great problem if we were merely dealing with legal questions brought on by the complications of modern society. But through the 14th Amendment and the usurpations of all three branches of the federal government, every conceivable legal question has also been made into a constitutional question. And even if this process yields a workable rendering of particular clauses of the Constitution, it should not be allowed cumulatively to determine the meaning of the Constitution itself.
We know that the Constitution has changed and continues to do so. If we look into what Constitution deserves our respect, we find two current views. One view, put forth by recent Supreme Courts and their defenders, says that the Constitution is an evolutionary document whose great virtue lies in its adaptability. According to this, it follows that it is the right or even the duty of the Supreme Court from time to time to bring the Constitution “up to date.”
We can hardly deny that the Constitution has changed and evolved. It has a history. However, from the observation that the Constitution must be viewed historically, it does not necessarily follow that the Supreme Court should be the arbiter of that change. In fact, this would not have been accepted by the main body of Founders.
The other view of the Constitution current today is that we are bound by its “intent” unless we want to amend it in the proper way. The Founders, at least that majority who were not over-involved in a specific agenda, would not have demurred from this proposition. But is it not obviously true that the intent of the Constitution is a historical question? That is to say, questions of “original intent” are most properly answered, not by legal reasoning and legal tradition, nor by abstract speculation on democratic philosophy or individual “rights,” but by reference to the historical record.
In emphasizing the historical record there are two things I am not saying. I am not suggesting, in the manner of Charles Beard, that there is some secret dirty story to be ferreted out by historians. Nor am I saying that only professional historians can be allowed to put the Constitution in context, for any intelligent person may make a valid historical observation.
If we do not rely on legal interpretation to discern the intent of the Constitution nor on the specialist knowledge of historians nor on philosophical speculation (however relevant any of these may be in a subordinate sense), what do we rely on? We rely on history, and history, if it is not a specialist’s but a people’s history, is exactly what we mean by tradition—a widely shared understanding handed down from generation to generation.
A people’s history may well embody some mythological elements (like the Founders’ abolitionism) and some evolutionary developments (like reinterpretation of some basic points in the Civil War) because popular traditions are never precisely accurate in the specialists sense. But after all, the Constitution rests upon the consent of the people. And it is therefore, in the final analysis, the people who have a right to determine its intent. If we argue that this is a perilous or unworkable doctrine, then we are merely declaring that democracy and federalism are unacceptable.
Of course, if we accept this proposition, our problems are only beginning (I can hear the cries of “simplistic!”), for we are still faced with the task of translating the people’s understanding, which is a tacit thing, into the established mechanisms of government. This would seem to require the services of a statesman who, in Andrew Lytle’s definition, has the mission of clarifying for a given people their alternatives. Since we have no statesmen, then perhaps the best we can do is get the best judges we can find and trust them. This, indeed, has been the position of most of those who have thought of themselves as conservatives through this century, though it cannot be considered a resoundingly successful strategy.
The defenders of “original intent” argue with ability and earnestness and morality and sense. But the Constitution they defend is not the federal republican instrument ratified in 1787-1788. It is the one invented and refounded in the middle of the 19th century by democratic nationalists to accompany and foster the development of a commercial republic, a Constitution under which lawyers formed an aristocracy, an impulse which Tocqueville observed at work in its early stages. As the world goes, that Constitution, compared to the one invented by the Supreme Court in the middle of the 20th century, wil