Thursday, July 29

Constitution As Verb

I am having an experience I have seldom – I won’t quite say “never” – experienced in life:  hope. Were the phrase not already taken, I would even make bold to say I am experiencing the “audacity of hope”. Beginning in early childhood, I learned very well to be extremely cautious in succumbing to promiscuous hope. For a long time, my working hypothesis in life was written by the Greek / Cretan author Nikos Kazantzakis, who wrote Zorba the Greek, Report to Greco, and The Last Temptation of Christ:  "Hope is a rotten-thighed whore". In fact, I learned to be a “hope anorexic”:  to subsist on the absolute minimum of hope that would permit me to maintain a sketchy simulacrum of sanity. Without getting lost in past history, I will say that this tendency is traceable to my experience with Christianity, which for me was always the Great Cosmic Disappointment Generating Machine (GCDGM):  you pour your life in one end, and out the other comes disappointment, so the only way to get through the Machine with the least harm was to minimize my dependence on hope. The less hope, the less disappointment, so, yes, the GCDGM grinds on but with only minimal damage.

However, the recent marches against Der Amerikanische Reichs-Kanzler (hereafter: DARK) and recent Federal court decisions, especially the most recent ruling from the Ninth Circuit, impeding his ban on Muslim immigration have encouraged me to entertain the possibility – just the possibility:  you see, I am as averse to certitude as to hope – that perhaps … just maybe … the American tradition of constitutional, classical-liberal, Enlightenment-grounded, rights-centric liberty may survive the depredations of DARK and his army of Middle-Earth orcs, uruk-hai and balrogs . In the process, I have also learned that I perhaps gave too little credit to the American people and their dedication to this tradition. Observing the marches and demonstrations, I feel duly chastened.

I have told elsewhere the story of how a visit to the National Archives several years ago provoked what would turn out to be, not only an epic intellectual journey, but also what for me turned out to be a kind of religious and spiritual renaissance.  Years before that crucial visit to the Archives, I had decided that, having renounced my original ever-since-childhood faith in Christianity and escaped (what, for me, was) the GCDGM of Christianity, I nevertheless  could not subsist on sheer spiritual nihilism.  To make a decades-long story short, what I eventually discovered were the principles of the European, especially English and Scottish, Enlightenment, in particular how those principles came to be articulated, first in the Articles of Confederation of the American Colonies, and later in the Declaration of Independence, the Constitution, and the Bill of Rights of the newly independent American States.  That was something I could believe in. That was a passion I could indulge, and which, unlike so much religious enthusiasm, was pretty much self-correcting and self-regulating due to its emphasis on autonomous human Reason exercised within a context of free inquiry and expression.

So I began to read. I even began an out-of-the-blue correspondence, sans prior introductions, with faculty at the University of Washington and Harvard law schools (including an extended e-mail correspondence with Prof. Laurence Tribe) requesting recommendations for what particular titles to read. And I read with a vengeance. Voraciously. Omnivorously. Remorselessly. Think Augustine after the angel pointed to the Book of Romans and adjured him to "Take and read!" For about four years, fully 90% of everything I read had some intimate connection with American constitutional history. The history of the European Enlightenment. English legal history. Contractarian political theory, e.g., Locke, Hobbes, Rousseau, etc. Biographies of great English jurists like Blackstone. Biographies of the architects of the American Revolution – Washington, Adams, Jefferson, Madison, et al.  Histories of the Constitution from a multitude of ideological perspectives.  The relationship between the Constitution and English common law. English and American theories of sovereignty. Histories of the writing of the Constitution and of its ratification at the State conventions in 1788-89. (The late Pauline Maier's magisterial doorstop of a book, Ratification, remains the gold standard for me on this subject.) Theories of how to interpret the Constitution. Writings of contemporary constitutionalists:  Akhil Reed Amar, Jack Balkin, Cass Sunstein, Linda Monk, Erwin Chemerinsky, Suzanna Sherry, Daniel Farber, Laurence Tribe, et al. I was a lot like that ancient “berserker” machine the USS Enterprise encountered on that fabled Star Trek episode:  I just went around devouring – hopefully more systematically and with more discipline than the “berserker” – everything I could find about the US Constitution and its history. I have lightened up somewhat:   now, instead of 90%, I would estimate that between 2/3 and 3/4 of my reading is on the Constitution. These days, I do take an occasional Stephen King and H. P. Lovecraft break.  But the process is still ongoing.

That experience was simultaneously exhilarating and discouraging.  It was exhilarating for the reasons just described:  it reminded me of the closing couple of lines of that e. e. cummings poem – “listen there’s a helluva good universe next door, let’s go”. But it was also discouraging because I very soon discovered that almost none of my fellow citizens had the least inkling of what I had discovered, and even less of an idea of why it had become so critically important to me.  Very few people – as in “virtually none” – knew that there are 27 Amendments to the Constitution, that the Philadelphia Convention met from 25 May to 17 September of 1787, that the 22nd Amendment limits presidential terms, that the phrase “separation of Church and State” never occurs as such in the Constitution (though the principle is central to the Bill of Rights). Very few people could even take an intelligent guess as to the relationship between, say, the 10th Amendment and the doctrine of reserved powers.  Almost no one knew why the 1803 decision Marbury v. Madison was important, that the original version of the 13th Amendment would have made slavery perpetual instead of abolishing it, or that States are not textually prohibited from declaring a State church (a prohibition resulting from an interpretation, in Gitlow v. New York in 1925, of the relationship between the “equal protection” clause of the 14th Amendment and the “establishment” clause of the First, not any explicit constitutional text).  To most people, the word “incorporation” means nothing outside of a business-related context. If I wanted to talk about these topics, I had to talk to someone, either students or faculty, in the UW law school "con law" classes I had begun to audit.  Then along came the marches, here and in foreign countries, the judges' interdiction of the executive order (EO) barring immigration from Muslim countries, which led to another discovery.

That's OK.

Now, to be sure, I persist in believing that it is better to know than to not know.  That has not changed. But the confluence of the marches and the court opinions gave me another, more charitable, slant on the Marshall Court's opinion in Cohens v. Virginia.  No, most Americans could not tell you want "incorporation" means in any context other than business. No, most Americans do not know anything about the relationship between the 10th Amendment and the doctrine of reserved powers. Most would be surprised to know that, theoretically and as a strictly constitutional matter, States could -- again, theoretically -- declare an official State church. (Associate Justice Thomas was right!) But -- one more time -- I have come to believe that that is OK.  Why? Because, even though most people have a hard time talking about the Constitution, they have no problem, when grievously provoked, doing the Constitution.  They know something, have probably long known something, I have only recently just learned:  the Constitution is  something you do, not just something you study. As long as people are willing to march, to bitch and gripe, to piss and moan, to agitate, to holler, to protest, to pound the table, to shout at their congressional representatives at town meetings, to get hauled off to jail like Dr. King -- in other words, as long as they are willing to do the Constitution, as long as they are willing to engage in "Constitution-ing" by treating the Constitution as a verb instead  of just as a noun -- as long as people are willing to do that, they will always be "mak[ing]" the Constitution in the spirit of Cohens v. Virginia, and the Constitution will "live by their will".

But only as long as ... for day to day, there are no guarantees.  Keeping the Constitution alive as a verb and not allowing it to be just a thing is never guaranteed. It is always a decision we make. Every day. All of us.  So, yes, I have hope.  But hope is by definition always contingent.

If and when we quit doing it, the Constitution dies and the American Republic along with it.

James R. Cowles

Image credits
Tunnel ... GreenHyena ... Creative Commons Attribution-Share Alike 3.0 Unported
Sunset ... Author unknown ... Public domain
Constitution ... National Archives ... Public domain
March in Portland, OR ... "Another Believer" ... Creative Commons Attribution-Share Alike 3.0 Unported
Pussy Grabs Back ... Public Domain Pictures ... Public Domain

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