Joseph J. Ellis and the Limits of the Living Constitution

A recent New York Times review of Joseph J. Ellis’s new book, American Dialogue: The Founders and Us, has resulted some discussion amongst historians of the issue of “Founders chic” and Ellis’s own role in its development. Founders chic refers to the (current? ongoing? never-ending?) vogue for the founders of the United States within popular-ish culture. Identified by David Waldstreicher and Frank Cogliano in the early 2000s in the rash of books “revitalizing” study of the founding fathers, Founders chic was given a small boost by the HBO series “John Adams” and then a shot in the arm by the blockbusting musical “Hamilton.” Alongside the academic projects associated with the Jack Miller Center and the judicial projects of the Federalist Society, the founders – their views – have become a predominate frame for understanding American political life.

Ellis’s observation that the founding era history has been put to service in the interests of a right-wing conservative agenda seeking smaller government, free-market economics, and an aggressively pro-private weaponry second amendment is an accurate one. However, the critique leveled at Ellis by Mark Boonshoft,  Michael Hattem and others is that even as the former mourns that history has (in Jeff Shesol’s paraphrasing for the NY Times) become “bastardized, sanitized and turned into talking points,” Ellis takes no responsibility for his own part in it. Despite being a leading figure in the “renaissance” of Washington, Jefferson, Madison, Adams, and Hamilton studies, Ellis sees the reduction of founding era debates down into political talking points as distinct from his own historical projects. Not so, scoff other historians, who see Ellis’s work as precisely symptomatic of the problem he decries.

But Ellis’s entanglement in Founders chic and the political projects that build upon it is more than a lack of self-scrutiny. Even as he seeks to address the Right’s abuse of history, he offers only a return to the founding as a solution. Ellis’s major gripe – that “originalism” presents the founding as an ahistorical one-sided defense of the agenda of the Federalist Society – is addressed by a call to return to Madisonian understandings of the need for a “living constitution.” In offering living constitutionalism as a counter to originalism Ellis is far from alone. But this move nevertheless reflects the degree to which American constitutional debate has become hamstrung by an attachment to the founding, reducing all constitutional debate to various modes of recapturing and reanimating the founding moment.

In presenting the great constitutional debate of our time as between an originalist Right and a living constitutional Left, Ellis reiterates a common binary frame. This binary offers an originalism that seeks to tightly replicate the (conservative, unchanging) views of the framers and a living constitutionalism that offers a progressive and evolving constitution that meets the requirements of the contemporary age. However, such a binary does little to actually get us through the impasse of the founders’ grip on our current moment. As the characterization of the living constitution as “Madisonian” indicates, as an approach it only curbs the worst excesses of practical judicial originalism as a strict reconstruction of attitudes from the times of the text’s writing. Insofar as living constitutionalism relies upon the same text as its foundational set of principles, it opens greater flexibility in interpretation but remains tied the founding moment (and the written record of it) to legitimize its chosen interpretation. With a Madisonian living constitution we don’t escape the founding or even offer much more recognition of its complexity – in some ways we just more readily bastardize it to our own ends.

We should heed Anne Norton’s reminder that in conquering, one is also conquered – that in exercising temporal conquest, the “conquerors will be remade by their conquest.” Norton was thinking there of the ways in which founders seek to control the future but end up becoming reconfigured and remade by that future. But it is equally applicable to the reverse relationship – that as we seek to render a Madisonian living constitutionalism to our own ends, we are ultimately conquered by the Madisonian material that we work with. A living constitutionalism that relies upon text and principles drawn from the late C18th leaves little space for thinking about a race- or class-conscious constitutionalism. It reifies an individualistic understanding of legality and constitutional rights. It locks us into the anti-democratic spirit animating the institutions clearly erected by the text such as the Electoral College and State representation in the Senate. It holds us to worldview forged over two hundred years and asks us to squeeze it into a society intellectually and materially transformed during the meantime.

Ellis’s solution is therefore not really a solution at all. (If he even intends it to be – his life’s work does not suggest a desire to topple the American attachment to their Founders). If anything it is a doubling-down upon the founding as the ground zero of American constitutionalism. More than just irritating professional historians, Ellis’s view of the nature of problem and its solution only serves to drive us further in the direction of debating the meaning of a two-centuries old founding rather than the constitutional requirements for a contemporary democratic society.

 

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