A Constitution for the Living
Imagining How Five Generations of Americans Would Rewrite the Nation's Fundamental Law
Beau Breslin

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Preface

There comes a point in the self-guided tour of the National Constitution Center, America’s first (and only) museum devoted entirely to the U.S. Constitution, where the hairs of every American citizen ought to stand up. This point, which arrives at the end of an outing to the Philadelphia museum, should stir the emotions. To put it mildly, there is real wonder in the moment. It marks a potentially transcendent experience, one that in the most literal sense does not come along every day. It taps into the intellectual in all of us, and it forces us to contemplate one of the most critical challenges we face as citizens of this nation. Yet most Americans have absolutely no idea what they are experiencing.

The moment occurs when one enters Signers’ Hall, the room at the end of the tour, which is filled with life-sized bronze statues of all the delegates to the federal Constitutional Convention. One enters the room and is literally confronted by the “Founding Fathers.” Benjamin Franklin is there, sitting at a table, cane in hand. So is James Madison, who stands behind a second table, seemingly watching over all the proceedings. George Washington, at six foot three, towers over the other constitutional signers and, indeed, most of the museum’s visitors as well. Alexander Hamilton (whose radical ideas were about as popular as he was) stands, fittingly, alone in the center of the room. Gouverneur Morris, James Wilson, John Dickinson, and all the rest of those who framed America’s fundamental law are positioned throughout the space. Even the three delegates who refused to sign the constitutional text—George Mason and Edmund Randolph of Virginia and Elbridge Gerry of Massachusetts—are present in the room, though they are decidedly on the periphery. The room itself is also a fitting shrine to America’s most important constitution-makers. Its dimensions are identical to the original space used for the drafting and signing of the Constitution—the Assembly Room in Independence Hall that stands just two blocks down the road. The ceiling is high in Signers’ Hall; the walls are adorned with stately bookshelves, and the lighting is such that the atmosphere is both somber and celebratory.

Yet it isn’t the objects in the room or the room itself that should stir the soul. The private emotion one feels in Signers’ Hall is not necessarily about reverence for the Constitution and what it has come to represent or for the individuals who drafted the text over 230 years ago. Rather, the sensation citizens experience in that room should come from the active role they are asked to play in that moment. Each visitor to that room is invited to either endorse or renounce the Constitution—to either ratify or reject the country’s most important public document. Think about that. Visitors to the museum are being asked to consider whether they, like the figures in the room, would sign the Constitution. We are constitutional Founders at that particular moment.1

Although some would argue that the stakes for us as visitors in Signers’ Hall are much lower than the ones confronting the founding generation, I disagree. We are in essence replicating the actions of the first Federalists and the anti-Federalists through the self-conscious act of placing our names on “paper.” We are figurative members of the 1787 Constitutional Convention, or at least of the state Ratifying Conventions, when we decide whether we still believe in the promises and the power of our governing constitutional charter. In that instant, we can pretend to be the eighteenth-century merchant who endorsed the Constitution because he believed increased economic stability would come from a greater concentration of power in the federal government, or instead, we can imagine ourselves as the early American farmer who rejected the Constitution because he believed in the small-scale republicanism that characterized political society under the Articles of Confederation. We can pretend to be those early American citizens at the same time that we remain twenty-first-century citizens wrestling with our own perspectives on the continued worth of the constitutional document. While thinking about the narrative of America’s constitutional experience through the ebbs and flows of history, we can simultaneously be the contemporary craftsperson, or nurse, or mechanic, or lawyer who is convinced that the Constitution no longer reflects the true complexities of a modern American state and the current teacher who does. We can be the supporter who insists the Constitution is the greatest political invention in history and the member of a minority or marginalized group whose experience of living under the Constitution has not been so positive. The point is, our active involvement in the ratification or rejection of the Constitution demands our focused attention and our most contemplative skills. It asks us to decide what we truly think of the Constitution—whether we are prepared to ratify the text or not—and then to seal that decision with our signature. The moment is pregnant with imagination and significance.

Today, the process is entirely electronic. One signs (or refuses to sign) a computer tablet, and the signature temporarily appears in the on-screen replica of the Constitution, alongside the original Framers’ signatures. It’s a neat and technologically sophisticated process. More importantly, one is making a political commitment, much like taking an oath in that it requires an assertive act: “(re)affirming one’s fidelity to the original constitutional instrument by [in effect] placing pen to paper (parchment?), and publicly acknowledging acceptance.”2 Sanford Levinson probably says it best: “Presumably, adding one’s signature would serve to transform the experience from a mere remembrance of times past to a renewed dedication to—a continuing ordination of, as it were—the Constitution as an ever-living presence encouraging the establishment of a more perfect Union committed above all to the realization of justice and the blessings of liberty.”3 Of course, visitors are not without a choice at this moment. Though the museum’s preference is clearly that visitors will endorse the Constitution—in fact, the statue of Abraham Baldwin of Georgia, complete with quill pen in hand, has been cast in such a way that he is pointing directly to the place to sign the Constitution—guests can walk away from ratification.

For a citizenry wrestling with weighty principles such as patriotism, liberty, equality, sovereignty—a citizenry that absorbs hysteria and hyperbole from both sides of the political aisle—Signers’ Hall presents a significant opportunity. If taken seriously, there is perhaps no greater symbolic moment for an American. Indeed, it is a powerful act of patriotism to contemplate the authority of the Constitution and then to decide whether or not to lend one’s signature to the document. Unfortunately, the magnitude of the experience at Signers’ Hall is often lost on the museum’s many visitors. According to officials at the National Constitution Center, Signers’ Hall has not yet lived up to the lofty expectations of the museum’s architects, who deliberately designed the space to compel individuals to confront the choices inherent in the act of ratification. They wanted the public to ponder the seriousness of a commitment to democratic self-rule, to take part in a personal referendum on the continuing importance of America’s Constitution, and to deliberately choose whether to ratify. In one sense, the museum designers are almost certainly being too hard on themselves. It is probably fair to assume that most citizens who self-consciously decide to reject the Constitution are doing so for some specific reason and are not acting casually. Sadly, we can’t always say the same for the majority of those who approve the Constitution. Blind faith probably rears its unthinking head for many Americans, those who instinctually gravitate toward endorsement because they think they should. Many Americans, I suspect, don’t give the opportunity more than a moment’s thought. They sign the tablet in favor of ratification and proceed directly to the gift shop.

It’s a missed opportunity. Each of us should make time to reflect on the practice of contemporary ratification; in fact, we have a profound responsibility to consider what exactly we are doing when we stand in Signers’ Hall with pen in hand. As American citizens, we should continually engage in that personal referendum that asks us to determine the Constitution’s enduring value. In short, we should contemplate the authority of the Constitution on our lives, and we should do it regularly. Signers’ Hall gives us a concrete assignment to get us thinking about the worth of the Constitution, but the exercise it represents—reflecting on America’s experiment in constitutional government—could and should be a more important part of our daily lives.

Don’t get me wrong. I do not mean to suggest that we should ponder the Constitution in a shallow or superficial way. Often politicians and pundits will seize the opportunity to celebrate or condemn the Constitution because doing so will advance their particular partisan objectives. I may appear overly cynical, but I suspect many public officials wave the Constitution in front of our faces in nothing more than a ceremonial attempt to convince us of their commitment to some broad and vague notion of patriotism, just as the leaders of the 112th Congress (both Republican and Democrat) appeared to do when they read the Constitution out loud on the floor of the House on January 6, 2011, their first full day in power for that session, or as former Speaker of the House John Boehner did by announcing at a rally that he was “going to stand here with the Founding Fathers, who wrote in the Preamble, ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’4 Never mind that it was the Declaration of Independence and not the Constitution he was quoting; the moment struck many as shallow and phony—political theater at its finest.

Such displays are not what I am talking about here. Contemporary ratification of the Constitution requires something deeper, something far more significant than just reading the words of the document on the floor of the House of Representatives or being vaguely familiar with a few of its provisions. The decision to ratify is, simultaneously, infinitely private and immensely public. It represents a personal choice about one’s fidelity to a written Constitution, and it becomes part of a collective dialogue about the extent to which the Constitution still resonates with the public.

Doubtless modern Federalists outnumber contemporary anti-Federalists. That fact says something about America’s fidelity to its Constitution, to be sure. We are at least comfortable with the Constitution, as it exists today. But the sizeable number of constitutional critics also says something. It reminds us of those eighteenth-century opponents of the Constitution—men like Patrick Henry, Richard Henry Lee, George Clinton, and Robert Yates—who contested ratification precisely because they believed the Constitution was flawed. “The Constitution is a racist document because it protected slavery in its original incarnation,” some of today’s critics argue; “it is sexist,” say others, “because it took almost a century and a half to amend it to include suffrage for women”; “it does not speak to the modern American,” remarks a third group, “because it does not adequately account for contemporary problems like the lack of health care, immigration concerns, or the rising budget deficit.”

Make no mistake: there is measurable dissatisfaction with our governmental systems and with the politicians who occupy our local, state, and national political offices. A good portion of the public would likely choose to replace parts or the whole of the Constitution if given the chance. Our veneration for the Constitution protects the document in the abstract, but the individual provisions, clauses, and rules embedded in the Constitution are not immune from serious attack. With the right questions, the results of a nationwide referendum on the enduring relevance of the Constitution would indeed be interesting.5

I suspect any referendum would support my untested hypothesis that Americans often think casually about the broad contours of their Constitution—they sign the text because they think they should—but that they are not similarly relaxed when pressed about the implications of the document’s failures. Yes, we love the Constitution and don’t think a new one is necessary; but we sure are discouraged about how the document has helped foster a hopelessly broken government. We eagerly ratify the text in Signers’ Hall, but then we criticize the political systems and institutions that the Constitution spawns practically as soon as we exit the museum. Members of both major political parties lambast government officials while calling for a restoration of the Constitution’s basic principles, not quite putting together the possibility that the Constitution itself may be partly to blame. Conservatives claim that we need greater fidelity to the text as it was originally written, but they can’t escape the irony that neither the document nor the Framers identify a favored interpretive approach. It seems the Constitution is taking a beating even as we claim to venerate it.

We can’t have it both ways. Or, I should say, having it both ways promotes an uneasy relationship between America’s citizens and their Constitution. All of this begs a simple question: If there is measurable discontent with the Constitution and the political institutions it has created, is it time to return to Philadelphia and convene a new federal constitutional convention? Perhaps the 88 percent of Americans who reported that the Constitution still works today might approach the question differently if there were something more at stake in Signers’ Hall, if that moment captured the gravitas it deserves. Is now the time to try again? Has the Constitution outlived its usefulness? What if we knew that there were millions of visitors to Signers’ Hall who self-consciously rejected the Constitution? Would that trouble us? Would that be enough contemporary anti-Federalist opposition to get our attention? What about tens of millions? Does the number of ratifiers even matter if most Americans can’t even recall much about the specifics of our current constitutional text?6 Are the constitutional naysayers criticizing the text because they don’t support particular items found within its pages (think Electoral College), or are they genuinely focused on a comprehensive constitutional overhaul?

These questions (and so many more) spring from the exercise in Signers’ Hall, and they inform the entirety of this book. The answers to the questions are important, and were I a more capable political scientist I might endeavor to design certain experiments and instruments to uncover them. But I am more interested in the questions themselves, in the idea and consequence of revisiting the constitutional text from time to time and contemplating a complete overhaul. This book is about constitutional renewal, about imagining comprehensive constitutional change. I am not focused on the collective intelligence of the American people—what we might call America’s citizenship quotient—when it comes to issues related to the constitutional text. Certainly, I am made somewhat uneasy by the ignorance of the American public on basic constitutional questions, but others are more capable of evaluating the particulars of that phenomenon than I am. Nor am I focused on the ways in which institutions interpret and misinterpret our constitutional document, leading to understandable frustration among some pockets of the population. Those too are concerns that are better left to a different book. Instead, my central focus is on the process, and possibility, of constitutional renewal.

History is a powerful tool for the student of America’s constitutional experiment, and we will examine it through the lens of one of the founding generation’s most intriguing, and important, disagreements: the debate between Jefferson and Madison on the value and legitimacy of an enduring constitutional document. Jefferson was clearly of the mind that each generation should write its own constitution—that one generation should not control another—whereas Madison argued that a constitution must endure across many generations—across long stretches of time—in order to amass the credibility and legitimacy it needs to successfully order a political regime. They fiercely debated this exact question throughout their long lives. Crucially, this debate is alive and well in the symbolic moment of ratification. The individual choice we make in Signers’ Hall is precisely an exercise in choosing between the Madisonian view of enduring constitutions and the Jeffersonian position favoring generational Constitutions. When we decide to ratify or reject the Constitution, we become participants in this debate.

Ultimately, then, my goal in this volume is twofold: first, to imagine what the U.S. Constitutions would have looked like throughout America’s history if Jefferson had won that debate, and second, to take up the ultimate present-day question: should we return to Philadelphia to draft a new Constitution? That’s the main reason I am especially curious about why visitors to Signers’ Hall choose to ratify or to reject the Constitution. Reflecting on the meaning and importance of the Constitution, and then taking the active step to signal acceptance or rejection of the text, is but one step removed from a broader and more important conversation about whether now is the time to scrap the constitutional experiment and start all over. I hope this book in some way contributes to that conversation.

But let’s not get ahead of ourselves. First, a story. We begin the task of imagining constitutions exactly two years after the American Constitution was proposed to the public: September 17th, 1789. On that date, Thomas Jefferson hosted a secret, and important, dinner gathering. The topic of conversation that night was constitutions.



Notes

1. The signing of the Constitution is captured most famously in Howard Chandler Christy’s celebrated painting, which now hangs in the House of Representatives wing of the U.S. Capitol. Each day, Americans experience their own “Christy” moment as they too line up to sign the constitutional document.

2. Beau Breslin, “Is There a Paradox in Amending a Sacred Text?” Maryland Law Review 69, no. 1: 66.

3. Sanford Levinson, Constitutional Faith (Princeton, NJ: Princeton University Press, 1988), 180.

4. Martin Kady II, “Boehner Mixes Up Constitution and Declaration,” Politico, November 5, 2009, https://www.politico.com/blogs/on-congress/2009/11/ boehner-mixes-up-constitution-and-declaration-022622.

5. A recent survey conducted by the National Constitution Center in Philadelphia concluded that 28% of the respondents believed that the Constitution “has no impact on events today,” while 23% didn’t believe the text “matters much in daily life.” The Center for the Constitution (an independent organization housed at James Madison’s Montpelier and devoted to educating the public about the Constitution) conducted a separate national survey in 2010, and the results are most interesting. Citizens were asked questions about their attitude toward the Constitution, their familiarity with its provisions, their outlook on voting and federalism, and perhaps most importantly, their views on constitutionalism. The juxtaposition of several findings reveals much about America’s political attitude. In one question, respondents were asked if the Constitution still works today or whether it is time for a new one. A whopping 88% said that it still works, while only 12% said we need a new one. And yet in a separate set of questions about American constitutionalism—the principle that the Constitution’s main role is to limit the power of government and its officials—55% of respondents believed that it badly misses the mark. More than half of these American citizens insisted that the Constitution’s first principle—that government should be constrained and limited—is unrealized. And that’s not all. Another survey question from this same poll revealed that 44% of respondents believed that the government is not acting for the common good, despite the aim of the constitutional text to promote that specific virtue. See National Constitution Center, Startling Lack of Constitutional Knowledge Revealed in National Constitution Center Survey Civic Research Poll, 1997, Press Release, September 15, 1997, https://www.heartland.org/_template-assets /documents/publications/3025.pdf; and Sharon C. Fitzgerald, “Survey: U.S. Admires, but Hasn’t Read, Constitution,” Daily Progress, September 17, 2010, updated May 15, 2019, https://dailyprogress.com/news/article _a4d58bd4-3e2d-50e3–859b-fcede87ec145.html.

6. An Annenberg Public Policy Center survey revealed that few Americans can correctly answer rudimentary questions about the Constitution, such as how many branches of government there are. See Annenberg Public Policy Center, Is There a Constitutional Right to Own a Home or a Pet? Many Americans Don’t Know, Press Release, September 16, 2015, https://cdn.annenbergpublicpolicycenter.org/ wp-content/uploads/Civic-knowledge-survey-Sept.-2015.pdf.