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.]