Is it possible to interpret the Constitution without recourse to the historical figures who drafted, sustained, and decoded it? In The Lives of the Constitution: Ten Exceptional Minds that Shaped America’s Supreme Law, an engaging and persuasive study, Joseph Tartakovsky answers this question with an emphatic no, concluding that how our founding document was created and is understood necessarily transcends its textual limits.
A constitutional law scholar at the Claremont Institute and an editor of its journal, Tartakovsky allows that “the Constitution’s purpose is, in part, to immunize us against fickle or headlong change,” but fundamentally believes “understanding the Constitution is impossible without marking the influence of experience, politics, culture, and technology.”
Labeling the Constitution “the documentary record of a nation rationally created,” Tartakovsky begins by observing that “America’s greatest contribution to world civilization has been in the art of establishing and preserving free republican government.”
Ten Key Figures
The lives he examines range widely. Every one of Tartakovsky’s ten key figures “had a hand in conceiving, drafting, and ratifying the Constitution, or in interpreting, challenging, amending, preserving, or applying it to radically new conditions.”
Tartakovsky partitions his subjects into builders (Alexander Hamilton and James Wilson), fighters (Daniel Webster and Stephen Field), dreamers (Woodrow Wilson and Ida B. Wells-Barnett), and restorers (Robert Jackson and Antonin Scalia). Each shaped our founding document in his or her own unique way.
Hamilton established federal power when it was sorely lacking. The young republic’s foremost spokesman for “energy in the executive,” Hamilton wrote, in President Washington’s 1796 Farewell Address, that the “real danger in our system is that the general government, organized as at present, will prove too weak rather than too powerful.”
By pioneering the ill-fated Bank of the United States and growing the Treasury Department from 39 employees to more than 1,600 in five short years, Hamilton sought “an executive with the muscle, prestige, and legitimacy to withstand all perils.”
Alongside Hamilton toiled James Wilson, a brilliant Scotsman who immigrated to Pennsylvania in the 1760s and provided the key philosophical underpinnings of our founding document. “In his labors to justify the United States Constitution by every fact of human nature and eternal order,” Tartakovsky muses, “Wilson was the closest the Founding had to an Aristotle.”
The first to suggest a single executive and one of only six people to sign both the Declaration and the Constitution, Wilson also coined the timeless phrase “We the People.” Like Hamilton, Wilson sought a strong national government, arguing that the citizenry “will gain more by the limitation of other men’s freedom, than he can lose by the diminution of his own.”
From Webster to Wells-Barnett
In contrast, others, like Webster and Field, fought to preserve the Constitution. Field, the second-longest-serving Supreme Court justice, rose to become the preeminent defender of property rights in the latter half of the nineteenth century after coming of age in the literal and figurative wild west of California’s Gold Country. Field ascended from chief justice of the Golden State’s Supreme Court to Lincoln’s appointee to the highest court in the land in 1863.
Enamored of Adam Smith’s laissez-faire economic philosophy, Field gained a reputation, mostly well-deserved, for indefatigably defending the rights of large corporations, but Tartakovsky explains that “his real ardor was for the men behind those companies: the far-sighted risk-takers like Leland Stanford” and his ilk. Yet Field proved far less forward-thinking on the treatment of postbellum blacks, as he adopted a narrow, states-rights-friendly interpretation of the newly enacted Fourteenth Amendment.
Woodrow Wilson proved equally uncongenial to racial equality yet was far less business-friendly than Field, sitting as he did at the forefront of the progressive movement, which Tartakovsky traces to “the monumental imbalance between a private business sector that had surged since the Civil War…and primitive modes of government, skeletal and passive, that hadn’t even begun to catch up.”
But racial and sexual injustice met its match in Ida Wells-Barnett, a black woman who “stood at the intersection of the two great socio-legal contests between 1880 and 1920 – the struggles against White Supremacy and against male Supremacy – and battled both quite successfully.” A prolific journalist and (unfortunately) a keen observer of African American suffering, Wells-Barnett consistently presented “the unadorned, emotionless, and brutal statement of fact, such as that, in the 20th century a significant part of American civilization was engaged in the ritualistic ‘burnings alive of black human beings.’”
In fighting for racial equality and female suffrage, Wells-Barnett found to her dismay that many black men “put sex before race” while would-be allies among white women “put race before sex.” Nevertheless, her legacy on the front lines of the suffrage battle remains secure.
An Unlikely Couple
Finally, Tartakovsky pairs Supreme Court Justices Robert Jackson and Antonin Scalia, an unlikely couple, as restorers of the Constitution. Jackson, initially FDR’s solicitor general, attorney general, and all-around bulldog, proclaimed a “constitutional Renaissance” following the eventual coming-around of the high court, after Roosevelt cashiered his controversial court-packing scheme, to the practicalities of the New Deal.
After his 1941 elevation to the Supreme Court, Jackson continued to defend the New Deal vigorously, wielding an expansive view of presidential power forged in the twin crucibles of the Great Depression and World War II – albeit one tempered in the landmark Youngstown and Korematsu decisions.
Scalia, “one of the finest judicial stylists on record” who favored a mien of “exasperated common sense,” almost single-handedly revived the originalist approach, which Tartakovsky defines as devoted to the single inquiry: “What was the most plausible meaning of the words of the Constitution to the society that adopted it?”
Scalia abhorred the fashionable “living constitution” school of jurisprudence, penning countless acerbic dissents decrying it. Along the way, he bolstered key constitutional protections, including the right to bear arms and various criminal procedural protections.
A Permeating Spirit
While Tartakovsky is at his strongest when analyzing Supreme Court decisions, their internal logic, and their ramifications, some of his pieces don’t fit together quite as well, such as an interlude on visits to the young United States by Alexis de Tocqueville and the Scotsman James Bryce – an interesting aside that’s only loosely tied to the Constitution itself. But overall, he weaves a sturdy and colorful tapestry that brightly showcases the key strands tying together our founding document and, by extension, our polity.
“Constitutionalism,” Tartakovsky writes, “is not a mere institutional form but a culture, a set of loyalties, sentiments, habits, assumptions, usages, and self-disciplines, a permeating spirit that animates an otherwise lifeless paper scheme.” In many ways, then, our Constitution is America.