EDITOR’S NOTE: This is a excerpt from the opening chapter of The Lives of the Constitution: Ten Exceptional Minds that Shaped America’s Supreme Law, by Joseph Tartakovsky. For more about the book, visit www.josephtartakovsky.com.
Every nation has a founding myth. The Bushmen of Africa claim they emerged from a hole in the earth; the Iroquois of America say they descended from a gap in the sky. The Romans had Romulus and Remus; the Israelites a covenant in the Sinai desert. Other foundings involve monsters, gods, floods, and planetary prodigies. The American story, then, at first glance, is not very promising: it’s a bunch of legal documents. Yet our tale has the compensating virtue of emerging not out of mysterious antiquity, but out of provable fact. We have something rarer even than the supernatural: the documentary record of a nation rationally created. “We have it in our power to begin the world over again,” wrote Thomas Paine, an early enthusiast for the task. “A situation, similar to the present, hath not happened since the days of Noah until now.” The Founding Fathers, the time-tested carpenters of our ark, were great enough for myths to gather around them. But the truth of our origin remains a matter of recollection, not imagination.
America’s greatest contribution to world civilization has been in the art of establishing and preserving free republican government. By now we’ve had the longest practice on earth. Our national regime has operated uninterrupted since 1789, through even a civil war. During that time, France, a country that, like us, makes bold claims about having lofted the banner of world liberty, has advanced from its First to its now Fifth Republic, with two Napoleonic empires, a monarchy, and a Vichy puppet regime in between. I think that the United States Constitution has endured, I should say right up front, because it is the finest ever written. It is terse enough to fold into a paper airplane. It is rigid enough to restrain excesses and flexible enough to accommodate innovations. And it is based on principles true in theory and workable in practice.
But the story of our Constitution cannot be told merely as an account of a legal charter. It must be told as a story of human beings. I try to follow, humbly, the biographical method of Plutarch on the Greeks and Romans, Samuel Johnson on the English poets, or Lytton Strachey on the Victorians, all of whom proved that you could best capture a civilization by following some of its prominent members in their adventures through it.
I chose ten individuals whose large thoughts and unafraid deeds all teach something crucial about the American Constitution. The first two figures in this book, Alexander Hamilton and James Wilson, began their services to the Constitution while it was still a glimmer in their far-sighted eyes. Hamilton, an island orphan, led the drive for a new Constitution, then breathed life into it as Washington’s most trusted advisor in its shaky first years. James Wilson was a Scottish immigrant whose blazing intellect made him a philosopher in thought and a colossus in debate at the Constitution’s drafting and ratification in 1787 and 1788. The heavy-browed Daniel Webster defended the Constitution as a politician in the first generation to follow the framers, though the generation after him would wade through rivers of gore to vindicate the cause he championed.
Stephen Field, a Gold Rush lawyer who became a fiery Supreme Court Justice, presided in the heady days when post–Civil War America first flexed its industrial might. I call in two Europeans — both lofty Viscounts, no less, in their peerages — to examine us and our Constitution in the searching way that only foreigners can: Alexis de Tocqueville, in the first half of the 19th century, and James Bryce, in the second. Woodrow Wilson, hard-driving and prolific, took the White House in 1912 at the height of a reordering of American law now called the Progressive Era. Ida Wells-Barnett was a one-woman army who fought a lonely moral and journalistic war against anti-black violence and misogyny between Reconstruction and the Jazz Age. Robert Jackson was a dapper and quite deadly lawyer who offered the most enduring defenses of President Franklin Delano Roosevelt’s crisis powers during the Great Depression and Second World War. And the late Antonin Scalia, son of a Sicilian immigrant, was a Supreme Court Justice whose feisty brilliance defined today’s battle lines over the Constitution.
Each of them had a hand in conceiving, drafting, and ratifying the Constitution, or in interpreting, challenging, amending, preserving, or applying it to radically new conditions. They are linked to one another, and to us, by the fact that we, too, in our peculiar circumstances, continue to have the necessity and opportunity to make for ourselves a more perfect Union. There are crucial differences between the founding lawmakers and those who followed, but all ages require the same spirit. The historian Clinton Rossiter put this too perfectly to paraphrase:
The one clear intent of the Framers was that each generation of Americans should pursue its destiny as a community of free men. We honor them most faithfully, and do our best to make certain that other generations of free men will come after us, by cherishing the same spirit of constitutionalism that carried them through their history-making adventure. The spirit of the Framers was a blend of prudence and imagination, of caution and creativity, of principle and practicality, of idealism and realism about the governing and self-governing of men. In the constant regeneration of this spirit of 1787 in American public life rests the promise of a future in which our power is the servant of justice and our glory a reflection of moral grandeur.
We know that these Framers did not derive their principles from the Constitution. It didn’t yet exist. There was something outside of and anterior to the Constitution. So it remains. We possess a constitutional culture, a mosaic of doctrines, moods, sentiments, temperaments, and traditions.
We internalize the guarantees of the Constitution without bothering about its precise words. Most American schoolchildren, for example, know that the president is above the army and that the police cannot crash into your bedroom for their amusement — even if these youngsters can’t identify the constitutional clauses that make it so.
We see that a constitution’s words are hollow without a culture that reveres them. Russia’s constitution, like ours, purports to secure the freedoms of speech and press. But few Russians cared a kopeck when Vladimir Putin, in 2001, seized the last independent TV station — a modern-day reenactment of the First Amendment’s fear of the king seizing dissident printing presses. Such an act, attempted here, would have had Americans bursting with virtuous rage.
We believe that even acts that the Constitution allows can still violate our constitutional conscience. Franklin Roosevelt’s own Democratic Party in 1937 killed his “court packing” plan, his attempt to add justices to the Supreme Court until he had a majority that would stop striking down his laws. Democrats did so not because his plan offended the Constitution’s letter — it didn’t — but because his proposal transgressed its spirit. Our constitutional character, not our Constitution, asserted itself.
And we know that individuals create constitutional meaning despite having no formal role in constitutional amendment or interpretation. Three generations of suffragists labored to create a climate to force the enactment of the Nineteenth Amendment, which gave women the right to vote, though they had no hand in drafting that amendment, or even died, like Susan B. Anthony, many years before it was ratified. Women like her created the Constitution that we have, and the meaning that we ascribe to it, even if they never wrote or voted for a syllable of it.
The proposition of this book is that the success and perpetuation of our Constitution depends on many things, but ultimately it must rely on the people and their unforced fidelity to the constitutional character that pervades our national existence. The Constitution runs on patriotism, good sense, decency, compromise, and a love of order. Every generation of Americans, then, must return again to the Constitution, apply it to their distinct predicaments, and pass it on intact to the next generation. That is the great and unending drama of American life.
The Constitution, despite its political and spiritual dimensions, remains in other respects a statement of law, and so this book, I forewarn the reader, contains more judicial decisions than may be safe for children or those with histories of high blood pressure. But I find that constitutional law, even in the hands of lawyers (a tribe to which I belong), is complex but never occult. Lawyers get paid to think about the meaning of the Constitution, yet heaven help us if we are the only ones who do so. Just look at what the English professors did to English literature. Reading old court decisions, alone, as the means of grasping the Constitution is like smelling dead flowers — doctrine with all the scent and color and life withered away.
That’s because understanding the Constitution is impossible without marking the influence of experience, politics, culture, and technology. It is true that the Constitution’s purpose is, in part, to immunize us against fickle or headlong change, yet the stamp of these forces is unmistakable. For instance, the most perennially fraught fault line in all constitutional law is the division of power between the state and federal governments. The unbroken trend has been toward federal predominance. If the men of 1787 could summon us to the great constitutional convention in the sky, and demand to know why, despite their care and calibration, we have interpreted their handiwork to go so much further in federal aggrandizement than they imagined (excepting probably Alexander Hamilton and a few others), we might explain: “Gentlemen, consider what happened: steam power, automobiles, air travel, and the internet knit us together. "Crises like the Civil War and Great Depression strengthened us at the core, in Washington, D.C. Over time states addicted themselves to federal largesse and, in turn, surrendered authority for cash. The intermittent globalization of your day so accelerated that we came to rely on a unified and hence nationalized authority to deal not only with problems you knew, like transatlantic trade and foreign diplomacy, but also ones you didn’t, like mafias, toxic pollution, railroads, and cyberwarfare. It turned out that partisan loyalties — in which you gave us a fine head start — overcame most other forms of political identification. And, finally, after a few generations, our pride in the Stars and Stripes came to overshadow our pride in state flags. We can only say, in our defense, that the life of the document has been inseparable from the life of the people.”
Our constitutional adventure is marked by an astonishing continuity — the Constitution binds us, literally, to the past—but also by a healthy measure of bumbling, accident, botchwork, and struggle. I think the forefathers believed there was no other way by which to resolve the Constitution’s meaning. “It is not to be wondered that doubts & difficulties should occur in expounding the Constitution,” said James Madison, after nearly a half-century of reflection on the document. “A settled practice, enlightened by occurring cases and obviously conformable to the public good, can alone remove the obscurity.” Well, we are now in the Constitution’s third century. We’ve lived under it, with it, and in it, for about nine generations. We’ve settled many practices and removed many obscurities. So far as I can tell, only the Constitution’s Third Amendment, which outlaws the old British practice of “quartering” Redcoats in private homes, remains untouched by time, and must await a foreign invasion for an occasion to elucidate it. And still some developments would surprise even those who expected surprises. In 1788, Madison and Alexander Hamilton published the Federalist, a collection of essays that today is considered authoritative on the Constitution as understood by its first interpreters. Yet even they did not anticipate many defining elements of modern constitutional life, good or bad: they told us the Commerce Clause would prove uncontroversial; they did not imagine the influence of parties on every aspect of law and politics; and they dismissed concerns about a runaway judiciary.
A final theme of this book is that the best antidote to hysteria is a good dose of history. “It is much easier to alarm people than to inform them,” said William Davie, a North Carolina founder, in 1788, when the Constitution was being debated for ratification. Since then the Constitution has been pronounced dead so often that a tally of its obituaries is a job not for historians but mathematicians. In this book you will find that earlier eras suffered worse strains and faced deadlier enemies than ours. Most constitutional crises are acute but not, thankfully, unprecedented. If history is to a people what memory is to an individual, the past gives us a sense of proportion and a chance to avoid repeating our worst stupidities. I expect that many readers will disagree with certain conclusions of mine, but I hope that everyone finds some calming heresy in this book.
It is worth remembering, as we reach back to our origins, that the day in July 1776 when a few daring patriots agreed to affix their names to a scroll declaring America independent was a day of terror and loneliness. Today the Fourth of July is a happy holiday of parades and potato salad. But for our rebel ancestors it was a moment in which they braved the gallows of treason and exposed their children and villages to ruin and death. Never should we lose that sense of solemnity, that consciousness of ever-present peril. For as the Founders of this very unmythical nation understood, far better than we, no human creation, however finely wrought, is permanent.
Joseph Tartakovsky is the author of The Lives of the Constitution: Ten Exceptional Minds that Shaped America’s Supreme Law (Encounter Books) and the former Deputy Solicitor General of Nevada. He is the James Wilson Fellow in Constitutional Law at the Claremont Institute for the Study of Statesmanship and Political Philosophy and an editor at the Claremont Review of Books.