Not including the amendments, it is approximately five thousand words long—about the length of a short story. It is an enigmatically dry, unemotional piece of work, tolling off in its monotone the structures and functions of government, the conditions and obligations of office, the limitations of powers, the means for redressing crimes and conducting commerce. It makes itself the supreme law of the land. It concludes with instructions on how it can amend itself, and undertakes to pay all the debts incurred by the states under its indigent parent, the Articles of Confederation.
It is no more scintillating as reading than I remember it to have been in Mrs. Brundage’s seventh-grade civics class at Joseph H. Wade Junior High School. It is five thousand words but reads like fifty thousand. It lacks high rhetoric and shows not a trace of wit, as you might expect, having been produced by a committee of lawyers. It uses none of the tropes of literature to create empathetic states in the mind of the reader. It does not mean to persuade. It abhors metaphor as nature abhors a vacuum.
One’s first reaction upon reading it is to rush for relief to an earlier American document, as alive with passion and the juices of outrage as the work of any single artist:
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. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.
Here is the substantive diction of a single human mind—Thomas Jefferson’s, as it happens—even as it speaks for all. It is engaged in the art of literary revolution, rewriting history, overthrowing divine claims to rule and genealogical hierarchies of human privilege as cruel frauds, defining human rights as universal, and distributing the source and power of government to the people governed. It is the radical voice of national liberation, combative prose lifting its musketry of self-evident truths and firing away.
What reader does not wish the Constitution could have been written out of something of the same spirit? Of course, we all know instinctively that it could not, that statute-writing in the hands of lawyers has its own demands, and those are presumably precision and clarity, which call for sentences bolted at all four corners with wherein’s and whereunder’s and thereof’s and therein’s and notwithstanding the foregoing’s.
Still and all, our understanding of the Constitution must come of an assessment of its character as a composition, and it would serve us to explore further why it is the way it is. Here is something of what I have learned of the circumstances under which it was written.
The Constitutional Convention was called in the first place because in the postwar world of North America influential men in the government, in the Continental Congress, were not confident that the loosely structured Articles of Confederation, as written, could make permanent the gains of the Revolution. Without the hated British to unite them the states would revert to bickering and mutual exploitation. They had as many problems with one another as the classes of people in each state had among themselves, and men like George Washington and James Madison foresaw a kind of anarchy ensuing that would lead to yet another despotism, either native or from foreign invasion by the Spanish or again by the English. Many competing interests were going unmediated. The agrarian Southern states, with their tropical rice and cotton plantations, saw danger to themselves in export taxes applied to all their goods by the North Atlantic port states. The small states, like Delaware, felt threatened by their bigger neighbors, such as Pennsylvania. There was immense debt as a result of the Revolution, which debtors wanted to pay off with state-issued paper money—and which creditors, security holders, bankers, merchants, men of wealth, wanted returned in hard currency. There were diverse ethnic and religious communities, black slaves, white indentured servants. And there were Indians in the woods. The states not contiguous had little in common with one another. To a New Yorker, South Carolina was not the South; it was another kingdom entirely, with people of completely different backgrounds and with bizarre manners in speech and deportment—foreigners, in short. Georgia and South Carolina depended on slave labor to run their plantations. Slavery was abhorrent to many Northerners in 1787, and an economy of slaves was morally detestable.
It is important to remind ourselves in this regard that colonial society had existed for one hundred and fifty years before the idea of independence caught on. That’s a long time, certainly long enough for an indigenous class of great wealth to arise and a great schism to emerge between the rich and the poor. A very few people owned most of the land and were keenly resented. Three percent of the population controlled 50 percent of the wealth. People were not stupid; there was general knowledge of the plunder, legal chicanery, favoritism, privilege of name, and corruption of government officials that had created such inequity. In fact, it is possible that organization of public sentiment against King George is exactly what saved the colonies from tearing themselves apart with insurrections of the poor against the rich; that events like the Boston Tea Party and calls to arms by Jefferson and Tom Paine created the common enemy, the British, to unify all the classes in America and save, by diversion of anger and rage to the redcoats, the fortunes and hides of the American upper class. This was the class, as it happened, of most of the fifty-five men who convened in Philadelphia. Washington was perhaps the largest landowner in the country. Benjamin Franklin possessed a considerable fortune, and Madison owned several slave plantations.
There was an additional factor to make them sensitive. The convention had been called to consider amendments to the Articles of Confederation. The Continental Congress was even now sitting in New York City and doing government business, and not all that ineffectually. It was, for example, passing legislation outlawing slavery in the western territories. But rather than amending the Articles, the convention in Philadelphia was persuaded to throw them aside entirely and design something new—a federal entity that would incorporate the states. The agenda for this course of action was proposed by Governor Edmund Randolph of Virginia, who presented a number of resolutions for debate, and so it has come to be called the Virginia plan. But the sentiment for something new, a new federal government over and above state sovereignties, had the strong support of influential delegates from several venues. And so the convention got down to business that was actually subversive. It violated its own mandate and began to move in the direction the federalists pushed it. It was because of this and because no one participating wanted, in the vigorous debates that were to ensue over the next months, to be confronted with a record of his remarks or positions, that the conventioneers agreed to make their deliberations secret for the entire time they sat, permitting no official journal of the proceedings and swearing themselves to a press blackout, as it were. That was to upset Jefferson greatly, who was off in France as a minister; the idea of such secrecy repelled him. However, Madison, fortunately for us, kept a notebook, which did not come to light until 1843 but which provides us the fullest account of those secret deliberations and the character of the minds that conducted them.
What a remarkable group of minds they were. The first thing they did was constitute themselves as a Committee of the Whole, which gave them the power of improvisation and debate, flexibility of action, so that when the collected resolutions were decided on they could present them to themselves in plenary session.
Methodically, treating one thorny question after another, they made their stately way through the agenda. If something could not be resolved it was tabled and the next issue was confronted. Nothing stopped their painstaking progress through the maze of ideas and resolutions from which they slowly constructed a new world for themselves: who would make the laws, who would execute them, who would review their judicial propriety; should the small states balk at proportional representation, then the Senate would be created to give equal representation to every state. Some matters were easy to agree on—the writ of habeas corpus, the precise nature of treason. If one reads any of the dramatic reconstructions of their work, and there are several good books that provide this, one has the thrill of watching living, fallible men composing the United States of America and producing its ruling concept of federalism, a system of national and local governments, each with defined powers and separate legal jurisdictions.
Through it all Washington sat up at the front of the room, and he never said a word. The less he said, the more his prestige grew. They had settled on one chief executive, to be called a president, and everyone knew who it would be. He had only to sit there to give the delegates courage to persevere. Franklin, too, lent the considerable weight of his presence, only occasionally saying a few soft words or passing up a note to be read by the speaker. Franklin was an old man at the time, over eighty. At one point, when the proceedings were bogging down in dissension, he offered the recommendation that everyone stop and pray. The lawyers were so stunned by this idea that tempers cooled, probably just as he had intended, and the meeting went on.
And as the weeks wore on there slowly emerged among the delegates—or must have—a rising sense of their identity not only as Carolinians or Virginians or New Yorkers but as American nationals. A continental vision of nationhood lit their minds, and a collaborative excitement had to have come over them as day after day, month after month, they fantasized together their nation on paper. One cannot read any account of their deliberations without understanding how they made things up as they went along from their own debated differences, so that a sort of group intellect arose. It was wise with a knowledge of the way men act with power and from what motives. This objectification of separate personalities and interests came of a unanimous familiarity with parliamentary method and was finally self-propelling. These men invented a country of language, and that language celebrated—whether in resolutions of moral triumph or moral failure—the idea of law. The idea of a dispassionate law ruling men, even those men who were to make and effect the law.
Enough resolutions having been put forth, a Committee of Detail was formed to get them into an orderly shape, and that was accomplished with the scheme of articles, and sections under the articles, grouping the resolutions about legislative, judicial, and executive branches, the rights and obligations of the states, the supremacy of the Constitution as law, etc.
When the Committee of Detail had structured the composition and it was duly examined and considered and amended, a Committee of Style was formed. That is my favorite committee. It comprised William Samuel Johnson of Connecticut, Alexander Hamilton of New York, Madison of Virginia, Rufus King of Massachusetts, and Gouverneur Morris of Pennsylvania. Apparently Morris did the actual writing. And it is this document, produced by the Committee of Style and approved by the convention, that was called the Constitution of the United States. And for the first time in the various drafts there appeared in the preamble the phrase “We the people of the United States,” thus quietly absorbing both the seminal idea of the Declaration of Independence and the continental vision of federalism.
So we come back to this question of text. It is true but not sufficient to say that the Constitution reads as it does because it was written by a committee of lawyers. Something more is going on here. Every written composition has a voice, a persona, a character of presentation, whether by design of the author or not. The voice of the Constitution is a quiet voice. It does not rally us; it does not call on self-evident truths; it does not arm itself with philosophy or political principle; it does not argue, explain, condemn, excuse, or justify. It is postrevolutionary. Not claiming righteousness, it is, however, suffused with rectitude. It is this way because it seeks standing in the world, the elevation of the unlawful acts of men—unlawful first because the British government has been overthrown, and second because the confederation of the states has been subverted—to the lawful standing of nationhood. All the herein’s and whereas’s and thereof’s are not only legalisms; they also happen to be the diction of the British Empire, the language of the deposed. Nothing has changed that much, the Constitution says, lying; we are nothing that you won’t recognize.
But there is something more. The key verb of the text is shall, as in “All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and a House of Representatives,” or “New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State.” The Constitution does not explicitly concern itself with the grievances that brought it about. It is syntactically futuristic: it prescribes what is to come. It prophesies. Even today, living two hundred years into the prophecy, we read it and find it still ahead of us, still extending itself in time. The Constitution gives law and assumes for itself the power endlessly to give law. It ordains. In its articles and sections, one after another, it offers a ladder to heaven. It is cold, distant, remote as a voice from on high, self-authenticating.
Through most of history kings and their servitor churches did the ordaining, and always in the name of God. But here the people do it: “We the People … do ordain and establish this Constitution for the United States.” And the word for God appears nowhere in the text. Heaven forbid! In fact, its very last stricture is that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”
The voice of the Constitution is the inescapably solemn self-consciousness of the people giving the law unto themselves. But since in the Judeo-Christian world of Western civilization all given law imitates God—God being the ultimate lawgiver—in affecting the transhuman voice of law, that dry monotone that disdains persuasion, the Constitution not only takes on the respectable sound of British statute, it more radically assumes the character of scripture.
The ordaining voice of the Constitution is scriptural, but in resolutely keeping the authority for its dominion in the public consent, it presents itself as the sacred text of secular humanism.
I wish Mrs. Brundage had told me that back in Wade Junior High School.
I wish Jerry Falwell’s and Jimmy Swaggart’s and Pat Robertson’s teachers had taught them that back in their junior high schools.
Now, it is characteristic of any sacred text that it has beyond its literal instruction tremendous symbolic meaning for the people who live by it. Think of the Torah, the Koran, the Gospels. The sacred text dispenses not just social order but spiritual identity. And as the states each in its turn ratified the Constitution, usually not without vehement debate and wrangling, the public turned out in the streets of major cities for processions, festivities, with a fresh new sense of themselves and their future.
Every major city had its ship of state rolling through the streets, pulled by teams of horses—a carpentered ship on wheels rolling around the corners and down the avenues in full sail, and perhaps with a crew of boys in sailor uniforms. It was called, inevitably, The Constitution or Federalism or Union. Companies of militia would precede it, the music of fifes and drums surround it, and children run after it, laughing at the surreal delight.
Of all the ratification processions, Philadelphia’s was the grandest. There was not only a ship of state, the Union, but a float in the shape of a great eagle, drawn by six horses bearing a representation of the Constitution framed and fixed on a staff, crowned with the cap of Liberty, the words THE PEOPLE in gold letters on the staff. Even more elaborate was a slow-rolling majestic float called the New Roof, the Constitution being seen, in this case, as a structure under which society took secure shelter. The New Roof of the Constitution stood on a carriage drawn by ten white horses. Ornamented with stars, the dome was supported by thirteen pillars, each representing a state; at the top of the dome was a handsome cupola surmounted by a figure of Plenty, bearing her cornucopia. If you like the quaint charm of that, I remind you that today we speak of the “framers” of the Constitution, not the “writers,” which would be more exact and realistic and less mythologically adequate.
Behind the New Roof came 450 architects, house carpenters, saw makers and file cutters, just to let people know there was now a roof-building industry available for everyone.
A thirty-foot-long float displayed a carding machine, a spinning machine of eighty spindles, a lace loom, and a textile printer. There were military units in this procession, companies of light infantry and cavalry, and there were clergymen of every denomination. There were city officials and schools in their entire enrollments, but more prominent were the members of various trades, each dressed in its working clothes and carrying some display or pulling some float in advertisement of itself—sailmakers and ship chandlers, cordwainers, coach builders, sign painters, clock- and watchmakers, fringe and ribbon weavers, bricklayers, tailors, spinning-wheel makers, carvers and gilders, coopers, blacksmiths, potters, wheelwrights, tinplate workers, hatters, skinners, breeches makers, gunsmiths, saddlers, stonecutters, bakers, brewers, barber-surgeons, butchers, tanners, curriers, and, I am pleased to say, printers, booksellers, and stationers.
So heavily weighted was the great Philadelphia procession with those tradesmen and artisans, it could just as easily have been a Labor Day parade. The newly self-determined America was showing its strength and pride as a republic of hard work, in contrast to the European domains of privilege and title and their attendant poverty system. The Constitution was America de-Europeanizing itself. A kind of fission was taking place, and now here was a working-class republic, carried on the backs first of its citizen-soldiers dressed in rough brown and sober black, and then on the shoulders of its artisans and skilled workers. That anyway was the symbolic idea, the mythology that almost immediately attached itself to the ratified Constitution. From the very beginning it took on a symbolic character that its writers, worried always that they might never get it ratified, could not have foreseen. We speak of the “miracle at Philadelphia.” That same impulse was working then: the celebration of the sacred text, miracles being beyond mere human understanding, a cause for wonder and gratitude—in a word, supernatural.
Yet it is true also of sacred texts that when they create a spiritual community, they at the same time create a larger community of the excluded. The Philistines are excluded, or the pagans, or the unwashed.
Even as the Constitution was establishing its sacred self in the general mind, it was still the work, the composition, of writers; and the writers were largely patricians, not working men, much less women. They tended to be well educated, wealthy, and not without self-interest. The historian Carl Degler says in Out of Our Past: “No new social class came to power through the doors of the American Revolution. The men who engineered the revolt were largely members of the colonial ruling class.” That holds for the Philadelphia fifty-five. They themselves were aware of the benefits, if not to themselves, then to their class, of the provision guaranteeing the debts incurred under the Confederation: the security holders, the creditors of America, stood to make a lot of money; at the same time, the debtors—the freeholders, the small farmers—stood to lose everything. It was a practical document in their minds. They did not think of themselves as Founding Fathers or framers or anything more august than a group of men who held natural stewardship of the public welfare by virtue of their experience and background. They were concerned to establish a free and independent nation, but also a national economic order that would allow them to conduct business peaceably, profitably, and in the stable circumstances deriving from a strong central government.
The ideals of political democracy do not always accord with the successful conduct of business. Thus, as conceived in 1787, only the House of Representatives would be elected by popular vote. Senators were to be elected by state legislatures, and the president by an electoral college, meaning men like themselves who would command the votes of their localities. There was the sense in these strictures of a need for checks and balances against popular majorities. Furthermore, to come up with a piece of paper that diverse regional business interests could agree on meant cutting deals. One such deal was between the Northeastern states and the Southern. Importation of slaves would be allowed for twenty more years; in return only a simple majority in Congress would be required to pass navigational commerce acts that the seagoing Atlantic states much wanted. That odious deal appears, in part, in Article IV of the original Constitution. The exactness and precision of statute language in this case is used not to clarify but to euphemize a practice recognizably abhorrent to the writers:
No person held to service or labour in one State under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.
There is no mention of the word slave, yet a slave in one state became a slave in all. The Virginia delegate, George Mason, to my mind the great if inadvertent hero of the convention, warned his colleagues: “As nations cannot be rewarded or punished in the next world they must in this. By an inevitable chain of causes and effects, Providence punishes national sins by national calamities.” If you affect the scriptural voice, he could have been telling them, you had better aspire to enlightenment, or the power of prophecy of your speech will work against you. And so it came to pass. That odious article worked through a historic chain of cause and effect like a powder fuse, until the country blew apart seventy-five years later in civil war. Not until 1865, with the passage of the Thirteenth Amendment, was slavery outlawed in the United States. And the monumental cost in lives, black and white, of that war, and the cost to the black people, the tragedy of their life in the antebellum South, and to American blacks everywhere since then (the state poll taxes that kept black people from voting in the South were not outlawed until the Twenty-fourth Amendment was ratified, in 1964), show how potent, how malignly powerful, the futuristic, transhuman Constitution has been where it has been poorly written. What was sacred is profane; there is a kind of blasphemous inversion of the thing.
In this formulation it is the power of the Constitution to amend itself, or, in writers’ terms, to accept revision, that shows the delegates at their best. They knew what they had was imperfect, a beginning; Franklin and Washington said as much. Nevertheless, Mason refused to put his name to the constitutional document even after Franklin urged a unanimous presentation to the states, because of the slavery article and also because there was no Bill of Rights—no explicit statutes on the rights of American citizens to free speech and assembly and religious practice, and to speedy trial by jury of defendants in criminal charges; no prohibition against government search and seizure without judicial warrant; no guarantee of a free press and so forth. Alexander Hamilton argued that those things were implicit in the Constitution and did not have to be spelled out, much as people now say the Equal Rights Amendment is unnecessary, but Mason, to his credit, knew that they must be spelled out, which is to say written. Imagine where we would be today if Mason had not held his ground and if the lack of a Bill of Rights had not been taken up as the major concern of the antifederalists, such as Patrick Henry. We would today be trusting our rights and liberties to the reading of Attorney General Edwin Meese, who believes that people who are defendants in criminal trials are probably guilty or they would not be defendants, and who has said that the American Civil Liberties Union is essentially a criminals’ lobby. George Mason’s amendments, the first ten, were passed on to the states for ratification by the first elected Congress in 1791.
It is true of most of the sacred texts, I think, that a body of additional law usually works itself up around the primary material, and also achieves the force of prophecy. The Torah has its Talmud, and the Koran its hadith, and the New Testament its apostolic teachings. In like manner we have our sacred secular humanist amendments. Mythic or sacred time is endless, of course, and it was not until 1920, with the passage of the Nineteenth Amendment, that the women of the United States achieved suffrage. (I am told that this amendment has still not been ratified by the state of Georgia.)
Notice at this point a certain change of tone: my song of the miracle of Philadelphia has wobbled a bit; my voice has broken, and here I am speaking in the bitter caw of the critic. Yet there is a kind of inevitability to this. One cannot consider the Constitution of the United States without getting into an argument with it. It is the demand of the sacred text that its adherents not just believe in it but engage to understand its meanings, its values, its revelation. One finds every day in the newspapers the continuing argument with the Constitution, as different elements of society represent their versions of its truth. President Reagan argues with it, Attorney General Meese argues with it, and so, as a defenseless citizen, from a different point of view, do I. And, of course, the federal judiciary has amended, interpreted, and derived law from it. From the days of the great John Marshall on down—way down—to the days of William Rehnquist, the courts have not just worshiped the Constitution; they have read it. Their readings are equivalent to the priestly commentaries that accrue to every sacred text, and the commentaries on the commentaries, and we have two hundred years of these as statute and opinion.
It is the nature of the sacred text, speaking from the past to the present and into the future in that scriptural voice that does not explain, embellish itself, provide the source of its ideas or the intentions from which it is written, but which is packed with wild history—the self-authenticating text that is pared of all emotions in the interest of clear and precise law-giving—it is the nature of such a text, paradoxically, to shimmer with ambiguity and to become finally enigmatic, as if it were the ultimate voice of Buddhist self-realization.
And so I find here in my reflections a recapitulation of the debate of American constitutional studies of the past two hundred years, in the same manner that ontogeny is supposed to recapitulate phylogeny. Thus it was in the nineteenth century that historians such as George Bancroft celebrated the revolutionary nature of the Founding Fathers’ work, praising them for having conceived of a republic of equal rights under law, constructed from the materials of the European Enlightenment but according to their own pragmatic Yankee design—a federalism of checks and balances that would withstand the worst buffetings of history, namely the Civil War, in the aftermath of which Bancroft happened to be writing.
Then in the early part of the twentieth century, when the worst excesses of American business were coming to light, one historian, Charles Beard, looked at old Treasury records and other documents and discovered enough to assert that the Fathers stood to gain personally from the way they put the thing together, at least their class did; that they were mostly wealthy men and lawyers; and that the celebrated system of checks and balances, rather than ensuring a distribution of power and a democratic form of government, in fact could be seen as having been devised to control populist sentiment and prevent a true majoritarian politics from operating in American life at the expense of property rights. Madison had said as much, Beard claimed, in Federalist number 10, which he wrote to urge ratification. Beard’s economic interpretation of the Constitution has ever since governed scholarly debate. At the end of the Depression a neo-Beardian, Merrill Jensen, looked again at the post-Revolutionary period and came up with a thesis defending the Articles of Confederation as the true legal instrument of the Revolution, which, with modest amendments, could have effected the peace and order of the states with more democracy than a centralist government. In fact, he argued, there was no crisis under the Articles or danger of anarchy, except in the minds of the wealthy men who met in Philadelphia.
But countervailing studies appeared in the 1950s, the era of postwar conservatism, that showed Beard’s research to be inadequate, asserting, for instance, that there were as many wealthy men of the framers’ class who were against ratification as who were for it, or that men of power and influence tended to react according to the specific needs of their own states and localities, coastal or rural, rather than according to class.
And in the 1960s, the Kennedy years, a new argument appeared describing the Constitutional Convention above all as an exercise of democratic politics, a nationalist reform caucus that was genuinely patriotic, improvisational, and always aware that what it did must win popular approval if it was to become the law of the land.
In my citizen’s self-instruction I embrace all of those interpretations. I believe all of them. I agree that something unprecedented and noble was created in Philadelphia; but that the economic self-interest of a bunch of businessmen was a large part of it; but that it was democratic and improvisational; but that it was, at the same time, something of a coup. I think all of those theories are true, simultaneously.
And what of constitutional scholarship today, in the Age of Reagan?
Well, my emphasis on text, my use of textual analogy, responds to the work over the past few years of a new generation of legal scholars who have been arguing among themselves whether the Constitution can be seen usefully as a kind of literary text, sustaining intense interpretive reading—as a great poem, say—or better perhaps as a form of scripture. I have swiveled to embrace both of those critiques too, but adding, as a professional writer, that when I see the other professions become as obsessively attentive to text as mine is, I suspect it is a sign that we live in an age in which the meanings of words are dissolving, in which the culture of discourse itself seems threatened. That is my view of America under Reagan today: in literary critical terms, I would describe his administration as deconstructionist.
And so, by way of preservation, text consciousness may have arisen among us, law professors no less than novelists, as in medieval times monks began painstakingly copying the crumbling parchments to preserve them.
All told, it is as if the enigmatic constitutional text cannot be seen through, but, shimmering in ambiguity, dazzles back at each generation in its own times and struggles. It is as if the ambiguity is not in the text but in us, as we struggle in our natures—our consciences with our appetites, our sense of justice with our animal fears and self-interests—just as the Founding Fathers struggled so with their Constitution, providing us with a mirror of ourselves to go on shining, shining back at us through the ages, as the circumstances of our lives change, our costumes change, our general store is transformed into a mile-long twenty-four-hour shopping mall, our trundle carts transmogrify into rockets in space, our country paves over, and our young republic becomes a plated armory of ideological warfare: a mirror for us to see who we are and who we would like to be, the sponsors of private armies of thugs and rapists and murderers, or the last best hope of mankind.
It may be that as a result of World War II and the past forty years of our history we are on the verge, as a nation, of some characterological change that neither the federalists of the convention nor the antifederalists who opposed them could have foreseen or endorsed. We are evolving under realpolitik circumstances into a national military state—with a militarized economy larger than, and growing at the expense of, a consumer economy; a militarized scientific-intellectual establishment; and a bureaucracy of secret paramilitary intelligence agencies—that becomes increasingly self-governing and unlegislated. There may be no news in any of this. What may be news, however, is the extent to which the present administration* has articulated a rationale for this state of being, so that the culture too, both secular and religious, can be seen as beginning to conform to the needs of a national security state. More than any previous administration, this one apotheosizes not law but a carelessness or even contempt of law, as internationally it scorns the World Court and domestically it refuses to enforce federal civil rights statutes or honor the decrees of judicial review, or gives into private hands the conduct of foreign policy outlawed by the Congress. And more than any previous administration this one discourses not in reason and argument but in demagogic pieties. Its lack of reverence for law and contempt for language seem to go hand in hand.
By contrast, I call your attention to the great genius of the convention of 1787, which was its community of discourse. The law it designed found character from the means of its designing. Something arose from its deliberations, however contentious, and that was the empowering act of composition given to people who know what words mean and how they must be valued. Nobody told anybody else to love it or leave it; nobody told anybody else to go back where they came from; nobody suggested disagreement was disloyalty; and nobody pulled a gun. Ideas, difficult ideas, were articulated with language and disputed with language and took their final fate, to be passed or rejected, as language. The possibility of man-made law with the authority, the moral imperative, of God’s law, inhered in the process of making it.
That is what we celebrate as citizens today. That is what we cherish and honor, a document that gives us the means by which we may fearlessly argue ourselves into clarity as a free and unified people. To me the miracle at Philadelphia was finally the idea of democratic polity, a foot in the door of the new house for all mankind. The relentless logic of a Constitution in the name of the people is that a national state exists for their sake, not the other way around. The undeviating logic of a Constitution in the name of the people is that the privilege of life under its domain is equitable, which is to say, universal. That you cannot have democracy only for yourself or your club or your class or your church or your clan or your color or your sex, for then the word doesn’t mean what it says. That once you write the prophetic text for a true democracy—as our forefathers did in their draft and as our amending legislators and judiciary have continued to do in their editing of its moral self-contradictions and methodological inadequacies—that once this text is in voice, it cannot be said to be realized on earth until all the relations among the American people, legal relations, property relations, are made just.
And I reflect now, in conclusion, that this is what brought the people into the streets in Philadelphia two hundred years ago, those wheelwrights and coach builders and ribbon and fringe weavers: the idea, the belief, the faith, that America was unprecedented.
I’d like to think, in this year of bicentennial celebration, that the prevailing image will be of those plain people taking to the streets, those people with only their wit and their skills to lead them through their lives, forming their processions: the wheelwrights and ribbon makers, the railroad porters and coal miners, the garment workers, the steelworkers, the automobile workers, the telephone operators, the air traffic controllers, the farm workers, the computer programmers, and, one hopes, the printers, stationers, and booksellers too.
A Citizen’s Reading
A good annotated constitutional text at the secondary-school level is Your Rugged Constitution, by Bruce and Esther Findlay (Stanford University Press, 1952). Of the available dramatic reconstructions of the Constitutional Convention of 1787, I relied most heavily on The Great Rehearsal, by Carl Van Doren (Viking, 1948). All popular studies of the convention depend on the original scholarship of Max Farrand, whose The Framing of the Constitution of the United States (Yale University Press, 1913) is a classic contribution.
My view of the sociopolitical ferment in America before and after the Revolution owes much to Howard Zinn’s A People’s History of the United States (Harper & Row, 1980), a bracing antidote to complacent historiography, and to The Americans, by J. C. Furnas (G. P. Putnam’s Sons, 1969), a compendious examination of daily life from the colonial period to the twentieth century. My summary of the scholarly debate from Bancroft and Beard on through the 1960s would have been difficult without Essays on the Making of the Constitution, edited by Leonard W. Levy (Oxford University Press, 1969). This astute anthology presents the central ideas of the major constitutional historians in excerpt, thus relieving the lay person of the necessity of reading their important works in entirety.
Finally, although the following scholars may take exception to the uses I’ve made of their work, I credit my conversion to constitutional scripturalism to James Boyd White, “The Judicial Opinion and the Poem: Ways of Reading, Ways of Life” (Michigan Law Review, Vol. 82:1669, 1984), and “Law as Language: Reading Law and Reading Literature” (Texas Law Review, Vol. 60:415, 1982); Thomas C. Grey, “The Constitution as Scripture” (Stanford Law Review, Vol. 37:1, 1984); and Sanford Levinson, “The Constitution in American Civil Religion” (Supreme Court Review, 1979).—E.L.D.
(1987)
* President Reagan’s.