An Agreement with Hell

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’.

The doctrine of original intent has a superficial plausibility. If each generation can redefine the principles of government as it pleases, then America scarcely has a written constitution at all. On close examination, however, the actual practice of ‘originalism’ becomes more and more unclear. How are judges to go about divining the intent of the thousands of actors involved in drafting, debating and ratifying, State by State, the original Constitution and subsequent Amendments? In some respects, as Lord Acton remarked, the Constitution was an effort to avoid settling basic questions. Its provisions were a series of compromises resulting from prolonged sessions of political bargaining, and many clauses did not completely fulfil the purposes of any of the drafters. Moreover, as Rakove shrewdly observes, the views of the Constitution’s contemporary critics also form part of the ‘original understanding’, not only because their fears of excessive federal power inspired the Bill of Rights, but because their criticisms shaped the arguments advanced by proponents of ratification.

Even if the original intent were readily ascertainable, it is by no means self-evident why, in a democratic society, the ‘rights of the living’, as Thomas Paine put it, should be held hostage to ‘the manuscript-assumed authority of the dead’. In fact, the call for a jurisprudence of ‘originalism’ is less a carefully thought out intellectual position than a political rallying cry, a justification for undoing modern Supreme Court decisions that have greatly expanded the definition of Constitutional rights.

For Post-Modernists, there is something quaint in the idea that any text may possess a single objective meaning. For historians, however, there is nothing unusual in probing the motivations of past statesmen or seeking the contemporary meaning of historical documents. Ironically, since judges lack the time and professional training to conduct in-depth research about the past, the doctrine of original intent appears to hand interpretation of the Constitution over to historians. Needless to say, Rakove does not suppose that his investigation will settle current debates about Constitutional interpretation, or tell judges and politicians how to act. Indeed, he warns that those expecting ‘a definitive understanding of what the Constitution originally meant’ are bound to be disappointed by his account of the drafting and ratification, since on key issues ‘there is indeterminacy enough’ to support both sides of the argument. Ultimately, in other words, Constitutional interpretation is a political, not a historical question. But, as Rakove adds, if ‘original intent’ is to have any meaning, it requires a careful examination not simply of the 1787 Convention, but of the ‘intellectual universe’ of those who wrote, ratified, and debated the Constitution. Here, he makes a genuine contribution.

Looming over Rakove’s account is the figure of James Madison, the diminutive, colourless Virginian who, although never accorded the place in popular memory enjoyed by his contemporaries, George Washington and Thomas Jefferson, fathered the Constitution and offered the most compelling rationale for ratification. More than any other figure, Madison inspired the movement to replace the Articles of Confederation, the previous frame of government, with a document allowing for more centralised, energetic administration. Madison’s defence of the Constitution in The Federalist Papers offers the most important elaboration of the founders’ political theory.

Rakove’s account of how Madison became persuaded in the 1780s that Americans were squandering the fruits of independence is not likely to please modern-day advocates of dismantling federal authority in the name of original intent. For what Madison deemed the irresponsible actions of State governments – issuing paper money, cancelling debts, interfering in foreign policy – persuaded him that America’s stability and future greatness depended on enhancing national authority. (He even insisted that the federal government needed to increase the level of taxation, an idea no American politician today would put forward.)

Equally important, the events of the 1780s led Madison to re-evaluate deeply held ideas about liberty and its preservation. It was not a tyrannical central government, but the people themselves, acting through their elected representatives, who were riding roughshod over individual rights. Madison concluded that with the advent of republican government in America, ‘the problem of rights was no longer to protect the people from government but to protect minorities and individuals against popular majorities acting through government.’ The Constitution did not work out precisely as Madison had hoped – his proposal that Congress be allowed to veto State laws was too radical a departure for the other delegates. The new federal government turned out to be far less ‘consolidated’ than he desired. But in the elaborate system of checks and balances among the branches of government, and the complex division of sovereignty between state and federal authorities, Madison believed he had found a foolproof method for protecting the rights of citizens in a republic and preventing any single interest from dominating government.

Madison, Rakove writes, was so persuaded that the balances of the Constitution would protect liberty that he believed a Bill of Rights ‘redundant or pointless’. Paper guarantees, he also observed, would prove insufficient in times of crisis – a prediction confirmed, for example, at the time of the First World War and again during the McCarthy era, when all the branches of government joined in sanctioning egregious violations of free speech. Indeed, in 1798, only a decade after ratification, Congress enacted the Sedition Act, outlawing public criticism of the federal government – a clear violation of the First Amendment which inspired, in protests by Madison and others, the first full-fledged libertarian defence of freedom of speech and the press.

Rakove, unfortunately, does not carry his story down to the constitutional crisis of 1798; not that this prevents his discussion of the original understanding of ‘rights’ from being illuminating. He emphasises the centrality of religious liberty to Madison’s overall conception of individual rights. Today, a powerful political movement, claiming that the founders intended the United States to be a ‘Christian nation’, seeks to tear down what Jefferson called the ‘wall of separation’ between church and state enshrined in the First Amendment. Certainly, most Americans in 1787 were Christians (although few seem to have attended church regularly). For Madison, however, religion was a matter of personal opinion, not public policy.

He did not oppose some state regulations of behaviour on behalf of religion, such as laws punishing Sabbath-breaking, but insisted the state must not sponsor or encourage any particular form of worship or religious expression. He helped to write what Isaac Kramnick and Laurence Moore have recently called a ‘godless Constitution’, which specifically prohibited religious tests for public office: quite an innovation for the 18th century. Moreover, Rakove shows, his understanding of religious freedom became the model for the American understanding of Constitutional rights as absolute prohibitions on state action.

To one group the ‘blessings of liberty’ invoked in the Constitution’s preamble did not apply. The word ‘slavery’ appears only once in the Constitution – in the Thirteenth Amendment’s decree of irrevocable abolition. But several clauses in the original document recognise and protect the institution. Most important are those requiring the return of fugitives from bondage, counting only three-fifths of the slaves in apportioning representation in Congress and allowing the African slave trade to continue to 1808. The issue of the Constitution’s precise relationship to slavery divided political leaders before the Civil War and has bedevilled historians ever since. Abraham Lincoln, who revered the Constitution, always insisted the founders intended to set slavery ‘in the course of ultimate extinction’. Nothing in the document, Lincoln argued, looked on slavery as a permanent part of American life. Southern leaders like John C. Calhoun, by contrast, claimed the Constitution not only recognised the legitimacy of slave property but obligated the federal government to protect it. The abolitionist William Lloyd Garrison agreed with Calhoun. On 4 July 1854, in one of the most flamboyant acts of defiance in American history, he burned the Constitution, calling it ‘a covenant with death, an agreement with hell’. Three years later, in the case of Dred Scott, Chief Justice Roger Taney vindicated Calhoun (and Garrison) by declaring that blacks formed no part of the ‘people’ who had formed the Constitution. They could never be citizens of the nation and ‘had no rights which the white man was bound to respect’.

Denounced at the time by anti-slavery Northerners and repudiated after the Civil War by the Fourteenth Amendment, the Dred Scott decision is today regarded as one of the most wrong-headed ever rendered from the American bench. What is not often remarked is that Dred Scott was an exercise in Constitutional originalism. The Supreme Court, Taney insisted, must be guided by the racial views of the Revolutionary generation, and blacks ‘were at that time considered as a subordinate and inferior class of beings’.

What were the founders’ intentions regarding slavery? Here, possibly because of his admiration for Madison and his colleagues, Rakove stumbles. Like Jefferson, Madison detested slavery. Like Jefferson, too, he held slaves throughout his life, bought and sold them when the pecuniary need arose, and failed to free them in his will. Rakove notes that Madison could cite the ‘case of Black slaves’ to illustrate how majorities might deprive a minority of its rights. He fails to note that at the Virginia ratifying convention, responding to the charge that the Constitution offered inadequate protection to property in slaves, Madison insisted it offered ‘better security than any that now exists’.

Rakove acknowledges that the Constitution made slavery ‘a fundamental element in the structure of American politics and law’. But he downplays the significance of the three-fifths clause, which, as one opponent of ratification remarked, produced ‘the absurdity of increasing the power of a State in making laws for free men in proportion as that State violated the rights of freedom’. And surely, it is little more than an ahistorical rhetorical flourish when Rakove remarks that the Fourteenth Amendment, which gave Congress the power to invalidate State laws that discriminated against the emancipated slaves, is the ‘most Madisonian’ part of the Constitution, a long-delayed fulfilment of Madison’s dream of empowering Congress to overturn oppressive state laws. For Madison favoured deporting emancipated slaves from the country, believing ‘unalterable prejudices’ among the whites made legal equality for the freed people impossible.

The point of dwelling on the founders’ actions regarding slavery is not to belabour them for being creatures of their time, but to underscore the dangers of an originalism that simply re-enacts the principles and prejudices of the late 18th century. In a brief ‘Coda’ that seeks to bring his historical findings to bear on current debates about jurisprudence, Rakove recognises as much. It would be inadmissible, he writes, for ‘morally sustainable claims of equality’ to be ‘held captive ... to the partial and incomplete understandings of 1789’. Yet as soon as he offers this apparent endorsement of a ‘living Constitution’, Rakove draws back, insisting that while the Constitution may be brought up to date, its language ‘cannot be infinitely malleable’.

This is an odd ending for a book that has demonstrated that the search for original intent must ultimately be inconclusive. Surely, the alternative to the notion of a document with a single fixed meaning is not utter indeterminacy but a view of the Constitution as a set of enduring principles to which only the actions of subsequent generations can give substantive meaning. The drafting and ratification of the Constitution, in other words, was the beginning, not the end, of the debate about the purposes of government, the rights of citizens and the meaning of freedom.