The University Bookman

 
 

Winter 2016

A Lived, not ‘Living’ Constitution

book cover imageThe Constitution: An Introduction
by Michael S. Paulsen and Luke Paulsen.
Basic Books, 2015.
Hardcover, 368 pages, $30.

Steven H. Aden and Josiah A. Aden

A wonderful initiation to the nation's charter, The Constitution: An Introduction provides insights into not only the document itself, but the writers and Founders behind it, important Supreme Court decisions, and major national events that shaped the Constitution's meaning over the last two hundred years.

Desiring to create a work that is "rigorous, accurate, and scholarly … and at the same time brief and readable," the authors succeed in spades. Perhaps as they intended—at least for constitutional conservatives—they have even written “the definitive modern primer on the U.S. Constitution.”

This timely book is jointly authored by a father and son team, and in that spirit we offer a father-and-son joint review. Like the senior Paulsen, the senior Aden is a constitutional attorney and author, who has enjoyed the privilege of friendship and collaboration with Professor Paulsen for over twenty-five years. The younger Aden is an undergraduate student, as Luke Paulsen was until his recent graduation from Princeton, and he is likely law-school bound and thus squarely in the Paulsens’ target audience. This similarity of background with Paulsen pere et fils provide a point of view that gives a fair reading to this notable work and encourages students of the Constitution, young and old(er), to read and enjoy it.

Michael and Luke Paulsen write well for their intended audience and provide intriguing insights that keep the reader entertained. Interspersed throughout the book are short sidebars that elaborate on persons, event, or ideas that warrant closer examination. The first third of the book reviews the origins and history of the written Constitution and its amendments. The remaining two-thirds, aptly entitled “Living the Constitution,” is a dispensational approach to the history of Supreme Court jurisprudence and the political forces that shaped it through five eras, from “Infancy,” the late 1700s to the Civil War, to “Controversy,” the Warren Court to the present. A final “coda” offers “Lessons for the Twenty-First Century.”

The Paulsens’ work is essentially a biography, not of a “living Constitution” as constitutional activists would have it, but of a Constitution that has been lived, and has discovered its meaning in the process. Though not the first volume in this genre (Charles Mee’s The Genius of the People comes to mind), The Constitution may be the most readable and insight-packed work of its kind. Add to that the side biographies of key historical figures penned by Luke Paulsen—each one a polished gem—and the work is proof that history need not be simply “dates and dead people,” to borrow a phrase from historian Stephen Mansfield. These sketches are moving; the cast of familiar players—Washington, Hamilton, Lincoln, and the like come alive.

The younger Paulsen’s treatment of the undersung populist president Andrew Jackson is a fairly convincing apologetic for keeping Old Hickory on the twenty-dollar bill. But there are also many obscure though significant personalities, such as Mormon polygamist George Reynolds; Fred Korematsu and other World War II-era Japanese-American citizens who fought relocation in the courts; Myra Bradwell, the first American woman lawyer; and the truly awful Justice Roger Taney, author of the Dred Scott decision. They also offer an excellent two-page primer on originalism and textualism, which includes an explication that ought to be read by every constitutional law student on why constitutional conservatives are not textual “literalists.”

The Paulsens’ two principal themes are first, a winsome optimism in a self-correcting constitutional system, whatever its flaws; and second, the co-equality and shared responsibility of the three federal government branches to interpret the Constitution, both among the federal branches and between the federal and state governments.

As for the first theme, anyone who has read in this area knows this material can make for tough slogging in the hands of frequently grave and high-minded constitutional scholars. Not so with the Paulsens; the reader is buoyed through the book’s 321 pages by Professor Paulsen’s famously light-hearted but strong-minded style. An example: one of his law review articles is titled, “Does the Supreme Court’s Doctrine of Stare Decisis Require Adherence to the Supreme Court’s Doctrine of Stare Decisis?” Such “Paulsenisms” are sprinkled throughout.

Explaining Washington’s authority to declare neutrality in the war between France and Britain, the authors explain, “Congress might have had the power to declare war, but the President possessed the power to declare peace.” This blithely spirited outlook is not borne of a naïve faith in the nation’s charter—the authors approach their subject with a realistic respect for the document, in all its failures and inadequacies—but of a well-educated optimism that this American experiment in constitutional government has overcome much and will continue to endure and thrive—a view shared by too few conservatives today.

To their credit, the authors strive to bring a clear-eyed objectivity to their discussion of constitutional history, usually presenting both sides of a debate and extending charity to most of the historical figures they present, with a few undeserved exceptions. Clearly there is a realpolitik side to constitutional interpretation, which the authors do not downplay. Their discussion of the more shameful chapters of constitutional history includes a riveting, no-holds-barred takedown of the Framers’ compromises that embedded slavery into the Constitution and led the nation into civil war “four-score and seven years” later.

In spite of this, there are some views in the book that devotees of the reigning “living Constitution” orthodoxy will find simply unforgivable. Chief among the authors’ political sins is their unabashed opposition to the jurisprudence of abortion. (Another Professor Paulsen article, “The Worst Constitutional Decision of All Time,” excoriates Planned Parenthood v. Casey for failing to overturn Roe v. Wade.) But the book is by no means the work of lock-step right-wingers. The authors assay a constitutional defense of the Supreme Court decision that upheld Obamacare, for instance, and present a thoroughgoing case from a federalism perspective for strong chief executive authority, especially in the realm of foreign affairs—up to and including President Obama’s infuriating decisions not to enforce certain laws and, one presumes, his singularly abysmal deal with Iran.

And there are surprises along the way for both sides of the ideological aisle, such as the lingering question of whether Congress may have overlooked a duty to call a constitutional convention at the behest of a supermajority of the states, and the intriguing issue of whether the congressional pay amendment was properly ratified—two hundred years after it was proposed.

As for the second theme, the shared responsibility of government in the federal-state system, the authors don’t hide the ball when it comes to their own jurisprudential views. Originalism is the North Star of the American constitutional system: “[T]he meaning of the Constitution is fixed by the original meaning of its words. The people can change their written Constitution by amendment, but they should not be able to evade or supplant the ‘supreme Law of the Land’ simply by inventing their own meanings for words or altering meanings to suit their purposes.” Federalism is a logical corollary:

[T]he idea of a written constitution is closely tied to the idea of constitutional supremacy: In America, no branch of government is supreme. The government as a whole is not supreme. The Constitution is supreme. It is the written Constitution that prevails over every other source of authority in the United States. [Emphasis in original.]

The federal branches of government are separate and independent, such that “none can tell the others what they must do.” This co-ordinate status does not mean the co-equal branches have equal power, however. The constitutional narrative becomes most compelling when clashes occur between the ostensibly equal branches, or between the federal government and the states. There could be no better illustration of the consequentiality of ideas than these stories of the fledgling Congress’s passage of the Alien & Sedition Acts and Jefferson’s presidential pardons flouting that abysmal insult to the First Amendment, or of President Eisenhower and the Supreme Court arrayed against Arkansas and its National Guard over desegregation.

The authors are at the top of their game when they write on the constitutional treatment of slavery, addressing the question, “Is the Constitution a Pro-Slavery Constitution?” They masterfully retell the story of escaped slave Dred Scott and his desperate legal gambit to regain freedom through the courts, culminating in the Supreme Court decision that may always remain the nadir of judicial activism. In large part drawing from Lincoln’s repudiation of Dred Scott in the run-up to his first presidential election of 1860, the Paulsens strenuously affirm that each branch of the federal government has the equal right and duty to interpret the Constitution for itself, and that state officers do as well. Fair enough, as an academic point. But one of the very few shortcomings of the book is that the authors offer no real views on the pragmatic and more momentous question: Whose view ought to prevail? And by what measure or standard?

Scholars who argue that Lincoln was in the right on issues like secession and wartime suspension of the writ of habeas corpus, as the Paulsens seem to, run the risk of tacitly suggesting that the rule of might, or the right of victors to write history, holds sway—or at the least that we’re fortunate it did in some hard cases. Oliver Wendell Holmes has been rightly derided for declaring (albeit as a polemical point), “Truth is the majority vote of that nation which can lick all others,” but by what principled standard should the question of federal authority be settled? Millions of lives may not have been lost to civil war, and great societal clashes may have been avoided, if the notion of the Supreme Court’s ultimate authority to arbitrate constitutional crises a la Dred Scott had prevailed.

On the other hand, of course, the intolerable institution of slavery would have continued, perhaps well into the twentieth century, extending untold grief and suffering to millions. Governor Faubus of Arkansas stood down on desegregation; what if he hadn’t, and relying on his firm view that the president was acting outside his authority, instead ordered the Guard to fire on the U.S. Army? For that matter, if state executives have the constitutional right and duty to interpret the document for themselves, why wasn’t South Carolina’s assertion of the right to secede legitimate? It may be that some constitutional questions are truly intractable, but that possibility doesn’t relieve earnest scholars of the duty to seek a way through them.

Aside from this, there is very little else to quibble about in this book. The Constitution: An Introduction is the indispensable read for laypersons who are engaged in political life, as well as undergraduates considering or preparing for a career in law. Seasoned constitutionalists might well learn a thing or two from reading it also, as the elder reviewer happily did.  

Steven H. Aden serves as senior counsel to Alliance Defending Freedom in Washington, DC, and once had the privilege of publicly debating Professor Paulsen on whether Roe or Casey was “The Worst Constitutional Decision of All Time.” Josiah A. Aden is an undergraduate student studying history at Grove City College and is a member of the editorial board of the Grove City Journal of Law & Public Policy.

Posted: January 17, 2016

Did you see this one? book cover

A Literary Bloodhound Tracks Eliot
Lee Oser
Summer 2015

Real progress consists in the movement of mankind toward the understanding of norms, and toward conformity to norms. Real decadence consists in the movement of mankind away from the understanding of norms, and away from obedience to norms.

Russell Kirk, Enemies of the Permanent Things, 1969

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