OK, this is not about title insurance, but about the Constitution. It being July 4th, I've set out this column from the Wall Street Journal in full since a subscription may be required to view it on line.
I hope you enjoy it as much as I did:
The Culture That Sustains America’s Constitution
Without it, checks and balances are barricades of foam and counterweights of butterfly’s breath.
By
Since 1789 the average life span of national constitutions world-wide has been 19 years, according to scholars at the University of Chicago. Meanwhile, “We the People of the United States” are now well into the third century under our Constitution. We’ve lived under the same written charter longer than any people on earth. We’ve had regular federal elections every two years, uninterrupted even by the Civil War.
Yet America’s Founders had serious doubts about the durability of their “experiment.” Alexander Hamilton, in an 1802 letter to Gouverneur Morris, wondered why he had wasted his best years defending our “frail and worthless” charter. In 1832 Chief Justice John Marshall, near the end of his 34-year tenure, lamented in private correspondence that “our Constitution cannot last.”
You might think America’s track record in the subsequent 200 years would inspire greater confidence. Yet many people today feel, as they have after many fraught elections, that the president is either a savior or the harbinger of doom. So it’s worth reflecting on why the Constitution has endured.
There is, first, its text: It is rigid enough to restrain excesses, yet flexible enough to accommodate innovations. It is so terse that you could fold it into a paper airplane (though the guards at the National Archives would prefer you didn’t). It presumes that both governors and the governed will act mostly responsibly. But as Robert H. Jackson, a future Supreme Court justice, explained in 1937: “Checks and balances work as effectively on spite, jealousy or personal ambition as they do on patriotism or principle.”
The Framers also created the world’s first constitution to institutionalize the principle of human equality. Consider that it was an immigrant who put the words “We the People” into the Constitution. He was James Wilson, the brilliant but forgotten Scottish-born founder who taught that under monarchy, in the “attempt to make one person more than man, millions must be made less.”
Popular rule had become more than a slogan. Alexis de Tocqueville visited in 1831 from France, where the crowned heads at Versailles dared not mingle with their people. He was astonished to meet state governors who had kept their day jobs as farmers. Later Tocqueville visited Andrew Jackson in the White House, where the president himself, with no servant in sight, served glasses of Madeira.
America’s progress in respecting the real implications of equality has at times been slow, even glacial, especially with regard to race. As early as 1876, black fathers in Kansas sought to have their children admitted to schools on equal terms with white children. Yet Brown v. Board of Education would not come for another 78 years. The truth that justice will be forever approximated but never achieved is reflected in the paradoxical words of the Constitution’s preamble: the aim of forming a “more perfect” union.
That impossibly shrewd phrase suggests that Americans have a miraculous thing that we must nevertheless strive to make better. In the 1940s, we interned Japanese-Americans out of misbegotten wartime racial hysteria. But we also apologized for it in a 1998 law that was co-sponsored by then-Rep. Norman Mineta. As a child, Mr. Mineta had been taken to an internment camp in Wyoming. He went on to serve 20 years in the House and five years as secretary of transportation.
“Every banana republic has a Bill of Rights,” Justice Antonin Scalia told a Senate committee in 2011. Written guarantees are meaningless without a culture to sustain them. Russia’s Constitution purports to secure the freedoms of speech and press, but Muscovites shrugged in 2001 when Vladimir Putin seized the last independent television network. Imagine if the White House swallowed up Fox News, CNN and MSNBC, one after another. Americans may bicker over “fake news,” but an attempt at censorship like that would unite us in virtuous rage.
Every American generation has a vocal minority that considers itself doomed to live in an age of constitutional degeneracy. The supposed fall from purity began about 600 days into the Constitution’s life, when the Virginia Legislature, in November 1790, denounced George Washington’s financial policies as constitutionally blasphemous. But Americans chose to cannonade each other with pamphlets, not artillery. And so the orderly transitions of power went on, one after another, like a never-ending football game in which the parties eternally gain and lose yardage.
Constitutionalism is not a mere institutional form but a culture—a set of sentiments, habits and assumptions, a permeating spirit that animates an otherwise lifeless paper scheme. Without this instinctive loyalty, the Constitution’s checks and balances are barricades of foam and counterweights of butterfly’s breath. It is not in having a constitution that our strength lies, but in cherishing it. So long as we keep the faith, our Constitution will be displaced no sooner than an ant tips over the Statue of Liberty.
Mr. Tartakovsky is author of “The Lives of the Constitution: Ten Exceptional Minds that Shaped America’s Supreme Law” and a former deputy solicitor general of Nevada.
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