A Machine That Would Go of Itself

The Constitution in American Culture

Russell Fraser, Michael Kammen

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351534932
• Edition: 1
• Topic: Storia
• Subtopic: Storia mondiale

In this volume, Pulitzer Prize-winning historian Michael Kammen explores the U.S. Constitution's place in the public consciousness and its role as a symbol in American life, from ratification in 1788 to our own time. As he examines what the Constitution has meant to the American people (perceptions and misperceptions, uses and abuses, knowledge and ignorance), Kammen shows that although there are recurrent declarations of reverence most of us neither know nor fully understand our Constitution. How did this gap between ideal and reality come about? To explain it, Kammen examines the complex and contradictory feelings about the Constitution that emerged during its preparation and that have been with us ever since. He begins with our confusion as to the kind of Union we created, especially with regard to how much sovereignty the states actually surrendered to the central government. This confusion is the source of the constitutional crisis that led to the Civil War and its aftermath. Kammen also describes and analyzes changing perceptions of the differences and similarities between the British and American constitutions; turn-of-the-century debates about states' rights versus national authority; and disagreements about how easy or difficult it ought to be to amend the Constitution. Moving into the twentieth century, he notes the development of a "cult of the Constitution" following World War I, and the conflict over policy issues that persisted despite a shared commitment to the Constitution.

CHAPTER 1

The Problem of Constitutionalism in American Culture

ALTHOUGH THE FOUNDERS DIFFERED OVER MANY important matters, they shared a belief that the constitutional system created between 1787 and 1791 (when the Bill of Rights received approval) should be fully comprehensible to the American people. At the close of his first inaugural address Thomas Jefferson called the Constitution “the text of civil instruction—the touchstone by which to try the services of those we trust.” That is, those entrusted with responsibility for public affairs. More recently Associate Justice Owen J. Roberts, writing in 1930, observed that “the Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from [their] technical meaning. . . .”¹

The recurrence of such assertions obliges us to raise this candid question: To what extent has our constitutional system, in reality, served as a text of civil instruction? I contend that the Constitution occupies an anomalous role in American cultural history. For almost two centuries it has been swathed in pride yet obscured by indifference: a fulsome rhetoric of reverence more than offset by the reality of ignorance. One American woman, while travelling abroad in 1840, heaped lavish praise upon “our own glorious Constitution (whose every article should be held as sacred and unchangeable as were the laws of the Persian and the Mede).” Schoolbooks of that era often stated that the Constitution had been divinely inspired. Their authors could not refer to the Constitution without a choral vocabulary of “revered,” “glorious,” and “sacred.”²

Those very same schoolbooks, however, also contained all sorts of inaccuracies about the Constitution. Nevertheless, sheer neglect may have been even more problematic than misinformation. In 1852 Edward Everett, recently the president of Harvard and soon to become Secretary of State, spoke at an exhibition in Cambridge. Referring to exercises held during the morning, he expressed regret “that want of time obliged you to omit the recitation on the Constitution of the United States. That, too, is a very important subject, and one on which none too much knowledge prevails, even in our own country.” Such chidings occurred often during Everett’s era, and have been echoed frequently ever since. In 1924, for example, a little primer aimed at the masses opened with this lament: “The average citizen has rather hazy ideas about the Constitution.”³

Simultaneously, Solicitor General James M. Beck brought out a much larger book, with a foreword written by President Coolidge, directed to a more educated yet general audience. “The average American,” Beck declared, takes “scant interest in the nature of the Constitution.” He then specified that his accusation applied equally to all levels of society, and complained that “the Constitution is in graver danger than at any other time in the history of America. This is due, not to any conscious hostility to the spirit or letter, but to the indifference and apathy with which the masses regard the increasing assaults upon its basic principles.” He went on to ask: “even among the educated classes, can one man in ten pass an intelligent examination as to its contents?” Beck’s book reached a broad readership; and he received many favorable letters about it, including one from H. L. Mencken. In reply, Beck elaborated upon his intent: “I tried, from the beginning, to stress the fact that, after all, the success of the Constitution depended upon a people who would be politically receptive. ... I wanted to raise the serious question whether, as a people, we still have that political receptivity.”⁴

Forty-four years later, in an unusual television interview, Martin Agronsky asked Associate Justice Hugo Black whether he thought “that most Americans understand the Constitution?” Black responded without hesitation: “No, I think most of them do not.”⁵ If Black, Beck, Everett, and many others have been correct, then we need to explain the phenomenon and inquire about its implications. I will attempt to do so in five phases. First, why should the subject of constitutionalism in America be perplexing or confusing? Second, in the realm of attitudes, how have Americans felt about their Constitution? Third, in the realm of understanding, what have Americans known and not known? Fourth, in the realm of impact, what have been the consequences of our curious blend of reverence and ignorance? And finally, is cultural constitutionalism in the United States distinctive, or does it have parallels elsewhere?

This agenda of historical questions seems intrinsically significant and interesting. By pursuing them we also respond to a recent challenge of a more general nature, namely, that human ignorance ought to be studied as well as human knowledge.⁶

I

What have been the basic causes of misunderstanding? We must begin with the fact—occasionally recognized by politicians and diplomats during the Jeffersonian generation, by abolitionists and political theorists during the Civil War era, and by some twentieth-century jurists and scholars— that the Constitution itself contains a number of ambiguities. The most troublesome of all, perhaps, pertains to the very nature of the Union created in 1787. How much sovereignty did the states actually surrender to the central government? Did the Union in some sense originate with the Continental Congresses of 1774 and 1775 (thereby antedating the existence of states), as so many arch-nationalists have claimed from Daniel Webster’s day to our own?⁷ One’s understanding (or misunderstanding) of federalism and the enduring issue of states’ rights hangs in the balance.

James Madison, Alexander Hamilton, and others among the founders were unclear about the meaning of direct versus indirect taxation, and acknowledged that they had been. As Hamilton conceded: “What is the distinction between direct and indirect taxes? It is a matter of regret that terms so uncertain and vague in so important a point are to be found in the Constitution.”⁸ In 1807 (when the trial of Aaron Burr took place), and again during the years 1861-68, Americans learned that the treason clause of the Constitution could be construed in various ways. In 1868, and once again in 1974, Americans found that the proper constitutional grounds for impeaching a President are exceedingly murky. During the middle third of the nineteenth century fierce disputes occurred between northerners and southerners, as well as among abolitionist splinter groups, over the founders’ intentions regarding several aspects of slavery. After examining the Constitution “with greater care and deeper interest than ever before,” one abolitionist observed in 1869 “that every article of the Constitution usually quoted as intended to favor the assumptions of slaveholders admitted of an opposite interpretation.” Ultimately he concluded that the Constitution “might be whichever the people pleased to make it.”⁹

If that judgment is correct, it may help to explain yet another cause of our confusion: that so many prominent figures who have made major statements about the Constitution changed (or appeared to have changed) their positions during the course of their careers. James Madison, for instance, sounded like a nationalist in 1787-88, like an advocate of states’ rights in 1798-99, and like a divided soul during the last dozen years of his life, 1825-36. Herbert Hoover spoke enthusiastically about states’ rights; but as a nationalist and a Progressive devoted to efficiency, his actions moved the country toward increased centralization. Throughout the 1930s and ’40s Charles Beard wrote much more positively about the Constitution and its authors than he had during the teens and twenties.

A related phenomenon has sometimes been a cause but at other times a consequence of the one just described: namely, that a number of leading “custodians” of constitutionalism in the United States have been men with mixed ideological convictions. I would describe most of them as conservative liberals; and their dualistic vision has additional importance if one tries to look at constitutional values in biographical terms, which has been a standard approach. Consider, for example, Thomas M. Cooley, the nineteenth-century author of influential constitutional treatises, whose impulses were simultaneously conservative and reformist, and whose reactions to the growing tensions between capital and labor during the 1870s and 1880s were highly ambivalent. I also have in mind Professor Zechariah Chafee, Jr. (1885-1957), Professor of Law at Harvard and perhaps the leading twentieth-century authority on civil liberties, whose career has been described as “a modern demonstration of how in America libertarian sympathies can often be yoked to strongly conservative convictions.” Chafee’s difficulty in accepting the dynamics of American society, according to a sympathetic analyst,

appears less as an expression of ignorance or naivete than as a function of dilemmas which have frequently emerged to trouble proponents of conservative liberalism in this country. He was committed to the notion that there were no really fundamental contradictions in American society, but at the same time forced to admit that Americans frequently turned upon themselves with a ferocity indicative of just such contradictions. He believed that the ultimate authority should be vested in the people, but could not help observing how the exercise of the popular will often destroyed freedom.¹⁰

Among Supreme Court justices one thinks of Louis D. Brandeis, a Progressive humanitarian who never shed his Wilsonian commitment to traditional federalism and therefore had grave doubts about many features of Franklin D. Roosevelt’s nationalizing New Deal. Or Charles Evans Hughes, liberal on most matters involving civil liberties but more conservative on issues concerning political economy. Or Robert H. Jackson, whose constitutional position on the relative priority of property rights and human rights vacillated between 1941 when he joined the Court and his death in 1954.

Yet another cause of public misunderstanding has resulted from the Court’s mystique, its reluctance to explain its procedures, and the press’s related failure to cover the Court adequately during most of its history. For at least two generations following 1787 the Court did not encourage public attendance when cases were being heard. The Dred Scott case, one of the most notorious in American history, started in a Missouri court in 1846 and reached the Supreme Court on December 30, 1854, which finally rendered its decision on March 6, 1857. The American public knew nothing of the case throughout 1855, and had little sense of its explosive implications until the very end of 1856. The fact that such a case—so critical to the most tumultuous issue of the preceding twenty years—could remain hidden from view for so long was not at all unusual.¹¹

Some of the most important transformations in our constitutional system occur so gradually that the general public only becomes aware of them, if at all, after they have occurred. One major example involves the alteration of the “due process of law” clause in the Fourteenth Amendment from a guarantee to accused persons of a certain mode of judicial procedure into a “bulwark of the laissez-faire conception of governmental function.” Another involves the still more gradual process by which the Bill of Rights became applicable to the states as well as to the federal government—a process that began slowly in the mid-1920s, remained highly controversial among jurists and constitutional scholars during the 1940s, and was not completed until the later 1960s.¹²

How many Americans appreciate the extent to which the conservative Court of the period 1890-1937 was nonetheless the most activist (that is, interventionist) in our history? How many persons among the so-called educated public understand that the Court has reversed itself within a year (the Legal Tender cases of 1870-71), within a century (whether the federal judiciary can control common law at the state level: opinions in 1842 and 1938), but more commonly at intervals ranging between twenty and sixty years? As Robert G. McCloskey remarked of the Court:

One moment’s resolution yields to another’s self-doubt. A compulsory school flag salute is upheld against religious scruples in the name of democratic self-education and national unity; three years later the decision is overruled. An eight justice majority concurs in an opinion which apparently endows labor picketing with the status of a “preferred freedom”; subsequent qualifying holdings whittle that freedom down to a near-nullity. The right to counsel is required in state courts for some indigent defendants but not for others; a state may not affirmatively authorize arbitrary search and seizure, but it need not exclude evidence thus obtained from its courts. . . . Doctrinal indecisiveness appears at every hand. ... Is federalism still a reigning value, or merely a practical inconvenience? Are there preferred freedoms or are there not? The Court can be found at one time or another on both sides of all these questions, and the incertitude seems to exist not only as between different wings of the Court but within the hearts of individual justices.¹³

If the Court and some of its members have been ambivalent about key constitutional issues, that tendency compounds yet another major source of misunderstanding. Felix Frankfurter declared in 1930, when he was still a professor of law, that “in good truth, the Supreme Court is the Constitution.” The authors of a widely used textbook, The Supreme Court in a Free Society (1959), seem to have been so persuaded that they took Frankfurter’s assertion as the title of their first chapter.¹⁴ Some prominent politicians, such as John F. Kennedy, as well as many Americans at the grass roots level have clearly shared Frankfurter’s view as Gospel truth. The mail that congressmen received from their constituents in 1937, when Franklin D. Roosevelt proposed his “Court-packing” plan, amply illustrates this.

• “We are depending on you to uphold the Constitution and to vote against any tampering with the Supreme Court.”

• [Referring to the nine Supreme Court justices]: “Just as thay are thay have stood the test & give very good Satisfaction, so we the people should leave well enough alone [.] do all you can to keep our Constitution safe.”

• [Congratulations on your stand] “in opposing proposed drastic changes in the Supreme Court and incidentally the constitution. This must remain a free people.”

• “I pray that you will do all you can to defeat any legislation relative to changing the Constitution or its personnel.”¹⁵

This propensity to conflate the Court and the Constitution is hardly limited to grass roots America. It seems to have been shared by a great many scholars because the constitutional history of the United States has primarily been written as the history of Supreme Court decisions, doctrines, procedures, and personalities. As Robert McCloskey put it on more than one occasion: “American constitutional history has been in large part a spasmodic running debate over the behavior of the Supreme Court.”¹⁶ I find that perspective needlessly narrow.

I have also found, however, a countervailing inclination among informed Americans, regardless of their ideological persuasion, to differentiate between the Constitution and the Court. Sometimes this inclination has been propelled by political expediency: that was true of Andrew Jackson’s veto in 1832, when Congress and the Court upheld the constitutionality of the Bank of the United States; or of Lincoln in 1861, explaining his prospective policies; or of FDR in 1937, during the “Court-packing” controversy, when he declared in a fireside chat that we had “reached the point as a Nation where we must take action to save the Con...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Introduction to the Transaction Edition
• List of Illustrations
• Forethoughts
• Acknowledgments
• 1 The Problem of Constitutionalism in American Culture
• PART ONE The Most Wonderful Instrument Ever Drawn by the Hand of Man
• PART TWO A Machine That Would Go of Itself
• PART THREE America Is Always Talking About Its Constitution
• PART FOUR The Pendulum of Public Opinion
• Appendix A A Note on the Sources
• Appendix B A Supplementary Note on Iconography
• Appendix C “A Constitution for the New Deal,” by H. L. Mencken
• Abbreviations
• Notes
• Index