No doubt that it is the duty of judges to say what they believe the law is, but that does not mean they are the only ones - juries have their role to play.
An Eternal Introduction
When I read the preface, I thought: What a great story awaits the reader. The authors of The Constitution: An Introduction, Michael Stokes Paulsen and Luke Paulsen, father and son, spent nine summer vacations together discussing the original Constitution and the Amendments. I wish I could have been privy to the conversations. Did the father ever say to the son, “you changed my mind on this point?” Did the son ever say to the father, “you changed my mind on that point?” After all, I think, the key to introducing America is by way of a dynamic conversation within and between the generations. Their aim is both lofty and restrained: to write an introductory book that is “rigorous, accurate, and scholarly” yet at the same time “brief and readable.” But they fall short.
References to the Declaration of Independence and the right of the people to choose their own government are made in the book’s opening chapter. Unfortunately, what comes through loud and clear is that “in the spring and summer of 1787, a group of distinguished Americans gathered together to plot the overthrow of their own government.” It was a “coup d’état,” and “arguably illegal.” The creation of the Constitution was a “brazen action.” Now this is not exactly the uplifting start that regular Americans might expect from the uplifting preface. America, in effect, was illegally founded. How long did it take the Paulsens to come to this conclusion? Did they discuss the arguments at the Constitutional Convention over this very issue?
Our authors are correct: “There was literally nothing in the world like what the framers were trying to achieve.” What one might expect is a discussion of a constitutional republic created by the messy process of the consent of many diverse voices rather than from up on high by one lawgiver. Not force, but deliberation. Not extremism, but moderation. Their contribution, however, follows from the illegal beginning: ‘The framers of the Constitution created a stunningly powerful national government.” Does this suggest that the Constitution was not totally ill-founded? What follows is a pretty standard and disappointing account of the doctrine of checks and balances, separation of powers, and federalism.
Nevertheless, the Paulsens present America as not only possibly illegally founded but, certainly, ill-founded. The Constitution is a “Collusion with Evil.” “There is just no way around it: America’s Constitution as originally proposed and adopted, was a pro-slavery constitution.” And this is not a one off reference to grab attention. “On the issue of slavery, the adoption of the Constitution of the United States was a serious step back.” “The original Constitution was undeniably pro-slavery.”
I commend the Paulsens for focusing on three slave clauses of the original Constitution—the Three-Fifths Clause, the Importation Clause, and the Fugitive Slave Clause—because that is exactly the core of the debate. Neither the Paulsens nor I want to distract the reader. So, in my imaginary conversation with the Paulsens, I’d like to ask three questions about these three critical clauses.
- “The most obvious pro-slavery feature of the new Constitution was the provision commonly referred to as the as ‘the Fugitive Save Clause.’” Really? How do we know that? This clause only became a serious issue in the post 1830s. Can we blame the Framers for that?
- The “dreadful compromise” of the Three-Fifths clause. There is no comment by either of the Paulsens dealing with the twists and turns over the four weeks of debate on this issue at the Constitutional Convention. In fact there is a rather large textual gap in explaining to the introductory reader why and where that and the other two clauses occurred.
- There is no coverage of the dynamics of how the Convention arrived at the year 1808 for the possible end to the slave trade rather than never or 1800.
The message for Americans reading this introduction seems clear: The Constitution is pro-slavery. We are living in an ill-founded country with a powerful national government. What is really disappointing is the total failure to engage the reader with the robust debate that took place at the Constitutional Convention and the Ratifying Debates. There is little doubt in my mind that William Lloyd Garrison’s condemnation of the Constitution is adopted by the Paulsens as the lens through which to view the original document.
The Paulsens are correct: the original Constitution is not the whole Constitution. There is, for example, the Bill of Rights in the form of the first ten amendments. We learn that “America’s Bill of Rights . . . is practically a second constitution all its own.” So, I guess, we are on the road to improvement. Although the authors are confusing concerning the details of how the Bill of Rights moved through the ratification process and First Congress, we at least get introduced to the deliberative process with both sides making a contribution to the conversation. Well done, Paulsens. Also well done is the robust and sympathetic coverage of the religious clauses of the First Amendment. But it does not help the regular citizen to see later Supreme Court interpretations prominently displayed within the introductory coverage of the Bill of Rights.
What the Paulsens have left us with is as we enter Part II, is that that the Constitution is 1) basically illegally founded, 2) certainly ill-founded, 3) partially repaired by the adoption of the Bill of Rights, especially the religion clauses, and 4) that the Constitution is what the Supreme Court says it is.
In Part II, they turn to “defining” the Constitution between 1790 and 1860. Do we really need to go through Hamilton and the Bank, the Alien and Sedition Acts, and, of course Marbury v. Madison and the Dred Scott decision? According to the Paulsens, “yes.” But why? “The American Constitution would be both dramatically preserved and radically transformed” in this period largely due to Supreme Court decisions. So does that mean we have a “living” introduction, namely an ever changing introduction, to the Constitution? So, say every 20 years or so, we need a new and improved introduction to the Constitution. Right? As an aside, I suspect that the cleverness of the title will be lost on the general reader.
Given this evolutionary introduction approach to the Constitution, it makes sense to introduce the Civil War Amendments to the general reader. The Paulsens state this boldly: “The United States Constitution as we know it today is, in substantial measure, the result of the single most important act of constitutional interpretation in American history: the Civil War.” So why did we, the reader, wrestle over the first half of the book? Why not start the introduction to the Constitution right here with the Civil War Amendments? But, I guess, one can’t begin with blood and redemption right away, can one? Evil must be introduced before it can be exterminated.
To the Paulsens’ credit, unintentionally embracing a fundamental and wonderful paradox in their work, they entertain the notion that the Supreme Court made a wrong decision in Dred Scott and that Lincoln acted constitutionally during the Civil War. Aren’t they introducing us to a Constitution? The same paradox holds for their coverage of the “betrayal” and the “abandonment” of the Constitution between 1876 and 1936.
Aren’t we chronologically and conceptually beyond the introductory stage when we cross page 200 in the book and are in the 20th century? The Paulsens keep going on their introductory trail. The next chapter, 50 pages, is called “The Constitution Through Depression, World War, and Segregation (1936-1960).” This is followed by the final chapter, “The Modern Era of Judicial Activism (1960-2015),” which is 67 pages long. So we are talking about nearly 40 percent of an introductory book on the Constitution covering two chapters of the 20th century. Can someone explain introductory to me?
One would think that since we are on the evolutionary introductory path, we need to introduce the Progressive amendments broadly understood starting with the Sixteenth Amendment’s imposition of an income tax and ending with the two term-limited presidential Twenty-Second amendment. These amendments could well be the Constitution under which we live today. The Paulsens, however, give them limited coverage. Unlike with the redemptive Civil War Amendments, so prominently featured in their narrative, race is not involved in these amendments.
In sum, this is a book that could have been, but wasn’t. It is a book that lost the opportunity to reveal the discussion between father and son and encourage the rest of us to engage in the unique American experiment of civil discussion. Instead this book is about illegality, immorality, blood, redemption, race, and the Supreme Court. The Paulsens have written an eternal introduction to the Constitution.