Rescuing the Constitution from Civic Illiteracy
By Gary Schmidgall
Way back on May 7, 1933, FDR, in fireside-chat mode, advised his radio audience, "Like the Bible," the U.S. Constitution "ought to be read again and again." The sentiment is quoted with decided approval by Eric Lane and Michael Oreskes in their new book, The Genius of America: How the Constitution Saved Our Country and Why It Can Again (Bloomsbury). The authors do note, however, the irony of the President announcing in the same chat his intention to pack the Supreme Court with some extra like-minded justices to smooth the way for his New Deal.
But then, since the day—Sept. 13, 1788 —the Continental Congress declared the Constitution ratified, it has been a perennially and magnificently contested document. Long may the contest continue, Lane and Oreskes say, but they fervently believe that the haggling should be informed by an understanding of what the fundamental premises of the 7,000-plus-word document (including amendments) are and how they were arrived at.
The favorite word Lane (a professor at Hofstra University School of Law) and Oreskes (executive editor of the International Herald Tribune and City College alumnus, class of 1975) use for the current state of Constitutional understanding is "thin." They use it several times, along with the phrase "civic illiteracy." With evident approval, the authors cite West Virginia's venerable Sen. Robert Byrd on the subject: "People revere the Constitution yet know so little about it—and that goes for some of my fellow senators."
The style of The Genius of America (like that of the Framers in the reports of their debates, for the most part) is calm, deliberate and shy of rhetorical flourishes. In fact, Lane and Oreskes have written an unglamorous—but much-needed—book with eyes wide open. "We need to embrace that our liberty and freedom flow directly from less glamorous but still vital ideas, such as compromise, and checks and balances, and representation and process." Mario Cuomo once observed, "You campaign in poetry. You govern in prose." Come now Lane and Oreskes urging us to focus on the words and history of that governing document notably lacking in iambic pentameter.
Though coolly judicious, this study rides on a strong undertow of urgency, mainly because of developments in the last decade or so that threaten the Constitution, notably the current decline in Congressional power relative to the Executive Branch. "The weakness of the legislature throws off the whole design of the system," the authors believe. Another prime cause of concern for Lane and Oreskes is the recent rise in virulent partisanship and the resulting legislative gridlock, with the attendant proliferation of "wedge issues" and "special interests," which the Framers called "factions." Clearly to be read in tandem with The Genius of America is Ronald Brownstein's recent book, The Second Civil War: How Extreme Partisanship Has Paralyzed Washington and Polarized America.
What scares the authors most are two current (but also time-honored) tendencies on America's Main Street. The first is the voters' demand for instant gratification of their desires. "We judge our politicians...in the present tense alone." Second is our tendency to take the 220-year-old document for granted. "We have come to mistake longevity for permanence. We take for granted the existence of what not so long ago was remarkable and revolutionary."
Because Lane and Oreskes are so concerned about the Constitution's future (that place on which the Framers were so astonishingly focused), the lion's share of their 220-page text is devoted to the Constitu-tion's past. In very compact fashion they devote Part One of the book to the "Invention" of the Constitution in Philadelphia. The emphasis here on process, debate and, most importantly, compromise is heavy. The spirit of compromise solved the two big problems the Framers struggled over: how to arrange representation in the legislature for large and small states (a House and Senate) and how to elect a President (Electoral College). Then in Part Two the authors take a few prominent crises in history that challenged the Constitution's integrity, notably the passing of the infamous Sedition Act of 1798, so outrageous to the First Amendment, and Judge John Sirica's opinion dealing with the subpoena for Nixon's secret tapes during Watergate.
As their narrative unfolds, the authors develop a set of core Constitution-inspired values that they hope will "become part of the political conscience of each American." This "Constitutional Conscience" primarily consists of the notions of "conflict within consensus, compromise, representation, checks and balances, tolerance of debate." In cliffhanger fashion, the authors explain, the Constitutional Conscience has happily and often re-asserted itself to save the day in moments of Constitutional crisis. But sometimes just barely. Will "it" work the next time? Lane and Oreskes want us to think about this, and to aid us they include the entire Constitution as an appendix.
The story of the long hot summer of Constitution-making is highly abbreviated but deftly told, with some amusing asides and factoids. Rhode Island never showed up at all, and New York had only one delegate present, Hamilton (he voted aye). On the hire of the newly arrived Tom Paine (later author of Common Sense) as a writer by the Pennsylvania Magazine, the authors remark that it was "probably the most important hire of a freelance writer in the history of America."
It is also bracing to learn that our Constitution was conceived largely in response to a "cold-eyed" and dim view of man's nature. As Washington wrote to John Jay in 1786, "Experience has taught us, that men will not adopt & carry into execution, measures the best calculated for their own good without intervention of a coercive power." Fascinating, too, to learn the Framers paid almost no attention to the specific functions of the Supreme Court. John Marshall, a Federalist, was left to sort that matter out on his own.
This stroll through our Constitutional past also has much current interest. The authors, for example, observe, "In very much the way the Federalists were tossed out in 1800, after President Adams failed to stop a Federalist Congress from plunging forward with the reviled Sedition Act, the Republicans were tossed out of Congress in 2006 for failing to check a Republican president's plunge into an unpopular war." Speaking of that war, the authors have occasion to quote this thought of James Madison uttered in 1798: "It is a universal truth that the loss of liberty at home is to be charged to provisions against dangers real or pretended from abroad."
Among bêtes noires of the authors are Howard Jarvis, the Californian whose Proposition 13 revived a long-dormant fashion for initiative/referendum government. They dislike the way it skirts the deliberative legislative process—like the one that produced the Constitution itself.
For Lane and Oreskes the whole Oliver North/Iran Contra affair captured how easily a renegade can throw a wrench into Constitutional checks and balances. The authors quote from a Congressional minority report on the affair that sided with North and the Executive Branch: "The Chief Executive will on occasion feel duty bound to assert monarchical notions of prerogative that will permit him to exceed the laws." The guiding hand in writing that minority report? A Congress-man named Dick Cheney.
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