Will conservatives restore America to constitutional
government? The new Republican leadership in the House of
Representatives has promised not only to begin the new
congressional session by reading the Constitution in its
entirety, but also to require that every new piece of
legislation cite the passage in the federal Constitution
that authorizes it.
These gestures are certain to please the conservatives of
the Tea Party movement who are the ascendant force in
Republican primary elections. But Tea Party
constitutionalism represents a deeply flawed understanding
of America's founding, which ought to be based on the
revolutionary idea of the power of the sovereign people to
make and unmake constitutions of their design, not on
superstitious veneration of particular constitutions handed
down by wise demigods.
Tea Party constitutionalism blends several American
traditions. One is the tradition of hostility to the federal
government chiefly associated with the South, which adopted
states' rights ideology in order to resist federal
interference first in Southern slavery and then in Southern
racial segregation. Now that the Republican Party, founded
as a northern party opposed to the extension of slavery, is
disproportionately a party of white Southern reactionaries,
dominated by the political heirs of the Confederates and the
segregationist Dixiecrats, the denunciation of many
exercises of federal authority as illegitimate would have
been predictable, even if the president were not a black
Yankee from Abraham Lincoln's Illinois.
But there is more to the constitutional theories of the
modern GOP than neo-Confederate ideology. Beginning with the
adoption of the federal Constitution, some Americans have
sought to promote reverence for this particular
Constitution, while others have emphasized the power of the
Constitution-making people. Thomas Jefferson thought that
laws and constitutions should be updated frequently, while
his friend and ally James Madison thought that constitutions
and laws should be changed only infrequently in the interest
of stability. John Adams thought that the founders of
constitutions should be revered, as in ancient Greece and
Rome.
Madison and Adams won the argument. The folk culture of
American constitutionalism blends themes from 17th-century
English Protestantism and 18th-century neoclassicism. From
Protestantism comes the rejection of the "Catholic" idea
of an evolving scriptural tradition interpreted by an
authority -- the Vatican or the Supreme Court -- in favor
of the idea that the Christian or American Creed is in
danger of corruption if it strays too far from the literal
words of the original, perfect revelation. According to
the Washington Post, one Tea Party member in Louisiana
"has attended weekend classes on the Constitution that she
compared with church Bible study."
From 18th-century neoclassicism comes the idea that
citizens of a republic must be taught that their
constitutions are perfect and were handed down by
superhuman lawgivers or "Legislators" -- Solon in Athens,
Lycurgus in Sparta -- and must be preserved without
alteration as long as the republic endures.
The blending of Protestant fundamentalism and
neoclassical Legislator-worship explains the
semi-religious reverence with which the Founders or
Framers or Fathers of the Constitution have long been
discussed in the United States. Other, similar
English-speaking democracies -- not only Canada, Australia
and New Zealand but modern Britain itself -- achieved
self-governance or universal suffrage generations later,
when these Protestant and neoclassical traditions had died
out in their domains. The Canadians do not revere their
first prime minister, John Macdonald, and to this day the
British do not even have a formal, written constitution.
Our Anglophone peers regard American constitution-worship
as bizarre and quaint, like our fondness for displaying
the national flag.
English-speaking democracies tend to be stable and free
even when, like Britain, they lack a written constitution.
But Latin American republics have been afflicted by
dictatorship and civil war for generations in spite of
having formal constitutions modeled on that of the United
States. The contrast demonstrates that the true security
for freedom is a culture of constitutionalism, not a
particular constitution, or any written constitution at
all. The details of a particular democratic political
system -- presidential or parliamentary, bicameral or
unicameral, unitary or federal -- are ultimately less
important than the unwillingness of the citizens to resort
to violence when they lose an election, unlike the
Confederate ancestors of so many of today's white Southern
Republicans, who tried to destroy the country upon losing
an election.
The federal Constitution drafted in Philadelphia in 1787,
as amended, is still in effect in the United States. In
contrast, France is now under its Fifth Republic. An old
joke has an American in Paris asking a bookseller for a
copy of the French constitution. Irritated, the Parisian
bookseller replies, "We do not sell periodical
literature."
But the joke is on Americans, not the French. Indeed, the
50 states are very "French" in their populist approach to
constitutionalism. Most states in the Union have gone
through several constitutions, with no apparent harm. Many
of today's state constitutions in the Northeast and West
Coast date back only a few generations to the Progressive
era, and show the influence of belief in apolitical,
technocratic executives in the number of state officials
appointed by a strong governor. At the other extreme, many
constitutions adopted by the defeated Confederate
"Redeemers" following the Civil War create weak state
governments and feeble governors. The influence of
Jacksonian populism accounts for the fact that in some
states most executive branch officers and even state
judges are directly elected.
In no state, to my knowledge, is there a cult of the
all-wise Founders of the State Constitution, who drafted
the most recent of several state charters. Few
legislators, even few conservative Republicans, would be
able to tell you the date at which their latest state
constitution was adopted, much less name any of the
drafters or ratifiers.
The treatment of state constitutions as mere charters of
government to be periodically updated or replaced, not
secular versions of holy scripture, gets it right. The
essence of American republican liberalism is found in
Jefferson's words in the Declaration of Indepedence: "That
whenever any form of government becomes destructive of
these ends, it is the Right of the People to alter or to
abolish it, and and to institute new government, laying
its foundations on such principles and organizing its
powers in such form, as to them shall seem most likely to
effect their safety and happiness." Here there is no
implication that a perfect code of laws has been handed
down to later generations by a superhuman generation of
Lawgivers, who should be worshiped as demigods century
after century. Constitutions are above ordinary statutes,
to be sure, but both constitutions and laws are ordinary
rules agreed upon by members of the sovereign people, not
to promote their eternal salvation or to conform to some
mystical law of nature discerned by philosophers, but to
"effect their safety and happiness." Not only are later
generations in a free and democratic republic likely to
include as many intelligent, patriotic and virtuous people
as the founding generation, but later generations have
more knowledge of what works and does not work in politics
in their country and other societies.
Of course federal laws should be constitutional. But if
we as a people want the federal government to do something
that the present constitution does not permit, let's amend
the much-amended constitution once again, or replace it
with a completely new constitution, as the states have
frequently done. The U.S. Constitution is not the stone
tablets of the Ten Commandments, and James Madison and
John Adams were not Lycurgus and Solon.
