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A machine that would go of itself, the constitution in American culture.

A Machine that Would Go Of Itself, The Constitution in American Culture.

Michael Kammen, Alfred A. Knopf,$29.95.

In this book, a must-read for the bicentennialyear, Pulitzer Prize winner Martin Kammen sets himself a challenging task. He examines "the cultural impact of the United States Constitution.' He calls this a "study in popular constitutionalism' --of the "perceptions and misperceptions, uses and abuses, knowledge and ignorance of ordinary Americans.'

Kammen reaches somewhat farther than hisgrasp. His method is less analytical than quotational. He makes an exhaustive, sometimes exhausting, compilation of what various politicians, lawyers, judges, historians, and journalists have said and written about the Constitution. But his sources can hardly be regarded as "ordinary Americans.' (He does provide an interesting analysis of how immigrants applying for citizenship answered questionnaires about the American system of government). Given Kammen's method, one can excuse the paucity of remarks by average Americans; until the electronic age, there were few available records to work from.

Kammen's book should help ease some of theconcern in liberal circles that the current conservative attacks led by Attorney General Edwin Meese on the finality of the Supreme Court's interpretations of the Constitution are "unprecedented.' Though Kammen himself is also worried that these attacks are politicizing the Court, his own very interesting historical account shows that incumbent administrations have been challenging the authority and rulings of the Court since the days of Thomas Jefferson. Despite those challenges, reverence for the Constitution and the Court have grown.

This becomes clear when we compare theelaborate plans for celebrating the Constitution's upcoming 200th anniversary with what Kammen tells us about how the charter's earlier milestones were marked. The 50th anniversary in 1837 went largely unnoticed. The great battles over states' rights were still being waged, and the primacy of the national government remained at issue until it was established by force on the battlefields of the Civil War. Kammen includes this perceptive comment by The Nation's E.L. Godkin, who was one of the few to recognize what the Civil War and the constitutional amendments adopted during the Reconstruction era had accomplished: . . . the Constitution may fairly be considered as having existed in what may be called a provisional or experimental stage down to 1861. . . . [The Radical Republicans] resolved that they would cure [the Constitution's] defects at whatever cost, and put it into an undeniably permanent shape, and did so amid difficulties compared to which those of the Convention of 1787 were a mere trifle. They took hold resolutely of all the seriously obscure or ambiguous passages in the instrument, and of all compromises which had proved difficult or incapable of execution, and eliminated them.

Godkin's appreciation was a minority view.Kammen tells us that in the nation's capital in 1882, the "Constitution of the United States was kept folded up in a little tin box in the lower part of a closet, while the Declaration of Independence, mounted with all elegance, was exposed to the view of all in the central room of the [State Department] library.' When the Constitutional Centennial Commission was organized in 1886, Rep. John Kasson noted that "the Constitution has become a sort of dead letter.' A commission official complained about "the entire absence of any interest or general sentiment in favor of the proposed celebration on the part of the public at large.'

The Sesquicentennial in 1937 came at a timewhen the Supreme Court had declared the National Recovery and the Agricultural Adjustment Acts unconstitutional. The country was bitterly divided over whether the Court had saved the country or, in FDR's phrase, returned it to the "horse and buggy age.' During the anniversary celebrations, the virtues and defects of the Constitution and the Court were sharply debated. After FDR tried to add six additional justices of his own choosing to the bench, the tone of the debate became angry and shrill. The Court's integrity was saved by a stroke of fortune--the sudden death of Senate Majority Leader Joe Robinson of Arkansas. Robinson, who had accepted Roosevelt's offer of a seat on the Court in gratitude for his support of the plan, had enough prestige with his fellow southern senators to assure its passage. With his death, FDR's strategy collapsed. The crisis subsided when retirements gave FDR his chance to name several new justices. But with all this controversy, the Sesquicentennial was hardly an occasion of general reverence.

Ark of the Covenant

In the following half century, the Constitutionhas finally come of age. For three generations, from 1789 to the Civil War, the primacy of the national government had been mistrusted and challenged by the states. For the next two generations, the Constitution and the Court had been mistrusted and challenged by the progressive elements in both parties as the major barriers to social and economic reform. But since the Court began lowering these barriers and broadening the protections afforded to the disadvantaged by the Bill of Rights and the Civil War Amendments, every element of American society--not merely the propertied class--has come to perceive the tangible benefits it derives from the constitutional structure. Today, the Constitution is enshrined as the Ark of the American Covenant--the closest surrogate for an established religion in this disestablishmentarian nation. As the Constitutional system begins its third century, all significant political, social, and economic groups accept and invoke its basic premises.

True, there are still those with grievancesagainst particular Supreme Court rulings, especially the post World War II decisions creating or enlarging the individual rights protected by the Bill of Rights and the 14th amendment. In a recent speech in New Orleans, Attorney General Meese argued that the Federal and State executive and legislative branches each have their own separate duties to construe and apply the Federal Constitution, and that while the Constitution itself is "the supreme law of the land,' the Court's interpretations of the Constitution are not. These points are unexceptional if Meese means merely that the other branches are free to urge the court to change its mind or to seek corrective legislation or constitutional amendments. But Meese unfortunately (and perhaps unintentionally) appeared to be suggesting that the executive branch had no duty to respect or enforce federal court orders in cases to which it is not a party. He gave that impression by centering his attack on the Supreme Court's widely admired decision in Cooper v. Aaron, a case in which President Eisenhower had sent federal troops into Little Rock to prevent the state of Arkansas from forcibly keeping black children out of a public school in defiance of a federal court desegration order.

But, as Kammen points out, such attacks havebeen a recurring theme of our constitutional history. Meese has ample historical precedent for his challenge to the rulings and authority of the Court. Jefferson and the Democratic Republicans were unhappy with many of the Marshall Court's decisions, one of which, Chisholm v. Georgia, they swiftly reversed by a constitutional amendment. After the State of Georgia had flagrantly disregarded a later Supreme Court order protecting Indian rights, Andrew Jackson said: "John Marshall has given his decision, now let him enforce it.' When Jackson vetoed a bill renewing the charter of the Second Bank of the United States on the ground that the bank was unconstitutional despite an explicit Supreme Court decision to the contrary, he went much farther than Meese:

The opinion of the Supreme Court. . . .ought not to control the coordinate authorities of this government. The Congress, the Executive, the Court must each for itself be guided by its own opinion of the Constitution . . .. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point, the president is independent of both.

When Abraham Lincoln and the abolitionistsattacked the Taney court's Dred Scott ruling, Stephen Douglas denounced Lincoln's "warfare on the Supreme Court,' and accused him of attempting "to destroy public confidence in the highest tribunal on earth.' But Lincoln continued his attack, and made it the foundation of his successful 1860 campaign for the Presidency.

At the turn of the contury, the progressives inboth parties challenged the Court's invalidation of the federal income tax and state labor laws. FDR and the New Dealers, as already noted, were so aggrieved by the justices and their rulings that they tried to pack the court. In most of these instances, as in the case of Attorney General Meese's current campaigns, the justices have been criticized not only for a particular result but also for an "activist' subordination of the framers' "ture' intent to their own political agendas.

Divided we stand

Kammen is greatly concerned that the Courtas an institution has become "perilously politicized' by the current conservative attacks upon it. I believe Kammen is unduly alarmed. Throughout our constitutional history, as Kammen himself recounts, presidents and others offended by the Court's rulings have tried to limit its jurisdiction and reverse particular decisions. But with very few exceptions, these proposals have failed. The reason, no doubt, is that public opinion values the legitimating function of the Court. Charles Black has captured this role in four crisp sentences:

[The] prime and most necessary functionof the Court has been that of validation, not that of invalidation. What a government of limited power needs, at the beginning and forever, is some means of satisfying the people that it has taken all steps humanly possible to stay within its powers. That is the condition of its legitimacy, and its legitimacy, in the long run, is the condition of its life. And the court, through its history, has acted as the legitimator of the government.'

The most telling evidence of how well theSupreme Court has maintained the legitimacy of the government is the Constitution's imperviousness to change. Since the Bill of Rights was ratified in 1791, only 14 lasting constitutional amendments have been adopted (the other two, Prohibition and its repeal, cancelled one another out). This durability would probably have surprised Thomas Jefferson, who thought that each succeeding generation would rewrite the Constitution.

The great danger today is not that the Rightwill succeed in limiting the jurisdiction of the Court or in reversing its human rights decisions by constitutional amendment. The danger is that the reverence so justly earned by our constitutional arrangements will prevent us from analyzing some of the emerging structural weaknesses that make it so difficult to govern ourselves in the very different world in which those arrangements must now function.

The most serious of these emerging structuralweaknesses is the sharp rise of divided government--the phenomenon of one major party commanding the White House and the other major party holding a majority of one or both houses of Congress. Until recently, divided government was rare, occurring less than 25 percent of the time from 1791 to 1946. But since World War II, it's been the rule. From 1957 to 1988 we will have had divided government more than 60 percent of the time, and from 1969 to 1988 we will have had divided government 80 percent of the time.

Divided government results in inconsistency,incoherence and even stagnation in national policy. Most decisions to adopt or reject a particular policy are now made by shifting legislative majorities built out of cross-party coalitions that change from one issue to another. This in turn causes a loss of accountability, because each of our elected officials justly blames the others for the resulting hodge-podge of policy that all of them denounce. That may have been the ideal Madison expounded in the Federalist Papers, but it was not the practice followed by him or his contemporaries who had to make the Constitution work.

Parties were formed during the Constitution'sinitial decade. Adams, Jefferson, and Madison were de facto leaders of their parties, and party government prevailed for the first 150 years. Indeed, Dwight Eisenhower was the first president in our history to be elected without carrying a majority for his party in both houses of Congress.

Divided government reflects the decline inparty loyalty and the growing practice of ticket-splitting In 1900 only 4 percent of all congressional districts were carried by one party's presidential candidate and by the other party's candidate for Member of the House. By 1984, that figure had risen to 44 percent.

Political reforms and technological change arelargely responsible for this decline, but the structure of the Constitution is partially to blame. While that structure has not resulted in a high degree of divided government until recently, the constitutional separation and sharing of executive and legislative power and the staggering of presidential, Senate, and House elections tend to amplify the adverse effects of political reform and technological change on party loyalty among voters and party cohesiveness among elected officials. The result is an inability to draw the separate parts of the government into coherent action.

There are several changes in our constitutionalstructure that could correct this tendency. One would be a four-year term for members of the House, running simultaneously with the presidential term. If this were combined with a two-class Senate serving staggered terms of eight years, we would then have one election every four years for president, vice president, all members of the House and one senator from each state. They would lengthen and coordinate the political time-horizons of all incumbents, reduce the cost of campaign financing and the resulting divisive influence of well-heeled interest groups, and, by creating a four-year rather than a two-year Congress, make the legislative process more orderly and deliverate. It would also enhance party consciousness among voters and legislators and party accountability in the next election. Similar benefits could be derived from an amendment reversing Buckley v. Valeo and authorizing Congress to set reasonable limits on campaign expenditures, which might include the channeling of all receipts and expenditures through the political parties and thereby strengthen party accountability and cohesion.

As we celebrate the bicentenary of our magnificentcharter, we should not allow our reverence of the Constitution to prevent us from examining the shortcomings in the capacity of our 200-year-old structure to cope with a global economy and prevent a nuclear war. The same document that established the Bill of Rights also countenanced the continued practice of slavery. Rigorous analysis, rather than unquestioning worship, is what the framers themselves would probably have preferred. They changed their own form of government twice in their own lifetimes, and at great personal risk to themselves. Let us hope that in our time we will exercise the deliberate power of adaptation they gave us as wisely and courageously.
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Copyright 1986, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

Article Details
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Author:Cutler, Lloyd N.
Publication:Washington Monthly
Article Type:Book Review
Date:Dec 1, 1986
Words:2418
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