Happy Recently-Created Holiday Day!
America has a curious relationship with its civic holidays and observances. On July 3, 1776, John Adams wrote to his wife Abigail, noting that “the second day of July 1776, will be the most memorable epocha in the history of America.” He mistakenly thought that Americans would celebrate the occasion when the Second Continental Congress voted for independence, not the date (July 4) attached to the more famous document (which was only signed a month later on August 2) that publicly explained the reasons for that vote.
We honor veterans, both living and deceased, on a day that coincides with Armistice Day and Remembrance Day, which honors only the fallen, instead reserving Memorial Day for our fallen soldiers. Since the days of President Grover Cleveland, we have symbolically rejected radicalism by eschewing International Workers’ Day (May 1) and instead celebrate the contributions of our domestic labor movement in September. At the height of the Cold War and no doubt to reconfirm American resistance to radicalism, President Eisenhower brought back the little known Loyalty Day on May 1, and later added a Law Day commemoration to the same. Even the most recently recognized federal observance, Juneteenth, commemorates neither the first step toward nor the formal end of slavery, but the dilatory delivery of news of that fact to the residents of Texas
Thus, it perhaps seems fitting that in 2004, Sen. Robert Byrd secured an amendment to the Omnibus Spending Bill mandating that all educational institutions that received federal funds to provide educational programming about the history of the Constitution on September 17. Thus it has come that today is officially Constitution Day, marking the 234th year since thirty-nine delegates to the Constitutional Convention signed the final version of the document that they transmitted to the people of the states for ratification.
It has always struck me as a very strange kind of holiday, not because I do not think the Constitution is worth celebrating, but because ratification was far from certain. It seems akin to celebrating the final draft of a book before you’ve secured a contract to publish it. Perhaps June 21—the date when New Hampshire’s ratification actually made the Constitution the formal government of the United States—inconveniently falls outside the traditional academic year and would have created too many challenges for the history-loving Sen. Byrd to mandate educational expenditures in its honor.
Both as a framework of limited government and as the constitutive act of the American people, the Constitution has proven vital in providing the scaffolding for a mostly capitalist America. As I discussed at more length in last week’s post, the legal and institutional framework of a society, and not merely the market economy, is a necessary component of the full implementation of the free society I call capitalism. Thus, we owe it to the Constitution and those who devised it to celebrate and cherish it and note some day in its honor. It’s quintessential importance to our free society, though, merits more than the kind of perfunctory gestures occasioned by Byrd’s flimsy federal mandate.
Unfortunately, the average American’s understanding of the Constitution is dismal if not non-existent, and notwithstanding current Byrd-ian efforts to throw more billions of federal funds at the problem, our educational system isn’t fixing the problem.
At its root, Americans have lost sight of what constitutional government means, how it works, and why it matters. Contemporary discussion of the Constitution too frequently reduces to policy debates in fancy clothes. I consider the following as a paradigm example.
This summer, Jesse Wegman in the New York Times published a ritual lamentation about the difficulty of amending the Constitution, highlighting and bemoaning how infrequently actual amendments have happened in our history. Wegman does well enough in recounting the facts and details of various past amendments and detailing the social context around them. Framing that factual story, however, is a spurious if not scandalous argument that the Constitution and the Court system that serves to uphold it is too stodgy a barrier to modern majoritarian will.
As if to verify his lack of Constitutional understanding near the outset, Wegman tendentiously quotes a few Founding Fathers as if to prove that the men who wrote and adopted the document expected it to be frequently amended. For example, he quotes James Wilson saying of the Constitution: “if there are errors, it should be remembered, that the seeds of reformation are sown in the work itself.”
Knowing that the “newspaper of record” has a propensity for quotation-chopping and context-dropping, I checked the full text of Wilson’s famous “statehouse yard” speech. It’s worth noting that Wilson played a central role throughout the Revolutionary period, serving in the war-time Continental Congress and as an influential member of the Constitutional Convention and later becoming an original associate justice of the Supreme Court of the United States. Giving one of the earliest public speeches in support of ratifying the document in October 1787, Wilson aimed to clarify the nature and bounds of the proposed federal government and its relationship to the states. A major portion of the remainder of his speech is an argument against the logic of or need for a Bill of Rights—you know, that convenient name for the first ten amendments that were adopted. The immediate context of the passage quoted in the Times indicates considerably less support for the kind of easy amendment that seems to be Wegman’s desire. Wilson indicated that he was “satisfied that any thing nearer to perfection could not have been accomplished” and “in every point of view, with a candid and disinterested mind, I am bold to assert, that [the Constitution] is the best form of government which has ever been offered to the world.”
Wegman’s article also badly misconstrues one of the most misunderstood passages in Thomas Jefferson’s private correspondence. Famously, Jefferson wrote in 1789 from France to James Madison speculating about the ability of the present generation to bind future generations in obligation, especially concerning public debts. Jefferson constructs a highly abstract thought experiment where entire generations are simultaneously born and die on the exact same date, and proceeds to interrogate the logical and moral consequences for how a society might contract public debt and pass it on to the future. By taking the insights from that investigation, Jefferson then suggests that constitutionally limiting a nation’s borrowing powers would be wise public policy. In other words, the main thrust of his letter is to suggest a massive limitation on governmental debt financing.
Yet Wegman and the Times, like so many others, only refers to the paragraph where Jefferson extends his speculations to constitutions and laws. Here, Jefferson notes, as a matter of the same provisional logic as he used in his larger thought experiment, it “may be proved that no society can make a perpetual constitution, or even a perpetual law.” Note the Sage of Monticello’s use of the subjunctive mood here and throughout this paragraph—it matters. The full passage, conveniently edited down for the Times article, reads: “Every constitution then, & every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, & not of right. It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to 19 years only.” The passage continues with further hypothetical musings on how to overcome this seeming logical objection to all laws and constitutions.
This is, at best, an underdeveloped and speculative aside that Jefferson made in confidence to his close friend James Madison. Yet in the Times article (and, sadly, in hundreds of other places), this becomes a clearly worked out, positive proposal—“Thomas Jefferson went further, proposing that the nation adopt an entirely new charter every two decades.” Whatever the defects in his thinking about constitutions and fundamental law, and there were more than a few, and no matter the hermeneutical glosses one appends to this letter, it is simply not reasonable nor factually true that Jefferson proposed adopting a new constitution every twenty years.
Writ large, this kind of historical sloppiness and manipulation is a significant reason why the contemporary grasp of the Constitution is so poor. Few popular writers and advocates of Constitutional change have done the detailed and careful work of scholarship to understand the past on its own terms. They could certainly use a healthy dose of the high quality scholarship that has been done on that account.
Having unmoored his arguments from the historical context, Wegman then highlights what are the necessary results. “If the Constitution can’t be changed to adapt to modern needs,” it continues, “and the Supreme Court becomes both too powerful and too politicized, the political system starts breaking down.” That breakdown is manifested in the government’s supposed inability to “address several enormous social problems, including the coronavirus pandemic, racial and economic inequality, the fallout of overseas wars and the continuing aftereffects of the housing crisis.”
It seems all too easy to reply to Wegman’s complaint with the proverbial “that’s a feature, not a bug.” Yet this does indeed seem to be the logic of his article. If we simply add to his “breakdown” argument the phrase “consistent with the Constitution,” it becomes easier to see how the debate is fundamentally about policy issues, not constitutional structures and protections. Further, we could highlight through repetition by adding “consistent with the Constitution and the protection of individual rights.” Thus, we can summarize his position as: “modern needs require us to play fast and loose with individual rights, and our inability to modify the Constitution that serves to uphold those rights and restrain government from invading them is a nuisance and needs to change.”
Lest they leave readers wondering how pervasive these types of mistakes in Constitutional analysis are, the Times asked seven prominent writers and scholars to discuss what they believe needs to be amended in the Constitution. Fully six of the answers amounted to pure policy preferences for which the writers sought Constitutional sanction. The remaining suggestion, expanding the size of the United States Supreme Court, is facially consistent with the purpose of a Constitution and certainly falls within the purview of a framing document, but the author suggests that his intended result is to “return important policy decisions to the people rather than have them decreed by life-appointed judges devising vague constitutional provisions.” What are those “important policy decisions”? Helpfully nodding to both right and left, the author suggests guns, abortion, campaign finance, and same-sex marriage. Despite this suggested amendment’s neutral appearance, it sounds a lot more like giving cover to local majorities to violate citizens’ rights without the pesky interference of the Bill of Rights.
What is lost in the discussion is the foundational purpose of the Constitution—viz., to establish a fundamental law that constrains government power and directs it to operate solely for its legitimate purposes. As Alexander Hamilton so aptly expressed it in Federalist #78: “A constitution is, in fact, and must be regarded by the judges, as a fundamental law. . . . Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”
Had the editors of the New York Times asked me to contribute a proposed amendment, I may have simply pointed them to the more informed, robust, and thoughtful “Constitution Drafting Project” at the National Constitution Center. If pressed, though, I think I would have turned the question on its head and simply demanded that the Courts enforce already existing parts of the Constitution—especially the Ninth Amendment, which has been consistently ignored as if it were in fact a Borkean ink blot, and the Fourteenth Amendment’s “privileges or immunities” clause, which practically died on the vine in the awful Slaughterhouse Cases (1873) decision.
So on this Constitution Day, I’ll start a new tradition and make a resolution for how I will better act to honor that document in the coming year. I thus resolve to highlight, promote, and amplify the invaluable work being done by scholars and legal practitioners in support of individual rights and a capitalist system and to contribute my own efforts in the same when and where possible.