The American Constitutional Tradition: Or the Uses and Abuses of History

The American Constitutional Tradition: Or the Uses and Abuses of History

I've had all I can stand. 
The smell is too much for me. 
This shop where they manufacture ideals seems to me to stink of lies.
- Friedrich Nietzsche

 On September 17th, 1787 the framers (now venerably named)  signed the draft form of what would become, nearly two years later, the U.S. Constitution. The Constitution then proposed contained no bill of rights. It held no guarantees of freedom of speech, religion, press, or assembly. It provided no protections from self-incrimination, no compensation for eminent domain, no expectation of a speedy trial, and no jury of peers. It obligated no due process of law, and ordained no right to bear arms. Not until December 5th, 1791 would our now heralded rights-oriented doctrine be joined with the cold logic of the Constitution's Montesquieuian schematics. 

The bill of rights was a hard won compromise, enacted only begrudgingly, achieved narrowly, and only through the harrowing process of intense political struggle.  Almost comically the part of our Constitution designed explicitly as a protection against the government then established by the Constitution has come to embody our most sacred principles, denominate our most fundamental freedoms, and proclaim the essential spirit of our liberal creed. 

The Myth of Constitutional History

 The familiar story proceeds as follows: America is the world's oldest Constitutional republic. "For over two centuries the Constitution has remained in force because the framers wisely separated and balanced governmental powers to safeguard the people. The structure of american democracy balanced the principles of majority rule and minority rights, of liberty and equality." This story is a myth. It rests on a distinction, a legal fiction, between "higher law" and "ordinary law" that allows us to proclaim that the America of today remains the America of the founders.  

The myth of legal continuity reinforces the ideal of American exceptionalism. We are the only nation in the world conceived by rational deliberation, dedicated to individual freedom, and united behind the principles of liberty and justice for all. America, it argues, marches on as the continuous incarnation of Universal truth. 

In the foundationalist narrative of America, the political struggle embedded in the process of development stands as mere teleology. Whiggish histories work well for the task of myth making, but the progression of the American state was never inevitable, and the present reincarnation of Constitutional principles do not necessarily enshrine the progressive realization of our improved cosmopolitan sensibilities. 

The Abuse of Constitutional History

Histories of American political development often providentially portray the founding constitutional moment -- the rational choice of a unified we the people to create the greatest nation in the world. The Constitution, they argue, was born whole-cloth, ready-made bestowing the blessings of liberty from sea to shining sea. Despite their un-truth, triumphalist tales of American constitutional superiority continue to dominate our discourse.

The claim that America is the world's oldest constitutional nation is a myth. To treat the span of American political development as a single regime perpetrates a historical lie that cannot and should not be sustained.  America has undergone more than one revolution, and more than one change in regime. 

The Constitution established a tenuous confederacy resting on the shoulders of an insular cadre of prospective nation-builders. A dynasty of leading figures managed the country during a period of democratic consolidation. Andrew Jackson's presidential campaign signaled the triumph of democratic politics and the emergence of mass party government.  The civil war destroyed the first Constitutional republic, and Grant set up the protectorate (reconstruction). Mass party democracy reemerged under the shadow of the second industrial revolution, and  FDR's 1936 reelection incarnated a modern 1688.

At each instance the American state was transformed. The regime changed in extra-Constitutional ways connecting to previous eras more in semblance than in structure.  True the letters of the Constitution have remained largely unchanged, but their meaning has continually been reconstructed to fit the political imperatives of the day. 

Are we wasting our time? Would it not be better to acknowledge that American government is defective? That it has always been defective? To treat it otherwise is to engage in an imaginative exercise to re-form "a more perfect Union," rather than describe the less than perfect Union in which we live. 

  The Truth of Constitutional History?

Does American politics require perpetuating our Constitutional myth?

Activists and reformers will always demand intellectual defenses in support of their planed  political trajectories, but rather than trying to tell our real story, such theories idealize the past in an attempt to align it with some hope for the future. The myth of legal continuity perverts truth in the name of propaganda, and our Constitution becomes a symbolic flag that both left and right mobilize to show history is on their side.

 The truth of America's tumultuous Constitutional experience lacks the elegance of a history ready-made for battle in today's high-stakes political arena. What good is a Constitutional narrative full of discontinuities, fragments, and disillusions?

Truth ought prevail regardless of utility. To tell it otherwise degrades our Constitutional heritage, distorts our historical identity, and subjugates the past to the demands of the present. Invoking the Constitution means calling upon the authority of higher law. 


As a free people as we are free to choose. We can let those who defame it use the Constitution as an agent of polarization; or we can cease romanticizing our history. We can continue to manufacture lies; or we can face up to the truth: that not all issues are fundamental. 

The language of Constitutionalism predisposes itself to an idealism, that amplifies discord, and exaggerates disharmony. The future of American republicanism, of democracy, of capitalism, are not so much at stake. We disagree not over a way of life, broadly speaking, but over the administrative details of our policy preferences. Rather than appeal to to universal edicts in support of particularized visions of the good, we should instead embrace the give-and-take of day-to-day political choice, and search for pragmatic solutions to what should be seen as practical problems.


- Mr. Foolhardy