Our Constitutional Icon

This last week witnessed Constitution Day and then, in a gut-wrenching moment of cosmic irony, the passing of Justice Ruth Bader Ginsburg — just after she had been honored with the National Constitution Center’s Liberty Medal. Her death will ignite (has already ignited) a political firestorm, but I want to set all of that aside to think about why her death hit so hard — for me and I suspect for many of my friends. I’m going to approach this in a tortuous path, though, by starting with an exchange between Thomas Jefferson and James Madison.

Amidst a debilitating illness that struck him in the beginning of September 1789, Jefferson stumbled into an enlightened idea, one that he supposed “to be self-evident”: “The earth belongs always to the living generation,” and thus, “the dead have neither powers nor rights over it.”

Suppose, Jefferson imagined in a letter to Madison, that each generation of humanity entered and left the world at the exact same time. As each generation would “come on, and go off the stage at a fixed moment . . . [t]hen I say the earth belongs to each of these generations, during it’s [sic] course, fully, and in their own right.” No debt, no law, and no contracts made by earlier generations ought to encumber the latter generations. The “only difference,” Jefferson maintained, between such a world and our world is that our generations “have one constant term, beginning at the date of their contract, and ending when a majority of those of full age at that date shall be dead.” The length of that “constant term”? Nineteen years, according to his elaborate but questionable calculations. And under this principle, the laws of those who came before us are “extinguished then in their natural course, with those who gave them being. . . . Every constitution then, & every law, naturally expires at the end of 19 years.”

Jefferson’s idealism was counterbalanced by Madison’s conservatism. The core idea, Madison wrote in response, “is a great one, and suggests many interesting reflections,” but, alas, it is “not in all respects compatible with the course of human affairs.” Madison’s reply comprised four crisp objections to Jefferson’s airy proposal, but I want to note only the first two arguments.

First, he remarked, revising a constitution every nineteen years might render government “too mutable to retain those prejudices in its favor which antiquity inspires, and which are perhaps a salutary aid to the most rational Government in the most enlightened age[.]” As institutions age, people venerate and cherish them for their endurance. Second, though Jefferson thought the living ought not be burdened by the debt of the dead, Madison also pointed out that the living can benefit from the actions of, and related debts incurred by, the dead. “[D]ebts for repelling a conquest, the evils of which descend through many generations,” he suggested, were worthy debts that future generations ought to repay.

Jefferson and Madison were close friends and political allies, but this exchange evinces a fundamental difference between the two: Jefferson was partial for radicalism, whereas Madison counseled deliberate hesitation; Jefferson wanted decisiveness, Madison preferred constraint and deference to tradition. These are irreconcilable values. But they are both in our constitutional heritage, and their conflict undergirds our politics.

One answer to the conflict is to assert the predominance of tradition. Consider a recent tweet from Senator Marsha Blackburn: “We will never rewrite the Constitution of the United States.” Beyond the obvious responses to the statement, it’s worth recognizing that this statement is nevertheless good politics; Americans generally, and conservatives especially, have a profound pride for the Founding generation and its handiwork. There are, of course, the obvious moral critiques of that generation, as well as indictments of the actual functionality of their work (for example, the original system of electing the President and Vice President was completely unworkable!). From the historical perspective, though, there’s also a consistency indictment of Blackburn’s romanticism for the Founders. That is, it’s not at all clear that the Founders sought to cement their charter and render it unchangeable: After all, they fought a war to displace a seemingly wrongful order; they created a constitution that failed after less than a decade and replaced it by unlawful means; and they repeatedly amended the 1787 Constitution almost immediately after its ratification. That generation, of course, was not single-minded — for every revolutionary Jefferson, there was a conservative Madison. But self-assured in their omniscience and fearful of change they were not.

A second response to the conflict, then, might be the opposite: a politics of revolution. It could very well be that there’s an itch for fundamental change among Americans; discontent with the federal government is consistently high, while trust in the government is low. Pew’s data also show, though, that perceptions of governmental performance are highly correlated by partisanship, which might be evidence that the system works even if there’s little cross-partisan trust. That is, if half of the country is basically happy with the government when its party is in power, then it seems implausible that revolutionary politics could succeed; perhaps Obama was correct when he said that “the average American doesn’t think we have to completely tear down the system and remake it.”

There is, I think, a third response to this conflict, and I think this third way can help us understand Justice Ginsburg’s legacy. Madison observed that antiquity inspires a positive prejudice, and we see this with the Constitution and its celebration today. Moreover, that document acts, in Alexander Bickel’s words, as “the symbol of nationhood, of continuity, of unity and common purpose” even “without particular reference to what exactly it means in this or that application.” That partisans often resort to constitutional discourse suggests both an inability to come to consensus about what the meaning of the text is and a cachet associated with its invocation. We admire something, in short, that we can’t even agree on.

Bickel thought that the Constitution needed to be “concretize[d]” in order to be a compelling symbol of national unity, and he saw that as the role of the Supreme Court. For one, the Court applies the Constitution and thus acts as a kind of constitutional steward. For two, the Court by nature is slow to change: “It is never, like other institutions, renewed at a single stroke.” Life tenure guarantees that the Court will always look somewhat continuous, which promotes the idea that it is “above the fray” and maintaining a constitutional heritage and tradition.

Here we can return to Justice Ginsburg. Her mere age and continual presence on the Court garbed her with the positive “prejudice[] . . . which antiquity inspires,” but her life-long campaign for sex equality under law imbibed her with a persona of radicalism. Thus, she came to represent a particular constitutional imagination, one that, in her words, was more “embracive” of those originally excluded in 1787. Just like Thurgood Marshall was once known as “Mr. Civil Rights,” Justice Ginsburg symbolized an enduring commitment (spanning over half a century!) to substantive equality and a stubborn capacity to hold on in the face of ethno-nationalist backlash. It’s telling, I think, that pieces are being written about how American democracy “rested on her shoulders.” For many, Justice Ginsburg herself was a constitutional-moral promise — her life was testament to the idea that it’s possible for an ingenious, determined person to succeed in dismantling discrimination and then rise to the height of the legal profession, serving as a kind of Platonic guardian on the Court for nearly three decades as our bulwark against retrenchment.

Her passing thus represents more than just the loss of a great leader and champion for human rights. It also feels like the failure of liberal progress itself. While holding our collective breath in the face of ever-more-scary reports of her illnesses, we almost deceived ourselves into believing she wouldn’t — couldn’t — pass away. For the Notorious RBG, cancer and Donald Trump alike seemed to be no match. Same, too, with a giant like John Lewis. They were living testaments to the fact that progress through constitutional politics not only could occur, but would and did occur. To lose them in such a dark time must feel ominous, even for the least spiritual among us. For in a very real sense, we’ve lost our moorings: those whose very presence assured us that, in our system, right makes might; those who brought us closer to that more perfect union founded on self-evident truths. We’ve lost those better angels of our nature at the time when we needed them most.

Justice Ginsburg, I think, would find these thoughts silly. I don’t think she had time for despair, nor was she interested in it. But she was optimistic about the future of our constitutional order:

“Our country has gone through some very bumpy periods. But, I’ll tell you the principal reason why I’m optimistic: It’s the young people I see. My lawyer granddaughter, my law clerks, are determined to contribute to the good of society. And to work together. So the young people make me hopeful. They want to take part in creating a better world.”

That’s our burden now. For “[t]he earth belongs always to the living generation.”

* * * * *

Rose: Because I’m under quarantine, I had a lot of time to catch up with old friends and to have long conversations with my new flatmates. It’s all been very fun, and the first half of quarantine has gone by surprisingly quickly. (On the flipside, though, I haven’t really been productive at all!)

Bud: Quarantine ends in less than a week, so the next post should be filled with pictures of London! Also, orientation has begun for LSE, so I’m beginning to learn about my coursework and meeting my classmates. I’m cautiously optimistic about it all: I have no idea what the academic environment will be like, especially given covid restrictions, but the reading lists all look interesting and thought-provoking.

Thorn: See above.

Potential future topics:

• When do (or should) we call a truth “self-evident”?

• How should I explore London/the UK? (I’d love advice, by the way, if y’all have any!)

• The Greenham Common Women’s Peace Camp — I learned about it through a public lecture on Thursday, where a bunch of archivists were discussing the process of creating history.

• Islington, the district of London I’m living in.