Our Divided Political Heart (20 page)

Presumably, right-to-work laws, the elimination of the estate tax, a return to don’t-ask-don’t-tell, and the urgency of keeping the prison at Guantánamo open are also in the Constitution somewhere, if only we look hard enough. And of course conservatives were absolutely certain that the measure they disliked most, President Obama’s health care reform, was passed in absolute defiance of the Founders’ wishes. They counted on an increasingly conservative Supreme Court to ratify their judgment.

It fell to Representative Mike Pence of Indiana to summarize with admirable compactness the faith that all the answers could be discovered in our Founding documents. “
There’s nothing that ails this country
,” Pence insisted, “that couldn’t be fixed by paying more careful attention to the principles enshrined in the Declaration of Independence and the Constitution of the United States of America.”

As these orations suggest, we often treat the Founders of our country not as the gifted statesmen and politicians they were, but as religious prophets
and heroes akin to Moses or St. Paul. They are revered as the carriers of tablets that, if not divinely inspired, come close to being sacred. The Constitution, as Gordon Wood has noted, is regarded as “
fundamental scripture
.”

The Revolutionary generation certainly did count in its ranks outstanding men and women. (And yes, as
historians such as Rosemarie Zagarri
have taught us, there
were
important women in the ranks.) But treating the Founders as quasi-religious prophets who produced texts equivalent to the Bible or the Talmud clouds our view of who they were and what they did. It plays down the profound and important disputes among them. Our nation was founded not on a grand consensus but on a series of arguments. The Constitution reflects not a single definitive judgment but a series of compromises, some of them designed—notably in the case of slavery—to paper over rather than resolve conflicts. “
Historians today can recognize the extraordinary character
of the Founding Fathers while also knowing that those eighteenth-century political leaders were not outside history,” Wood wrote. “They were as enmeshed in historical circumstances as we are, they had no special divine insight into politics, and their thinking was certainly not free of passion, ignorance, and foolishness.” What may be most impressive about them, in fact, is that in so many cases “
they did their creative thinking on their feet
. . . in the heat and urgency of debate.” Thus, Wood notes, many of “our most cherished principles of constitutionalism associated with the Founding were in fact created inadvertently. They were the products not of closet philosophizing but of contentious political polemics.”

If our nation was conceived in argument and dedicated to the proposition that life and politics regularly present us with difficult choices among competing goods, our current discontents and divisions become less mysterious and less threatening. Our forebears were engaged in balancing acts no less intricate and difficult than our own. Their approach was not unprincipled. On the contrary, their efforts can be seen as heroic because they held to principles that often conflicted one with another. They tried as best they could to achieve balance. The values of liberty, equality, republicanism, democratic sovereignty, and the common good each posed demands that were not easy to reconcile.

To make this discovery is liberating. It means that our approach to the past should not be defined by a quest for old certainties that must be
applied to all circumstances. Instead, we should turn to the past for enlightenment and encouragement. Earlier generations were seeking to find an appropriate equilibrium among competing commitments, just as we are. We should be no less willing than they were to revise past arrangements and understandings. Our revolution,
as Wood argued in
The Radicalism of the American Revolution
, was not the “conservative” affair that some have called it in retrospect when they compared it with the revolutions in France in 1789 and Russia in 1917. It was, for its own time, radical. “
In our eyes the American revolutionaries appear
to be absorbed in changing only their governments, not their society,” Wood wrote. “But in destroying monarchy and establishing republics they were changing their society as well as their governments, and they knew it.” Because of the Revolution, “Americans had become, almost overnight, the most liberal, the most democratic, the most commercially minded, and the most modern people in the world.”

The Revolution, he said, “
made possible the anti-slavery and women’s rights movements
of the nineteenth century and in fact all our current egalitarian thinking.” It was followed by a second revolution—our Civil War. The Civil War generation was bound to the Founders’ underlying principles, but not to their flawed and temporary resolution of the issue of slavery. Indeed, they urged radical change in the name of our Founding principles; this was the key to Abraham Lincoln’s political career and the heart of his rhetorical strategy. And they were prepared to enshrine those changes in the Constitution itself through the Civil War amendments.

During the 1930s, the New Deal generation upheld the freedom promised by the Founders at a moment when much of Europe was turning its back on democracy and individual liberty. Yet the saviors of democracy during the Great Depression achieved their ends by embarking on innovations in the economy and in government that many conservatives resisted as unconstitutional and inconsistent with the design of the Founders. The New Dealers did not amend the Constitution itself (except for the repeal of the Prohibition amendment, which had little bearing on their larger program). Instead, they encouraged a revolution in constitutional interpretation that for nearly three generations beat back conservative efforts to use the Constitution as a straitjacket and a cudgel against reform. In the 1930s and 1940s, they saved the freedoms and the republican institutions
that were at the heart of the Founders’ achievement. They also laid the groundwork for the preservation and expansion of those achievements during the Cold War and the civil rights revolution that finally fulfilled the promises of the Civil War.

It’s hard to think of any area where our understanding of history is more relevant to the present than our battles over how to interpret the words and goals of the document at the foundation of our government. If our politics reflects an underlying tension between individualism and community (and between republicanism and liberalism), this view has important implications for whether it’s even possible, as Justices Antonin Scalia and Clarence Thomas and other contemporary conservatives have argued, to root constitutional decisions in “originalism” or the “original intent” of our Founders.

A classic alternative to originalism was the view expressed by the late Justice William Brennan. “
The genius of the Constitution
,” Brennan declared, “rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”

Brennan’s view has won substantial support from some of the best historians of the period of the Revolution and the Constitutional Convention, not because they shared Brennan’s politics (though in many cases they might have) but because they rejected what the historian Joseph J. Ellis has called “
a set of implicit assumptions about the framers
as a breed apart, momentarily allowed access to a set of timeless and transcendent truths.”

“You don’t have to believe that tongues of fire appeared over their heads during the debates,” Ellis declared. “But the doctrine requires you to believe that the ‘miracle at Philadelphia’ was a uniquely omniscient occasion when 55 mere mortals were permitted a glimpse of the eternal verities and then embalmed their insights in the document.” In fact, he writes, “the original framers of the Constitution harbored deep disagreements over the document’s core provisions.” The “
debates in the state ratifying conventions
further exposed the divisions of opinion on such seminal issues as federal vs. state jurisdiction, the powers of the executive branch, even whether there was—or should be—an ultimate arbiter of the purposefully ambiguous language of the document.”

Treating the Founders as a breed apart, as people uniquely able to rise above their own circumstances and concerns, is a short step from denying the possibility that later generations can be trusted to make wise decisions and sound judgments. As Wood has argued, we “
unnecessarily denigrate ourselves if we think of the Founding Fathers
as heroes, as something other than men like ourselves with interests and social positions to promote.”

More recently, in his 2010 commencement address at Harvard University, retired Supreme Court justice David Souter offered a quietly devastating critique of the originalist approach to judging associated with Justice Antonin Scalia and other contemporary Court conservatives. Souter avoided the word “originalist” and did not mention Scalia. Instead he described their method as the
“fair reading” model
, summarizing it as a belief that “
deciding constitutional cases should be a straightforward exercise
of reading fairly and viewing facts objectively.”

The problem is that the Constitution is rooted not in any single value but in “
a pantheon of values
” and that “a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another.” Souter went on:

Not even its most uncompromising and unconditional language
can resolve the potential tension of one provision with another, tensions the Constitution’s Framers left to be resolved another day; and another day after that,
for our cases can give no answers that fit all conflicts, and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world. . . .
For the tensions that are the stuff of judging in so many hard constitutional cases are, after all, the products of our aspirations to value liberty, as well as order, and fairness and equality, as well as liberty.
And the very opportunity for conflict between the good and the good reflects our confidence that a way may be found to resolve it when a conflict arises.
That is why the simplistic view of the Constitution devalues those aspirations, and attacks that confidence, and diminishes us. [Emphasis added]

The prophetic role ascribed to the Founders grants their ideas an authority that is denied to the insights of later generations. Typically, each side in a contemporary debate insists that one value (liberty
or
community, order
or
equality) overrode all others in the judgment of the organizers of our Revolution and the authors of our Constitution.

Appeals to an authoritative past are not confined to any one side of our ongoing debate. Progressives and reformers are no less alive than conservatives to the Founders’ hold on the national imagination. But it has typically been the opponents of innovation who proclaimed themselves constitutionalists hewing to the “real,” “original” meaning of the document. In many cases, these appeals to the past were based either on a defense of the rights of property—including, until the Civil War, property in slaves—or in the name of “individual liberty,” or on an insistence that the states had the right to resist national legislation. These appeals become problematic when the Founders themselves are seen to have held conflicting views, when the Constitution is understood to uphold multiple values that sometimes conflict with one another, and when some of its provisions are understood to embody not timeless truths but sensitive compromises aimed at resolving (or getting around) pressing disagreements of the moment.

Such a view animated Souter’s critique of the “fair reading” model, and it contrasts sharply with the quasi-religious view of the Founding that is by no means unique to our time. Richard Hoftstadter notes that “
naïve providential interpretations
” of the nation’s origins go back at least to George Bancroft’s historical work in the mid-nineteenth century. Abraham Lincoln, as we’ve seen, built his case against slavery in his Cooper Union speech by insisting that the preponderance of the nation’s Founders shared his view, not that of slavery’s defenders. Harold Holzer noted that if Lincoln invoked the Bible in crafting his most famous utterance to that point—“
a house divided against itself cannot stand
”—he turned at Cooper Union “to the word of the secular gods of the American dream: the founding fathers.” Again, the smell of incense seems to engulf the constitutional moment.

Yet a far less reverential view of the Founding document began gaining ground after the Civil War. The new realism was aroused by Supreme Court decisions in the Gilded Age that turned the Constitution—even the due process and equal protection clauses in the Fourteenth Amendment,
which were great progressive breakthroughs—into a warrant for constraining the reforms and new departures being demanded by a rapidly industrializing nation. In
Congressional Government
, the classic work of political science that he wrote when he was a professor, Woodrow Wilson argued that Americans had turned the Constitution into an object of “
an undiscriminating and almost blind worship
.” He urged that his fellow citizens become instead more “
open-eyed . . . to its defects
,” to emancipate themselves from “timidity and false pride” in how they read it, and to be willing to engage in “a fearless criticism.”

Wilson was reflecting a broad revolt against the idea of turning the Constitution into a rigid constraint. This revolt reached a peak during the Progressive Era and the New Deal. We think of the idea of a “living Constitution” as an invention of the last half century, offered in defense of the liberalism of Earl Warren’s Supreme Court in the 1950s and 1960s. The idea is much older. In his keynote address at the 1912 Progressive Party convention that nominated Theodore Roosevelt, Albert Beveridge declared his party’s belief that “
the constitution is a living thing
, growing with the people’s growth, strengthening with the people’s strength, aiding the people in their struggle for life, liberty and the pursuit of happiness, permitting the people to meet all their needs as conditions change.”