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Many pundits have observed that the Republican and Democrat parties of today are quite different ideologically from those of days past. In the time of Jimmy Carter and Ronald Reagan, there was a substantial political middle in both parties, beyond the usual independents. And politicians (like the rest of us) have a mixture of views, depending on the issue at hand.
So how is a person to sort things out?
John Maynard Keynes had a famous quote to the effect that politicians often had no clue that the ideas in their heads came from some long dead economist. Well, frankly a lot of us are like that, although it is not just long dead economists, but political philosophers and theologians.
Looking back into the past to find out who we Americans really began as, isn’t a simple endeavor. We must take care not to simply project our own modern concerns onto our Founding Fathers.
Rather than try to teach the entire topic in one short essay, our approach will be to review books that we deem essential background for creating a context for constitutional law interpretation. We hope to offer an efficient path to illumination that will assist every citizen in navigating the system and in honing strategic thinking.
A good starting point is Justice Stephen Breyer’s book, “Active Liberty: Interpreting Our Democratic Constitution” (Vintage 2005), which is a concise discussion in plain language of the debate as to whether the Constitution should be interpreted in light of the Framers’ original intent or should be a living document that addresses changes in our society. Breyer draws a basic distinction between the purpose and consequences of a statute and reminds us that as a practical matter both are usually in play in a judicial decision. Justice Scalia also wrote on this topic, but Justice Breyer’s book is sufficient to frame the issues.
“The Federalist Papers” provide the essays that James Madison, Alexander Hamilton and John Jay published to explain their thinking to the public at the time the Constitution was being created. They are not very easy to read, but if one wants to hear things from the horse’s mouth as it were, there is nothing as reliable as original text. That said, it can also be helpful to read a secondary source on the same topic such as Jack N. Rakove’s “Original Meanings: Politics and Ideas in the Making of the Constitution” (Vintage 1996) and Bernard Bailyn’s “The Ideological Origins of the American Revolution” (Harvard 1967).
Those wishing to understand how the Founders “sold” some of the Constitution’s provisions that limited popular democracy may wish to consult Gordon Wood’s “The Creation of the American Republic, 1776 – 1787” (University of North Carolina 1969). In a later work, “The Radicalism of the American Revolution” (Knopf 1992), Wood explains how the American Revolution was both a war for independence and a social revolution that dismantled the last vestiges of English feudalism in the New World.
Because sometimes we can’t see the figure without seeing the ground, or the yin without the yang, some may wish to try Herbert J. Storing’s “What the Anti-Federalists Were For” (University of Chicago 1981). The Constitution, after all, was a revolution in favor of expanding the powers of the federal government, but that was not a goal shared by all members of the founding generation. Anyone wishing for a deeper dive into the philosophy of the Anti-Federalists and the roots of that very American suspicion of federal power should read Saul Cornell’s “The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828” (University of North Carolina 1999).
And of course, one should have a copy of the Constitution itself.
The philosophical source of the market system that underlies American democracy is found in Adam Smith’s “An Inquiry into the Nature and Causes of The Wealth of Nations” from the same year as the American Revolution, 1776. While this book is not referenced in “The Federalist Papers,” scholarship suggests that the Framers were aware of it. The source of the checks and balances to control the abuse of power comes from Montesquieu’s “The Spirit of the Laws” (1748), which can be found in a reader like Montesquieu’s “Selected Political Writings” edited by Melvin Richter for Hackett Publishing. A key source of our ideas about protection of life, liberty and property can be traced back to John Locke’s “Second Treatise on Government” (1690) and the line between church and state from Locke’s “A Letter Concerning Toleration” (1689).
In addition to a standard law school casebook, John R. Vile’s “Essential Supreme Court Decisions: Summaries of Leading Cases in U.S. Constitutional Law” (Roman & Littlefield, 17th edition 2018) provides an efficient way to short circuit the issues. And for those not embarrassed by learning basics, a guidebook such as Linda R. Monk’s “The Words We Live By: Your Annotated Guide to the Constitution” (Hyperion 2003) can serve as a kind of elaborate index or table of contents. Akhil Reed Amar’s “The Bill of Rights” (Yale 1998) helps one understand the historical context in which the most essential amendments were adopted.
And of course, one should have a copy of the Constitution itself. There is nothing like reading the original text and getting it right from the source. For example, of interest is the question of the scope of the applicability of different parts of the Constitution. The First Amendment reads differently from the Fourteenth Amendment. When we leave the original text behind, some of the meaning is lost.
A broader treatment of America’s culture of individualism can be found in Louis Hartz’s “The Liberal Tradition in America” (Harcourt 1955). Hartz explains how the lack of a feudal tradition in America left classical liberalism as the dominant ideology, which made later attempts to foment socialist revolution impossible. It is easy to dismiss Hartz’s thesis as simplistic, but much of his argument still rings true (and was based on an observation by Alexis de Tocqueville) — and his book continues to be taught in virtually every class on American political thought.
Richard Hofstadter’s “Anti-Intellectualism in American Life” (Knopf 1962) isn’t directly about the Constitution, but it remains a useful study to understand why a certain suspicion of bureaucrats and intellectuals has fueled so many popular movements in American history. Hofstadter’s book has received new interest in the wake of the Tea Party movement and the election of President Donald Trump, but his analysis is much more thoughtful than is often assumed. For Hofstadter, many of the best features of American culture, such as our devotion to liberal individualism and our well-known pragmatism and business acumen are due to a certain strain of anti-intellectualism.
A good book showing that the arc of history bends towards justice as Dr. Martin Luther King, Jr. put it is Eric Foner’s “The Story of American Freedom” (W. W. Norton 1998). A more difficult, but brilliant, examination of the Constitution’s failures to protect the rights of minorities can be found in W.E.B. DuBois’s “Black Reconstruction in America” (1935). This monumental study, which was decades ahead of its time, was among the first to take the role of race and class seriously in American Constitutional development. It is important reading for anyone interested in understanding the political and social context that led to the ratification of the 14th Amendment in 1868. It may be easy to forget, but prior to that year the impact on the everyday lives of Americans of the Bill of Rights and concepts like due process and equal protection were far different from what we have become accustomed to today. The times, they are a changin’. The trick is not to lose ourselves in the process.
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