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“Veneration” is a term that James Madison used in Federalist 49, to express the kind of great respect he hoped the new Constitution he had helped write would command in the debate over ratification then raging in America. Yet as Aziz Rana reminds us, many of America’s most notable political leaders for many decades felt no such reverence towards the document Madison helped draft.
Consider what is my own favorite presidential election, which occurred in 1912. There were four important candidates. Three of them, Theodore Roosevelt, Eugene V. Debs, and Woodrow Wilson, were all significant critics of the federal Constitution and advocates of what they viewed as necessary reform; the fourth, the incumbent President William Howard Taft, was an especially able defender of the existing order.
Taft got crushed, and the decade saw the addition of four genuinely important amendments to the Constitution.
Three of them, dealing with taxation, electing senators, and women’s suffrage, have proved of enduring importance. (The fourth, prohibiting alcohol, was of course repealed in 1933 and is usually thought of as a failure, a cautionary note against certain kinds of constitutional “reform” —even though alcoholism was in fact a scourge in those days that especially afflicted working-class men and their families.)
Wilson, who won the 1912 election, and won again in 1916, was a former President of the American Political Science Association as well as of Princeton University. As a scholar of modern democracy, he acknowledged that “the Philadelphia Convention of 1787 was composed of very able men of the English-speaking race. They took the system of government with which they had been familiar, improved it, adapted it to the circumstances with which they had to deal, and put it into successful operation….” But he was equally quick to note that the circumstances of twentieth century America were markedly different from those of 1787.
A nation of roughly four million people stretching from what is now Maine down to Georgia and westward to the east bank of the Mississippi River now had considerably over 100 million people reaching, if one counted American territories, beyond the eastern shore of the Pacific to Hawaii, the Philippines, and Alaska, even as Puerto Rico in the Caribbean had become an American colony as a result of the Spanish-American War.
“The government of a country so vast and various must be strong, prompt, wieldy, and efficient,” Wilson wrote: “Its strength must consist in the certainty and uniformity of its purposes, in its accord with national sentiment, in its unhesitating action, and in its honest aims.” And achievement of these goals required not veneration—but instead an ongoing revision of the Constitution.
“The Constitution is not honored,” proclaimed Wilson, “by blind worship.” We must liberate ourselves “from the timidity and false pride which have led us to seek to thrive despite the defects of our national system,” by undertaking “a fearless criticism of that system” and “to act intelligently upon what our opened eyes have seen in order to prove again the justice of our claim to political genius.”
It would be a real shame if the justified opprobrium now heaped upon Wilson for his racist assumptions about the superiority of white men “of the English-speaking race” were to blind us to the importance of his basic insight about the need for “fearless criticism” and the need to overcome “the defects of our national system.”
His principal challenger, former President Roosevelt, running as a Progressive, also audaciously called for Constitutional reform. “The Progressive party, believing that a free people should have the power from time to time to amend their fundamental law so as to adapt it progressively to the changing needs of the people, pledges itself to provide a more easy and expeditious method of amending the Federal Constitution.”
The Progressive platform of 1912 refers to the truly dreadful Article V of the Constitution, stipulating how it may be amended—and making it difficult by design to revise, never mind rewrite, the Constitution.
Contrast these vigorous debates with our own political world a century later. Thus Barack Obama, the former president of the Harvard Law Review, perhaps the most talented political orator of his generation, never, either when campaigning or when governing as President, said a single interesting thing about the Constitution, nor, of course, did his Harvard Law School-trained opponent Mitt Romney. Even more shockingly, perhaps, Bernie Sanders, in his two campaigns presenting himself as a “revolutionary” challenging the “rigged” political system, never once emulated his predecessor Socialist, Eugene V. Debs, whose party platform called for “a convention for the revision of the constitution of the U.S.” Apparently, Sanders believed that his revolution would require no constitutional change at all. What accounts for this dramatic—and truly unfortunate—change in our overall political culture?
Aziz Rana suggests that what can fairly be called our contemporary cult of the Constitution was largely a result of America’s growing role in international affairs, barely on the horizon in 1912 and then exemplified by Wilson’s full embrace of the war “to save democracy.”
Consider for example President Franklin D. Roosevelt’s Constitution Day address on September 17, 1937. In it, FDR importantly criticized the monopoly by lawyers—and, of course, the Supreme Court—over ascribing meaning to the Constitution. He argued passionately that the federal Constitution was, in his words, “a layman’s document, not a lawyer’s contract,” a “charter of general principles, completely different from the ‘whereases’ and the ‘parties of the first part’ and the fine print which lawyers put into leases and insurance policies and installment agreements.”
But he seemed to suggest that the answer to America’s specific problems lay in breaking the monopoly of lawyers and their attendant legalism in favor of what many today call “popular constitutionalism.” But leaving legalism behind did not require a true confrontation with the structures set out in 1787 that were (and are) almost never the subject of litigation of genuine “legal” debate. These include bicameralism, the assignment of equal voting power in the Senate, the fixed presidential term, and, as his cousin Teddy recognized, the costs of an unusually forbidding process of constitutional amendment.
Instead, FDR in effect offered America’s willingness to adopt a new Constitution in 1787-88 as a model for the rest of the world to follow, at a moment when dictatorships on both the right and left were challenging “the democratic idea of representative government.” He paid no attention to the fact that the original Constitution was scarcely “democratic” under any modern theory of democracy and that it required the slaughter of 750,000 Americans to dismantle what Stanford historian Don Fehrenbacher has called a “slaveholders’ republic”. And FDR concluded by implicitly expressing veneration for the Madison’s Constitution, which Americans “revere,” he said, “not because it is old but because it is ever new, not in the worship of its past alone but in the faith of the living who keep it young, now and in the years to come.”
FDR gave his speech in the context of the rise of the European dictatorships in Germany and Italy. To oppose those dictatorships, and the ideas behind them, apparently required that we ultimately put to one side any doubts we might have about the adequacy of the Constitution and instead become its cheerleaders. This tendency to idealize the Constitution in a global context was only reinforced by the framing of World War II as a struggle between totalitarian dictatorship and democracy (putting to one side that our most important ally was the Soviet Union).
The United States was able to tell itself a collective “just-so” story after 1945 that “we” had won the war (and conquered the Great Depression) not in spite of the outmoded Constitution identified by Wilson and his compatriots, but, rather, because of it. This was helped along because the Constitution was increasingly being redefined not only by the Supreme Court, but also by the public in general as a charter of rights rather than a framework of government that might make the protection of certain rights a hollow hope. President Truman valorized the Bill of Rights and the “Freedom Train” that took copies of the first ten amendments, relatively unimportant until the 20th century, around the country. That’s our story, and we have resolutely stuck with it for what is now a full 75 years.
Alexander Hamilton began the Federalist by declaring that Americans were being asked to engage in “reflection and choice” as to how they wished to be governed.
The candidates of 1912 in effect were asking Americans to do the same thing.
But the kind of constitutional “veneration” that FDR helped put into place risks turning Hamilton’s call into a hollow memory. Perhaps the founders were capable of engaging in full political agency, but we today must instead simply posit our faith in the decisions made in 1787. To be sure, senators are no longer appointed by state legislatures, but Wyoming continues to have the same two votes as California. And few people today believe that it is worth expending their scarce time, money, and political energies to advocate structural reform. That is not only false to what is most admirable about the generation of the Framers, for all of their faults; it also means that we lull ourselves into a demonstrably false belief that the sacred Constitution is in fact adequate to get us through the challenges of the 21st century.
Ironically, this “veneration” may be more present on the contemporary left than the right. Although legalists on the right proclaim their devotion to “originalism” and honoring the views of the Founding Generation, while liberals generally are “living constitutionalists,” there are in fact active political movements on the right to trigger an “Article V constitutional convention” through the petition of two-thirds of the states, as set out in the Constitution itself. In 2016, Texas Governor Greg Abbott issued an ambitious plan that envisioned quite radical revisions of the federal Constitution and called for a constitutional convention to adopt them.
The response on the left was not simply to criticize the particular ideas, but, instead, to express shock and dismay at the very possibility of a convention and, at least indirectly, of any project devoted to serious scrutiny and critique of our present Constitution. For most of the contemporary American left, it’s all about the judges and their theories of constitutional interpretation.
At the same time, it’s worth remembering that Americans actually don’t venerate all of their constitutions. The plural is all-important.
There are in fact (at least) 51 constitutions within the territorial United States, for each of the fifty states has its own constitution. Interestingly enough, there have been almost 150 state constitutions in our history; Americans, in their capacity as citizens of states, are more than capable of exercising “reflection and choice.”
There have been over 235 state constitutional conventions throughout our history, and many states have not only frequently amended their constitutions, but, at least as importantly, have replaced existing constitutions with presumably better, updated, ones. New Jersey is governed by a 1948 constitution; Illinois received its current constitution in 1972, as did Montana. Rhode Island is operating under its sixthstate constitution, adopted in 1986.
One might be tempted to explain this away by asserting the relative unimportance of state constitutions, as against the all-important national constitution. But, as a matter of fact, state constitutions address many issues of great importance to ordinary folk, including, for example, public education and, increasingly, the environment, not to mention fundamental issues of tax policy. Americans areable to engage in serious discussion about the adequacy of their constitutions, save, it appears, for the national Constitution, where they are blinded by veneration and, even if they overcome that, are frustrated by the indefensible structures of Article V.
One might, of course, also look abroad to find admirable examples, like Chile, of contemporary polities engaging in significant constitutional reform almost literally as we speak. And Ruth Bader Ginsburg notably told Egyptian students in 2012 that they were better off looking at the 1996 South African Constitution than the “old” United States Constitution for guidance. Looking elsewhere, however, might offend “American exceptionalists” who think there is nothing to be learned from looking abroad.
But the American states, and their own fascinating constitutional histories, cannot be so easily dismissed.
Sanford Levinson is W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law, University of Texas Law School; Professor of Government, University of Texas at Austin.