A Machine That Would Go of Itself: The Constitution in American Culture.

A Machine That Would Go of Instelf:

THOUGH NOT particularly law-abiding, Americans are a people uniquely defined by their attitudes toward law. Or, more precisely, by their allegiance to a "sovereign," fundamental law, a text that prescribes the terms of their coexistence, to which, on entering upon any major public responsibility, they swear an oath of fealty as to a fatherland or prince. This derivation of national identity from a brief composition establishing certain institutions and dividing them from one another according to their scope and function makes all the more serious the bicentennial exercises of the year just concluded and the celebrations of the Constitution continuing in the months to come. Yet it became painfully obvious during the deliberations in the United States Senate, as it considered Judge Robert Bork for a seat on the Supreme Court, that Americans in general comprehend almost nothing of the basic concept of law limiting the outreach or production of law. Invariably, we confuse the struggle to carry out the promise of the Constitution--what we have agreed to do and not to do about the meaning of citizenship--with the philosophe dreams of justice. I mean here Justice in the purity of its detached, prepolitical abstraction. The larger lesson we should learn is that the latter may be invoked in such a way as to make the former impossible.

That we do not understand the Constitution or how it came into being has done almost nothing to restrain the American people from honoring and celebrating their inheritance in its "sacred text." Ours is a loyalty compounded and perfected in ignorance. Such a paradox is the theme of Professor Michael Kammen's A Machine That Would Go of Itself: The Constitution in American Culture, a study in popular political piety that, as a narrative analysis of how much and how foolishly we have valued our Constitution, has been (given the current intellectual atmosphere) understandably well received. At first, I was disposed to greet this book with enthusiasm and approval. In some sections, Kammen has done impressive work, exploring the irony of zealous incomprehension with an appropriately light touch.

These patches of light are, however, surrounded by darkness, most notably when the Cornell historian approaches issues of topical concern. In specific, my problems with Kammen's book have to do with his treatment of the making of the Constitution, and then with what he says about the politically motivated distortions of that Constitution that have occurred in the last fifty years. Kammen gives unstinting praise to the patriotic passion and process he calls "constitutionalism." That this constitutionalism is usually ill-informed or indifferent to truth about legitimacy within our bond of Union, that it is a flexible attitude, capable of adaptation to circumstantial necessities, he does not disguise. Indeed, to Kammen it is the special virtue of this consensus-making patriotism without content that its operations discourage too vigorous an inquiry into the meaning of the Constitution itself--questions of the kind he denominates "ideological," divisive, or "partisan." For, he says, when these researches go beyond adoration of the Constitution as icon, as an empty vessel to be filled with the favorite preoccupations of our era, they threaten the public peace that a purely political, melioristic view of the courts affords.

The mainspring of Kammen's argument is not surprising. He fears a historically grounded counter-revolution against judicial activism, one conducted in the Congress, on the hustings, and with support from an Administration. In brief, Kammen is disturbed by the possibility that judicial review might cease to be so important a part of the future constitutional development of the Republic. His book is an apology for the way things stood, with respect to the law, in 1980. Moreover, it is a calculated impediment to what a generation of vigorous, well-informed Americans are determined to achieve through their insistence on interpretivist jurisprudence: to re-establish among us the rule of law.