Critics of the Constitution lack the perspectives of time, comparative government, and practical philosophy.
The New York Times is at it again. Book critic Jennifer Szalai published a long essay with the inflammatory title and subhead of “The Constitution Is Sacred. Is It Also Dangerous? One of the biggest threats to America’s politics might be the country’s founding document.” It’s the usual collection of gripes about the functioning of the Electoral College and the Senate, of the sort that feature regularly in Democratic and media tantrums when they don’t get their way; willful misunderstandings of the motivations and methods of originalism; and arguments that the Constitution is hopelessly tainted by slavery — arguments that rest on a fair amount of mythologizing about how we got the Electoral College. Yuval Levin’s pro-Constitution argument in American Covenant is given halfway-respectful treatment, but Szalai makes some key mistakes, such as taking as a critique of originalism his entirely reasonable point that legal originalism in the courts isn’t enough by itself to make our constitutional system work if the political branches don’t also do their jobs.
Critics such as Szalai and those she cites lack the perspectives of time, comparative government, and practical philosophy. Sure, we don’t elect the head of our government by national popular vote. But few modern democracies do — if Canadian elections worked that way, Justin Trudeau would have lost his last two elections. The French, the most conspicuous counter-example, have had trouble from the beginning with the power of their presidency. Sure, our federal government often deadlocks — but that’s OK because, in the absence of a clear, national consensus, we’re supposed to be governed by state governments.
The other really flagrant canard that Szalai deploys is this one:
“Constitution worship” is so habitual that it’s tempting to assume the veneration was baked into our politics from the very beginning. But [Aziz] Rana situates it historically, showing how it flourished in the 20th century, alongside the country’s global ambitions. Even as the United States pursued imperial projects in places like the Philippines and tolerated racial terror in the Jim Crow South, the Constitution was offered as proof that the country was profoundly committed to liberty and equality — that “its interests are coterminous with the world’s interests.”
It’s true enough that reverence for the Founders and the Constitution have gone in and out of fashion and have enjoyed a number of revivals. That’s been most conspicuous in conservative eras as backlashes against periods of progressive overreach: the Harding/Coolidge era (when Warren Harding coined the term “Founding Fathers” and Coolidge gave his great address on the 150th anniversary of the Declaration of Independence), the Reagan era, and the Tea Party era. The Constitution and the Framers have also been invoked in times when the American system is challenged ideologically from abroad (as in the Second World War and the Cold War) or on our great national anniversaries — the 1876 centennial, the 1976 bicentennial, and the 1987 bicentennial of the Constitution. Liberals invoked the majesty of the Bill of Rights during the McCarthy era and the Warren Court era, as well as the Fourteenth Amendment during the Civil Rights era. Even Lin-Manuel Miranda’s Hamilton showed the enduring popular accessibility of the Constitution and the Founding generation to modern liberals. It’s unique to Wilsonian progressivism that it is unable to venerate the past or tolerate limits on power. Even pre-Wilson progressives tapped into its power, as when William Jennings Bryan called silver coinage “the money of the fathers.”
I’ve traced a number of times, in detail — that would be wearisome to recount again — how ridiculous it is to pretend that these were not major forces in 19th-century America, in particular. To paint reverence for the written Constitution and its Framers as a 20th-century invention ignores everything from George Washington’s Farewell Address through the Whig debates over executive power (e.g., presidential candidates pledging to veto nothing unless it was unconstitutional), and in particular, the 1831–61 period of contention about slavery, states’ rights, secession, and nullification.
The powerful tradition of anti-slavery constitutionalism deserves better commemoration, and Szalai herself can’t even really sustain the fiction for her entire essay. Thus, she also notes Frederick Douglass’s invocation of what he called in 1852 a “glorious liberty document”: “Douglass maintained . . . that slavery in the United States could only be upheld ‘by claiming that the Constitution does not mean what it says.’ As the historian James Oakes put it, Douglass shared Abraham Lincoln’s view, recognizing in the Constitution ‘the promise of universal freedom.’”