Writing Constitutions – And Judging Those Who Write Them

This week’s Economist has a review of Linda Colley’s new book on the history of written constitutions, The Gun, the Ship and the Pen.  The book covers the writing of constitutions from the middle of the eighteenth century to the present.  According to the review:

“Above all, Ms Colley argues, the need for innovative, written constitutionalism was driven by the evolving nature of war. … Governments’ need for ever-more manpower to fight these wars – and ever-growing tax revenues to pay for them – led to crises at home that could only be tackled by the concession of new rights and promises of wider political participation. … 

For some, constitutions served more practical and less idealistic political aims.  Most late-18th- and 19th-century constitutions made it pretty clear that they conferred rights only on the white males who were needed to fight wars and pay taxes.  For all its apparent high-mindedness, America’s constitution provided a legal cloak for the appropriation of land from indigenous peoples.”

While the review notes that, “[a]mong others, citizens of the new United States of America and Republican France no longer saw themselves as passive recipients of laws determined by ruling elites”, it was the paragraphs quoted above that seem to be the main points of the book.¹

In that regard, I can’t speak for other constitutions around the world, but I don’t remember Thomas Jefferson and James Madison, John Adams and Alexander Hamilton, being focused on the need for a standing army when they wrote the Constitution, and the Declaration of Independence before it.²  In fact, if that was their reason, they didn’t do a good job given how poorly we did in the War of 1812.  Plus I am not sure how Ms. Cooley’s theory fits with the Founders’ relative desperation to stay out of European wars.  All in all, Ms. Colley’s theory does not fit the American experience.

Also, while we treated native Americans abysmally in the eighteenth century and for years thereafter (and still do in many ways), was it really a purpose of the Constitution to “provide[] a legal cloak for the appropriation of land from indigenous peoples” or was it just the result of the way people thought in the late eighteenth century?  I would say the latter, but then I would also say the Constitution and the Declaration actually were “high-minded[]”, not just “apparent[ly] high-minded[]”.³

Ultimately, the question is how the Constitution and Declaration, and the Founders, are to be judged – which is the question Ms. Colley is getting at for constitutions in general.  Is it to be on their failings, especially, their failing to live up to the standards that would only come in one hundred or two hundred years after they were written?  Too many people today see it this way: The Founders (and the Declaration and Constitution) don’t live up to what are seen the standards of today, so they are rejected and disrespected.  

Which is not my view.  I see the Constitution and Declaration, and the Founders, as setting the highest standards they could, standards that would serve as a spiritual North Star for generations to come.  I see the Founders as living up to those standards as well as they could in their time and in their human imperfection.  And I see us today as closer to what we would like to be because of the standards the Constitution and Declaration, and the Founders, set for us two hundred-plus years ago.  Knowing how I fail to live up to the standards I set for myself, I judge them not for what I may see today as their failings.  Instead, I honor them for how far they were beyond their times – and for how the goals they set then are still so much the right goals for us today.
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¹ Since I have not read the book, I am forced to go by the review for this interpretation of what Ms. Colley is saying.
² Because the Declaration of Independence and the Constitution have to be read together as a statement of what the United States is about, any reference to the latter must include the former.
³ The quotes in this paragraph are from the review, not the book, which means my comments may be as much, or more, for the reviewer as for Ms. Colley.