Constitutional “Moments” You Can Believe In

In Legacies of Losing in American Politics, Jeffrey K. Tulis and Nicole Mellow assert that there is an “illiberal tradition” in American politics. That tradition, they say, has had and continues to have an enormous unrecognized influence on American culture. While scholars and the informed public are trained to believe the three “constitutional moments” (the Founding, Reconstruction, and the New Deal) shape American civic life, a strong undercurrent, generally unremarked, carries the legacy of those moments' “antimoments” and continues to affect us greatly.

Tulis and Mellow posit that the ratification-campaign Federalists (“or, more popularly, ‘the Founders'” began a tradition that is continuous with Reconstruction, the New Deal, and contemporary novel extensions of federal authority such as Obamacare. Each of those moments had its defeated antithesis, but the antitheses surged to the fore again—respectively during “a forceful resurgence of states' rights after ratification of the Constitution, the emergence of Jim Crow after Reconstruction, [and] the success of ‘Reagan Republicanism.'” What they take to be their novel realization is that the apparent losers—Anti-Federalists, Andrew Johnson, and Barry Goldwater—impede us still. The antimoments, they say, “sustain or ingrain illiberalisms or ascriptive hierarchies.”

Tulis and Mellow explain in their first focused chapter, the one on the Founding of the federal republic, that Anti-Federalists used select passages from The Federalist “to reinterpret the Constitution so that it worked differently from the way originally planned.” They claim that Antifederalist critiques of the Constitution led Publius to describe the Constitution in a way “that ultimately was used to legitimate this Anti-Federal political persuasion, facilitating an opposing political and interpretative tradition layered over the constitutive logic of the Constitution.” In other words, Publius (meaning, as it happens, Alexander Hamilton) responded to the Constitution's critics by describing it in a false but appealing way to get the people to agree to it.