CONSTITUTION DAY: WHAT PRECISELY SHOULD WE COMMEMORATE?
(James Madison Program Constitution Day Lecture, Princeton University, 9/17/09)
Sotirios A. Barber
My thanks to Professor George and Professor Wilson for asking me to open this
afternoon’s conversation about the U.S. Constitution. Thanks also to Betsy Schneck for
making the arrangements for my visit. And thanks to all of you for coming this afternoon.
It’s good to be back before an audience of the Madison Program.
As happy as I am to be here, however, I’m not sure what the occasion calls for.
I’m supposed to say something that commemorates the founding of the Constitution. But
how to do that isn’t clear to me. My problem is that founding a constitution is not the
same thing as the constitution that’s founded. Founding a constitution is kind of action
with its own set of virtues. A constitution in our sense is a document that establishes,
empowers, and limits a government, or is supposed to. Which of these things should we
emphasize today? Should we emphasize the founding and the virtues associated with that
activity? Or should we focus on the immediate product of that activity, the constitutional
document and its corresponding practices. We can’t emphasize the founding and the
Constitution equally, and we can’t remember them in the same way. For not only are they
different, they are in some ways opposed. To commemorate the founding we
commemorate crafting something for ends external and superior to the thing crafted. To
commemorate the Constitution we commemorate what’s supposed to be a supreme law,
and to do so we assume a posture of fidelity to that law. Fidelity to authority is not a
virtue of constitution makers as a type; their virtues are wisdom, magnanimity, and
courage. The framers of our present constitution had their eye on the ends of government,
not on what was then the law of the land. They had the courage to act with dubious legal
authority to disestablish our first constitution. So commemorating the founding and the
Constitution are not the same, and that’s why I’m not sure what’s expected of me today.
I’ll do what I think best, therefore, trusting you to correct me later. I’ll contend that today,
at Princeton, commemorating the founding is a better idea than commemorating the
Constitution.
To make my case,
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(1)
I’ll discuss the approach to things constitutional taken in recent years
by Walter Murphy and some of his students and colleagues, and I’ll
contrast their constructively critical approach with what I call
“constitution worship.”
(2)
I’ll then argue that constitution worship is a bad idea, essentially
because it misrepresents the human condition;
(3)
I’ll argue further that in commemorating the founding, we should focus
less on the actors and the actions involved and more on the virtues that
they represent;
(4)
I’ll argue that commemorating the founding rather than the
Constitution is consistent with the principles of the Constitution itself;
and
(5)
I’ll close with a thought about our prospects for reviving those virtue.
1.
I emphasize at the outset that I’m not saying that commemorating the founding
over the Constitution is better everywhere and on all occasions. My thesis today is
specific to this place and to places like it. Let me explain.
Princeton is surely the best place to talk about the Constitution. Princeton’s
leadership in constitutional studies has been unchallenged for many years, thanks to
decisions that Professor Walter Murphy made in the mid 1970s and to the subsequent
work of Professors George, Macedo, Whittington, Schepele, and Eisgruber. No group of
scholars anywhere, certainly none living today, has achieved the breadth and depth of
thought about the Constitution in the combined works of these Princetonians. The
examplar of the Princeton approach to constitutional studies is Murphy’s prize winning
book on creating and maintaining constitutional democracy, published by Johns Hopkins
in 2007. Murphy agrees with James Madison that no form of government has any value
beyond the well-being of its people and that any constitution can fail in pursuit of this
object. Murphy asks how constitutional democracies are doing. How, for example, does
constitutional democracy in America compare with the coercive capitalism of Singapore
and Korea regarding political freedoms, per capita income, public safety, and public
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education? Because Murphy asks and answers these questions honestly, his findings
provoke our concern as well as pride. The political freedoms of Singapore don’t compare
with ours, of course, but we Americans spend more on prisons than on higher education,
and that fact should make us worry about the nation’s future.
Murphy’s book inspired a conference here at Princeton in 2007 on the limits of
constitutional democracy. Next year Princeton University Press will publish a collection
of essays from this conference. Most of the writers for this volume, like its editors,
Stephen Macedo and Jeffrey Tulis, are Murphy’s former students or colleagues. These
writers discuss problems like the nature of constitutional failure and success, how or
whether constitutional governments have coped and can cope with emergencies of
different kinds, and how constitutional governments can and should adjust to the
increasingly global nature of economic, environmental, and security demands. In the
volume’s concluding essay, Christopher Eisgruber looks back and notes that none of the
essays is “triumphal” in tone. None boasts that “’We Americans did it!’” – that “’[w]e
created a constitution that has endured for more than two centuries,’” and that we have
shown mankind what we said we would, “’the possibility of government by reflection
and choice.’” The essays are more thoughtful and truer to the facts, says Eisgruber:
“They teach us that there are limits inherent in the very commitment to reflection and
choice. Reason is fallible, choices can be catastrophic, and governments founded upon a
commitment to reason and choice therefore confront specific, durable risks of failure.”
Commitment to a politics of reason makes constitutional failure an ever-present and
continuing possibility of the American system, says Eisgruber, a challenge “that animates
the constitutional enterprise and [that] should be simultaneously daunting and thrilling to
citizens who desire to govern themselves.”
So, then, a key element of the Princeton approach is a willingness to confront the
real and continuing possibility of constitutional failure. Contrast this attitude with that of
the man who conceived Constitution Day. I refer to Senator Robert Byrd of West
Virginia. It was Sen. Byrd who authored an amendment to the Appropriation’s Act of
2005 mandating that schools receiving federal funds do something on or about Sept. 17
every year “to commemorate the forming and the signing of the Constitution.” In words
reminiscent more of Confederate Virginia than loyalist West Virginian, Sen. Byrd calls
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the constitutional document “the foundation of our freedoms.” He also claims that “these
few pages written on parchment” “established for all time the direction and structure of
these United States.” Because he “care[s] so deeply about this precious document,” he
summons “all Americans to take the time on September 17th to read, analyze, and reflect
on the Constitution” and the legacy of its heroic framers, namely, “the great treasure that
is our nation and our form of government.” By doing this, he concludes, “[e]ach of us”
can help discharge “an obligation to hand that treasure on to future generations intact and
strong and secure.”
Sen. Byrd thus expects Americans to commemorate the Constitution in a
triumphal spirit. If the senator’s expectations governed here, one day each year you
would have to agree or pretend to agree that the Constitution is precious, that it is the
foundation of our basic liberties, that it will last forever, and that each generation is
obligated to pass it to the next. Yet, clearly, such a celebration of the Constitution would
be unsuitable here, for Sen Byrd’s way seems opposed to the constructively critical spirit
of the Princeton approach. This approach, as Professor Eisgruber indicates, tries to cope
with the continuing and real possibility of constitutional failure, a possibility Senator
Byrd wants to deny. But no one can successfully deny this possibility. The framers
certainly did not.
The very fact that there were framers and a founding belies Senator Byrd’s view
of the Constitution. From the perspective of framers, (1) a constitution is an instrument of
ends like justice and the blessings of liberty; (2) these ends are real goods, and because
they are real goods, (3) we can fail to achieve or approximate them. James Madison
presupposes real goods in a famous passage of the 45th Federalist: “No form of
Government whatever,” he says, “has any other value than as it may be fitted for the
attainment of” the people’s happiness. He’s prepared to reject the Constitution and
abolish the Union itself should either prove “inconsistent with the public happiness.”
(45:309; Cooke). Madison thus reduces all man-made schemes of government – all
constitutions on the American model – to the status of means to things whose meaning
and value are fixed by nature, not subject to our will. We can’t just take a vote and decide
what life, liberty, and happiness are. Their nature is beyond our capacity to change and
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our definitions are mere attempts to capture their nature. That’s why our efforts to pursue
these goods can fail.
On the other hand, Madison had more to say that is relevant to the problem of
what we should commemorate. He wasn’t always sensitive to the possibility of
constitutional failure. Had he been so he might have been more receptive to Thomas
Jefferson’s proposal for periodic constitutional conventions. In Federalist 49, Madison
rejects Jefferson’s proposal because, he says, frequent appeals to the people would imply
“defect[s] in the government” and deprive it “of that veneration which time bestows on
everything, and without which perhaps the wisest and freest governments would not
possess the requisite stability.” To this he adds that except perhaps for “a nation of
philosophers” or Plato’s philosopher kings, “the most rational government” needs “the
prejudices of the community on its side” (49:340). In light of this thought maybe we
should commemorate the Constitution Sen. Byrd’s way. Maybe we should tell ourselves
that the Constitution will endure indefinitely as the source of our freedoms and the
foundation of our national identity. We are hardly a nation of philosophers, and political
instability might well result from a general awareness of the Constitution’s defects and
the possibility of its failure.
Let’s admit, however, if only to ourselves, that celebrating as Sen. Byrd proposes
would be a pretense for us -- perhaps a noble pretense, as Plato might say, but still a
pretense. We know, and Sen Byrd surely knows, that our system has its problems and that
his view of what grounds our freedoms and national identity are at best debatable and
have been debated for centuries. Despite Madison’s statement about the prejudices of the
community, Madison also knew the Constitution was imperfect. In letters to Jefferson of
September and October of 1787 Madison doubted that the Constitution would either
achieve “its national objects” or prevent injustices by the states, injustices, Madison said.
“which every where excite disgust against the state governments.” The chief cause of
Madison’s pessimism was the refusal of the Constitutional Convention’s to give
Congress a general veto over state laws. Madison also saw equal representation of small
and large states in the Senate as “a lesser evil” forced on the Convention by political
realities. These concessions of the Convention in behalf of state sovereignty ran counter
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to the large republic argument that Madison offered in Federalist 10 as the heart of his
constitutional theory.
Such was Madison’s mind in the late 1780s. He recommended reverence for a
constitution he believed seriously defective. Two obvious problems would attend
Madison’s advice. The first would be identifying its addressees. Who exactly would
Madison be talking to? Who should cultivate veneration for an admittedly defective
constitution? Would the nation be divided into two kinds of people, the few enlightened
and the many benighted, with the few deceiving the many for the good of all? Might an
elite judicial corps or a joint congressional committee affect needed constitutional change
under cover of constitutional interpretation, for example? Since Madison was no populist,
we can’t dismiss some such possibility as consistent with his principles if not his
expectations. If we granted it for argument’s sake, however, other problems would rush
in. Constitutional interpretation has its limits. It can change our understanding of ideas
like due process, equal protection, and the scope of the commerce power; but it can’t
reach the electoral college, the composition of the Senate, or a politics that, thanks partly
to the framers themselves, substitutes group interests for public purposes. Once the limits
of interpretation were reached, the enlightened few would find themselves cultivating
reverence for an admittedly defective constitution. Their question would be what ours is
today: How can veneration for a defective constitution correct its defects? How can
reverence for a defective constitution improve the nation’s ability to defend itself from
foreign enemies or facilitate the well-being and foster the decency of its people? The
Federalist Papers defend a scheme of government that is supposed to lead the public to a
better understanding of its true interest. How could a defective constitution do this? To
the extent that our government did educate the public to its true interests, the Constitution
wouldn’t be defective; and if it were defective, the government couldn’t educate the
public to its true interests. We’re left to wonder, therefore, why anyone would follow the
advice that emerges from Madison’s exchange with Jefferson. Why would anyone foster
reverence for an admittedly defective constitution? A defective constitution wouldn’t
need reverence; it would need reform and the constructive criticism that precedes reform.
It would also need an institution of some sort that concerned itself with the problem of
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constitutional reform on a continuing basis, a stable institution to address a standing
problem, the “ever-present and continuing possibility” of constitutional failure.
I don’t deny that we have to accept and work with a defective constitution, for
there is no such thing as a perfect constitution. I deny that there can’t be a perfect
constitution even in theory. But accepting and working with a constitution is one thing,
venerating it is another. I question why anyone should encourage across-the-board
reverence for any man-made institution. Venerating something tends to blind us to its
defects, the opportunities to correct them, and the need to foster the skills and attitudes
for correcting them. Taken seriously and to its logical limits, reverence for an imperfect
constitution carries frightening moral risks. I’ll elaborate this last contention.
2.
Let me first repeat a point. Acknowledging the Constitution’s defects as Madison
did to Jefferson, presupposes that the constitution and the government it establishes are
answerable to standards of good policy and right conduct that are not of its making –
goods and standards it can fail to approximate. Acknowledging the potential for failure
thus goes hand in hand with belief in the existence of real goods and real standards – real
goods as opposed to merely subjective or conventional goods.
Reverence for a constitution implies a different view of the world. When we think
of reverence we think of its highest form, the posture we’re supposed to have toward
God, or maybe Nature or Nature’s God. We revere, say, God the Maker – the source of
our identity, and therewith what’s good for us, and the source of the standards by which
we ought to treat each other, and therewith our rights. Sen. Byrd apparently wants us to
feel the same about the Constitution: It made us a nation, according to Sen Byrd, even
though the Preamble indicates otherwise. The Constitution is the source of our rights,
says Sen Byrd, even though the Ninth Amendment all but explicitly says otherwise. But
never mind the Preamble and the Ninth Amendment. Let’s grant Sen. Byrd’s view for
argument’s sake and see where it leads.
Assume that the Constitution made us and is the source of our rights. But then
notice that the Constitution speaks for We the People. If the Constitution made us as a
people, and if the Constitution speaks for us as a people, then it follows that we made
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ourselves a people and that we are the source of our rights. We the People decide the
biggest questions for ourselves: who and what we are, what’s good for us, what rights we
have, how we should treat each other. Since the Constitution declares our voice the
“supreme Law,” we as a people answer ultimately only to ourselves. Never mind any
higher authority or the rest of the “candid World” to which we once gave reasons for
declaring our independence. Revering the Constitution thus turns out to be a form of selfworship, and the big problem with self-worship is that it makes little sense in a world not
of our making and beyond our control. I’m aware that some politicians and some
intellectuals will say things to the effect that we do make our own reality. I doubt anyone
really believes this, however. We can cope with reality, of course, changing things to our
liking temporarily and at the retail level. But coping is not making, and retail is not
wholesale. If we really could make our own reality our success would follow upon the
mere declaration of it, and failure would be impossible. The Constitution would be a
good constitution and we’d be happy solely by proclamation, just as the God of Genesis
created the world by saying let it be. Suffice it to say that if we have made our own
reality, the reality that we’ve apparently made includes a reality beyond our making, and
beyond our control. The proposition that we can make or have made our own reality is
thus the reductio ad absurdum of constitution worship.
Then there’s the problem of who the word “we” includes. Who is the ‘we’ in the
proposition that “We the people decide what’s good and right for ourselves.” The armed
force of the Union took a step toward settling this problem in the 1860s when it forced
the Southern states to accept the Fourteenth Amendment. This amendment and other
constitutional provisions combine to make all native-born and naturalized persons
members of the constituent we, regardless of race, parentage, religion, or wealth. This, at
any rate, is the normative part (or part of the normative part) of the answer to who we
might be, and the normative part not only has a force of its own, it will register in any
social-scientific answer. The social-scientific finding that segments of the population felt
politically disfranchised would be visible solely in light of the presumed legal-moral fact
that it should be otherwise. But of course for much of the nation’s history – as much as
three-quarters to date – it was otherwise. For much of the nation’s history, law-abiding
and socially productive parts of the adult population were excluded from the constituent
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we, despite the creed that none should be governed without their consent. The nation’s
history thus shows that who we are is itself a political problem, perhaps the biggest
political problem. It makes no sense, therefore, to say that we decide the biggest
questions; for with no antecedent agreement on the biggest questions, there is no we.
The American constitutional text is rich with assumptions about who we are. The
text thus supposes a pre-existing community whose members aspire above all else to
public goods like the common defense and the general welfare. The text treats these
goods as real goods, goods that naturally attract competing conceptions. The text also
indicates that we value these goods more than we value their competing conceptions.
Articles I, V and VII indicate that the best versions of these goods and the means thereto
will be pursued through a continuing process of public deliberation. By banning titles of
nobility and religious tests for national office, Articles I and VI indicate that the evidence
supporting policy choices will be accessible in principle to people generally, not solely to
any special generation, blood line, or divinely favored calling or group. Agreement in
these matters – what and who we are, what we want most, how to seek the best
conceptions of what we want most, the best means thereto, and what makes one’s
experience evidence for all – agreement in these things wouldn’t be everything, but it
would be a lot – enough to keep us talking and working together. Disagreement in these
things was enough to cause one civil war and may yet cause another. Adequate levels of
agreement in these things depends on the general attractiveness of real goods, goods not
of our making. By implicitly denying the existence of such goods, constitution
worshippers leave nothing for competing conceptions of an idea to get closer to.
Competing conceptions of justice, the general welfare, and the like are no longer versions
of general ideas in whose light some conceptions are better than others; they’re just
competing conceptions, period. With nothing to get closer to, deliberation degenerates
from a truth-seeking process to a bargaining process. As a type, bargainers aim for the
bottom line; they support bargaining only to the extent that its payoff is more attractive
than that of other processes. Where processes like fraud and violence pay enough to
justify the risks, bargainers see no reason for bargaining. Constitution worship thus leaves
force as the ultimate source of what’s good and right – the source, rather, of what’s called
good and right. This downward spiral from Constitution worship to force makes
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constitution worship a bad idea. Better, I submit, to commemorate the founding than the
Constitution.
3.
But this conclusion needs refinement. We should commemorate the founding and
the framers, to be sure, but commemorating them should have a larger point. If we
focused solely on a particular act and particular group of actors, the reason would lie in
the excellence of their particular product, the Constitution in this case, which would at
best be a contingent and potentially failed instrument of its ends. If there’s lasting, noncontingent value in commemorating our framers and our founding it lies in what they
aspired to demonstrate: mankind’s capacity for “establishing good government from
reflection and choice.” Commemorating people and events close to us is of lasting value
if we take them as indicative of prospects for ourselves. They made and remade
constitutions, we’re sprung from them, maybe we can emulate them, when the time
comes, if it hasn’t already.
4.
I know that this position opens me to the charge of lawlessness, ingratitude, and
even impiety -- sin against a document and a system that we are sworn to preserve and
pass to the future. Permit me a brief defense against this charge. First a quick review: I’ve
argued that we should commemorate the founding, not the Constitution, and I’ve argued
for commemorating the founding for the virtues it represents, not for the constitution it
produced. My argument so far has been an argument from the possibility of constitutional
failure, a possibility I claim no one can deny. I’ve argued elsewhere to the same
conclusion from the nature of the people’s welfare, which Madison says in Federalist 45
is the supreme object of any good government, regardless of form. I can’t summarize my
argument from welfare here and I wouldn’t if I could, for it wouldn’t answer the present
charge. Arguments from the possibility of failure and from the nature of human welfare
appeal to goods higher than the law, like security and happiness. Because American
systems of law are expressly established to pursue these goods, laws disconnected from
reasonable versions of these goods aren’t really laws, or so I contend. No doubt some of
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you will see this instrumentalist attitude toward law as a formula for chaos, and I confess
it may well be. Better, you might say, some authority, however flawed, than none at all. I
respect the point. So let me try a different tack. I may not succeed, but I’d like to try. Let
me try to defend commemorating constitution makers and their virtues by appealing not
to higher values but to the law itself, to the Constitution itself.
Assume we all take an oath to preserve and defend the Constitution. I’ve taken the
oath in good faith, as have many of you. Walter Murphy’s Purple Heart and
Distinguished Service Cross attest his good faith. Our question now is whether the oath
favors the Constitution and its founding more than the virtues that the American founding
sought to represent. Once again, we can’t commemorate both at the same time, for a
constitution that worked well would eliminate the need for further acts of constitution
making and reform, and celebrating the virtues of reformers as such would be both
pointless and subversive of a good government. Why remind people of virtues that aren’t
needed anymore and whose revival might be harmful? So, again, our question: Does the
oath to preserve and defend the Constitution elevate this constitution and its founding
over mankind’s capacity to establish good government from reflection and choice? I
don’t think it does. Let me briefly indicate why.
Swearing to preserve and defend the Constitution is not promising to leave it as is,
for the Constitution itself provides for change in Article V. By providing for
amendments, Article V implies that the Constitution may need amending. Article V thus
bestows on the Constitution a specific property, the property of amendability. The
amendability of this constitution and therewith the opportunity and the right to redo the
framers’ work is thus made part of what we take an oath to preserve and defend. As an
old teacher of mine once put it, our constitution is officially “open to thought” – that is,
opened to reasoned change. Let’s think about this a bit further. In view of Article V,
we’re under an obligation to preserve and defend almost no part of our existing
constitution because almost every part is amendable. We can’t amend Article VII, the
ratification article, because ratification occurred in historical time that we can’t revisit (as
far as I know). But Article V is different. We can reconsider Article V, and we may have
to, for Article V has problems. Article V puts equal suffrage of the states in the Senate
virtually beyond amendment by permitting change only on the consent of each affected
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state. In addition, three-quarters of the states are most unlikely ever to make the
constitution easier to amend than it presently is. These virtually unamendable provisions
of Article V are virtually closed to thought, closed to reasoned reconsideration. And
because they are closed to rethinking, they offend the very principle of amendability that
Article V would represent. Article V is thus at war with itself; it represents a principle
that it violates. This isn’t a problem unique to Article V, it holds for any attempt to
institutionalize thought – any attempt to bring thought down to earth, so-to-speak, by
operationalizing it, by manifesting it in a rule that governs our actual conduct. Under the
right circumstances any rule can defeat the purposes it was designed to serve. Under the
right circumstances (or the wrong ones) a rule can be at war with the principle that
justifies it. To the extent that a constitution’s amending rule becomes unworkable or
unworkable in a timely way, the rule ceases to be what the Constitution says it is: part of
larger scheme for pursuing real goods. It ceases to be the amending rule because it fails to
do the work of an amending rule.
The framers of our present Constitution encountered such a situation in Article
XIII of the Articles of Confederation. Here was a rule that gave a bare majority of the
smallest state (1/60th of the nation’s total population) a veto over everyone else, and past
experience had proved Article XIII unworkable. Madison was clear in Federalist 45 about
the only rational course in this circumstance: ignore the old rule, submit a new rule to the
people, and let them accept or reject the new rule as they choose to act on it or not.
(45:263) Quoting from the Declaration of Independence and citing the nation’s
revolutionary experience with unauthorized committees, congresses, and constitutional
conventions, Madison said that “in all great changes of established governments, forms
ought to give way to substance” lest the “transcendent and precious right of the people to
‘abolish or alter their governments” be rendered “nominal and nugatory.” (40:265) Since
the people can’t “move in concert towards their object” in a spontaneous fashion,
Madison added, “it is . . . essential that such changes be instituted by some informal and
unauthorized propositions, made by some patriotic and respectable citizen or number of
citizens.” (40:265). So, the founding generation simply acted through Article VII and
installed a new constitution. And it did this in the only way it could have peacefully done
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so: by following the lead of “some patriotic and respectable . . . number of citizens” and
approving propositions that were “informal and unauthorized.”
My defense against the charge of lawlessness, therefore, is the constitutional text
that embodies the principle of amendability and the historic words and actions that
honored that principle. Commemorating the founding over both the Constitution would
be no lawless act; nor would it violate the constitutional oath. The constitution itself, as
written, together with the actions that produced it and the tradition that justifies it -- all
these things display a principle of amendability. This principle of amendability points
ultimately not to a set of rules but, as Madison indicated, to a competent and patriotic
leadership community that both trusts the public and enjoys the public’s trust. Our
openness to thought – the possibility of government by reflection and choice -- depends
on this ensemble of virtues and actors. So, I think, does the Constitution’s survival.
5.
In conclusion let me say that the nation today seems very far from the virtues and
attitudes on display at the founding. Why this is so is beyond my pretensions, but I will
mention possibilities that seem worth discussing. I personally would start with the rise of
the religious right, the political power of the business community, and the grip of
positivism on the social sciences, for each of these forces in its own way elevates man
over nature and sees moral truth as an artifact of will flowing from arbitrary preference.
Some of my friends will blame secular public reasonableness of the very kind I hold to be
the Constitution’s central aspiration. And they may be right, for reason can turn on itself,
collapse into nihilism, and free people from the civilizing attractions and restraints of
religion. All sides should revisit the framer’s decision to rely less on public spiritedness
in both the electorate and the government than on private incentives checking and
balancing each other. Yet all can doubt whether anyone could have done better than the
framers, for human nature may preclude a lasting relationship of trust between ordinary
people and a competent and genuinely public-spirited elite, not to mention the problems
of creating and maintaining the latter.
This afternoon is the wrong time to explore these questions. But this is the right
place. Thanks to the Madison Program, the Center for Human Values, the Law and
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Public Policy Program, and the University’s central administration, Princeton is on track
to remain the leading place for an honest debate on constitutional fundamentals.
Continuing this debate is the best way to commemorate the American founding.
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