CLAY JENKINSON: Future In Context — How America’s Three Constitutions Define The Nation

The past few years have raised constitutional questions at an unusually fast clip. After years, even decades, of slumber, the emoluments clause (Article 1, Section 9) suddenly flared up, as well as the pardon clause (Article 2, Section 2), and, of course, the impeachment clause (Article 1, Section 3), among others. From the narrow perspective of civics (not politics), the Trump presidency did the American people a favor by re-focusing the nation’s attention on the Constitution of the United States.

As the Trump controversies piled up, we learned that his deliberate political and legal disruptions more often targeted American civic norms than identifiable clauses in the Constitution itself. Nothing in the Constitution requires the loser of a presidential election to make a concession speech, for example, or even acknowledge the clear results of the election, but such behavior is a solid part of American political tradition, and it turns out that violating that norm has a destabilizing effect on American democracy. Nothing requires the outgoing president to attend the inauguration of his successor. Nothing requires the president to defer respectfully to decisions of the American court system. The list is long.

The ‘Other’ Trinity: America’s Three Constitutions

As the Democrats in Congress mull over the idea of increasing the size of the Supreme Court (the Constitution does not specify the number of justices) or of ending the filibuster (nowhere mentioned in the Constitution), it may be useful to think about the American political system in a broader way. A political majority has the legal right to change the number of Supreme Court justices, but there are other important factors than the letter of the Constitution. I want to briefly describe the three American “constitutions”:

  • First, the actual written Constitution, ratified in 1787 and amended just 27 times over 234 years.
  • Second, what might be called the “small-c” constitution, the set of norms, habits and procedures that are not enumerated in the written Constitution but have achieved a deep rootedness in American civic life.
  • Third, the ways the American people actually “constitute” their lives, more often outside the realm of civics, but which have to be taken into account by anyone wishing to lead or shape American life.

The Formal Constitution

The formal 1787 Constitution needs little description. There it is, 4,534 words, encapsulating the civic intentions of 55 white men who deliberated, debated, argued and above all compromised for 115 days at Independence Hall in Philadelphia, windows closed, to hammer out “a more perfect union” for 3.9 million Americans, one in five a slave. No women were present, no African Americans free or enslaved, no Native Americans, no Jews or Muslims. The delegates, called by Jefferson an “assembly of demigods,” were all white privileged men.

The Constitution established a new, stronger national government for the United States. It created two houses in Congress, and established minimum eligibility requirements for the president and for senators and members of the House of Representatives. It enumerated the powers of each of the three branches of government. It set procedures for ratifying a treaty, presidential vetoes of congressional legislation and the manner in which a veto could be overturned by a two-thirds vote in both houses. With, as they said in the 18th century, a long train of et ceteras.

The small-c constitution is the set of norms, habits, and procedures that are not enumerated in the written Constitution but have achieved a deep rootedness in American civic life

The “Small-c” Constitution

The capital-C constitution was a general recipe for a new national government, but it did not descend into particulars on many important questions. It did not create a presidential cabinet, for example, but some such entity is hinted at in Article 2, Section 2, which says the president “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”

George Washington established a four-member cabinet (State, War, Treasury and Attorney General) a few months into his first term, and though some presidents have made much greater use of their cabinets than others, no subsequent president has dared to dispense with this American institution, now numbering 24 members.

Fourth Chief Justice of the U.S. Supreme Court, John Marshall. (Portrait by Henry Inman,1832.)
Fourth Chief Justice of the U.S. Supreme Court, John Marshall. (Portrait by Henry Inman,1832.)

The capital-C Constitution did not authorize the Supreme Court to determine which laws were constitutional and which violated provisions of the Constitution (judicial review). Chief Justice John Marshall single-handedly instituted judicial review in 1803 in the famous case Marbury v. Madison, when he decided, without explicit constitutional authority, that one clause of the Judiciary Act of 1789 was unconstitutional and therefore void, and declared, in what amounts to a judicial declaration of independence, “It is emphatically the province and duty of the Judicial Department to say what the law is.” Thus, one of the central bulwarks of American civic life was not established in the capital-C Constitution, but it has achieved not just quasi-constitutional status in the United States but is so deeply rooted and uniformly accepted that nothing could possibly displace it now.

The Constitution requires the president to advise Congress on the state of the union from time to time, but the annual ritual of the president riding up to Capitol Hill to address a joint session of Congress, with an endless series of standing ovations, special guests in the gallery, the Supreme Court justices all sitting in the front row, the joint chiefs of staff present and accounted for, belongs to the small-c constitution. Although Washington and John Adams delivered their annual messages personally before Congress, Thomas Jefferson broke that precedent before it could get deeply rooted in American civic life because he thought it smelled of monarchy, and it wasn’t until Woodrow Wilson (1913) that the modern habit (now something of a political circus) was initiated, and rarely avoided since.

A political cartoon from 1937 illustrates the dust up around Franklin Roosevelt's effort to raise the number of Supreme Court justices in order to protect key provisions of the New Deal.
A political cartoon from 1937 illustrates the dust up around Franklin Roosevelt’s effort to raise the number of Supreme Court justices in order to protect key provisions of the New Deal.

Perhaps more to the point for the politics of 2021, the capital-C Constitution does not specify the number of Supreme Court justices. Congress gets to set the number through routine legislation. It could be nine, 19 or 90, and it has been set at six, five, seven, nine and 10 in the course of American history. If the Democrats today forced through a court-packing bill raising the number of justices to 12, for example, they would not be violating the capital-C Constitution, which is silent on this question, but they would be violating what turns out to be a very deeply rooted and seemingly sacrosanct provision of the small-c constitution. This alone illustrates the immense power of the unratified small-c constitution. Even the Democrats who wish to reshape the balance of the Supreme Court by creating new positions they can fill with progressive justices sense that they are tiptoeing around a very important American taboo, as Franklin Roosevelt discovered in 1937, when he tried to raise the number of justices so that he could install individuals who would not strike down key provisions of the New Deal.

Here are other American small-c constitutional provisions that are nowhere mentioned in the Constitution of 1787: executive orders, executive privilege, political parties (including caucuses, conventions and primaries), the filibuster, cloture, any mention of marriage, or any mention of God or providence or Jefferson’s “Creator.” Entities like executive orders and the filibuster have such significant political rootedness that most Americans regard them as actual provisions of the Constitution of 1787.

A nation that has only amended its constitution 27 times in 234 years (only 17 times after the Bill of Rights of 1791) clearly has a very conservative attitude towards that constitution. It’s a paradox: The United States is the most dynamic, hectic-paced, innovative and fast-changing nation in the world and yet it enshrines a constitution written by white men in wigs and buckled shoes, many of them slave owners, in a world that moved at three miles per hour. In fact, even many of these small-c constitutional provisions are so deeply rooted in our civic practice that it is regarded as heretical even to debate their validity or their continuing usefulness a quarter of a millennium after James Madison showed up in Philadelphia with the Virginia Plan in his saddlebags.

The third constitution reflects the ways the American people actually “constitute” their lives, which have to be taken into account by anyone wishing to lead or shape American life.

The Lived Constitution: Habits of the Heart

The third “constitution” is as important as the other two, more important to the ways and means of the 330 million American people. It is the least well-defined of the three constitutions, but the one that most shapes and manages life in the United States. This “constitution” is the way we constitute ourselves, what the French traveler Alexis de Tocqueville called American “habits of the heart” when he visited the United States in 1831-32. Much of the way we constitute ourselves has little connection to government. Think of the great annual rituals of the United States: New Year’s Eve, the Fourth of July, frat parties, high school graduation ceremonies, the Super Bowl, the all-class reunion, the NCAA March Madness, the quadrennial Republican and Democratic national political conventions, the Kentucky Derby, a visit to Disney World, Thanksgiving, Black Friday, church suppers, the Chevy Chase-style summer family vacation. With another long train of et ceteras.

Cable news channel logos

MSNBC, CNN and FOX News Channel hosts compete in nightly discussions of the state of our dis-union.

America as Told on Fox, MSNBC and CNN

These habits of the heart are as important as the impeachment clause of the Constitution or the presidential veto. They shape and coordinate life in the United States. People in France or Finland have a hard time understanding why one in three Americans watches the Super Bowl, or why people would get up before dawn to camp out in front of Best Buy or Walmart the morning after Thanksgiving. We are, of course, equally bewildered by some of their habits.

One of the distorting forces of our time is that our national media are so powerful, so unrelenting and so compelling that we sometimes think America is that thing that gets talked about every night on Fox and MSNBC and CNN, or even (though more calmly) on NPR and PBS. In that world of passionate talking heads, state-of-the-art graphics, rolling chyrons, the never-ending announcement of “breaking news” (the senate voted to confirm a minor cabinet official, a highway bill passed Congress) and extremist sound bites, America appears to be a broken nation, almost a failed state. The “representatives” of our politics and the national “talking heads” are partisan, aggressive and contemptuous of their adversaries or even more moderate allies, and the temptation is to believe that the cable news world is America. Every election is the most important in American history. Every congressional action either “starves the poor” or “obscenely bloats the national defense establishment.” Every hard conservative is a “fascist” and every hard liberal is a “socialist.” Partisans of the sitting president defend his least defensible actions, while the partisans of the opposition regard him or her as a tyrant who stomps all over the rule of law — until the situation is reversed.

The cable media networks are not just silos and echo chambers, they are gigantic megaphones beloved by their faithful followers and regarded as propaganda networks by the other party. All this is supercharged by so-called social media influencers and platforms like Facebook, Twitter and YouTube. While seeming to display and explore American life, they create what is effectively a hothouse alternative universe that almost entirely lives within the beltway of Washington, D.C.

America’s Heartland and Its Three Constitutions

Meanwhile, out in the heartland of America, people are milking cows or taking guitar lessons, selecting a wedding ring or volunteering at the local food shelter, applying for college or sitting down to watch a Hollywood blockbuster after supper. Every American has contact, direct or indirect, with government, but most people live their lives outside of any daily consciousness of the U.S. Constitution. The way we actually constitute ourselves reveals and represents who we are, what we value, what we worry about, how we spend our time and how we earn a living much better than either the capital-C or the small-c constitutions. The vast heartland is an America that major media (or even entertainment television) has a hard time capturing. It is not headline stuff; it is usually a little dull from a sitcom or miniseries point of view. It is the sum total of the largely unglamorous habits of the heart of a people going about their lives.

The capital-C Constitution has to pay some attention to the way we constitute ourselves. If the great mass of people are indifferent to seeming violations of the emoluments clause, only a determined minority will demand investigations and impeachments and nothing much will come of it. After the Census creates a demographic portrait of America, apportionment and political representation adjust themselves to the realities of the continent. The placement of roads and bridges follows the demographic trends. The U.S. government learned in the Vietnam years that a war draft draws the American people into the national dialogue in a way that makes waging war more difficult, so it adjusted and created an effective, albeit extremely expensive, all-volunteer army instead. If 98 percent of the American people wanted abortion outlawed, the Supreme Court would almost certainly find a way to overturn Roe v. Wade (1973). The way the American people constitute themselves inevitably influences the way we interpret the Constitution of 1787, and the level of national commitment to the small-c constitution norms. If 98 percent of the American people wanted to build a wall on the Mexican border, government would find a way, and the judiciary would step out of the arena.

These three American constitutions overlay the country. They intermingle in fascinating and sometimes troubling ways. The problem is that the first two constitutions get most of the attention on national media, at the expense of the very wide middle of the spectrum, perhaps 80 percent of the American people, who just want to lead their lives in freedom, family and prosperity. The great majority of Americans belong to what Richard Nixon called “the silent majority.” They are increasingly put off by the hyper-partisanship displayed on cable television. That is bad enough, but it is not the worst part of the problem. The frenetic anger and mutual contempt of cable media, and the many hypocrisies it encourages, create widespread disillusionment — including disillusionment about America — in the 21st century. Many political scientists, sociologists and anthropologists believe that if cable television blinked out and went silent for a few months or years, Americans would soon begin to cheer up and believe in our national project again.

Maybe It’s Time to Turn Off the TV

Spend a couple of evenings surfing all the biggest cable news outlets and you will feel that America is a diseased and toxic country, in decline, lacking an integrated center. But take a journey into the American heartland (it could be a suburb of Boston or New York, or a neighborhood in greater Los Angeles, just as well as Arkansas or Wyoming) and you almost immediately begin to feel better about the American experiment. Media inevitably reflects and shapes a people, but in the past 30 years, it has come to have too much shaping influence on the mood and the information base of 122 million families in the United States.

Television and its appearance on all of our devices, now infinitely amplified by social media, is the most powerful drug ever invented by humankind. It’s grip on us is incalculable. In a nation devoted to the First Amendment, it is hard to conceive of a mechanism to chasten and channel media in ways that affirm life rather than degrade and distract it. But unless we find a way to reinforce the best of our habits of the heart, we are in for a long century, and it is not clear that our republican system can survive.

You can hear more of Clay Jenkinson’s views on American history and the humanities on his long-running nationally syndicated public radio program and podcast, “The Thomas Jefferson Hour,” and the new Governing podcast, “The Future In Context.”

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