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William Hogeland’s Constitutional Conventions, in the November/December 2008 issue of Boston Review, caught my attention for three quite different reasons. First, as a member of the Scholars Advisory Committee during the design of the National Constitution Center in Philadelphia and someone who has written on issues surrounding the “public history” conveyed or supported by the state and private entities like the Center, I was interested in his negative response to the NCC. Second, as a longtime teacher of American constitutional development, I found his call to return to a basically Beardian take on the founding period worthy of discussion. Finally, and perhaps anti-climactically, as the author of a recent book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), I was disappointed that Hogeland took no notice not only of my particular book, but also of other recent works that might interest someone who emphasizes the anti-democratic background of the Constitution.
With regard to the NCC, I view it as exemplifying the half-empty or half-full glass. Hogeland underscores the emptiness inasmuch as it allegedly instantiates what he terms “consensus history” and an almost mindless fervor for the Constitution. Indeed, he compares it to the Memorial to the Victims of Fascism and Militarism in pre-1989 East Berlin. I think this is unfair. A primary critique of the consensus historians of the 1950s is that they tended to ignore the profound realities and consequences of slavery and race; later historians easily added sex and gender to the list of minimized subjects. Whatever else can be said of the NCC, it pays significant attention to these issues, as does, incidentally, Akhil Reed Amar in his book America’s Constitution: A Biography, which Hogeland takes pains to criticize.
But, of course, there is a third term that is usually added to the dyad of race and gender, which is class. Here, Hogeland is on sounder ground (and here I agree that the NCC is half-empty). Even if Charles Beard’s specific analysis of the Philadelphia Convention has long since been exploded, his argument that the Philadelphians had little use, for example, for debtor relief is certainly correct, as demonstrated most importantly in the Contract Clause of Article I, Section 10, the most litigated clause of the Constitution in the nineteenth century.
As an admirer of Woody Holton’s Unruly Americans and the Origins of the Constitution, I share Hogeland’s view that Holton would have been a worthy adviser to the NCC. As a practical matter, of course, one can always wonder how willing any political ruling class—i.e., those with sufficient political clout and finances to support such enterprises as the NCC—would be to engage in truly radical critique of the political system that has generated its own success. Almost all public history has an explicitly tutelary purpose, which is to reinforce the legitimacy of the current political order. One might wish this were not the case, of course.
The central question that Hogeland elides, though, is whether he wishes that the Anti-Federalists had been successful in their opposition to ratifying the Constitution. Some of this opposition might well have been based on the perception that the Constitution scarcely supported “working-class democracy,” and several New Yorkers, in particular, evoked their opposition to slavery. But even if one argues, altogether implausibly, that all of the opposition was motivated by what we today might describe as “progressive” political values, what really has to be grappled with is whether it would have been better to have no Constitution rather than the highly imperfect, even evil, Constitution that we ended up with. Politics is often about truly dreadful compromises—the classic example is our alliance with Stalin in order to defeat the even greater evil of Hitler.
The alternative to the Constitution that came out of Philadelphia was almost certainly not a Constitution that would satisfy either Hogeland or myself, but, rather, no Constitution at all, and the probable existence of at least three separate countries along the Atlantic seaboard, with all of the potential for endless conflict and warfare that would provide (especially with the likely goading of European powers, including Great Britain). One of the best recent books on the formation of the Constitution, David Hendrickson’s Peace Pact, emphasizes the overwhelming concern expressed by supporters of the Constitution for achieving some kind of national unity that would forestall the European reality of too many independent countries occupying the same landmass and engaging in almost endless warfare against one another. But national unity required making some appalling compromises, of which collaboration with slave-owners and acceptance of the equal allocation of voting power in the Senate were probably the two most important examples.
I turn now to a final concern, parochial as it might appear, which is Hogeland’s failure to mention my book or other recent books by Daniel Lazare (Our Frozen Constitution), Robert Dahl (How Democratic is the Constitution?), or Larry Sabato (A More Perfect Constitution: 23 Proposals to Revitalize our Constitution and Make America a Fairer Country). Perhaps Hogeland is uninterested in contemporary politics and wishes his readers only to learn that “there is no agreement about consensus history or the democratic purposes of the Constitution,” and that, indeed, a “hundred-year war rages in history circles over what was going on at the founding when it comes to equality, liberty, and law.” My view is that it is far more important for contemporary Americans to ask themselves if they are well served by the Constitution today than to continue fighting over the precise contours of American political debate in 1788. One does not have to engage in any founder bashing in order to believe that we are ill served today by what they created in 1787, nor does criticism of the founders allow us to understand exactly what is so problematic about the Constitution in the contemporary context.
I hope that the readers of Boston Review might be especially willing to address the possibility that We the Present People should emulate our political ancestors who insisted on learning “the lessons of their own experience.” These lessons, after all, led those at Philadelphia ruthlessly to transform the existing constitution, the Articles of Confederation (for which no national museum exists), because they thought the system established by the Articles was terminally dysfunctional. All of the authors named above agree that our experiences as contemporary Americans offer chastening lessons about the adequacy of the existing constitution. Needless to say, we do not agree completely with one another on the precise remedies for our constitutional ills, but at least there is a debate for those who wish to be informed about it.
Sanford Levinson is W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair Professor of Government at the University of Texas, Austin. His most recent book is Our Undemocratic Constitution.
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