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The neglected importance of America's small-c constitution

Nothing is less relevant to understanding how Americans are governed than the text of the Constitution.

This is a bold claim, and one that admits of facile misunderstanding. I do not mean to echo the complaint of so many Tea Partiers that we have at some undisclosed point since 1788 strayed from the hearth of our Founding Fathers. Nor am I suggesting that the United States is or has been lawless. We are governed not according to the moribund Constitution of 1788 but by the present constitution, which, though alive and well, is undergoing one of those periodic revolutions that have given rise to its numerous predecessors since the end of the 18th century.

Let the dead bury the dead Constitution

By our "constitution" I mean what the New Oxford American Dictionary defines as the "body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed." The United States has a constitution. Clearly identifiable principles inform the behavior of state officials and well-defined precedents guide their decision-making. But there is no useful schematic for this familiar machine. No college textbook or Schoolhouse Rock primer could hope to explain the indubitable constitutional roles played by the New Hampshire primary, the White House press briefing, and quasi-public research organizations like RAND and MITRE to a young person or a foreigner. The cleverest political theorists would be hard pressed to explain how the government legally purchases a single nail. Some of the most important documents in the American republic are Microsoft Word files whose precise interpretation will depend upon whether the "Track Change" feature has been enabled. We see the American constitution and live under it but we can barely describe it.

This is in part because we have equivocated too long about the meaning of that word "constitution," prefacing it with an capital letter when one does not belong there. As long as we pretend that what we mean when we say that this or that policy is "unconstitutional" is that it contradicts the text of 1788, or indeed any of the subsequent amendments, we are engaged in a kind of necrolatry. This religious attitude is usually associated with conservative Republicans, but it was not so long ago that MoveOn.org types were said to be communing with the spirits of our hoariest ancestors during the administration of George W. Bush. Under President Trump we are once again witnessing a revival of constitutionalist popular piety among Democrats, who have decided that the direction of congressionally appropriated funds to federal departments is not among the prerogatives of the president.

The relationship between the constitutional text and the actual constitution might be compared to that between a document written in code and the key used to decipher it. It is possible, of course, to devise an encrypted text capable of yielding more than one seemingly intelligible meaning according to the key that is used. A simple code such as "101" will mean something radically different according to whether the 1 is said to stand for W or T and the 0 for O or A. The code of 1788 has admitted itself capable of any number of interpretations, but as these have multiplied the text itself has proven far less important than the deciphering apparatus. It is as if a general, hoping to find reinforcements along his right flank rather than news of a surrender, not only ordered his aide-de-camp to devise a new cipher but in the act of doing so willed the longed-for auxiliaries into existence. Our constitutional revolutions are a triumph of magical thinking.

The fact that our revolutions have grounded themselves in the order they were superseding should not surprise. We do not find it baffling that Roman emperors preserved the republican offices of state hundreds of years after the revolution or that the businessmen who control the Communist Party of China still refuse to dispense with the legal fiction that they are paid-up Marxist-Leninists. "Human kind," T.S. Eliot said, "cannot bear very much reality."

The five revolutions

In looking at American history I can detect five overlapping but nevertheless distinct constitutional revolutions.

The first and most significant, the one that supplied the legal machinery out of which all subsequent constitutional structures would be assembled, came in 1803 with Marbury v. Madison, which declared that the Supreme Court would now have the authority to decide not merely whether a man was guilty of a crime but whether his crime, or indeed any crimes, even existed. With the distance of so many centuries, it has become almost impossible to convey to readers the audacity of John Marshall, who single-handedly transformed a humble sinecure for old-fashioned circuit-riding common law judges into a college of constitutional augurs sequestered in Washington, D.C. More than two centuries on, there is no activity in politics more important than their yearly inspection of the entrails. The struggle between — for example — opponents and proponents of abortion into which so much of political decision-making has been subsumed in the last 40 years, is a result of this ill-considered power grab.

Marshall's revolution is something we never discuss as such, least of all those of us who endorse so-called "originalist" and "textualist" theories of constitutional interpretation. For the earnest conservative student of jurisprudence who believes that an entire branch of government exists for the purpose of constitutional divination, it is deadly to concede that there is no textual warrant for such activity. Marbury was itself what originalists call "judicial overreach." If this were more widely admitted the whole philosophy would collapse under the weight of its lugubrious platitudes, revealing the same fideism of which Anthony Kennedy and other liberal jurists have been accused. For originalists, as for everyone else, it's turtles all the way down.

The next constitutional revolution came only a few more decades into the life of the new republic. I mean of course what historians call "Jacksonian democracy." With the advent of universal white male suffrage, the whole body of Founding-era constitutional thought becomes a dead letter. The quasi-Roman republicanism of the Founders was replaced by a frontier populism. Tithes paid to established state religions, which had somehow survived the ratification of the First Amendment, disappeared along with central banking. Judges became the creatures of the populace. Endless expansion and spoliation and even murder were official policy. Human beings remained property under the new dispensation on the basis of their descent from African ancestors.

It was ultimately the last of these iniquities that would lead half a century later to the third lasting constitutional revolution, that of Lincoln, the log-cabin Pericles who would suspend habeas corpus and imprison journalists in pursuit of government by the people and for the people. More than anything else Lincolnism was the triumph of a radically new conception of the United States. No longer was there a loose confederation of coonskin-capped brawlers drawing up whiskey deeds and gravel-voiced Yankees presiding over town meetings, but a proto-Bismarckian state based in Washington, D.C., with the authority to tax citizens on their income. Even grammar yielded before the stolidity of the new settlement. From the 1860s on, we no longer find journalists and historians writing that "the United States are"; the constitutionally inadequate plural becomes an ungrammatical singular and has remained so.

So far we have, except in our initial visit to the Marshall estate, remained well within the safe territory of official history, even conservative history. With the exception of a handful of subscribers to Chronicles magazine, no one has seriously argued in the last 50 or so years that Lincoln's revolution was anything but "constitutional." It has been held compatible with originalism and indeed held up as the basis for an entire branch of right-wing historiography. So far as I am aware there exists no coterie, not even in the hinterlands of online paleoconservatism, that supports a reversal of Jacksonian democracy or finds in the expansion of the franchise to those who do not own property an antinomian betrayal of the Founding.

To find what the modern right considers the original sin we must look beyond slavery and emancipation to the long administrative revolution of Woodrow Wilson and the two Roosevelts. The most radical conservative politicians and commentators have long argued that the goal of their movement was the eventual reversal of all the innovations they find embodied in the New Deal. There can be, I think, no readier indictment of that movement and its supposed prophets than the utter failure of this ambition despite, and perhaps even because of, the long periods in which its supposed adherents have controlled the federal government. Getting rid of Social Security is probably impossible. It would certainly be, in the sense in which the word ought to be used, unconstitutional.

Of all the heroes of American revolutions there is perhaps none so romantic as the figure of Franklin Roosevelt, our own bound Prometheus. Here is the man who brought fire to the people, who in welcoming the hatred of the powerful had declared war on their gods and won. The intransigence of the New Deal-era Supreme Court was the last cry of the exhausted Olympians.

But the glorious myth of Roosevelt is not belied by the reality. His revolution, which created a permanent architecture for the federal government and a new role for it in directing economic activity towards the common good, provided the constitutional order that would undergird what has become known as the post-war consensus. The period from 1945 until the late 1960s was the greatest expansion of peace and prosperity that the world had ever seen. Its governing assumptions — the welfare state, the mixed economy, cooperation between major industries and the state, a slow but civic-minded determination to right ancient wrongs — united presidents regardless of party. The last one to embody this great dream was Richard Nixon, who gave us the Environmental Protection Agency and would have also, had it not been for the Watergate investigation, passed basic income and universal health coverage. "Tory men and liberal policies," he said, "are what have changed the world."

The beginning of the end of the post-war consensus, and of the Rooseveltian constitution that had made it possible, is almost universally attributed to the wrong man. It was Jimmy Carter, the would-be folk hero of peanuts and malaise, who set in motion the atomization whose consequences we continue to live with even now. Ronald Reagan's valor was mostly of the stolen variety. It was Carter who destroyed all the comfortable old federally approved monopolies that made oil, telecommunications, railroads, trucking, and air travel well-regulated, quasi-nationalized industries. He also bequeathed almost limitless power to the Federal Reserve. In attempting to overcome the undeniable inertia of old arrangements Carter invited a new one in which the only movement would be in the direction of profit. It would not be until Bill Clinton's presidency, however, that neoliberalism would find its greatest champion in the man who gutted the welfare state, codified limitless greed and irresponsibility in our financial system by repealing Glass-Steagall, and destroyed American industry, probably forever, with NAFTA.

Reduce, reuse, recycle

Before considering the present situation, it is worth making some further general remarks about the features, incidental or otherwise, of American constitutional revolution.

The first is that with every revolution comes an archetypal new man, a figure who embodies the ascendant order, who by some admixture of temperament, education, and luck, both understands and rules by means of the prevailing constitutional technologies. What the slave-owning farmer-statesmen of Virginia were to 1788, the so-called Wise Men of the WASP establishment were to the post-war order inaugurated by Roosevelt. When Henry Adams lamented that classics and history had not prepared him for the age of the dynamo, he might as well have been speaking for the university-trained professional who cannot program a single line of code or speak the language of the global consultant class. Our Hamiltons and Madisons are Davos-going tech CEOs, not throwbacks like Rick Santorum or enthusiasts like Barack Obama.

Another even more important point is that while some of our revolutions have tended to reverse the course of earlier ones, they have always done so without actually discarding the governing technologies that they introduced. Lincoln may have created the federal government as we now understand it, but he did so without discarding the Jacksonian-era program of universal white male suffrage, which he in fact attempted to expand. Likewise, the neoliberals may well have believed that the era of big government was over, but they responded to this new perceived reality by modestly reducing the size and scope of the administrative state — or by allowing its older roles to deteriorate without oversight, as in the case of the Department of Education, which once advanced modest sums to aspiring college graduates but is now the enforcer of generation-wide debt slavery — rather than by eliminating it. Nothing is ever lost except purpose.

This is why the constitution is full of odd and at times even inexplicable holdovers from previous eras, like the pointlessly bicameral legislature, or the Electoral College, which gives the odd impression that we are a ragtag confederation of independent states rather than a centralized administrative republic. It is also why there is hardly a single person on Earth who can explain something as seemingly straightforward as how the government buys something. We are bad at taking out institutional garbage, but we are very good at constitutional recycling.

Götterdämmerung?

In 2019 we find ourselves watching as the legislative branch is subsumed into the authority of the executive. The unlimited powers that George W. Bush's advisors claimed for the presidency both at home and abroad in a supposed time of war were inherited by President Obama, who laid waste to Libya and remade our immigration system with the stroke of a pen. For the past two years on trade, foreign policy, the border, and every other issue of importance, President Trump has been able to govern effectively without the assistance of Congress. The same powers will be used, perhaps with even greater effect, by the party now in opposition when they inevitably return to the White House. We are inexorably engaged in a sixth constitutional revolution, one that will, I think, sooner or later culminate in the de facto abolition of the federal legislature. The self-consciously meaningless gestures of anti-executive defiance that began with the congressional GOP under Obama will continue apace until the whole thing has become a bathetic ritual, like the annual White House turkey pardon.

What will this mean? It may be that the sixth revolution will reverse the decentralization of the post-Carter neoliberal constitution. In the place of a CEO who presides over the apportioning of the United States and those parts of the globe within her sphere of influence to global capital we might have a Bonaparte who codifies the grievances of post-industrial America and uses his imperial prerogative to redress the evils visited upon her citizens by technology, alienation, and addiction. This was no doubt the hope of many old comrades of Eternal Trumpism.

It seems to me more likely, though, that we are witnessing another revolution of continuity and development, like that of Roosevelt, which simply refined the old Lincolnian base metals into something sharper. The new all-powerful executive will very likely use his or her unchecked authority not to upend the power of capital but to solidify it forever. The intermittent populisms of the past will continue to find a voice, if at all, in an increasingly powerless legislature. The saga of Brexit in the United Kingdom has shown us that under neoliberalism constitutional revolution from below is impossible. We should not expect it to come from above either, at least not in any form we would hope for.

Only a god-emperor can still save us.


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