In Defense of the United States Constitution

Robert S. Singh

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780815360735
• eBook ISBN: 9781351117685
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Constitutional reform is a topic of perennial academic debate, perhaps now more than ever amid sharp polarization in the electorate and government. At once a cogent, new contribution to the scholarly literature and appropriate for American politics and government students, this book mounts a provocative, nonideological defense of the US Constitution, directly engaging proposals for reform and providing a rare systematic argument for continuity: Our politics may be broken but our system is not. Writing from an international perspective with an array of fascinating data, the author draws on theory, law, and history to defend the republican order under political stress and intellectual challenge.

1 Constitutional Critiques

The Reemergence of Jeffersonian Constitutional Angst

Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment … (But) laws and institutions must go hand in hand with the progress of the human mind.

Thomas Jefferson, letter to Samuel Kercheval, July 12, 1816 (Leicester 1904)

When America has doubts, these seldom extend to the ideals of its Constitution, which are on the contrary invoked as inviolable precepts to condemn those who govern badly. The American dream is thus reborn from the worst errors and survives all reports of its death.

Pascal Bruckner (2010: 91–92)

Introduction

Nothing is more calculated to antagonize the nationalist sensibilities of folk outside the United States – “to make America grate again”– than to point out how, on multiple indices, the United States remains number one. But America’s is the oldest codified constitution in existence. It was, when composed, a revolutionary document advancing an entirely new form of government. More than two centuries after its ratification, this remarkably short Constitution remains unique, confirming that “less is more” (the Constitution contains approximately 7,500 words, the Ten Commandments some 200, the Declaration of Independence 1,300, and the Magna Carta 4,000). In the twenty-first century, tenacious adherence to a text written by fifty-five eighteenth-century gentlemen for an entirely different society and time might seem perverse. But the Constitution has endured through adapting to immense changes while retaining its structure and animating values essentially intact.

Constitutions, to give them their formal definition, are “codes of norms which aspire to regulate the allocation of powers, functions, and duties among the various agencies and officers of government, and to define the relationships between these and the public” (Finer, Bogdanor and Rudden 1995: 1). Most are, at best, incomplete guides to practice. Some are ominously aspirational (for example, North Korea’s Constitution states that its aim is reunification of the Korean Peninsula under the Kim family’s control). Many are ineffective (ignored, suspended, or violated) or promise illusory goals. America’s is different. Admired and emulated, the Constitution has nowhere been bettered as a revolutionary design for republican government: providing a stable framework for government, reconciling the need for collective action by the state with the consent and representation of the governed and respect for civil liberties and rights, ensuring the peaceful transfer of power, and allowing its own revision.

Most states now possess codified constitutions. Each provides the crossroads where a nation’s values and institutions meet. But in no other does the foundation exert such extensive influence, both on the way government acts and in the nation’s daily life. In its brevity, structure, and institutions, no constitution comes close to approximating America’s fusion of concision and complexity – including the constitutions of the individual states devised before and after the federal one.

As important, the Constitution has a meaning to its citizens – a lived authenticity – that no other can match. There exists no more compelling a political object for patriotism – what Orwell (1994) called the “devotion to a particular place and a particular way of life” – that transcends all other divisions. In an era where the new and youthful exercise inflated influence, infatuation with an aged parchment provides a conspicuous contrast. The repository of national values, the Constitution provides the steadiest of tectonic plates for a polity that has otherwise been reliably fractious.

One of the happier by-products of the unhappy state of politics is the revival of works examining the Constitution. Historically, these have surfaced amid periods of major stress on the political system (although the strains of the 1950s and 1960s produced relatively little constitutional criticism; the exception that proved the rule). The last fertile period was the 1970s, when the United States appeared to succumb to the “crisis of governability” that shook many Organization for Economic Cooperation and Development (OECD) member countries. The question of whether America was impossible to govern preoccupied many, including the White House. With the Reagan Era (1981–1989), those concerns dissipated, but a few lingering analyses lamented the Federal Government’s inability to run a balanced budget and the negative consequences of divided party control of the White House and Capitol Hill (Sundquist 1992).

Not until recently, however, has there been such an outpouring of critical constitutionalism. Reflecting the sense of a system creaking under multiple pressures, many scholars track the ills to the Constitution. Unlike prior eras, these problems are not isolated. The targets of anxiety are not only the presidency and Congress, but courts, the electoral and party systems, and federalism. Unlike earlier iterations, however, division exists over the nature of the problems and available solutions. Is the United States in democratic deficit or surplus? Is the system insufficiently responsive to popular demands or much too attentive?

In this chapter, I argue that constitutional critiques can be divided broadly into Madisonian and Jeffersonian approaches to change, and Jeffersonian and Hamiltonian approaches to the size of government. After elaborating three types of critique, the chapter examines the twenty-first century revival of constitutional debate. Finally, I identify the most influential criticisms before revisiting their key suggestions for reform in later chapters.

Madison v Jefferson (v Hamilton)

The Constitution can be revered and disputed without contradiction. It offers a source of hope and disappointment. An important part of that enduring dualistic tradition concerns the relative merit of constitutional continuity versus change. King (2012: 154) wrote that, “More than two centuries after its ratification, the hold that the American Constitution still has on the American imagination is almost impossible to exaggerate… the founding fathers, if only they knew, would be astonished as well as delighted.” But while their astonishment would surely be universal, the delight would probably be more selective. The Founders disagreed over much, including the merits of an enduring constitutional settlement. This finds ample expression in the divergent perspectives of two key Founders.

For James Madison, the “father” of the Constitution, no constitution was “too big to fail.” Although a calcified constitution was to be undesirable and best avoided, “veneration” of the Constitution was necessary for it to survive. For the American experiment in self-government to be sustainable and provide a stable foundation for the republic, the Constitution needed to be more than merely a passing interlude between successive rewrites. The draft assembled in 1787 through a succession of painful compromises – including concessions to the South over slavery and Anti-Federalists over the Bill of Rights – was not guaranteed to survive.

Madison was far from satisfied with the Constitution that emerged and held it to be flawed rather than sublime. But he was nonetheless convinced that its prospects depended on commanding respect, rather than inviting revision. For revisionists, the “rationality” of reform may be obvious, but for Madisonians, constitutions are not national lifestyle choices to be adjusted season by season according to passing fashion. That Madisonian thread, emphasizing the benefits of continuity, still informs many critiques that are cautious about change and risk averse towards experimentation. To be effective, constitutions must be conservative forces, providing for and prioritizing stability.

But Thomas Jefferson – reflecting his role in America’s revolutionary break from colonial rule – believed that criticism of the constitutional order was desirable and healthy. New generations would and should author their own versions as they deemed necessary. In human affairs, constitutional failure – partial, if not total – was predestined to occur. Regular renewal was not to be feared. In a famous letter on political obligation, Jefferson wrote to Madison that “by the law of nature, one generation is to another as one independent nation is to another … The earth belongs to the living and not the dead” (Lepore 2010: 29). The authority of America’s founding documents was contingent, since “each generation” should “choose for itself the form of government it believes most promotive of its own happiness” (Lepore 2010: 309). Little solace should be taken by Americans that the United States is the last codified Constitution standing if it no longer remains fit for its purpose.

The Jeffersonian embrace of change lends itself easily to critics and arguments for reform. (President Kennedy once commenced a White House dinner for Nobel Prize winners on April 29, 1962 with the words, “I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone” [Kennedy 1962].) Those seeking to identify an “original” constitutional meaning are hamstrung by the conflicting views of its authors and the compromises they struck. Those viewing it as “holy writ” for “Americanism” face the problem that Jefferson – author of the Declaration of Independence and an admirer, though not signatory, of the Constitution – never viewed the design as permanently set in stone. Zakaria (2011) provided one example of Jeffersonian ambivalence:

I believe that the Constitution was one of the wonders of the world – in the 18^th century. But today we face the reality of a system that has become creaky… And if one mentions any of this, why, one is being unpatriotic, because we have the perfect system of government, handed down to us by demigods who walked the earth in the late 18^th century and who serve as models for us today and forever … America’s founders would have been profoundly annoyed by this kind of unreflective ancestor worship.

Given such sentiments about symbolism versus substance, one might imagine that Americans would have taken up the call to abandon ancestor worship – not just because their ancestors were flawed, but also because they would have hated it (though that, too, would logically have been a form of abiding by their wishes). To please the Framers, a revision of constitutional order and the tree of liberty would seem in order (if not necessarily accompanied by the blood of patriots and tyrants). Or, as former Republican governor of New Mexico and 2016 Libertarian Party candidate for president Gary Johnson put it, “The fact that the founders anticipated our two-party morass and warned against it ought to be enough incentive to look beyond it” (Johnson 2016).

But Americans have never shown too many constitutional inhibitions. Although many Americans construct their own personal shrines to the Constitution – displaying copies in their offices, homes, or, like the late Senator Robert Byrd (D-WV), carrying pocket versions – there exists no shortage of critics claiming that the god they worship is a false idol. Assembling all their collected works would constitute quite the spectacle. The seas may run dry before critical works on the Constitution cease being published.

A rough estimate would suggest that – between the two Virginians – Madison has proven victorious in the overall war, while losing some battles. Passion for the Constitution has mostly been matched by reservation about reform, and failure to achieve it. Since 1791, only seventeen amendments have been enacted, the last in 1992. The ratio of proposed amendments introduced in Congress to those ratified is over 1000:1. But Jeffersonians periodically wage spirited new campaigns when, as now, politics no longer seems to “work.”

That is especially ironic since there exists a second important debate about constitutional development relevant to politics today: the size of the Federal Government. But in this debate, between Jeffersonians and Hamiltonians, it is the Jeffersonian view that typically is least congenial to those seeking far-reaching change.

On this, Jefferson was more the status quo figure, an advocate of the view that, “That government governs best that governs least.” Government closest to the people – states and local units – rather than a remote but robust national government was preferable. Jefferson’s rival, Alexander Hamilton, instead saw a strong national government and an “energetic” chief executive as essential if the new nation was to prosper. A strong proponent of government’s implied powers (those going beyond the enumerated ones listed in the Constitution), Hamilton wrote in Federalist 31 that:

A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trust for which it is responsible, free from every other control but a regard to the public good and to the sense of the people.

The Hamiltonian approach anticipated the future trajectory of political thought that has, mostly, championed expansion of the state. Hamilton believed the Federal Government could be a positive instrument for addressing common problems that no individual or locality could resolve alone, such as maintaining a strong defense or creating a national currency. As Abraham Lincoln later put it, “Government is people coming together collectively to do that which they could not do as well, or at all, individually” (Hallard...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication Page
• Table of Contents
• List of Illustrations
• Preface
• Acknowledgments
• Introduction: Why the Constitution Needs Defending Today
• 1 Constitutional Critiques: The Reemergence of Jeffersonian Constitutional Angst
• 2 The Preamble, Then and Now: A More Perfect Union
• 3 Governing Institutions
• 4 Amendments and Interpretations
• Conclusion: Cults, Crises, Conventions, and Crossroads
• Bibliography
• Index