VIEWSnWHAT THE FOUNDERS DIDN’TnCOUNT ON by Clyde Wilsonn”I assert that the people of the United Statesn. . . have sufficient patriotism and intelligencento sit in judgment on every question which hasnarisen or which will arise no matter how long ourngovernment will endure.”n—William Jennings BryannAs citizens it is fitting that we engage in acts of civic pietynwhile celebrating the bicentennial of the federal Constitution.nThat celebration acknowledges that in some sensenthe Constitution is a success. Given the long record of thencrimes, follies, and misfortunes of mankind and the perishabilitynof free and popular governments, it is a success innwhich we can take great satisfaction. But as a historian andneven as a conscientious citizen, I cannot put aside andisquieting question: Which Constitution am I being askednto celebrate?nEven if we do not subscribe to an “evolutionary” renderingnof the Constitution (as opposed to “original intent”), wenare forced to recognize that the Constitution has a history.nBesides many lesser scars, it carries on its face the great andnbloody gash of Civil War and Reconstruction, an unparallelednsocial upheaval which was in its essence a question ofnconstitutional interpretation. Even if, carried away by thenmoment and the warm glow of patriotism (not something tonbe despised), we can put aside the complications of history,nstill, we are confronted with a Constitution that meansndifferent things to different people—things that are sometimesnmutually exclusive.nOpposing the Bork nomination, someone recently wrotento the “Letters” column of Time (August 3, pp. 8-9): “Hisnreliance on original intent precludes the notion that thenFounding Fathers originally intended us to evolve as anpeople into something better than we were. The nation,nand indeed the President’s legacy, would be better served byna Justice who views the Constitution as a living part of thenpresent rather than a relic from the past.”nThis passage encapsulates a vast region of mischief andnmisunderstanding, which includes both the proponents andnthe opponents of “original intent.” A few obviously politicalnpoints can be made: Would we be a better people by havingnClyde Wilson is professor of history at the University ofnSouth Carolina and a contributing editor to Chronicles.nmore abortions? by executing fewer murderers? by havingnfewer prayers in fewer places? by oppressing more peoplenwith reverse discrimination? But it is more interesting thatnthe letter-writer does not reject “original intent.” Indeed,nlogically, no one can. Rather he has supplanted then”original intent” of the written Constitution with an “originalnintent” of the Founding Fathers, for us to “evolve as anpeople into something better than we were.” Those realisticnrepublicans, the Framers, skeptical of human nature andnanxious to construct a power that was both effective andnlimited, content with compromise, have been convertedninto a priestiy caste who bequeathed to us a secret mission ofnevolving into better beings.nThis appeal to the higher law is legally, logically, andnhistorically an absurdity. It traces back not to the Foundingnbut to transcendentalism, which was a 19th-century vulgarization,nby a small but influential group of Americans, ofnGerman philosophy. Carlyle took Emerson around thenLondon slums again and again, but he could never makenhim believe in the reality of the Devil. This letter-writerncould be taken around history again and again but couldnnever be convinced that the Framers did not share hisnaspirations. They were sensibly hopeful men and principlednrepublicans, which is not the same as devotees of nationaln”evolution.”nThis confusion of the Constitution with some sort ofnsubjective higher law, one way or another, is nearlynpervasive among both the “liberals” and the “conservatives,”nthough it takes different forms at different times.nThough a good deal more clever and circumstantial aboutnit, the faculty of the Harvard Law School (and thus thenSupreme Court for the last 40 years) present essentially thensame view of the Constitution. They have read into it annintent, or at least a natural tendency, to evolve intonmeanings that extend the ideological program of socialndemocracy. The Constitution evolves, but only in thendirection they say. Although evolution is presumably byndefinition open-ended, it cannot evolve in directions theyndo not approve of, even if such an evolution is compatiblenwith its letter and history. The Supreme Court is supposednto read the election returns, but only if the returns turn outntheir way. Once the Court has discovered something in thenConstitution, no one else is allowed to discover somethingnthat contradicts it—a curiously limited and controlled formnof evolution. Thus there is a federal right to prevent thenstates from prohibiting abortions, but there can be nonfederal right to prevent the states from allowing them. InnnnDECEMBER 19871 11n