By Dan McLaughlin
Monday, September 02, 2024
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.’”
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