American progressives, who later evolved into the New Dealers and “modern liberals,” have had a tumultuous relationship with the Constitution. The original progressives—Woodrow Wilson, Frank Goodnow, Herbert Croly—frankly rejected the Constitution. The Founders’ document may have been fine for a time when two million farmers huddled along the Atlantic coastline, but it could not deal with the problems of an urban, industrial, polyglot society. After the national progressive hangover of the 1920s, Roosevelt and the New Dealers recognized the depth of American “Constitution worship” and instead asserted that they stood for the original Constitution, which had been hijacked by a new robber-baron oligarchy. Thus, FDR used the Founders’ vocabulary (“self-evident truths” and an “economic bill of rights”) even as he transformed their principles.
FDR’s New Deal seized up in 1937, after his attack on the Supreme Court, his own recession, and his attempt to “purge” his own party. But for a while—from the 1940s through the 1960s—liberals espied a solution: get control of the Supreme Court, which had become a “continual constitutional convention.” But the route of judicial advancement of liberal goals stalled and even reversed sometimes (though it occasionally advanced) after 1969, and the Trump-packing of the Court has caused them to add “judicial supremacy” to their litany of complaints about the dysfunction of the Constitution.
Jill Lepore’s stout volume places her in among the ranks of progressives who now again repudiate the Constitution tout court. Former President Obama pointed in this direction when he talked about the “fundamental transformation” of the country and lamented the Founders’ constitutional concern for “negative liberties.” Georgetown Law Professor Michael Seidman said, “Let’s Give Up on the Constitution,” and Boston College Law Professor Aziz Rama wrote of The Constitutional Bind: How Americans Came to Idolize a Document that Fails Them. Lepore, Professor of History at Harvard, best-selling author, and New Yorker contributing editor, is what passes today for a “public intellectual.” Her influence means that “attention must be paid.”
We the People is subtitled A History of the US Constitution, but this is rather deceptive. It is really a history of attempts to amend the Constitution, and an attack on the difficulty of formal amendment. It tells the story of all the people who have been excluded from the original Constitution’s first words—primarily blacks, women, and Guardians (formerly known as Indians)—and the various ways by which they have tried to influence constitutional development to redress their exclusion by the means available to them (informal conventions, petitioning, general agitation). These groups were ignored not just by the Founders but by the progressives of a century ago. Thus, Lepore proffers an updated, intersectional, or woke version of progressive history. But the bottom line is the same: an eighteenth-century Constitution makes it all but impossible for us to deal with the problems that we face today.
Lepore sternly warns us that these problems are not trivial. Constitutional limits (particularly recent Court restrictions on the discretionary power of the “administrative state”) pose an “existential threat” to the planet and its human population. Her last pages present a pending environmental apocalypse; America’s peculiar Constitution threatens everyone in the world. Needless to say, climate change will have a disparate impact on the global South before it does us all in. Within the US, recent advances in racial equity, reproductive rights, and marriage equality are no longer secure. The Constitution’s amendment process was supposed to be the substitute for revolution. But the Founders made amendments so difficult that revolution is now a real threat.
Like the early progressives, Lepore seems to trace the Constitution’s principal defect to its erroneous political theory. She starts her first substantive chapter with the story of the 1787 rescue of Joseph Pope’s orrery (a mechanical model of the operation of the solar system—turn the crank and watch the planets and satellites revolve and rotate), providing a photo of an orrery, a description of how an orrery works, and an almost obsessive effort to narrate the fate of Pope’s contraption. This painstaking account is meant as an analogy to the mechanical nature of the Founders’ constitution-making and orrery-making. The Constitution was “an artifact of the age of Isaac Newton,” Lepore notes. Woodrow Wilson made this conceit famous in his 1908 book, Constitutional Government, but Lepore doesn’t mention Wilson for another two hundred pages, nor does she follow up on this fundamental progressive criticism of the Founders’ constitutional design. (She also describes them as “Machiavellian,” but this seems like a mere throw-away line.) Lepore does return to the theme that we need a more easily amendable, “living Constitution” later on, particularly when praising Justice Thurgood Marshall’s bicentennial denigration of the 1787 Constitution. He did not find “the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound.”
Marshall was a product of the mid-twentieth-century liberal attempt to amend the Constitution via a “litigation strategy.” His teacher was Charles Hamilton Houston, the dean of the Howard University Law School, whose goal was to train a corps of black litigators to win legal equality for blacks. Houston was a Legal Realist—law was simply an instrument of power, wielded by the dominant class (or race, sex, or whatever) to maintain its hegemony. As his biographer put it, Dean Houston believed that “given an immoral America, the NAACP campaign required that lawyer-social engineers use the Constitution, statutes, and ‘whatever science demonstrates or imagination invents,’” to bring about social reform. Blacks needed to organize and use whatever weapons were at their disposal to achieve their ends. With the courts securely in New Deal hands after 1937, they seemed to provide the most promising avenue.
The Constitution certainly is not perfect, but we should never make the perfect the enemy of the good.
Certainly there is a place to draw the line on Constitution-veneration. Lepore starts with an almost Burkean change-to-conserve line (as in “tradition is the living faith of the dead,” while “traditionalism is the dead faith of the living.”) Antiquity is never per se a reason to defer to tradition. But what if our eighteenth-century ancestors really were superior to ourselves in wisdom, foresight, and sense of justice? I would strongly defend the proposition that the Founders were superior to American political leaders of the 1960s. Marshall thought the Reconstruction Constitution-amenders of 1868 were the ones we should venerate. But does anyone really believe that John Bingham can compare with James Madison? If the besetting sin of conservatism is that older is better (or “There’s always been a lottery”), the progressive one is the obverse—later is better.
Lepore keeps coming back to “originalism,” her bugbear. She appeals to what might be called the “cognitive problem” with originalism: We cannot know from the historical record what the Founders’ intent was. But she asserts that we can be sure that it was not originalism. In a version of the “paradox of relativism,” she claims that we should be bound by the Founders’ intent that we not be bound by their intent. She brings in Mary Bilder’s account of Madison’s deceptive alterations to his Convention notes to show Madison trying to manufacture material for an originalist argument, though Madison explicitly repudiated an appeal to anything beyond the text of the Constitution or anything but the understanding of the text by those who ratified the Constitution.
But her chief indictment of originalism is that it has been used by disreputable conservatives to thwart constitutional change. Roger Taney seems to cook up originalism in Dred Scott. (This reductio ad Dred Scott attempt to discredit the Constitution is the basis of Mark Graber’s book, Dred Scott and the Problem of Constitutional Evil, which contends that Taney’s pro-slavery interpretation of the Constitution was correct.) Lepore does not mention that Benjamin Curtis’ dissent in Dred Scott was also originalist, or that both Lincoln and Douglas made originalist arguments in their debates over Dred Scott. She ridicules James M. Beck and the National Association for Constitutional Government for ginning up an originalist cult of Constitution-worship in the 1920s. (The conservative Chief Justice of that era, William Howard Taft, Lepore notes, “was born in Ohio in 1857, the year the Supreme Court decided Dred Scott” (346). Nuff said.) Then, it is white supremacists opposing Brown that gave us originalism. Later, the Straussians are “the original originalists.” Finally, Robert Bork’s 1971 Indiana Law Review article launches originalism. Originalism just keeps originating.
What to do with a practically unamendable Constitution made even more difficult to change by originalism? Lepore seems to land somewhere between “popular constitutionalism” and outright revolution. Her model (not in the fashion-industry sense) is Victoria Woodhull, the radical feminist who adopted a “litigation strategy” to amend the Constitution according to “your own interpretation of the Constitution, original intent be damned. The original intent of the framers, after all, had been to deem women to be something other than persons.” To indulge a “gendered” term, that statement is hysterical in both senses of the word, as if the Founders’ regime were a particularly misogynistic one, rather than one with great potential for progress for female equality—as Alexis de Tocqueville noted as early as the 1830s. Woodhull’s approach sounds like that of Frederick Douglass (who came to embrace an originalist argument that the Constitution was antislavery, repudiating the Garrisonian abolitionists who saw it as proslavery), who said in his famous “What to the Slave is the Fourth of July?” speech: “I scout the idea that the questions of the constitutionality, or unconstitutionality, of slavery, is not a question for the people. I hold that every American citizen has a right to form an opinion of the Constitution, and to propagate that opinion, and to use all honorable means to make his opinion the prevailing one.” This statement could be interpreted as a radically positivistic one, that the Constitution has no meaning other than what a majority at any given time gives it. But it seems rather to have been a rhetorical stroke from Douglass, who by 1852 was defending an antislavery Constitution on originalist grounds.
That view of “popular constitutionalism,” associated with Larry Kramer, Mark Tushnet, and others, arose as a response to the failure of liberals to maintain their power to reshape the Constitution through the courts. It is a notable defect of Lepore’s book that she attributes far too much power to the Court in US constitutional history; there is the feeling of a jilted lover here. She blames the Court for the failure of Reconstruction, whereas historians like Michelle Brandwein have restored the view that the political branches were more to blame. (As Lucas A. Powe has pointed out, it is rather counterintuitive as well as historically myopic to think that minorities would gain from raw majoritarian constitutional control.) Lepore claims that the Thirteenth and Fourteenth Amendments were needed to overturn Dred Scott. They were not. Dred Scott did not establish slavery, and Congress and the Lincoln administration ignored the decision when they abolished slavery in the territories and recognized the citizenship of free blacks. It is a gross exaggeration to say that in the nineteenth century the “Supreme Court asserted and exercised an exclusive authority to interpret” the Constitution.
If not “popular constitutionalism,” what then? It is surprising that Lepore does not bring up theories of how to amend the Constitution outside of the Article V process, such as those of Akhil Reed Amar of Yale Law. One suspects that such schemes are like nullification and secession—revolutionary gambits donning a legal-constitutional facade. But the Constitutional Convention itself is open to this charge, and Publius himself in Federalist #40 at least “scouts” it.
Last of all, there is good, old-fashioned revolution. The Founders all agreed that, if government became destructive of the ends for which governments are created (albeit those are the protection of our natural rights, not the provision of entitlements and “equity”), the people had a right—a duty—to rebel. Lepore suggests that we (or some of us, anyway) will be driven by the impossibility of amendment to revolution and anarchy. Victoria Woodhull is again her exemplar: She made the claim that the Fourteenth and Fifteenth Amendments already gave women the right to vote; no women’s suffrage amendment was necessary. If Congress did not enact legislation to enforce this constitutional right, she threatened to lead a revolution. One strains to avoid calling this, again, hysterical. (Victoria Woodhull would have raised about a dozen adherents for her revolutionary army.) Lepore never says, in so many words, that we face a situation where revolution is justified. Others on the Left are ready—look at Jacobin magazine, the “leading voice of the American Left.” It seems to have dropped its guillotine-blade logo, but its website is still dripping red. Harvard Law Professor Mark Tushnet threw in the towel long ago, saying that constitutional limits on political power are “impossible,” and that if he were on the Court, he would simply do whatever it required to advance socialism.
Conservatives should feel Lepore’s pain. They certainly know that maintaining a Constitution as a “higher law” is difficult, and they know what constitutional despair feels like. In 1996, the journal First Things published a symposium on “The End of Democracy,” focused on the Court’s usurpation of constitutional power, especially on issues like abortion and homosexual rights. Libertarian conservatives are always flirting with anarchy. My mentor, Herman Belz, wrote in the standard textbook on American constitutional history that “there were philosophical difficulties in this attempt to combine positive law and natural law.” Positivism separates law from morality; natural law tends to conflate them. But if constitutional conservatives have an obligation to abjure the sin of despair, they might benefit from an understanding of the sources of constitutional liberals’ despair.
The Constitution certainly is not perfect, but we should never make the perfect the enemy of the good. Originalism may be difficult and untidy, but it is, as Antonin Scalia put it, “the lesser evil.” The Founders’ Constitution is a heritage worth the effort of preserving.