The Constitution & Us
A Machine that would go of Itself: The Constitution in American Culture.
by Michael Kammen.
Knopf. 532 pp. $29.95.
Michael Kammen, the Newton C. Farr Professor of American History and Culture at Cornell University, describes this book as a study in popular constitutionalism, by which he means “the perceptions and misperceptions, uses and abuses, knowledge and ignorance of ordinary Americans” concerning the Constitution of the United States. As he says, there is a vast literature “in the traditional field of constitutional history—including works on the Supreme Court, biographies of Justices, so-called biographies of the Constitution, and pertinent aspects of American legal history—[but] no one has attempted to describe the place of the Constitution in the public consciousness and symbolic life of the American people.” “How,” he asks, “has the [American] society felt about its frame of government? (When it has felt or thought about it at all.)”
Well, as one might expect, ordinary Americans—“not lawyers, nor judges, nor professors of constitutional law”—are not going to indicate how they “feel” about the Constitution unless they have some particular reason to do so. This becomes clear early in Kammen’s account. Ordinary Americans are not going to engage in debates on the constitutionality of the protective tariff, certainly not debates on the floor of the U.S. Senate. Nor are they going to dispute—not publicly, at least—the relative strengths and weaknesses of the American and British constitutions, or enter into debates with such famous Englishmen as Thomas Babington Macaulay and Walter Bagehot. They are not even likely to mount campaigns to “save” the Constitution, either from Franklin D. Roosevelt or from the Supreme Court.
All of which is to say that Kammen’s story features not “ordinary Americans,” but well-known, even famous, Americans: Senators Daniel Webster and Robert Y. Haynes; James Fenimore Cooper; Henry Cabot Lodge; A. Lawrence Lowell; James M. Beck (28 index entries); Professors Charles A. Beard (16 index entries), Thomas Reed Powell, Edward S. Corwin; Leonard Wood, army general; Nicholas Murray Butler, university president; and Elihu Root, lawyer, statesman, Nobel laureate.
The point is, ordinary Americans are more than likely to be dependent on others for their thoughts—if perhaps not their “feelings”—about the Constitution. Kammen describes their attitude as a “curious blend of reverence and ignorance,” and makes it clear in the first chapter that they are not themselves altogether responsible for the ignorance. Indeed, events seem to have conspired to promote it among them. The Founders, he points out, thought they were writing a Constitution that would be fully comprehensible to the people, but no sooner was it in place than they began to quarrel among themselves as to its meaning—concerning slavery, taxes, treason, and, for one more example, the power of Congress to incorporate a bank. And that disagreement continues today. Then there is what Kammen calls the “mystique” of the Supreme Court, its reluctance to explain its procedures, its refusal to make public its proceedings, and, for much of its history, the failure of the press to cover it adequately. Then, in the early years especially, ordinary Americans were poorly served by publicists whose textbooks tended to be “unclear, superficial, inconsistent, and inaccurate.”
Kammen’s method—and for this especially he deserves to be praised—is to distinguish between the Constitution and the Supreme Court; to employ his formulation, he does not share the common “propensity to conflate the Court and the Constitution.” The consequence is a history not of the Court, not of constitutional law, but, uniquely, of the Constitution itself: how the physical document was kept out of British hands in 1814—by being loaded, along with other official papers, in “coarse linen sacks” and carried, first, to a grist mill a few miles above Chain Bridge on the Virginia side of the Potomac, and then to Leesburg, where it was “locked in an unoccupied house, and the keys entrusted to a Reverend Mr. Littlejohn”; how it has been taught in the schools, explained in texts, manuals, even catechisms; how it has served as symbol as well as instrument of government; how it has been displayed; how it has been celebrated (in 1837, 1887, 1937); and, of course, how it has been misunderstood by ordinary Americans.
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Ordinary Americans do figure in the book, as members of the crowds lining the streets on celebratory occasions, but mainly as objects of concern because of their presumed ignorance of the Constitution’s structure and provisions. “Popular ignorance of the meaning of the Constitution is appalling,” said one leader of the New York Bar Association; “God knows how dearly we need a constitutional revival,” said Senator William E. Borah in 1924. Out of these concerns came the designation of September 17 as Constitution Day and, within a few years, a Constitution Week, as well as a number of programs of public instruction sponsored by the bar associations, National Security League, American Rights League, American Defense Society, and even the Boy Scouts of America. With its eye on the future, the Immigration and Naturalization Service established an “Americanization Service” which prepared constitutional catechisms for the use of immigrants applying for citizenship. When tested, however—at least, if Kammen’s examples are at all typical—the immigrants proved to be more ignorant than the “ordinary Americans.” Question: “Name the three branches of the U.S. government.” Answer: “Deduction, Reduction—I don’t know the third.” Question: “In case the President dies during his term of office, who becomes President?” Answer: “George Washington.”
But the answers are not always foolish. Question: “What is the advantage of having local government such as city and state?” Answer: “The President can’t watch everything.” Precisely. Question: “Name some of the important duties of a citizen.” Answer: “Love your neighbor.” Which is to say, love your fellow citizen; good counsel, that. One Goldie Sokoloff brought her examination to an end by pleading, “Please Mister, don’t ask me any more questions as I want to be a citizen and I don’t know any answers.” One hopes she made it, and that she became an ordinary American; ordinary Americans tend to be good citizens.
This brings us to an aspect of his subject Kammen neglects to discuss. Like Goldie Sokoloff, ordinary Americans do not score well on constitutional tests but they think well of the Constitution and, partly no doubt as a consequence, they happily and habitually accept the limits imposed by it on their political power. This, surely, deserves some place in a study of the Constitution’s “cultural impact.” It is, in fact, the sort of “impact” James Madison hoped and worked for. In accord with his populist proclivities, Madison’s friend and colleague Thomas Jefferson had proposed that questions of constitutionality be submitted directly to the people, not the courts; Madison objected. Writing in Federalist 49, he said that every appeal to the people “would carry an implication of some defect in the government, [and] frequent appeals would, in great measure, deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.” And he ends the paragraph by saying that even the most rational government “will not find it a superfluous advantage to have the prejudices of the community on its side.”
On the whole, then, and especially considering the instructors Kammen probably has in mind (Anthony Lewis, for example), I think we would be well advised to leave ordinary Americans alone. Better to concentrate on the law schools, where the Constitution has not been studied for years.
It is only in the last few pages that Kammen becomes the liberal partisan rather than the historian of culture. In the 1930’s, liberals proposed to curb the “conservative” Supreme Court by authorizing the President to appoint up to six additional Justices, or by authorizing Congress, by a two-thirds vote, to reenact laws declared unconstitutional by the Court, or by enacting legislation forbidding the Court to declare acts of Congress unconstitutional except with the concurrence of seven of the nine members. Kammen reports these events with the sort of detachment we have come to expect from historians of culture; the most he is willing to say is that “a fair number of liberals and many Democrats had grave misgivings” about these proposals.
But when he comes to recent proposals to curb the “liberal” Court by depriving it of jurisdiction in cases involving school prayer, abortion, busing, and the like, Kammen drops his scholarly mask; he regards such proposals, he tells us, as “outrageous.” That Congress might properly do this or, indeed, that the Court’s power even to hear a case or controversy depends on an express grant of jurisdiction by the Congress, is, he says in the concluding chapter, an opinion held only by “extremists.”
Well, not quite; in fact, not by a long shot. Here, from a case decided in 1949, is Justice Felix Frankfurter on this subject: “Congress need not establish inferior courts; Congress need not grant the full scope of jurisdiction which it is empowered to vest in them; Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice.” Of course, Frankfurter’s is not the last word on the subject, but neither is it the word of an extremist.
In sum, this is a book packed with little-known information and some fascinating discoveries. And, except for the last few pages, it can also serve as a model for cultural historians.
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