The Constitution As An Unprincipled Document

To say that the United States Constitution has been subject to different and conflicting views is to state the matter mildly. Perspectives range from the absurdly reverential to the absurdly cynical. "The Constitution of the United States was made not merely for the generation that then existed, but for posterity- unlimited, undefined, endless, perpetual posterity, " said Henry Clay, speaking for most of the 19th Century in a tone that can definitely be characterized as absurdly reverential. On the other side of the spectrum sit historians such as David Waldsteicher and Eric Foner, and propagandists such as Ibram Kendi insist that the document was racist and pro-slavery from the outset, and thus fatally flawed. 

In my opinion, both these perspectives miss the point completely. They are both hindsight driven. They ignore the political and social realities of the environment in which the drafters of the Constitution labored - an environment to which the overused word ‘crisis’ can fairly be applied. The Constitution was not drafted in a laboratory by a coven (sic) of political scientists and scholars, nor was it created under the aegis of an occupying military power, such as the quite workable constitutions of Germany (1949) or Iraq (2005). Instead, it was written in white heat in 90 days by a group of practical politicians, fully aware that the unformed nation they hoped to preserve was descending into anarchy. They were aware, too, that they lacked any formal authority to do what they proposed to do. Finally, and most importantly, they were conscious that this was the one and only opportunity the American nation would have to right itself, form itself. Get this one wrong, and the chance would not occur again. The centrifugal forces that had wreaked havoc with the loose union established by the Articles of Confederation were gaining strength and momentum. If the more perfect union did not come into being then and there, it never would. Only one chance at bat, and only one strike.

In determining the intent of the framers as expressed in the document, you don’t begin with an examination of their contemporary correspondence, or a deep dive into the Federalist Papers, or any of that theory. You begin with Pauline Maier’s brilliant book Ratification - The People Debate the Constitution (2011), recounting the contentious and often overlooked debates that occurred after the Constitution was presented to the people. Too often the process is dismissed in a one-paragraph cataloguing of the colonies (States) that approved the submission, and the dates that occurred.

But the reality is that ratification was a near thing, a frighteningly near thing considering what the consequences of failure would have been. A solid fraction of the American public was dubious about a central government of any type, considering the recent conflicts with Parliament. There was substantial opposition to the concept of centralization itself, no matter how stark and visible the emerging problems of division.

The men who attended the convention of 1787 were practical men.  They were fully aware that the task at hand was not simply to create a practical, working template for a central government. It was also to create a template that could be agreed upon as quickly as practically possible, with a minimum of controversy - for time was of the essence. Not only did the proposal have to be ratified by an increasingly contentious set of geographically distinct societies, it had to be ratified quickly - for if the process dragged on and on, other issues - foreign intervention, additional conflicts between the colonies, new personalities - were sure to emerge and derail it. The notion of a central government was controversial enough without any reference to larger controversies of the day. 

It is for that reason it is folly to look for any principle or expression of values in the Constitution. In my view, every compromise, policy decision, and so on traces back to a single overriding goal - to minimize debate and controversy, to make the ratification process as easy and foolproof as possible. There are no values or principles in the original Constitution. There is only the bare bones structure of a central government, and a deliberate deferral of every important moral or ethical issue of the day to a better, more convenient time. Inviting debate on these issues might have derailed the ratification process - and ratification was all important.

Obviously, the most significant of these from our contemporary perspective is slavery (though at the time there were others, particularly the question of asserting rights to navigate the Mississippi River). But the handling of the issue of slavery, or rather the ducking of the issue of slavery, was typical. Professor Wilentz of Princeton is quite right that the omission of any assertion of a right of property in a a human being is striking and significant. But I don’t believe it’s accurate to conclude that the omission reflects a negative value judgment concerning slavery on the part of the Framers. Nor does the inclusion of others indicate a positive one.

What they do reflect is the minimal attention necessary to the issue to minimize debate - and that, in my opinion,  is their primary purpose. None of the substantive issues of American history are addressed. All are deferred. The mechanics of the proposed government are reduced to the barest essentials - and even these were controversial and difficult (as Professor Maier documents) There is only the most limited mention of details of administration, the Presidential cabinet, the workings of Congress, most importantly, no discussion of political parties or judicial review. It’s as completely a tabula rasa as it is possible to be - and that is deliberate.

I am not a professional historian. I approach these questions philosophically. I can understand the reluctance of historians to engage in contrafactual history, might-have-been speculations about the course of history if events were different. That way leads madness. But the reality is that actual actors in time DO have to consider the contractual possibility, the consequences of failure. The point is actually truistic. Every human being does so on every major life decision. What happens if I don’t propose marriage? If I don’t take this job? And so on.

It’s a realism that has to be considered in understanding the values (or lack thereof) expressed in the 1787 Constitution. The correspondence at the time of Washington, Hamilton, the others, at the time, is literally anguished concerning the possibility that all of the ideals of the Declaration of Independence would disappear, that it would all be in vain. It’s an inference reasonable to the point of certainty that this sense of urgency was shared by the majority of the less celebrated participants in the Constitutional Convention of 1787. As is clear from the debates at the Convention and other writings, a great many delegates already had strong, principled feelings about the morality of slavery. But the Constitution was not the forum for their expression. The practical necessity was too great. That is the only conclusion that can be drawn from a consideration of how the constraints of real time affected the creation of the United States Constitution.

That the Founding Fathers were wildly successful in the accomplishment of the basic practical task before them should go without saying.  But it must perforce be said, because the success itself obscures the magnitude of the achievement. The triumph of the United States in the last century has been so complete that the ideals on which it was founded - problematic in the extreme then and always - have come to be regarded as some sort of expression of natural law. Throw all the cards in the air, and they will come down as a perfect house. But it is worth bluntly noting the sobering reality that, of all the utopian experiments undertaken in the last 250 years, large and small, the United States is the only one that succeeded. Hannah Arendt has noted that the French Revolution, often extolled by historians for the purity of its commitment to the idealism it borrowed from Jefferson, descended into political terror in three years and collapsed into Napoleon in six - while the American Revolution, often deplored by historians for its practical reluctance to address fully the evils of the day, succeeded, and over two plus centuries has transformed the world. Bismarck’s observation, that politics is the art of the possible, has no truer exemplar than the Constitutional Convention. The insubstantial pageants of the daydream, on the other hand, leave not a rack behind - although plenty of bloodstains. 

[CODA 1. Though not a professional historian, I would suggest to those who are, that possibly the worst way to determine the core beliefs of any substantial political figure is to analyze his or her public statements made in the arena at any given time. These may be sincere, or may be not. The fact that they are intended to achieve a particular result makes that determination impossible. After the firing on Fort Sumter, Lincoln may or may not have been describing his rationale for fighting the Civil War truthfully. But mostly he wanted to raise an army as expeditiously as possible. What he actually thought about the War and the reasons for waging it is impossible to say. His motives in speaking as he did were practical, not theoretical.

A realistic determination of the varied attitudes of the Founding Fathers about race and slavery would require a comprehensive intellectual history of the times, which no one seems to want to write.]

[CODA 2 Mounting the philosophical lectern one last time, I would pose one meta-question to the cynicists among the historians. If the culture of 1787 was irredeemably committed to the preservation of slavery as an institution, why was it even necessary to address the issue in the Constitution? In 1775, all thirteen colonies were placidly and non-controversially slave polities. What had changed in twelve years, such that ratification of a national Constitution could not be accomplished without the inclusion of a number of provisions aimed at protecting the institution? How in a mere decade had slavery gone from a universally accepted social feature to one that was endangered enough to require special protection?

To me, the answer is obvious.]


Introduction - American Idealism and Xenophobia

I could begin with an apology for another blog dedicated to topics of American history and idealism, except that no apology is necessary. We have reached a stage in national and cultural development in which an incredible diversity of opinion about the nature and meaning of the American experiment. These are inevitably colored by the politics of the moment, the need for an agenda or even a crusade. There is also the unfortunate need for a villain that is an essential theme of the romantic politics that dominates the American tradition, with the result that every campaign tends to become a crusade. There is no such thing as a problem without a Bad Guy.

My object here is a little different. The premise of this blog is that xenophobia, the fear or distrust of strangers, and its sub-categories racism, tribalism, and all the rest, is an basic element of human nature. It isn't unnatural. It isn't a moral failing. You don't have to be carefully taught (in the words of the Hammerstein lyric) - quite the contrary, it's the default human response to any encounter with a stranger.  Back in the  day, my bet is that along the long, dark evolutionary road that ultimately produced blog writers, this tendency to identify with groups (family becoming tribe becoming nation) was a valuable, perhaps essential, survival trait.  Resources were scarce, the environment harsh. Apparently it's an anthropological fact that the prehistoric wars and conflicts just over the horizon were grimly, relentlessly, purposefully genocidal. 

That the most loving and tolerant among us are likely the products of the cruelest and most insular. We human beings are peculiar critters - an all too solid flesh, conjoined with a rational faculty apparently capable of surmounting any biological constraint ( a delusion?). If you want to go highfalutin' for a moment, we are also blessed and cursed with the ability of sensing infinity without any corresponding capability to assimilate and comprehend it. (In this last paradox lies the foundation of all religions and metaphysical systems, and also all metaphysical and religious controversies. But that's another conversation)

So where does American idealism - meaning in essence the Enlightenment ideals so beautifully expressed by Thomas Jefferson in the Declaration of Independence - fit into this scheme? Simply put, American idealism has become the antipode of that default xenophobia, the rejoinder to the universal might-makes-right organizing principle of ALL nations and societies known to history and pre-history. More than that, by some sort of historical miracle, those utopian ideals have replaced the old real politik models.

You can't insist on an historical insight so broad and universal without immediately qualifying it. Of course I do not mean to imply that the creation of this new paradigm wrought any change in human nature. Obviously it did not. In fact, that's the whole point. The United States has been so triumphant, militarily, politically, and ideologically, over the old-style European ethnocentric nationalism and new-style Communist faux-universalism, that a huge number of incautious individuals have come to assume that the aspirational ideals expressed in the Declaration of Independence set forth a principle of natural law. All men (and women) ARE created equal (they believe); the premise is indeed self-evident; and any failure of earlier societies to recognize the fact, any expression of the biases of the day by an antiquarian thinker (no matter how wise or visionary in other respects), requires instant condemnation. This historical and cultural absolutism is reserved for Western nations and thinkers, and particularly the United States, by persons wishing to make a political point.

Except that American idealism is not self-evident and it's anything but natural law. There are all sorts of perspectives from which all men (and women) are not created equal. Anyone who's ever lost a foot race, or played a mind game with someone with a greater innate gift, knows exactly what I'm talking about. However, it would be wrong to dismiss the Jeffersonian formula as a simply political North Star. It does represent an aspiration of human society at its brightest and most lucid. Its rationality is as natural to humankind as our darker instincts, since we are rational animals. But it is not a definition of the default state of human society, the angle of repose at which nations and communities will arrive absent some evil or malicious force. It's the product of our better angels. But that certainly doesn't mean there aren't worse and darker ones.

These are hardly new thoughts. The dichotomy between mind and matter, as it affects behavior, as it challenges the delusion of an unfettered will, is as old as recorded time. The spirit indeed is willing, but the flesh is weak. I love my wife, but oh you kid. Where the perspective advanced here differs is the suggestion that those dark angels were valuable, perhaps essential,  at various ancient points during the long evolutionary trek. At one time, they were survival traits. That's why they endure.

That's a non-controversial point with most of the fleshly weaknesses. Human beings tend to eat too much, because food was scarce in Darwinian pre-history, and storage of nutrients in the form of surplus body fat a desirable evolutionary characteristic. I don't even have to discuss sexual desire. The appeal of addictive substances (nicotine, alcohol, all the rest of the goodies) has to do with appeal to pleasure centers that doubtless had their day. Even if the pleasurable sensation is a random by-product of the evolutionary path, which happens, they still have to be assessed in terms of the biological history of our species. 

Where my perspective is unusual is that I perceive the xenophobic tendency of homo sapiens as also based in evolutionary history, and also at one point in ancient time a positive trait in terms of species survival. I don't dispute the need to approach subjects such as racism and tribalism from an historical and cultural perspective. But it is also necessary to use an ethological -  that is, defined loosely, the extent to which human character is formed by natural and biological factors - framework. At the end of the day, the human animal is an animal. To lose sight of that elemental fact is to be lured into an absurdly utopian critique, from which the inevitable failure of any human society to conform to an ideal is intolerable. Put in those terms, the absurdity of the critique is obvious. But many modern intellectuals stumble into it, particularly when discussing the United States. 

From that same perspective, the historical battle against xenophobia in its various forms is not a battle that can be won. It is a process, a progress, towards a goal that in its purest version is unreachable - the force of gravity, if you will. There is no such thing in practice as a utopia. Our better, brighter angels can never entirely escape our worser, darker ones. (They may in fact be related, though that speculation is an unprovable proposition.)

Lastly, and again from the same perspective, the triumph of the better angels over the last three centuries in the form of the near complete acceptance of the American ideal as the paradigm of human society seems to me near miraculous and cause for celebration - and so I shall do just that, with appropriate decorum. The fact that the triumph is not, and can never be, complete and absolute is neither here nor there. One accepts the ineluctability of the force of gravity, 

So that's the subject of this blog - the importance and significance of American idealism, its triumph, even with its essential limitations, a triumph, nonetheless, and of supreme importance to the future of mankind.