We the People: A History of the U.S. Constitution

by Jill Lepore

A government of laws and not of men

he divided constitutions into those “which aim at the common advantage” and “are correct and just” and “those which aim only at the advantage of the rulers” and “are deviant and unjust.”

A written constitution’s power comes not from the words themselves but from the life breathed into it, or what Montesquieu called “the spirit of laws,” ethereal and even enchanted. James Madison warned that early state constitutions—the first was written in 1776—offered little more than “parchment barriers” to those who would seek to defy them. “The Constitution of a country is not the paper or parchment upon which the compact is written,” John Quincy Adams agreed. “It is the system of fundamental laws, by which the people have consented to be governed, which is always supposed to be impressed upon the mind of every individual, and of which the written and printed copies are nothing more than the evidence.”

Amendment is necessary because everything decays, even laws. As the English jurist Matthew Hale put it in 1697, “As all sublunary things are subject to corruption and putrefaction, to diseases and rust, so even laws themselves, by long tract of time gather certain diseases and excrescences, certain abuses and corruptions grow into the law, as close as the ivy unto the tree, or the rust to the iron, and in a little tract of time gain the reputation of being part of the law.”

Amendability is the essential contribution of American constitutionalism.

A constitution too easily amended leads to chaos. But a constitution too difficult to amend leads to chaos, too. Without amendment, Wilson argued, there would be nothing but revolution: everlasting insurrection.

The trick was finding that sweet spot: devising a method of amendment that, as Madison hoped, would leave open a “constitutional road to the decision of the people” but would guard against both “that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.”

Not too easy, not too hard. In this, the framers did not succeed.

Abraham Lincoln, too, refused to concede the Court’s authority to revise the Constitution. “If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” Lincoln said in his First Inaugural Address, then “the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

One’s commitment to Article V, it seems, depends on whether one agrees or disagrees with the Court’s decisions. This arrangement is not sustainable.

How James Madison, Thomas Jefferson, Alexander Hamilton, and John Quincy Adams came to their view of constitutionalism, and how Robert Bork, Antonin Scalia, and Clarence Thomas came to a very different view in the late twentieth century, which they nonetheless claimed to belong to the late eighteenth century, is one of the stranger paradoxes of American constitutional history. It is also one of the questions that animates this book.

originalism is unknown in most of the rule-of-law-abiding world, and it is not even ordinarily employed as the method of interpreting constitutions in American states; it is peculiar to the U.S. Constitution.

“Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched,” an aging Thomas Jefferson lamented in 1816, forty years after he wrote the Declaration of Independence, forty years after the first American state constitutions were adopted. “They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.” Jefferson knew those men were never so wise and that the constitutions they wrote were flawed. He believed that constitutions can last—“if anything human can so long endure”—only if they are regularly revised: “laws and institutions must go hand in hand with the progress of the human mind,” and constitutions need amending as “new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances.” This was not a quirk of Jefferson’s eccentric mind; it was a principle upon which the United States was founded, an idea embraced by an entire generation: “This they would say themselves, were they to rise from the dead.”

“Let it not be said in future generations that money was made by the founders of the American states an essential qualification in the rulers of a free people.”

Its framers had failed to anticipate how vulnerable a unicameral or single-house legislature would be to demagogues and passing enthusiasms.

More, it suspected that there was a conspiracy behind it, a plot by “Designing men” who hoped, by this delay, “to Lull People to Sleep, or Fatigue them other ways so as to obtain a Constitution to their own minds, Calculated to Answer their own Ends and wicked Purposes.”

He listed four things the new constitution should do. First, “make the form of government as simple as possible . . . so that every man who can read English, may understand it.” Second, include a bill of rights “which should define in plain language, the alienable and inalienable rights of the people.” Third, “clearly define and limit the power of rulers.” And fourth, guarantee to the people “the power of removing rulers from their places, upon abuse of their authority.”

a constitution has no authority over people who have no hand in writing, ratifying, or amending it. “Law to bind all must be assented to by all,”

Pluto.

Pluto had not been discovered in Joseph Pope’s time and has been demoted to a dwarf planet in ours. This comparison is really a double anachronism.

If poor men could vote, Adams speculated, “there will be no End of it. New Claims will arise. Women will demand a Vote. Lads from 12 to 21 will think their Rights not enough attended to, and every Man, who has not a Farthing, will demand an equal Voice with any other.”

“I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them,” Franklin had written, but “I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other.”

“The question Whether one generation of men has a right to bind another,

“no society can make a perpetual constitution,” because “the earth belongs always to the living generation”

“it having been found from Universal experience that the most express declarations and reservations are necessary to protect the just rights and liberty of mankind from the silent, powerful, and ever active conspiracy of those who govern.”

The Constitution is not written plainly. “There is a certain darkness, duplicity, and studied ambiguity of expression running thro’ the whole Constitution,” warned one Maine printer.

“No one familiar with the affairs of our government, can have failed to notice how large a proportion of our statesmen appear never to have read the Constitution of the United States with a careful reference to its precise language and exact provisions, but rather, as occasion presents, seem to exercise their ingenuity . . . to stretch both to the line of what they, at the moment, consider expedient.”

“slavery lives in this country not because of any paper Constitution, but in the moral blindness of the American people.”

This excess of southern representation

Elisha P. Hurlbut in his 1845 Essays on Human Rights and Their Political Guarantees.

All free white male persons

Nullification Castle

Judge Story

Joseph Story

It is a rule of American history that when amendment becomes impossible, the risk of insurrection rises.

Frederick Douglass dismissed “this edict of Taney” as an act of despotism, and his constitutional analysis as nonsense, “a most scandalous and devilish perversion of the Constitution, and a brazen misstatement of the facts of history.”

Jefferson Finis Davis was born in Kentucky in 1808. Finis. The end. As Robert Penn Warren would remark many years later, Davis “dropped the middle name, probably as early as he was put to his Latin, but who can so easily throw away his fate?”

And in a direct rebuke to the Christian amendment movement, the court stated that “religion is not—much less Christianity or any other particular system of religion—named in the preamble to the Constitution of the United States as one of the declared objects of government.”

The rum curse

In 1898 a very young historian named Charles Beard lamented that “this crowned Constitution with its halo has been the bulwark of every great national sin—from slavery to monopoly.”

Frederick Upham Adams, who invented the electric light post and edited a magazine called The New Time, believed that “the great issue of 1900 will be: ‘Shall the Constitution of the United States be so amended or revised that the rights of the Majority shall be preserved?’”

President John Smith.

“Veneration is a half-witted, obsequious brother to superstition, and I care for the companionship of neither.”

“The Constitution is not a fetish to be worshipped nor did it come down from heaven a perfect work,” Clark wrote. “Its defects nearly brought us catastrophe.” It did not foresee the steamboat, the railroad, the factory, the bank, the corporation. It was not democratic. He lamented the indirect election of the Senate. He lamented the Electoral College. He lamented the presidential nomination of Supreme Court justices as well as their life tenure.

FDR, in a press conference, likened the league’s worshipful attitude toward the Constitution to that of lovers of the Ten Commandments, whose tenets “appeared to be ‘love thy God but forget thy neighbor,’” except that “‘God,’ in this case, appeared to be property.”

(Robert Jackson, then in FDR’s administration as a special counsel, called Beck’s endless Liberty League speeches and articles about the imperiled Constitution “a driveling defense against phantom enemies.”)

“The judicial function is that of interpretation; it does not include the power of amendment under the guise of interpretation,” he scolded his brethren.

Not because it is old, but because it is ever new

But the kingpin was the stylish and erudite National Review, founded by William F. Buckley in 1955, in answer to Warren’s insistence that one cannot turn back the clock, in order to—as Buckley put it—“stand athwart history and yell ‘Stop.’”

The beginning, middle, and end of all constitutional inquiry

“Earth Day is a commitment to make life better, not just bigger and faster,” read a full-page ad in the New York Times. “It is a day to re-examine the ethic of individual progress at mankind’s expense.”