Jefferson's Revenge

In crucial ways, the tale of constitutional stability is a myth.
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In the earliest days of the American Republic, James Madison and Thomas Jefferson offered radically different views about the nature of constitutionalism in their young nation. Madison insisted that the Constitution should be relatively fixed. In his view, the founding document had been adopted in a uniquely favorable period, in which public-spirited people had been able to reflect about the true meaning of self-government. Miraculously, We the People had succeeded in producing a charter that would be able to endure over time.

To be sure, Madison accepted the Constitution's procedures for constitutional amendment; indeed, he helped to write them. But he thought that amendments should be made exceedingly difficult. In his view, constitutional change ought to be reserved for "great and extraordinary occasions." Madison wanted the work of the founding generation to last; alterations should occur only after surmounting a formal process that would impose serious obstacles to ill-considered measures based on people's passions or their interests.

Thomas Jefferson had an altogether different view. Indeed, he believed that Madison's approach badly dis-served the aspirations for which the American revolution had been fought. Jefferson insisted that "the dead have no rights." In his view, the founders should be respected but not revered, and their work ought not to be taken as any kind of fixed background. In a revealing letter, Jefferson contended that those who wrote the document "were very much like the present, but without the experience of the present." In other words, the present knows more than the past, if only because it is, in a sense, older. For these reasons, Jefferson urged that the Constitution should be rethought by the many minds of every generation, as the nature of self-government becomes newly conceived in light of changing circumstances. We the People should rule ourselves, not simply through day-to-day governance under a fixed charter, but also by rethinking the basic terms of political and social life.

According to the standard account, history has delivered an unambiguous verdict: Madison was right and Jefferson was wrong. The United States is governed by the oldest extant constitution on the face of the earth. In most of its key provisions, it remains the same as it was when it was ratified in 1787. Just as Madison had hoped, the work of the founders endures.

Those who emphasize Madison's triumph acknowledge some important qualifications. The most important change may have been the Bill of Rights, added in 1789 -- but that early catalogue of rights is best understood as continuous with, or a completion of, the original document. It is also true that significant amendments were made in the period after the Civil War -- abolishing slavery, guaranteeing African-Americans the right to vote, and generally increasing the power of the national government over the states. Other constitutional amendments have introduced important changes by ensuring direct election of senators and the president and by granting women the right to vote. But to a remarkable degree, America continues to be ruled by the document originally ratified by the founding generation.

Or so it is generally believed. In crucial ways, however, the tale of constitutional stability is a myth. Jefferson has had his revenge - not through formal amendments, but through social practices and interpretations that render our Constitution very different from the founders' Constitution. What I mean to emphasize here is that those practices and interpretations have everything to do with public judgments as they have extended through time. In other words, constitutional change has occurred through the judgments of many minds and succeeding generations, in a way that captures some of Jefferson's hopes. In countless domains, Madison's victory is quite illusory. There have been numerous founders, and they can be found in many generations. Ours is a constitution of many minds.

This point is likely to seem jarring, and not only because of my claim that American history has, to an unacknowledged extent, fit Jefferson's project. The initial problem is that when Americans think of constitutional change, they focus on judicial interpretations, not on the role of their elected representatives or of citizens themselves. This is a major mistake. It is true that in some of its decisions, the Court, not the public, has been a prime mover. In banning school prayer, protecting the right to choose abortion, and striking down affirmative action programs, the Court has gone well beyond the original meaning of the document, and its own judgments have been crucial. What is much less noticed and far more important, and what I mean to stress here, is the extent to which changes in constitutional arrangements and understandings have been a product of ordinary democratic processes, producing adjustments in constitutional understandings over time. Self-government, far more than judicial innovation, has been responsible for those adjustments.

Sometimes the relevant changes do not involve courts at all. Consider, for example, the immense authority of the president in the domain of national security. That authority, whose growth long preceded the current occupant of the office, owes everything to decisions by past presidents and legislatures, ensuring that the nation's leader has far greater power than originally anticipated. And when the president and Congress act, they are responsive to the public as a whole. The current authority of the president is a product of judgments of a variety of persons and institutions and in an important sense of We the People.

Sometimes changes in constitutional understandings are initially driven by the elected branches and ultimately ratified by the courts. Consider the large increase, after the New Deal, in the authority of the national government. The authority of the national government is a product of democratic processes, not of the federal judiciary; the Court's role has been largely to ratify what citizens and their representatives have done. Or consider the rise of the immensely important "independent regulatory commissions," such as the National Labor Relations Board, the Federal Reserve Board, the Federal Communications Commission, and the Securities and Exchange Commission. The Court has permitted such agencies to exist; but the prime movers have been the President and the Congress, not the judiciary.

True, the Supreme Court sometimes entrenches a new constitutional principle or a novel understanding of an old principle. But even when it does so, it is never acting in a social vacuum. Often it is endorsing, fairly late, a judgment that has long attracted widespread social support from many minds. The ban on racial discrimination, signaled above all by the Court's invalidation of school segregation, attracted strong support in the nation long before the Court acted. The dismantling of racial segregation in the South was eventually produced by the political branches, not the Court.

In striking down sex discrimination, the Court's decisions can be seen as responsive to a social movement that produced what was a kind of Jeffersonian moment -- a moment in which large numbers of people rethought previous constitutional commitments. Nor have judicial decisions banning discrimination on the basis of sexual orientation come as bolts from the blue. Those decisions emerged from a social context in which such discrimination seems increasingly difficult to defend -- in which We the People have been coming, in fits and starts, to think that gays and lesbians should not be put in jail for consensual relationship, and that discrimination against them, at least by government, is hard to defend. If the Court ever does conclude that states cannot ban same-sex marriage, it will only be after much of the public has already done so.

Predictions are hazardous, but here is a prediction. In the near future, the Supreme Court will conclude that the Second Amendment confers an individual right to own guns. When it does so, its conclusion will be greatly affected by a social setting in which that judgment already has acquired broad public support. And in fact, there now seems to be a general public understanding that the Second Amendment does protect at least some kind of individual right; and that understanding greatly affects American politics. If the Supreme Court finds an individual right to bear arms, it will not really be speaking for the Constitution as it was written by those long dead; it will be reacting to judgments that are now widespread among those now living.

Some people, above all Yale Law Professor Bruce Ackerman, have urged that the American constitutional tradition includes not merely formal amendments but also "constitutional moments," in which We the People make large-scale changes in our understandings. These changes ultimately have consequences for the meaning of the Constitution. And some periods do produce unusually large alterations in constitutional principles; Franklin Delano Roosevelt's New Deal, which involved no formal amendment, is the most obvious example. After the New Deal, the power of the national government was greatly increased; the President's authority was much broader; there were changes as well in prevailing understandings of individual rights, including diminished protection of freedom of contract and private property. Because it reflected the commitments of many citizens, the New Deal nicely fits the Jeffersonian story I am telling here. Roosevelt's New Deal was not a return to the founding. It was a reflection of the beliefs and commitments of We the People.

But constitutional change is not merely a product of "moments" in which mobilized citizens support large-scale reforms. There is a continuum from small changes, produced in periods of relative stability, to major ones, produced when crises or social movements call for significant departures. Just as Jefferson hoped, every generation produces a degree of constitutional reform, and it does so because of its new understandings of facts or its new judgments of value.

In emphasizing that the American Constitution is a product of the work of many minds, I do not mean to suggest that our constitutional order has fully incorporated Jefferson's plea for popularly-driven constitutional change. In keeping with Madison's hopes, our processes rarely invoke formal procedures. The public is not asked to reassess the value or meaning of constitutional provisions governing free speech, religious liberty, property rights, and gun ownership, or the allocation of war-making authority between the president and Congress. In addition, much of constitutional change has occurred through an incremental process, not through large-scale generational rethinking. Evolving traditions, rather than sudden breaks, are the usual American way.

Americans revere the Founding Fathers, and the reverence is certainly warranted. But to a remarkable extent, the Constitution under which we live is a product of the judgments of many minds, doing their work over time. With respect to their great debate, conventional wisdom has declared Madison the victor and Jefferson the loser. In our evolving system of self-government, the truth turns out to be far more complicated. To be sure, We the People have been governed by the Constitution. But as we give meaning to the document over the time, the Constitution has been governed by us as well.

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