The first Brewster Lecture was presented in 1982, as part of East Carolina University's seventy-fifth anniversary celebration. On that occasion Professor Arthur S. Link of Princeton University lectured on "Woodrow Wilson and Revolutionary World." The next year, "Fantasy and Reality in the West's Response to Asia" was presented by Professor Donald F. Lach of the University of Chicago. The third lecture in the series, and the first to be published, was "The First Year of the Nazi Era: A Schoolboy's Perspective," presented in 1984 by Professor Hans Schmitt of the University of Virginia. Professor David B. Quinn's "Theory and Practice: Roanoke and Jamestown" followed in 1985. "Central America: Historical Perspective on Revolution and Reaction," the fifth lecture in the series, was delivered in 1986 by Ralph Lee Woodward Jr. of Tulane University.
The East Carolina University Department of History is proud to publish the 1987 Brewster Lecture, "The Constitution in the Public Imagination," by Dr. Milton M. Klein, Alumni Distinguished Service Professor of History Emeritus of the University of Tennessee.
J. Hugh Wease, Chairman
Department of History
The 1987 Brewster Lecturer shares several characteristics with our friend and colleague who has generously sponsored this distinguished lecture series. They are both originally from New York. They are both students of colonial American history. And both settled in North Carolina, or what at one time was a part of North Carolina. Perhaps they felt the magnetic pull, as Arthur Barlow described it in his report to Walter Raleigh after the 1584 expedition to the Outerbanks, of a land that was "the most plentiful, sweete, fruitful and wholesome of all the world."
Professor Milton Klein received his bachelor and masters degrees from The City College of New York and earned his Ph.D. degree at Columbia University. He has held various teaching and administrative positions at Columbia, Long Island University, and the University of Tennessee where he is the Alumni Distinguished Service Professor of History Emeritus. Throughout his career Professor Klein has received numerous academic awards, honors, and offices including a Fulbright Lectureship, visiting professorships at Columbia and the New York University School of Law, and membership on the National Council of the American Association of University Professors.
Dr. Klein has been especially active in celebrating the Bicentennial of the United States Constitution. He has been a member of the Joint Committee of Project '87, which produced Lessons on the Constitution, a useful source for secondary teachers, and is on the editorial board of this Constitution, a magazine for teachers and the general public. He is also the chairman of campus, county, and state Bicentennial committees and has chaired a Tennessee committee on the Bill of Rights and the Tennessee Humanities Council. In addition, Dr. Klein has served as president of the Southeastern American Society for Eighteenth-Century Studies and the American Society for Legal History.
With all of his activities one almost becomes tired simply reading this impressive list what really distinguishes Professor Klein is his scholarship When Kermit Hall collected the "best work on the traditions of constitutional and legal history for his multivolume United States Constitutional and Legal History Milton Klein was one of the most frequently cited authors. His books and long list of scholarly articles from the profession's most distinguished journals reveal a breadth and richness, an incisiveness of analysis, and an originality that has prompted scholars to view them as seminal. On a wide variety of topics, judicial tenure, church and State right to jury trials, rise of the legal profession or a critical review of historical literature, his writings have made an important contribution to the ongoing debate about the place of law in American history.
The Department of History of East Carolina University is pleased to have this distinguished scholar speak on "The Constitution in the Public Imagination" for the 1987 Lawrence F. Brewster Lecture in History.
Fred D. Ragan. Professor
Department of History
The U.S. Constitution occupies a special place in the American public imagination. It expresses the will of the people, the ultimate source of authority in American political life. At the same time, it manifests the special goal of government in the United States, the promotion of the general welfare through the preservation and protection of individual liberties. And in each respect, Americans recognize the Constitution as both fundamental law and higher law. But the Constitution is also something both larger and more sentimental than a mere political document: it has become an object of veneration that arouses emotions of the highest order and demands allegiance from all Americans. We have become a nation of Constitution worshipers. It is not insignificant that we require of our highest political and military leaders an oath not to preserve and defend the flag, or the government, or even the American people but rather the Constitution, from all enemies, domestic and foreign.
There is, then, both a substantive and a symbolic significance to the Constitution, and both aspects were revealed in the furious debate that developed over the nomination of Judge Robert Bork to a seat on the Supreme Court. The contest, almost fortuitously, provided the nation with the kind of history and civics lesson that former Chief Justice Warren Burger had been advocating as the appropriate focus for the celebration of the Constitution's Bicentennial. On the one hand, the nomination illustrated the constitutional roles prescribed for the President and the Senate in Article of the document signed on September 17, 1787: the President has the power to nominate and appoint judges of the Supreme Court, and the Senate has the duty of offering its advice and consent. This simple constitutional provision raised a host of questions that permitted thoughtful Americans to consider the meaning of the Constitution's language: What partisan and ideological considerations are legitimate in making the appointment? What partisan and ideological considerations are appropriate in the confirmation process? Is the Senate's role concurrent with or inferior to the President's in the appointment procedure? At the same time, the barrage of letters, telegrams, and phone calls received by Senators, the pressure of lobbying groups, and the media coverage of the event illustrated perfectly some basic constitutional liberties accorded Americans in the First Amendment: the rights of free speech and of the press, and the rights of assembly and petition, which the courts have come to consider cognate to those of free speech and press and equally fundamental.
While the national history lesson was quite visible in this respect, in another sense, but perhaps less obviously, the hearings also disclosed the power possessed by the Constitution as a political symbol. Bork's supporters seemed to agree with his vision of the Constitution, expressed during an exchange with Senator Arlen Spector of Pennsylvania. When asked whether he still held to a position he had announced some years ago that "When a court adds to one person's constitutional rights, it subtracts from the rights of others," Bork replied, "Well, yes, Senator, I think it's a matter of plain arithmetic."1 For Bork and his supporters, the Constitution symbolized a system of rights defined in 1787 and expressed in terms that command compliance today as it did two centuries ago. "Original intent" constitutes the pole star of this vision of the Constitution, conceived as a series of "major premises," in Bork's words, that judges are bound to observe today as yesterday.
Bork's critics perceived a different vision of the Constitution. The document, for them, symbolized an organic and evolving system of government, elastic and generous enough to add new rights without diminishing the rights of others. For them, the "original intent" of the Framers was less important than the history of the nation and the evolution of judicial doctrine over two centuries of interpretation by the courts and Congress. For some, then, the Constitution was a text enjoining faithful adherence; for others, it was a collection of "magnificent abstractions" and "deliberate ambiguities," more important for its "spirit and grandeur" than for any injunctions commanded by its language.2
Two other symbolic notions emerged during the Bork hearings, although never quite clearly denoted. For Bork supporters, the Constitution symbolized the rule of law, a set of basic legal concepts essential to a system of ordered liberty. The Constitution in this view was a bulwark to be protected, not a form to be reshaped by judges. Bork's critics envisioned the Constitution as a symbol of justice more than of law, and they voiced their fears that various underprivileged groups in our society would profit little from a rule of law that continued to allow gross inequities in our society. For them, the Constitution must be expansive enough to correct the injustices of a twentieth-century political system in which law alone provided inadequate remedies.
In a sense, then, the Bork hearings exemplified where the Constitution stood in 1987 in the public imagination, a combination of substance and symbol which over two centuries has produced curious paradoxes and provoked fierce discord. There are other ingredients in the mix that make the paradox even more wondrous. While Americans have demonstrated ritualistic devotion to the Constitution either substantively or symbolically, they have shown a great deal of indifference toward it and revealed some profound ignorance of its contents the Bork hearings themselves were conducted during the period September 17-23 which has been designated Constitution Week" as the ceremonial tribute the nation accords its basic framework of government; and Congress conducted its proceedings without pause on September 17th, indifferent to the ceremonies planned by the national Bicentennial Commission and innumerable state and local commissions to mark the unique celebration of the world's oldest written constitution. But even at the local level there was little of the excitement generated a decade ago by the Bicentennial of American independence. The tone of "business as usual" set in Washington, D.C. was replicated in much of the rest of the country as Constitution Day, 1987, passed into history.
And even while the Congressional hearings on the Bork nomination served to inform Americans about the Constitution, they could not compensate for decades of ignorance. Many of the nation's citizens expressed some irritation that the Senate was even "involved the appointment process, certain that it was the President's concern only, and a distinguished television commentator embarrassed some better informed listeners by referring to the two-thirds vote required m the Senate for the confirmation, confusing the constitutional provision for approval of treaties with its requirement in regard to presidential appointments.
On its Bicentennial, then, the Constitution emerged in the public imagination as a strange mixture of ignorance, indifference, and veneration, a combination, by two centuries of history.
Ignorance of the Constitution
In a 1968 interview with a CBS reporter, Justice Hugo Black was asked whether he thought most Americans understood the Constitution. "No, I think most of them do not," he responded.3 There is ample evidence to document this gloomy assertion. Assessments of student knowledge of some basic features of American constitutionalism disclose distressing deficiencies. A 1976 survey revealed that almost one-quarter of thirteen year olds believed the President had the right to do anything he wanted with respect to government. One-third of them did not know that the Senate was part of Congress; two-thirds did not know that the Senate approves treaties and presidential appointments. Older students were only slightly better informed. Almost half of the seventeen year olds were ignorant of the fact that each state had two Senators, and one-third did not know that the Senate approves treaties.4 A more recent assessment of knowledge of history among secondary school students, funded by the National Endowment for the Humanities, shows that 39 percent of the respondents could not place the signing of the Constitution within the half-century in which the event occurred.5
Adults do not do much better. A random poll by a Reading, Pennsylvania, newspaper two years ago on the question "Do you know what the First Amendment to the U.S. Constitution is or what it deals with?" evoked responses like "I have no idea" and "Got me! I'm not up on it."6 A more systematic survey by the Hearst corporation in 1986 revealed that
(1) The Constitution is not well taught in our schools. A recent report by the chairman of the National Endowment for the Humanities decries the generally poor state of teaching of the humanities and of history, in particular, in the nation's high schools.8 The Constitution suffers from this general neglect. Textbooks in American history do not provide broad coverage of the Constitution or its development, and only recently have special curriculum materials been published to aid teachers in trying to do so.9 These defects are not of recent origin. A 1900 Child's History of the United States devoted four pages to the Constitutional Convention and managed to include at least three serious misstatements about the event. It placed John Adams and Thomas Jefferson at the Convention when, in fact, they were in Europe at the time; it put the famous rising sun, to which Benjamin Franklin referred in an oft-quoted closing statement at the convention on the wall behind Washington rather than on the back of his chair, and it located the Convention in Carpenter's Hall rather than Independence Hall.10 Nineteenth-century textbooks employed question and answer techniques, offering students a catechism to be memorized rather than a text to be explicated. When, in the early twentieth century, states began passing laws mandating instruction in the U.S. Constitution, they were, again, in the form of catechistical teaching, with emphasis on mere memorization of the text of the document or simple reading of it aloud. New Hampshire's legislation required all eighth-graders to read the federal and. state constitutions out loud, enough, one would guess, to dull any genuine interest in either the students might have been tempted to acquire.11 (The practice has not been abandoned. September 17, 1987, was observed in a good many communities by having public readings of the Constitution, as if the mere recitation of the words would give meaning to language that two centuries of scholarship and judicial inquiry have failed to elucidate with any degree of finality.)
(2) Teaching the Constitution is not easy. Its literary quality is tinged with little of the eloquence that marks some of our other political testaments and makes them easy to remember: the Declaration of Independence with its alluring promise that "all men are created equal" and that they possess the unalienable rights to "life, liberty, and the pursuit of happiness ; Lincoln's Gettysburg Address with its stirring peroration that "government of the people by the people, and for the people shall not perish from the earth"; the Atlantic Charter of the World War II era with its bright prospect of "Four Freedoms" in the world of the peaceful future. Nor does the Constitution excite us by the stirring call to action of The Communist Manifesto--workers of the world unite; you have nothing to lose but your chains; you have a world to win," or move us to thoughtful reflection by the lofty preamble of the UNESCO Constitution--"Since wars begin in the minds of men, it is in the minds of men that the defenses of peace must be constructed."
(3) The Constitution is too often considered a lawyer’s document, to be read by judges and attorneys and government officials but not by ordinary citizens. Even those who are quick to point out its defects are not often familiar with its contents. A Tennessee high school student returned from a conference m Washington not long ago and offered the recommendation that the Constitution should be rewritten in layman’s language to make it more understandable. It contained too many "whereases" and Therefores" to make it readable for the lay public. The trouble with the criticism is that the Constitution contains no "whereases" and "therefores." Had the student read the document?
(4) The constitution is a controversial document. It was born in controversy and it has been surrounded by disagreement ever since. For its first seventy-five years, there was uncertainty as to whether it created a truly national government or merely a union of sovereign states. During the Civil War, controversy arose over who had the power to suspend the writ of habeas corpus. In the New Deal era, liberals and conservatives disputed the meaning of the "general welfare" and "interstate commerce"clauses; and in our own day, the debate over the "war powers" has not yet been concluded to anyone's satisfaction. The ambiguity of the Constitution's language has been grist for the mills of judges, lawyers, and constitutional scholars, but it has left the public confused as to just what the Constitution really says. It takes small comfort from Charles Evans Hughes's oft-quoted dictum that the Constitution "is what the judges say it is" particularly as it observes the judges upholding the constitutionality of a flag-salute requirement in public schools one year and denying it three years later or sending mixed signals on whether affirmative action programs constitute impermissible "reverse discrimination" in admissions to universities or permissible judgmental criteria in the election of entrants to labor union job training programs.12
The Declaration of Independence, by contrast, created few problems. Its brilliant rhetoric provided the text for innumerable political homilies. It expressed lofty ideals few would challenge. It offered noble sentiments but laid down no laws to be disputed. The Constitution is more complex and more cerebral, forcing Americans to think about uncongenial matters like the constitutional rights of criminals and about tolerating things they hate, such as freedom of speech for those who would not allow it to others. The Declaration of Independence inspires a ritual centered on the romance of liberty; the Constitution is an exercise in thought and legalism.13
In mitigation of its ignorance of the Constitution, the public might well plead its inability to understand a document that repeatedly challenges lawyers and judges and confounds Congressmen and Presidents alike. Citizens are not reassured by statements from historians that "The Constitution means whatever we want it to mean." Their response is likely to be, "If lawyers and judges can't make sense of the Constitution, why expect us to do so?" Their point is well taken, yet scarcely satisfying. Over two hundred years ago, Ezra Stiles, an early president of Yale College, offered the simple advice that "It is scarce possible to enslave a Republic of Civilians, well instructed in their Laws, Rights and Liberties."14 Two centuries later, public ignorance of the content and meaning of the Constitution poses the prospect of the very danger Stiles warned about, hardly appropriate for a Bicentennial celebration.
Indifference Toward the Constitution
The New York Times headlined the events of September 17, 1987, as "A Great Day for the Constitution," and reported Philadelphia's gala as the centerpiece of " a rousing commemoration of the signing of the Constitution," but the story strained to match the headline. It is true that Philadelphia invested a great deal of money and effort in its day-long festivities, but the rest of the nation greeted Constitution Day with a yawn rather than a cheer. Local Bicentennial commissions organized footraces, picnics, luncheons, and concerts, but the day saw business as usual on Wall Street, Main Street, and Pennsylvania Avenue. Congress did not see fit to declare the day even a one-time national holiday, and states and municipalities saw no need to do any better than the nation's lawmakers. School children were confused by their participation in a mass pledge of allegiance, led by the President and the former Chief Justice, and a nation-wide teach-in on the Constitution on September 16th, leaving the commemoration of Constitution Day itself, the 17th, in a rather ambiguous anti-climactic state. The confusion arose from the expectation of the national Bicentennial Commission that September 17th would be declared a national holiday, requiring any activities involving the schools to be planned for the earlier day. Having devoted their energies to observing the Bicentennial on the 16th, many teachers were unclear as to what to do the next day. In any case, Bicentennial Day for the Constitution stimulated nothing like the extravaganzas created to celebrate the 200th birthday of the Declaration of Independence or the centennial of the Statue of Liberty. (In Knoxville, Tennessee, we managed to get 1.000 people to a Bicentennial celebration on the night of September 17th, at our former World Fair's site; but a barbecue competition on the same site the next night drew 50,000!)
What explains the public's indifference to the birthday of the U.S. Constitution? In one sense, perhaps, the nation was tired of both extravaganzas and centennials. Americans, a British observer once noted cynically, are so badly bitten by the "centenary craze" that they are quite prepared to celebrate the centennial of rubber boots. Indeed, he commented, the United States might be regarded as the "peculiar home" of centennial celebrations. His explanation was that as a new country, Americans can date the beginning of things; in Europe, by contrast, such celebratory events originate in "the mists of time."15 Public indifference to Constitution Day may also be explained by another American penchant: the tendency to commemorate the most extraordinary anniversaries, not only the birthday of the United Nations but also of the Republic of Lithuania, not only Mothers' Day but also Mothers-in-Law Day. A volume titled The American Book of Days, now in its third edition, lists more than 1,000 commemorative days and holidays which Americans are asked to observe.16
Congress is partly responsible for this plethora of commemorative events. Each session it is deluged with requests to note such occasions by appropriate resolutions. The 99th Congress received some 500 such requests and acceded to 111 of them, thereby establishing 5 commemorative years, 21 commemorative months, 35 special days, and 1 special weekend Among these were "National Birds of Prey Month", "Family Reunion weekend.'' and "Mule Appreciation Day." The last was designed to commemorate the arrival of the first Spanish Mule for mating with an American horse to produce the first American jackass! The 100th Congress has already been inundated with over 100 such requests, demanding honors for "National Frozen Food Day," "National Codfish Day", "Snow White Week," and "National Dairy Goat Awareness Week."
Constitution Day surely deserves more distinction In our pantheon of commemorative days, weeks and years but surprisingly it has no long history of special observance. September 17th was not designated a special day by Congress until 1952, and the period September 17-23 was first officially marked as Constitution Week in 1955.17 But there was always some confusion surrounding the occasions. The congressional resolution honoring September 17th designated it Citizenship Day," linking it with an "I Am an American Day," which had begun to be celebrated in 1940. To this day, calendars and almanacs still designate September 17th as Citizenship Day rather than as Constitution Day.
In any case, the neglect of September 17th as the birthday of the U.S. Constitution has a long history. The day has always taken second place in the American patriotic imagination to July 4th, our most celebrated national holiday. Independence Day was voted a public holiday by the Massachusetts legislature as early as 1781, and by the time of the ratification of the Constitution, it was already well established in all the states. By 1826, the celebration had become nationalized and thereafter became the "great anniversary Festival" which John Adams hoped it would be, "solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other."18 (History has long forgiven,or forgotten,Adams's error in expecting the celebration to be on July 2nd, the actual date when American independence was declared. Or has the error been ours?)
Celebrations of the "Glorious Fourth" merged Independence and Union, the Revolutionary leadership and the Framers, the Declaration and the Constitution into one imperceptible whole, leaving little room distinctive recognition of September 17th. Not surprisingly, the jubilee of the signing of the Constitution in 1837 went virtually unnoticed. The day was a Sunday, and Congress was not in session, but neither house marked the occasion by even so much as a word the day before or the day after. Both houses were absorbed in debates over the new banking bill and the annexation of Texas. Newspapers for September 17th carried accounts of a balloon ascent By a female astronaut, a 24-hour non-stop horse race, employing 12 horses over a 788-mile course, and the discovery of the remains of a mastodon in Rochester, New York, but not a line about Constitution Day.19 A new magazine launched in October 1837 to promote democratic principles contained no reference to the anniversary of the signing of the nation's charter of government, although it did carry a poem dedicated to the warship Constitution.20
The first public commemoration of Constitution Day occurred on September 17th, 1861. Philadelphians chose to use the occasion as a demonstration of loyalty to the Union then under challenge by the Confederate States. Stores were not closed, but the appearance of a holiday was provided by American flags flown from public and private buildings. There was a military parade in the morning, culminating in addresses in Independence Square by the mayor and George M. Dallas, vice-president during the Polk Administration.21 The celebration was sectional and partisan, not national. The speeches denounced the South for its "treason" and "perfidy," and denied that the Constitution permitted nullification or secession. The celebration did not evoke universal approval. Sidney George Fisher, a Philadelphia Republican, made light of the parade as a "not very grand . . . military display" and denounced the choice of Dallas, a Democrat, as the principal speaker: "They could not have done a more foolish thing.. . . Mr. Dallas is a demagogue ... a most unscrupulous and reckless one. . . . Who wants to hear an old hack politician whom everybody despises, twaddle about the Constitution which he cannot understand and has all his life disregarded?" In the South, Jefferson Davis was proclaiming the Confederate Constitution as the true heir of the Framers handiwork, the "light which reveals its true meaning."22
In any case, Constitution Day was again forgotten for a quarter-century, not to be resurrected in the public consciousness until 1887, its centennial. The nation now made up for its previous neglect with a three-day celebration in Philadelphia that attracted 500,000 visitors to the city. There were huge parades, on each of two days, covering five miles; President Grover Cleveland attended and held a reception at City Hall for thousands, shaking hands at the rate of fifty-three a minute. The theme of the Centennial was "The Progress of a Century under Constitutional Government," but instead of encouraging thoughtful consideration about the meaning of the document that emerged refashioned by the Civil War amendments, the celebrants chose to emphasize the technical achievements of the new industrial nation: reapers, harvesters, printing presses, sewing machines, steam engines, and refrigerators. But the real theme was the reunion of the sections following the war, expressed by the chairman of the Centennial Commission in the toast marking the end of the three-day affair: "Forever live the CONSTITUTION and the UNION."23
The Union survived, but Constitution Day faded from public memory for another quarter-century. The revival of interest came during the World War I era, and it was led by patriotic groups seeking to arouse Americans to the threat of radical ideas imported from Europe. The idea of commemorating September 17th regularly appears to have originated with the Sons of the American Revolution, a national patriotic organization, but it was shortly seconded by a variety of conservative groups like the National Security League, the National Association for Constitutional Government, the American Legion, and the Veterans of Foreign Wars. In addition to public celebrations, these groups pressed for legislation in the various states mandating instruction in the Constitution, and by 1925, thirty-six states had passed laws to this effect and thirty-one states also required teachers to take an examination on the Constitution. The aim, however, was not to encourage critical examination of American government but rather to promote teaching about the Constitution in such a way as to imply "a state of perfection in our political ideas and institutions." Students were to be caught the principles of American government along rigid patriotic lines until major subversive elements are abolished."24 The idea fitted the conservative mood of the 1920s and early 1930s; cities and states organized celebrations on September 17th and involved large numbers of students in oratorical and essay contests.
The climax of this revived interest in Constitution Day came in 1937, the 150th anniversary of the document's signing. Congress established a Sesquicentennial commission and appropriated $360,000 for its work. The commission embarked on a whirlwind of activity, sparked by its energetic Director-General, Congressman Sol Bloom of New York. The commission distributed thousands of pamphlets, pictures, musical compositions, and facsimile reproductions of the Constitution, and arranged to have special medals and postal stamps struck for the occasion. Bloom himself wrote a book The Story of the Constitution for popular consumption.
On September 17th, 1937, Federal employees were given a half holiday. A wreath was laid at the Mt. Vernon tomb of George Washington. At 3:45 p.m., the exact hour when it was reckoned the Constitution had been signed, services were held at the Library of Congress. In Philadelphia, the Liberty Bell was tapped thirteen times for each of the original states of the Union. In the evening, Franklin D. Roosevelt gave a nationwide address from the Washington Monument. But the luster of the occasion was tarnished by the bitter political battle between Roosevelt and his critics over his controversial plan to enlarge the Supreme Court. He attacked those who would make of the Constitution a lawyer's document. His opponents charged him with tampering j|with constitutional liberties; he responded by assailing them for turning the Constitution into a "horse and buggy" document unsuited to the needs of a machine age. The original meaning of Constitution Day was lost to view in the heated partisan conflict.25
The nation drifted thereafter into a blissful amnesia, with Constitution Day marked largely by modest celebrations in front of Federal Hall in New York City; attended by small noon-time crowds of lunch-break workers in the Wall Street area.
If in 1987 the national Bicentennial Commission met with widespread lethargy in its plans to inspire a large-scale public commemoration of the constitution’s signing, it was confronting two centuries of history as its formidable challenge And if Constitution Day, 1987, was observed by mass readings of the Constitution, the superficiality of such an exercise mirrored earlier performances not much more profound. In 1837, an English traveler found that the Constitution was being taught to students at the Troy, New York, Female Seminary as an abstruse subject like algebra, and in the 1920's, the Better America Federation of California was proposing that students should memorize the Preamble to the Constitution "so well that when they repeat it they would recall the entire philosophy of the American government."26
Veneration of the Constitution
What makes both the ignorance of and the indifference to the Constitution so enigmatic is that the document has long been surrounded by a mythology and a mystique that some European historians and political scientists have judged to be a cross between a superstition and a hallucination. In this respect, it is not the substance of the document but rather its symbolic power that has produced what historians call the "cult of the Constitution." The Constitution, in this sense, has come to resemble a scriptural text, interpretations of which may vary without affecting the sacredness of the document. The Framers, in this view, were instruments of Heaven, and the American people have a special mission to preserve and promote the Constitution as God's own handiwork.
The near-adoration of the Constitution began early in its history. Washington and Madison adjudged the work of the Framers to be a "miracle," and Thomas Jefferson, from his vantage point in France, called the members of the Philadelphia Convention "demigods." Early cartoonists took up the analogy and depicted the Constitution as divine tablets handed down by the gods from Mount Olympus. By 1837, Martin Van Buren was referring to the document as, a "sacred instrument," and on its Centennial, Lord Bryce, in his famous American Commonwealth, assured his readers that the Constitution deserved "the veneration with which Americans have come to regard it." In the twentieth century, Supreme Court Justice George Sutherland unashamedly praised the nation's framework of government as "divinely inspired," and in 1968, the Deseret News, a Mormon newspaper, repeated the assurance.
One may dismiss as super-patriotic hyperbole the language of some earlier Constitution worshipers, like the President of the American Bar Association, who complained in 1879 that the nation's instrument of government was too sacred to be "hawked about the country, debated in the newspapers, discussed from the stump, [or] elucidated by pothouse politicians and dunghill editors," or the words of a member of the New York bar who in 1913 waxed almost idolatrous in his praise of "Our great and sacred Constitution, serene and inviolable. . . Magic Parchment! Transforming Word! Maker, Monitor, Guardian of Mankind"; but we cannot easily ignore the words of President Ronald Reagan on September 17th, 1987, as he reiterated the idea of the Constitution as "a covenant with the Supreme Being" and the creation of the American nation in 1787 as the work of "the guiding hand of providence."27
Conservatives and ultra-nationalists have no monopoly on this near reverential view of the Constitution. Consider the testimonial of then Congresswoman Barbara Jordan during the Watergate crisis:
My faith in the Constitution is whole. It is complete. It is total. I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.28
Or Gerald Ford's simple acknowledgment of the almost mystical importance Americans attach to their fundamental charter as he ended his inaugural address in 1974: "Our long national nightmare is over. Our Constitution works. Our great republic is a government of laws and not of men. Here the people rule."29 Perhaps it is not entirely cynical for one constitutional historian to summarize the American love affair with the Framers and their handiwork in a bit of Biblical mimicry: "In the beginning was the Constitution; and the Constitution was with the Founding Fathers; and the Constitution was the Founding Fathers."30
How can we explain the "word-magic" spell the Constitution has come to weave over two centuries? Americans are not unique in creating political symbols and incorporating them into their cultural systems. Symbols play an important role in all political cultures. They provide an over-arching sense of unity societies that might otherwise by riddled by conflict. They evoke, as illusion or reality, the implicit principles by which a society lives; they are visible signs of an invisible belief; they simplify and emotionalize loyalties. In politics, symbols become the currency of communication. One political scientist goes so far as to suggest that for most of us, "politics is ... a passing parade of abstract symbols." Max Lerner believes that governments must employ symbols to enlist group loyalty unless they are naive enough to rely solely on rational appeals or brutal enough to resort to coercion:
Men are notably more sensitive to images than to ideas, more responsive to stereotypes than to logic, to the concrete symbol than to the abstraction. . . . Men possess thoughts, but symbols possess men.31
Symbols are vehicles for myth-making, and like symbols, myths help to make the world more comprehensible to a society, providing it with coherence and direction, putting new experiences into familiar contexts. Anthropologists define myths as tales and traditions which people develop to create and enforce social order. Myths strengthen tradition and endow it with greater value and prestige by tracing it back to a better and higher source. Traditions may evolve naturally, but they may also be invented in order to legitimize a political authority or inculcate a value system. Myths, symbols, and traditions are mutually supporting and reinforcing.32
In the United States, at its formation, the essential symbols of national unity were missing. We had no long history as a nation, no mutually connective bonds like a monarchy, aristocracy, or an established church. The dominant political sentiment was localism loyalty to community, town, and state. We lacked the sense of nationalism that had helped to create national states in Europe. As Edmund Morgan has observed, in other countries people who possess a common tradition and identity acquire a sense of nationalism, strike for independence, and thereby achieve nationhood. In our case, it was the other way round: "We struck for independence and were thereby stirred into nationality; our nation was the child, not the father of our revolution."33
While the Constitution did not in itself create an American nationalism, it provided an influential symbol of national identity, and its Framers early began to surround it with a mythology that enhanced its role in the new political order. It did not hurt that anti-Federalists quickly abandoned their opposition to the Constitution and sought to profit from its influence by taking up positions in the new government under it. The Federalists' early contribution to the mythology of the Constitution was the ritualistic celebratory processions orchestrated in each of the major cities to mark the inauguration of government under the new order. Floats displayed glistening ships of state and Federal edifices with thirteen columns as depictions of the stability and safety promised by the Constitution. Verse accompanying the processions promised even more:
The Federalist plan most solid and secure Americans their freedom will endure All arts will flourish in Columbia's land And all her sons join as one social band.34
In mythologizing the Constitution and cultivating allegiance to it, the Federalists built upon both religious and secular foundations and sought assistance from both God and mammon. Benjamin Franklin had referred in his closing remarks at the Convention to the rising sun on the back of George Washington's chair, and political cartoonists quickly picked up the imagery of a sun shining resplendently on the American Union. Others depicted the Constitution as an "ark" of safety, and a Federalist judge in 1791 unabashedly charged a grand jury to accept the proposition that "the laws and Constitution of our government, ... like the ark of the covenant among the Jews, ought to be sacred from profane touch."35 By 1838, Lincoln was urging that the Constitution be "preached from the pulpit" as the "political religion" of the nation, and in 1893, the! apostolic Delegate to the United States exhorted. American Catholics to "Go forward, in one hand bearing the book of Christian truth and in the other the Constitution of the United States."36 The "cult of the Constitution" succeeded in transforming a merely human political document into an untouchable holy writ, so much so that public opinion polls in the early 1940s revealed that two-thirds of the American people considered government under the Constitution to be "as near perfect as it can be," and 54 percent felt that the document should not be changed even by amendment. On its Bicentennial, there were still many Americans who considered any criticism of their charter of government to be somehow illegitimate. More than 50 percent in one survey responded to the question "Would you bar criticism of the Constitution?" with a resounding "Yes."37
On the material side, the cultists early associated the Constitution with the rising prosperity of the new nation, thereby attributing to the document earthly as well as heavenly power. The New York City joiners proclaimed during the 1788 Federal Procession in that city that
The Federal Ship will our commerce revive, And merchants and shipwrights and joiners shall thrive.38
In the Third Congress, a Virginia representative assured his auditors that the Constitution had turned waste and uncultivated fields" into a land of plenty" where every man sat happily "under his own vine and fig tree" and where he and his neighbors witnessed "new habitations reared, contentment in every face, plenty on every board." An 1815 Fourth of July orator extended the metaphor:
The operation of that constitution . . . almost realized to us the incredible tales of the Arabian nights. The nation arose, and shook itself from the dust" Commerce soon raised the American stars on a thousand vessels. The Arab, the Hindoo, the Chinese, the inhabitants of the isles, of the equator and the frozen zone, conversed and trafficked with the muscular, enterprising and calculating sons of New-England, and for the first time learned, that a great empire had sprung up in regions enlightened by the setting sun.39
And later in the 19th century, Daniel Webster reiterated the theme that the country was indebted to the Constitution for its well-being, its "happiness and honor," having "raised us from a state of anarchy and misrule" to a condition of "national prosperity and renown."40
Constitution worshipers sought also to give the new document and its Framers the prestige the nation had already attached to the Declaration of Independence and its signers. Early historians wrote of the Constitution as a direct product of the Revolution, simply omitting the interlude of the Confederation. George Washington was sanctified as the father of both Independence and Union. By the Civil War Era, Abraham Lincoln was speaking of the Constitution as the picture of silver framing the golden apple of liberty contained in the Declaration of Independence, and Charles Sumner, the Radical Republican; benefactor from Massachusetts and partisan of the newly emancipated Blacks, linked the two documents in a mechanical metaphor:
The Constitution is a machine, great, mighty, beneficent. The Declaration supplies the principles giving character and object to the machine. The' Constitution is an earthly body .... the Declaration is the soul.41
Finally, the Constitution and its cultists drew upon a respect already accorded by Americans to the idea of written constitutions. In challenging Great Britain in 1776, the rebellious Americans had insisted that Parliamentary actions violated a "constitution" which defined the relations between, mother country and colonies and which implicitly reserved for the American provinces a wide degree of autonomy within the broader imperial context.42 Additionally, the colonists looked at their own royal charters as guarantors of the "rights of Englishmen." These documents, they claimed, were not merely the marks of royal favor, to be withdrawn or modified at will, but fixed and immutable warranties, immune to both Parliamentary legislation and the acts of British sovereigns or their viceroys in the colonies. There were basic legal rights, several New York lawyers argued as early as 1754, that were "interwoven with land part of the Political Frame and Constitution of the Province" and that could not be arbitrarily abridged or abrogated. They repeated the claim ten years later, when they charged the New York lieutenant governor with responsibility for tampering with the traditional right to trial by jury:
Is a constitution matured by ages, founded as it were on a rock, repeatedly defended against lawless encroachments by oceans of blood, meliorated by the experiences of centuries, alike sanitary to princes and people, and guarded by the most awful sanctions: is such a constitution ... now to be altered or abolished, by the dash of a pen?43
By the eve of the Revolution, the idea was widespread in the colonies that constitutions were not merely descriptions of how governments operated but rather fundamental charters, anterior to statutory law and the source from which both legislatures and executives drew their authority. Further, constitutions were held to possess a special role in the preservation of liberty, since they guaranteed from governmental interference those rights which individuals possessed in nature.44 Conservative patriots, in the end, could justify an act of revolution precisely because, they insisted, they were the true conservators of both the British and the colonial constitutions; the British were the innovators and the real revolutionaries!
For those Americans who accepted the Lockean theory of the origin of government, there was still another basis for their respect for constitutions. A constitution represented the civil contract by which societies had been formed. The idea of the inviolability of compacts was one of the most persistent arguments employed by the colonies in their legal confrontation with Parliament before the Revolution. Their relationship with Great Britain, they contended, was founded on an original compact between the first settlers and the Crown. The compact prescribed mutual obligations and responsibilities: the settlers had agreed to establish colonies in a wild continent for England's political and economic benefit; the Crown, in turn, had undertaken to nurture and protect the colonies and to guarantee the settlers the same personal liberties they had possessed while in England. Independence, then, was justified as a recognition that the Crown had broken the compact, leaving the colonists legally free to pursue their own destiny as sovereign states.45
Constitutions and compacts were the high ground on which the colonists rested their case and justified their rebellion "out of a decent respect to the opinions" of an incredulous world. The success of that rebellion gave constitutions a hallowed place in the pantheon of American political icons. In drawing up their own state constitutions, Americans reiterated their faith in fundamental law prescribing the limits of governmental power. The Federal Constitution of 1787 thus began its existence surrounded by the majesty with which such charters of government had already been invested and sanctified by a veneration already engendered by a long colonial and revolutionary history.
CONCLUSION
Although the signing of the Constitution received little public acknowledgment in 1837, the symbolic power of the document was already firmly rooted in American imagination. It was linked with the Ten Commandments as a kind of scriptural text and was described by Daniel Webster as "the greatest approximation toward human perfection the world has ever experienced." At best, the nation need merely remain faithful to the "precious memory of the sages" that had given it such an instrument of providential character.46
Fifty years later, a Harvard University president conceded that the Constitution had become an object of fetish worship " and in the 1930s, a New Deal lawyer described it as a "sort of abracadabra,"I demanding unquestioned loyalty in the form of oaths, as if the mere incantation of the words possessed some deep and mystical significance.47
History, then, reveals a curiously mixed public view of the Constitution, rooted less in knowledge and intellectual conviction than in ignorance indifference, and veneration. Whether such a public perception is a sufficient basis for the survival of the government for another century is an open question.
Benjamin Franklin, the oldest member of the Constitutional Convention, understood the fragile nature of the new government created at Philadelphia in 1787. As he left the State House where the document had just been signed, an anxious Philadelphia lady asked him: "Well, doctor, what have we got, a republic or a monarchy?" "A republic," Franklin replied, "if you can keep it."48 The admonition is as prescient in 1987 as it was two hundred years ago.
1. Quoted in the New York Times, "Review of the Week," Oct. 4,1987.
2. Bork's views may be conveniently found in his "Original Intent: The Only Legitimate Basis for Constitutional Decision Making," The Judges Journal, XXVI (Summer 1987), 12-17. Similar views are expressed by Edwin Meese in his "The Attorney General's View of the Supreme Court: Toward a Jurisprudence of Original Intention," Benchmark, II (1986), 1-10. Justice William Brennan expresses the contrary view in "My Encounters with the Constitution," The Judges Journal, XXVI (Summer 1987), 6-11. More academic criticisms of the Bork-Meese position may be found in Louis Fisher, "Methods of Constitutional Interpretation: The Limits of Original Intent," Cumberland Law Review, XVIII (1987-88), 43-67; Paul Brest, "The Misconceived Quest for the Original Understanding," Boston University Law Review, LX (1980), 204-238; and H. Jefferson Powell, "The Original Understanding of Original Intent," Harvard Law Review, XCVIII (1985), 885-948.
3. Quoted in Michael Kammen, A Machine that Would Go of Itself: The Constitution in American Culture (New York, 1986), p. 3.
4. Karen S. Dawson, "What Youth Know and Believe about the Constitution," in Howard D. Mehlinger, ed., Teaching about the Constitution in American Secondary Schools (Washington, D.C., 1981), pp. 29-44.
5. Diane Ravitch and Chester E. Finn, Jr., What Do Our 17-Year-Olds Know? (New York, 1987), pp. 48-49. Only one-third of the students knew what the three-fifths compromise in the original Constitution, legitimizing slavery, was. Even fewer black students were informed about it. Ibid., p. 63.
6. Reading [Pa.1 Eagle, Feb. 17, 1985.
7. The American Public's Knowledge of the U.S. Constitution: A Hearst Report (New York, 1987).
8. Lynne V. Cheney, American Memory: A Report on the Humanities in the Nation's Public Schools [(Washington, D.C., 1987)].
9. See, in particular, John J. Patrick and Richard C. Remy, Lessons on the Constitution: Supplements to High School Courses in American History, Government and Civics (Washington, D.C., 1985), and the curricular materials prepared by the Center for Civic Education, Calabasas, California.
10. 10 Kammen, Machine That Would Go of Itself, p. 24.
11. David Tyack, Thomas James, and Aaron Benavot, Law and the Shaping of Public Education, 1786-1954 (Madison, Wis., 1987), p. 172.
12. Hughes's statement, "We are under a Constitution, but the Constitution is what the judges say it is," was made in a speech at Elmira, N.Y., on May 3, 1907. It appears in his Addresses and Papers (New York, 1908), pp. 139-140. The flag salute cases are Minersville School District v. Gobitis, 310 U.S. 586 (1940) and West Virginia Board of Education v.Barnette, 316 U.S. 584 (1943); the affirmative action cases are Regents of the University of California v. Baake, 438 U.S. 265 (1978) and United Steelworkers of America vs. Weber, 443 U.S. 193 (1979).
13. Gordon Wood, "Ideology and the Origins of Liberal America," William and Mary Quarterly, XLIV (1987), 632.
14. Quoted in Daniel Boorstin, The Americans: The Colonial Experience (New York, 1958), 205.
15. The observation was reported in the London Daily Chronicle in 1926 and is quoted in Albert Matthews, "Centennial Celebrations," Publications of the Colonial Society of Massachusetts, XXVI (1927), 405 and note.
16. Jane M. Hatch, comp.. The American Book of Days, 3rd ed. (New York 1978).
17. New York Times, Feb. 21, 24, 29, 1952. Congress, by joint resolution of February 28, 1952, designated September 17th as "Citizenship Day" in commemoration of the signing of the Constitution! President Dwight Eisenhower proclaimed September 17-23 as Constitution Week in 1955. The next year a joint resolution by Congress directed the President to make the proclamation an annual event, and the resolution became law on August 2, 1956.
18. Daniel Boorstin, The Americans; The National Experience (New York, 1965), pp. 383-386; John to Abigail Adams, July 3, 1776, in L.H. Butterfield et al. eds., The Book of Abigail and John (Cambridge, Mass., 1975), p. 142.
19. Newspapers for September 1837 checked were the [Philadelphia] U.S. Gazette, Richmond Inquirer, Charleston Mercury, William Lloyd Garrison's Liberator, New York Morning Herald, and [Washington, D.C.] National Intelligencer.
20. The magazine was the United States Magazine and Democratic Review, the first issue of which appeared in October 1837.
21. Philadelphia Public Ledger, Sept. 18, 1861; Philadelphia Evening Bulletin, Sept. 17, 1861; Philadelphia North American and United States Gazette, Sept. 18, 1861.
22. A Philadelphia Perspective: The Diary of Sidney George Fisher, ed. Nicholas B. Wainwright (Philadelphia, 1967), pp. 403-404; Jefferson Davis quoted in Philip Paludan, A Covenant with Death: The Constitution, Law, and Equality in the Civil War Era (Urbana, 111., 1975), p. 85.
23. The fullest account of the Centennial celebrations is in Hampton L. Carson, ed., History of the Celebration of the One Hundredth Anniversary of the Promulgation of the Constitution of the United States, 2 vols. (Philadelphia, 1889).
24. Tyack et al. Law and the Shaping of Public Education, p. 174; Bessie L. Pierce, Public Opinion and the Teaching of History in the United States (New York, 1926), pp. 185-194; H. Arnold Bennett, The Constitution in School and College (New York, 1935), p. 42.
25. The work of the Sesquicentennial Commission is entertainingly described in Kammen, Machine That Would Go of Itself, chap. 10. On the September 17th celebration, see New York Times, Sept. 18,1937; on the Court conflict, see William E. Leuchtenburg, "Franklin D. Roosevelt's Supreme Court 'Packing' Plan," in Essays on the New Deal, eds. Harold M. Hollingsworth and William F. Holmes (Austin, Tex., 1969), pp. 69-115.
26. Frederick Marryat, A Diary in America, ed. Sydney Jackman (New York, 1962), pp. 71-72; Pierce, Public Opinion and the Teaching of History, p. 194.
27. The ABA president was E.J. Phelps. His remarks are quoted in Charles E. Merriam, The Role of Politics in Social Change (New York, 1936), p. 65. The hyperbolic orator of 1913 was Henry R. Estabrook. His speech is quoted in Ralph H. Gabriel, The Course of American Democratic Thought (New York, 1940), p. 402. For Reagan's remarks, see New York Times, Sept. 18, 1987.
28. Barbara Jordan and Shelby Hearon, Barbara Jordan: A Self-Portrait (Garden City, N.Y., 1979), p. 187. The statement was made on July 25, 1974. New York Times, Aug. 10, 1974.
29. New York Times, Aug. 10, 1974.
30. Charles A. Miller, The Supreme Court and the Uses of History (Cambridge. Mass., 1969), p. 181.
31. Murray Edelman, The Symbolic Uses of Politics (Urbana, 111., 1964), pp. 5-6, 10; Max Lerner, "Court and Constitution as Symbols," Yale Law Journal, XLVI (1937), 1293. On symbols and political symbolism, the following are helpful: W. Lloyd Warner, The Living and the Dead: A Study of the Symbolic Life of Americans (New Haven, 1959); Warner, American Life: Dream and Reality (Chicago, 1953); Kenneth Burke, Language as Symbolic Action (Berkeley and Los Angeles, 1968); and Charles D. Elder and Roger W. Cobb, The Political Uses of Symbols (New York, 1983).
32. Stephen Ausband, Myth and Meaning, Myth and Order (Macon, Ga., 1983), pp. 1, 15, 20, 107; Henry Tudor, Political Myth (New York, 1972), pp. 15-16, 48.
33. Edmund S. Morgan, The Birth of the .Republic, 1763-89, rev. ed. (Chicago, 1977), p. 100.
34. Quoted in Sarah H.J. Simpson, "The Federal Procession in the City of New York, New York Historical Society Quarterly, IX (1925), 50.
35. Judge Alexander Addison of the Pennsylvania Court of Common Pleas,:1 quoted in Frank I. Schechter, "The Early History of the Tradition of the Constitution, American Political Science Review, IX (1915) 733.
36. Lyceum Address, Springfield Ill. Jan. 27,1838, in Roy P. Basler, ed., The Collected Works of Abraham Lincoln, 9 vols. (New Brunswick, N.J., 1953-1955), I, 112; Archbishop Francisco Satolli at the Columbian Exposition in Chicago, quoted in Martin E. Marty, Pilgrims in their Own Land: 500 Years of Religion in America (Boston and Toronto, 1984), p. 283.
37. Donald J. Devine, The Political Culture of the United States (Boston 1972), pp. 118-119; Bluefield [W. Va.] Daily Telegraph, Oct. 5, 1987.
38. Quoted in Louie M. Miner, Our Rude Forefathers (Cedar Rapids. Iowa, 1937), p. 256.
39. Richard Bland Lee, quoted in Schechter, "Early History of the Tradition of the Constitution," 720; Timothy Flint, An Oration Delivered at Leominster, July 4, 1815, Before the Washington Benevolent Societies…(Worcester, Mass., 1815), pp. 6-8.
40. James W. McIntyre, ed., The Writings and Speeches of Daniel Webster, 18 vols. (New York, 1903), IV, 80, XV, 509.
41. “Fragment on the Constitution and the Union," [c. Jan. 1861], in Basler, ed. Collected Works of Abraham Lincoln, IV, 168-169; Sumner, Jan. 15, 1872, in Charles Sumner: His Complete Works, 20 vols. (1900, reprinted, New York).
42. This subject has most recently been treated by Jack P. Greene, Peripheries Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607-1788 (Athens, Ga., 1986).
43. Milton M. Klein, The Politics of Diversity: Essays in the History of Colonial New York (Port Washington, N.Y., 1974), pp. 141, 169; "The Sentinel," New York Gazette, March 14,1765.
44. Bernard Bailyn, Ideological Origins of the American Revolution (New York, 1967), pp. 175-184; John P. Held, Constitutional History of the American Revolution: The Authority of Rights (Madison, Wis., 1986), passim.
45. John P. Reid, "'In our Contracted Sphere': The Constitutional Contract, the Stamp Act Crisis, and the Coming of the American Revolution," Columbia Law Review, LXXVI (1976), 21-47; Reid, "In the First Line of Defense: The Colonial Charters, the Stamp Act Debate, and the Coming of the American Revolution," New York University Law Review, LI (1976), 177-215.
46. McIntyre, ed., Writings and Speeches of Daniel Webster, XV, 479-480; Michael Lienesch, "The Constitutional Tradition: History, Political Action, and Progress in American Political Thought, 1787-1793," Journal of Politics, XLII (1980), 2-30.
47. A. Lawrence Lowell, quoted in Kammen, Machine that Would Go of Itself, p. 22; Thurman Arnold, The Folklore of Capitalism (New Haven, Conn., 1937).
48. Max Farrand, ed., Records of the Federal Convention of 1787, 4 vols., (New Haven, 1911-1937), III, 85.
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