By Jeff Polet, Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
We celebrate Constitution Day, September 17th, amidst concerns about its future. We would do well to reflect on its successes. We can imagine a variety of items being offered up as evidence of “success”:
- The American Constitutional order has survived for 236 years. In the annals of democracy, this is no mean feat.
- The American Constitution remains the most imitated Constitution in the world today.
- Americans enjoy, comparatively speaking, high degrees of personal liberty and material well-being.
- Political conflicts are so routinely resolved without resorting to violence that we simply assume that this is the way things ought to be done and are shocked, as on January 6th, when they’re not.
- The Constitution has demonstrated remarkable flexibility in responding to changing historical circumstances, particularly given the rapidity and complexity of those changes.
- After the travails of the modern world played themselves out, through revolution, ideological conflict, and world wars, America was left standing as the world’s lone superpower, achieving the greatness of its original promise.
- No compelling moral voice can be found in politics that does not couch itself in the principles of ordered liberty as embodied in the American Constitution.
Others may find fault with America, but typically won’t blame the Constitution for those faults. For example, one might argue that America displays the following pathologies:
- An overweening military empire that is bankrupting the country both financially and morally.
- A massive federal debt that has made the threat of economic collapse and chaos not only greater but also more imminent.
- An intrusive nanny state that increasingly directs the energies and actions of the average American, performed by a centralized and depersonalized bureaucracy.
- A legislature with historically low levels of public respect, resulting largely from the inability of its members to work amicably together.
- A presidency that constantly gets consumed with that which it was nourished by: namely, unrealistic expectations.
- A public space that seems to many to abuse liberty rather than defend it, leading to a coarsened and debased culture that is less than worthy of our respect.
- A vacating of the middle class, and ever-increasing income inequality. A weakening of all non-governmental or non-federal institutions, ranging from the small units of family life to the larger units of state governments.
Even these skeptics, however, would likely see these failings as an abandonment of the Constitution rather than resulting from inherent problems with the document. It is a rare critic who will attribute our current social and political problems to design flaws in the Constitution, and certainly an audacious one who spends Constitution Day exploring this very possibility.
While the Declaration of Independence may be America’s Sacred Scripture, the Constitution is our Torah, and carries with it a sort of quasi-divine authority validated by years of success and celebration. Many of those present at the Convention referred to its formation as a “miracle” which emanated from the hand of divine providence. Benjamin Rush concluded that the Constitution was “a gift from heaven,” just as much from the hand of God as the parting of the Red Sea or the granting of the Ten Commandments.
We typically refer to the opponents of the Constitution as “Anti-Federalists,” an unfair characterization that treats an eclectic but brilliant group of thinkers simply by what they didn’t like. It gives no argument for what they affirmed. Most fundamentally, they affirmed the moral proposition that individuals were most closely bound to those closest to them. They emphasized government as a voluntary attachment; that is to say, that government could only be kept within its proper sphere and remain accountable if it was immediately connected to the lives of the people. If such immediacy were removed, the principle of attachment would devolve to force or coercion, thus leading incrementally but increasingly to a despotism that would attenuate the duties of citizenship and weaken the natural bonds between human beings.
One thought experiment I liked to perform with my students involved wondering what it would take to make the UN more powerful so that it could perform all the “good things” its proponents imagine for it. Imagine if the UN arrogated to itself taxing authority and a military monopoly, and argued that the key to holding the system together was a homogenized world-culture that would require that Americans give up their distinctive identities, their particular customs and habits, and their political traditions. Would any American outside the editorial board of the New York Times or the American professorate sign on to such a program? This is precisely the concern raised by Federal Farmer (Richard Henry Lee) in his First Letter of 8 October 1787; or by Oliver Ellsworth who argued at the Convention for a limited reading of the Constitution which would leave alone “the individual State Communities according to their own pleasure, custom, habit, and peace.”
Such considerations are undone by imagining America as an undifferentiated “national community.” Agglomerating Americans and reforming the rule of law accordingly was one of the chief accomplishments of John Marshall. In protecting the national system against state assemblies, Marshall saw himself as protecting good order against short-sightedness and benighted interest. Rather than trying to figure out how to make the general population virtuous and thus capable of participatory government, Marshall instead believed that the population could never really be virtuous, and thus government had to be protected against popular sentiments.
Marshall is one of the least known, understood, and appreciated founders of our Constitutional system, and inarguably one of the most important. Hardly any figure played a larger role in shaping the Constitutional order than he did. The “great justice” of the Supreme Court, his decisions became the very foundation for both how the Constitution would be subsequently understood and how it would operate. An especially important example is Marshall’s rendering of the national bank controversy in McCulloch v. Maryland. The key issue was whether the founding principle that formed the Constitution was unitary (created by “the American people”) or plural (created by the independent sovereign entities of the states). The latter view argued that the Constitution was a legal compact among the several states, which alone were the interested parties. As such, the states played both an affirmative (in ratification) or a negative (not ratifying, seceding, interposing, or nullifying) role as regards the federal government, but retained their fundamental principles of sovereignty.
Marshall believed the pluralist claim made a mishmash of both Constitutional history and theory. In this regard, his examination of ratification seems, and in many ways became, authoritative:
“This mode of proceeding was adopted, and by the convention, by Congress, and by the State legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject — by assembling in convention. It is true, they assembled in their several States — and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments.” [emphasis added]
Marshall argued that the Constitution is “the people’s,” for it “emanates” from them in their collective capacity, rendering the states nugatory. In other words, we can equivocate on the word “people” in the Preamble, taking it to refer to “Americans” or to American citizens as also citizens of their states. The latter view would commit us to the problem of reconciling multiple sovereignties, a problem difficult to reconcile without recourse to the confederal compact theory Marshall explicitly rejected.
In his essays written under the name “Friend of the Union,” Marshall articulated and defended the position that the Constitution was created by the people who just happen to live within a certain territory and act within its prescribed limitations, meaning that the states formed the federal government, for on this score state legislatures exercised little if any authority. The Constitution, he argued, was created by people in their states, but as Americans, and in this they existed as such prior to the creation of the Constitution itself. Marshall asked us to remember back
“to that awful and instructive period of our history which preceded the adoption of our constitution. These states were then truly sovereign, and were bound together only by a league. Examine with attention, for the subject deserves all your attention, the consequences of such a system. They are truly depicted in the Federalist, especially in the 15th No. of that work. The author thus commences his catalogue of the ills it had brought upon us- ‘We may indeed, with propriety, be said to have reached almost the last stage of national humiliation. There is scarcely any thing that can wound the pride, or degrade the character, of an independent people, which we do not experience.’ And he concludes his long and dark detail of those ills with saying, – ‘To shorten an enumeration of particulars which can afford neither pleasure nor instruction, it may in general be demanded, what indication is there of national disorder, poverty, and insignificance, that could befall a community so peculiarly blessed with natural advantages as we are, which does not form a part of the dark catalogue of our misfortunes.’”
In the midst of this crisis, he continued, the new nation that had been formed under the principles of the Declaration and in the crucible of battle, shook off their old forms of government under the disordered anarchy of the states and their problems of disunity and economic torpor. The states could neither be relied on nor trusted to take care of the problems Hamilton enumerated in Federalist #15: public debt, a weak defense, unkept treaties, disrespect from foreign nations, weak commerce, and credit problems. Realizing this, the people transcended their states and created a new government.
But this accounting of America’s Constitutional founding is fraught with problems. It serves a particular vision, economic and political, of what constitutes good order. As early as the 1780’s Marshall thought the states a threat to American democracy. By the 1830’s he was convinced the threat of dismemberment would result in American decline. In his pessimism he used the power of the Court to forestall this decline, but it may finally now be our inheritance.
- What practical difference does it make to consider the Constitution as created by the people, en bloc, or the states?
- How does Marshall’s thinking effect developments leading up to the Civil War?
- What do you think accounts for the continued success of The Constitution? Alternately put, why hasn’t it failed yet?