Today, September 17, has been officially designated “Constitution Day” by a statute passed by Congress in 2004. It commemorates the Constitution of the United States of America, which the delegates to the Philadelphia convention signed on this day in 1787, and, more broadly, the entire tradition of constitutionalism. The observance is entirely appropriate. Not only is our Constitution still in effect after more than two centuries, but also — and here is a fact little known and greatly underappreciated — Americans of the late eighteenth century can be credited with originating the very practice of framing governments under the authority of a written constitution. This instrument, now very much taken for granted as the “natural” way to establish governments, stands as one of the most important contributions to modern political science.
Our own Thomas Jefferson was among the earliest to make this observation. In a letter penned in 1824, he told his friend John Cartwright: “Virginia, of which I am myself a native and resident, was not only the first of the States, but, I believe I may say, the first of the nations of the earth, which assembled its wise men peaceably together to form a fundamental constitution, to commit it to writing, and place it among their archives, where every one should be free to appeal to its text.” Historians of constitutionalism may dispute whether South Carolina, rather than Virginia, was actually first, but the claim about a written constitution being devised here seems sound. By this simple mechanism, a number of new possibilities emerged: (1) the government itself, including all of its officials, was now conceived to be under a law higher than itself, a law that could be read, seen, and understood by all citizens; (2) this higher law itself, as the practice developed, was a product of a special process responsive to the larger public, not the act of any of the ordinary institutions of the government; and (3) government could be established, not metaphorically but actually, by consent following a period of public deliberation.
Yet if Americans as early as 1776 discovered this idea of a written constitution, they initially had only a vague notion of what its general status and standing would be in the minds and hearts of the citizens. Today, we tend to read back into the concept of a constitution many notions that developed later and that are by no means entailed by the literal thing of a charter written on paper — or parchment. Above all, most associate the Constitution — and the ideal of a constitution — with something that is enduring, permanent and an object of respect and even reverence; it is something that, beyond its letter, represents a symbol of the American nation. Just consider how Americans care for the original text. It is housed in a solemn building in Washington, D.C., the National Archives, which resembles a great temple, the “temple of our history” as President Hoover called it on its dedication. One accesses the Constitution by mounting a huge staircase to the mighty vault in which it is encased. There the parchment resides, about midway between the White House and the Capitol, its power radiating out over the institutions of our government.
Should a constitution — should the Constitution of the United States — have any element of this emotional affect? This question was the subject of one of the greatest debates in American history, between two of our founders and, as turns out, the two founders of this University: Thomas Jefferson and James Madison. Jefferson and Madison, who were usually in agreement, in this case were at odds. Jefferson thought of a constitution as higher law, but a law that should only be in place for a generation. Each generation should write its own constitution. This plan would ensure not only that each generation actively consented to the government and could accommodate innovations and improvements, but also that no generation should get in the habit of respecting or venerating that which came before. His disdain for the mindset of veneration was palpable: “Some men,” he wrote, “look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human….”
James Madison presented his views on this subject in Federalist 49, one of the great essays of American political thought. It happens also to be my license plate. Madison presents some of the practical reasons for keeping the same Constitution in effect, with provision of course for amendment. He notes, no doubt from his experience at the Philadelphia convention, the enormous difficulty of ever achieving agreement, and he observes the problems that would come in dealing with other nations, who would know that the whole structure of government might soon be changed. But above all, he speaks of the reasonableness of a public mind that can appreciate the merit of respecting certain achievements of the past. Other than “a nation of philosophers,” which cannot exist, “the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.”
James Madison is often considered the father of the Constitution for the central role he played at the Philadelphia convention. He also merits the title of being the father of our idea of what the Constitution should be: an object not of cult worship, but of a rational reverence.
Today, as you cross the street, between Jefferson’s Rotunda and Madison Hall, you can best commemorate Constitution Day by revisiting the arguments of these two great American statesmen.
_
James W. Ceaser is the Harry F. Byrd Professor of Politics._
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