Discussions of the Constitution prompted by the Bicentennial have been generally confined to two groups, the celebrators and the detractors. On the one side, former Chief Justice Warren E. Burger hails the Constitution as "the best thing of its kind that was ever put together." On the other, Justice Thurgood Marshall argues that the framers "compromised" morality by "perpetuating" slavery. Marshall also insists that to ignore this dimension "invites a complacent belief" in the framers' handiwork.
Whether one should or should not overlook slavery seems to be the only issue that has surfaced during the Bicentennial. Yet for centuries the Constitution has been as much a subject of derision as adulation. Many American writers and intellectuals were far from complacent about the Constitution, and for reasons that had little to do with the status of blacks, women, Indians and indentured servants. Even after the Civil War, when all forms of involuntary labor and servitude were abolished in the 13th, 14th and 15th amendments, the Constitution still seemed a flawed document to scholars like Woodrow Wilson. The granting of voting rights to women in the 19th Amendment did not prevent the political philosopher Hannah Arendt from becoming a severe critic of the Constitution.
Around the time of the first Centennial, held in Philadelphia in September, 1887, the historian Henry Adams concluded that "moral law had expired--like the Constitution." He was convinced that "the system of 1789 had broken down, and with it the 18th-Century fabric of a priori , or moral, principle." The moral and political intentions of the framers, Adams lamented, were inadequate to the needs of the present. Attempting to discipline power by dispersing it through a mosaic of checks and balances, the framers had fragmented sovereignty as a once-indivisable idea. Thus with the rise of corporate capitalism, new forms of economic power independent of government eluded the checks that were designed to control the abuses of political power within government.
The alienation of economic power from political authority had also been the concern of Charles Beard in his seminal and still-controverial "An Economic Interpretation of the Constitution" (1913). Beard charged that the framers placed property interests ahead of democratic ideals and thereby violated the egalitarian principles of the Declaration of Independence. A half-century later, Arendt would argue, in "On Revolution" (1963), that the framers had squashed the "revolutionary spirit" of 1776 by consolidating power in the central government. Consequently Americans have been "deprived of their lost treasure," the Jeffersonian passion for beginning anew and continuously reshaping their lives through local participatory politics.
The impression that the Constitution had subordinated freedom to control had also been the complaint of the Greenwich Village generation of the pre-World War I years. In "A Preface to Politics" (1913), Walter Lippmann claimed that the mechanistic contrivance of the framers had reduced politics to rules and routines and left untouched man's moral and aesthetic nature. At the same time Woodrow Wilson believed that the Constitution's structural axioms failed to allow for growth and adaptation; hence he called for a government "accountable to Darwin, not to Newton."
The Newtonian mechanisms of the Constitution had been challenged at the outset during the ratification debates. Patrick Henry denied that liberty could be preserved by what he dismissed as "your specious, imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and balances." But against the Constitution's opponents, the Federalists insisted that "the machinery of government" could be almost self-regulating, requiring of future generations neither "enlightened statesmen" nor "virtuous citizens."
The idea of the Constitution as "a machine that would go of itself," in the words of James Russell Lowell, insulted the new England Transcendentalists. Not only were they angry about slavery but they saw clearly that the "enlightened" men of letters had no place in James Madison's scheme. Thus Ralph Waldo Emerson and Henry David Thoreau reminded Americans that the Constitution and the government it sustained had done little to elevate the people, settle the frontier, inspire the intellect and further the spirit of freedom. To the Concord poets, the Calvinist-soured Constitution condemned human nature to forever distrusting the self and stunting the "Oversoul."
Today's celebrators would perhaps dismiss critics from the past with the reply: "So what! It worked, didn't it?" But did the Constitution work for the reasons that the framers enunciated in 1787? Their aim was to preserve liberty by controlling power. The framers did succeed in achieving their purposes but, as Alexis de Tocqueville first pointed out, only because their premises had been wrong.
Two fundamental premises of the Federalist authors were the incompatibility of property and democracy and the necessity of institutional controls to protect the few from the many. One means of frustrating popular majorities, or what Madison called "overbearing factions," was the "mixed" and "balanced" form of government. By balancing faction against faction, majority coalitions would be prevented and classes would not be able to "vex and oppress" one another.
"I have always considered what is called a mixed government to be a chimera," Tocqueville wrote in "Democracy in America." "When a society really does have a mixed government, that is to say, one equally shared between contrary principles, either a revolution breaks out or that society breaks up."
As Tocqueville discovered, the "mixed" scheme of the framers had been misconceived. Popular factions, rather than being checked, had actually prevailed in "the tyranny of the majority." Yet property remained safe while private liberty became subject to the coercions of "public opinion." Reading into American conditions the class realities of Europe, the framers presupposed conflict when writing a Constitution whose success depended upon consensus.
Burger's claim needs to be revised. If the Constitution is "the best thing of its kind," it is primarily because of the environment that nourished it, a consensual social order without "contrary principles" regarding property. While the framers feared democracy, the frontier fructified it. The Constitution is the effect, not the cause, of whatever stability and success America has enjoyed.