An Agreement with Hell

Eric Foner

  • Original Meanings: Politics and Ideas in the Making of the Constitution by Jack Rakove
    Knopf, 439 pp, $35.00, April 1996, ISBN 0 394 57858 9

The United States must be the only country in the world to have lived for more than two centuries under a single written constitution. In France, monarchies and republics, each with its own constitution, have come and gone. Britain has yet to commit its constitution to paper.

Americans revere their enduring Constitution as a symbol of national identity and the ultimate authority for resolving political controversies. To become a naturalised citizen, it is still necessary to pass a test dealing with the Constitution’s provisions. The very existence of a written constitution has profoundly shaped American political culture, transforming political questions into legal ones. In the United States, the typical response when one feels one’s rights have been violated is not to mobilise a democratic majority to change the law, but to look for someone to sue.

Of course, as Jack Rakove points out in Original Meanings, precisely because of its centrality the Constitution has been a continuing source of dispute as well as a symbol of unity. Each generation reinvents the Constitution in its own image, and politicians of all stripes appeal to its authority. Early in this century, Charles Beard, reflecting the Progressive Era’s cynical view of politicians, shocked respectable opinion by depicting the Constitution as a document drafted by élites to further their own pecuniary interests. Scholars of the Fifties, persuaded that Nazism, Stalinism, McCarthyism and other 20th-century excesses revealed the dangers of popular political enthusiasm, discovered a less than democratic Constitution designed to hold the people in check. The civil rights revolution inspired a Constitutional jurisprudence aimed at protecting the rights of America’s aggrieved minorities.

Lately, conservatives have invented their own Constitution, one that severely restricts national power. In recent opinions, Supreme Court Justices Antonin Scalia and Clarence Thomas have described the political system established by the Constitution as a confederation of quasi-sovereign States, leaving almost no role for the federal government.

Having a written constitution, clearly, does not preclude bitter controversy over how the document should be interpreted and applied. The problem is more acute with the American Constitution, a spare document many of whose clauses are broad statements of general principle, than with modern counterparts such as the lengthy and highly detailed new Constitution of South Africa, which seeks to anticipate almost every conceivable problem and circumstance that may arise in the future. What, exactly, constitutes the ‘equal protection of the law’ guaranteed to citizens by the Fourteenth Amendment? How far may Congress go to promote the ‘general welfare’? The Constitution’s language raises such questions but does not provide answers. Nor is the document self-enforcing. Some provisions, like the free speech and equal protection clauses, were violated for decades before being invigorated in the 20th century. Others, like the guarantee of a republican form of government, have been entirely forgotten.

During and immediately after the Chief Justiceship of Earl Warren (1953-69), the most vigorous practitioner of a ‘living Constitution’ constantly reinterpreted to meet the needs of the present, the Supreme Court discovered that the Constitution guaranteed all sorts of rights of which previous generations had been unaware: for example, the right of a woman to terminate a pregnancy, of a citizen to vote in a legislative district equal in size to others, of a criminal suspect to be provided with free legal counsel. Conservative jurists and politicians responded to the ‘rights revolution’ by calling for a jurisprudence of ‘original intent’, in which judges, instead of ‘making law’, would implement the aims of the Founding Fathers. The way to interpret the Constitution, wrote Judge Robert Bork, a leading conservative legal theorist, is simply to determine and apply ‘the objective meaning that constitutional language had when it was adopted’.

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