The Ark of America

By LANCE MORROW

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.CLOSE_P]

The Constitution has the aura of the sacred about it. It occupies a shrine up in the higher stretches of American reverence. A citizen imagines sun-shot clouds, the founders hovering in the air like saints in religious art.

But the Constitution has its other, mundane life. Down at sea level, where people struggle along in law courts and jailhouses and abortion clinics, where lives and ideas crash into each other, the Constitution has a more interesting / and turbulent existence. There the Constitution is not a civic icon but a messy series of collisions that knock together the arrangements of the nation's life. Those arrangements become America's history -- what its people do, what they are, what they mean. Walt Whitman wrote, "I contain multitudes." That is what the Constitution does -- an astonishing feat considering the variety of multitudes that have landed on American shores, and continue to land.

May a man be detained in jail before being tried? Is prayer to be permitted in the public schools? Or a Christmas creche in the town square? What of the Reagan Administration's arranging military help for the Nicaraguan contras when Congress has forbidden it? If a man murders someone, may the state kill the killer in retribution? May government employees be forced to have their urine tested to search for the trace of drugs? May American Nazis march in an Illinois suburb that is home to Jewish survivors of the Holocaust? May a man be arrested for performing a homosexual act in his own home? Is it right to promote a woman ahead of an equally qualified man in order to redress past inequities toward women?

Issues passionate and human and difficult surge up against the Constitution. Every day it attends to the pleas of lust, rage, unborn life, the killer's remorse, the President's prerogatives, the First Amendment rights of a Ku Klux Klansman. The Constitution even makes a ritual appearance in the American television cop show: there comes a moment of denouement when the detective, triumphant but sardonically obedient to the Miranda decision, snaps the cuffs on a suspect and growls, "You have the right to remain silent. You have the right to . . ."

The Constitution forces Americans to think about uncongenial matters, to think about tolerating everything they may hate. It is the American superego. It holds Americans to a high standard, even though it has sometimes countenanced filthy deeds -- most notoriously, the owning of slaves.

In this Bicentennial year, fiestas are swirling around the shrine of the Constitution. In Philadelphia there are endless parties, picnics and explications. The pageantry is perfectly American. Yet the nation may have grown a little weary of such celebrations. The skies of the '80s have been filled with red, white and blue balloons. In the waning Reagan years, the note of national self-congratulation sounds hollow.

Celebrations of the Constitution are inherently different in any case. The bunting and period costumes are accompanied this time by processions of scholars, by seminars on Public Television, by a different public mood. The Constitution is more complex than a Fourth of July, more technical, more cerebral and, in its intricacies, subtleties and silences, even enigmatic. A Fourth of July is fireworks and rhetoric, the old ritual romance of liberty. The Constitution is thought and legalism.

A few weeks ago, Supreme Court Justice Thurgood Marshall objected to some of the pietism attending the 200th anniversary of the Constitution. Speaking to a lawyers' group in Hawaii, Marshall said the document had been "defective from the start." The fact that Marshall is the great-grandson of a slave sharpened his point.

"I do not believe," Marshall went on, "that the meaning of the Constitution was forever 'fixed' at the Philadelphia convention." The document required "several amendments, a civil war and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today."

In 1919 Justice Oliver Wendell Holmes observed, "Our Constitution is an experiment, as all life is an experiment." The Constitution is an experiment as the U.S. is an experiment. It was flawed from the beginning as the nation was flawed. But the Constitution has also been the genius of America, the life of its laws and the conscience of its power. The Constitution and the country formed each other. The genius lay in the hermeneutical life of the document, the complicated, brilliant, sometimes disgraceful unfolding of America.

In retrospect, Americans have often believed that their nation was inevitable. It did not seem so at the start. The 13 colonies that fought the Revolution had formed a loose confederation, a flimsy arrangement, each state in business for itself, guarding its sovereignty. By 1785 it looked as if the arrangement would disintegrate, that the colonies would at best turn into separate national entities connected only by more or less friendly treaties with one another.

The founders meeting in Philadelphia in the summer of 1787 invented a true U.S. Ever since, the country has gone on inventing and reinventing itself -- the Constitution shaping the nation, a changing America rethinking the Constitution. The one time the Constitution proved inadequate to the task, in the 1860s, half a million died in order to improve the document. The Civil War amounted to a Second Constitutional Convention.

The U.S. as a nation is famously lucky. Its primal luck was geography and timing: a wild natural abundance that was encountered by gifted men and women in the clear rational blue of the Enlightenment. The Constitution was drafted in a moment of ascendant science -- political science preached by Locke and Montesquieu, for example -- and belief in the power of reason to subdue the savage and ignorant regions of the mind.

A few generations after the Constitutional Convention, Ralph Waldo Emerson wrote his essay History, with one of his lines of crystal meditation: "It seems as if heaven had sent its insane angels into our world as to an asylum, and here they will break out in their native music and utter at intervals the words they have heard in heaven; then the mad fit returns and they mope and wallow like dogs." The founders of 1787 knew all about the moping dogs. They designed their instrument to break out of the dark alternations of anarchy and tyranny, to manage power and preserve freedom.

Philadelphia 200 years ago was the real morning in America. In the beginning were the words, and they were made flesh -- Presidents, Senators, Justices. The imagery of creation and divine sponsorship hovered over the enterprise. As Lincoln said at Gettysburg, the U.S. was a new nation, "brought forth" and dedicated to a proposition, an idea. America was not a pre-existing cohesion, like Japan, which had its origins back in the Shinto mists of its prehistory. America was a conscious creation of the mind, of science. It was creatively assembled out of ideas, traditions and genes rounded up elsewhere and unloaded in a New World.

Most of history is passivity, or lashing reaction. The Constitution represented a wonderfully energetic and active moment, the mind alive and assertive, yet amazingly self-knowing. The founders created government as an exquisite system of self-control and self-examination. The Constitution is, among other things, the model of a fine 18th century mind, with checks and balances that are both delicate and strong, a splendid mind that designed into itself the mechanisms of civilized change. As W.H. Auden once said, Americans are great moral improvisers.

The founders were elitists, and realists about human nature, a configuration stamped upon the document they wrote. Their task was to make passion subject to reason. If men could be expected to be selfish, or worse, then, said James Madison, "ambition must be made to counteract ambition." The Newtonian principles of action and reaction were applied to politics. The founders mistrusted human nature (not a bad call) but harbored great ambitions for mankind nonetheless.

The U.S. owes much to the patriarchal authority of its Constitution. Its citizens have almost always believed that men may be wrong (transient politicians, bigots, mortal fools temporarily in power), but that the Constitution is the repository of truth, if only citizens are wise enough to discover it. Is it constitutional? It is moving that the question is asked so often in America, so seriously, so indignantly, so hopefully. The asker may be angry but nonetheless believes he has knocked at the door where justice lives. (Justice, of course, is not invariably at home.)

The 7,567 words of the Constitution and amendments, mostly dry and functional prose, are sometimes cryptic and elusive, and Americans have suggested a variety of similes and metaphors to describe the document. In the early 19th century, a Congressman named Caleb Cushing hinted at the Constitution's divine inspiration when he called it "our Ark of Covenant." (Abolitionists a little later called it the handiwork of Satan.)

Writers have often thought of the Constitution in nautical terms, a motif probably suggested by the image of the ship of state. In 1857 Macaulay told an American, "Your Constitution is all sail and no anchor." (A foreigner's elegant remark. Others suspect that the Constitution has entirely too much anchor -- too many checks and balances -- to make any headway at all.) The sociologist David Riesman likens the Constitution to the shallow keel of the national ferryboat, on which the passengers keep shifting from port to starboard and back again. One might also suggest the image of a trimaran -- a craft with three hulls (Legislative, Executive and Judicial) that is both stable and fast. Harvard's Paul Freund likes to think of the whole arrangement as a symphony orchestra or a jazz band.

A Newtonian, mechanical metaphor was prevalent during the Industrial Revolution. As America was celebrating the 100th anniversary of the document, James Russell Lowell observed, "After our Constitution got fairly into working order, it really seemed as if we had invented a machine that would go of itself, and this begot a faith in our luck."

Eventually, the Newtonian notion of the Constitution came to seem static. ; Thinkers like Woodrow Wilson and Oliver Wendell Holmes began referring to it as an animate thing. Wrote Wilson: "Society is a living organism, and must obey the laws of life, not of mechanics; it must develop."

A living thing grows and changes. In a speech in July 1985, Attorney General Edwin Meese argued that the Supreme Court had allowed the Constitution to become far too organic. He criticized the court for making the law rather than merely applying the law as it had been set down by the founders. The Justices, said Meese, should stick closely to the views of the men who wrote the Constitution; they should practice today a "jurisprudence of original intention."

The framers of the Constitution could not possibly have foreseen the America of the late 20th century, with its enormous national Government, its multinational corporations, its crime, computer technology, genetic engineering, pollution, mass media, nuclear weapons and the rest. Madison did not permit the notes that he made during the Constitutional Convention to be published until after his death, believing that the Constitution must stand alone, that the specific thoughts of individual framers were essentially irrelevant and might even be mischievous in later times.

"Original intent has a strong gravitational pull," acknowledges Columbia Law Professor Henry Monaghan. But how specific an intent are we looking for? Today's interpreters of the Constitution, for example, would never tolerate the brutality of the criminal punishments that were prevalent 200 years ago -- brandings, say, or the puncturing of nostrils. Notes Federal Appeals Court Judge Irving Kaufman: "I regard reliance on original intent to be a largely specious mode of interpretation. I often find it instructive to consult the framers when I am called upon to interpret the Constitution. But it is the beginning of my inquiry, not the end . . . The framers' legacy to modern times is the language and spirit of the Constitution, not the conflict and dated conceptions that lay beneath that language."

Anyone who doubts that the Constitution is a living thing that changes and evolves should think about the difference between the document then and now. As framed 200 years ago, the Constitution was virtually paranoid on the subject of democracy. James Madison wrote in The Federalist about his view of democracy and direct government. If every Athenian citizen had been a Socrates, he thought, every Athenian assembly would still have been a mob. The founders began, "We the People." And yet "the People" had very little to do with writing the thing. The framers, working behind closed doors and shut windows, were highly literate white males -- landowners, military heroes, merchants, accomplished lawyers. Hardly a word was heard from the common folk. Only 133 years later, with the 19th Amendment, did women acquire the right to vote.

If there is any matter on which the original intent of the founders is clear, it is the issue of slavery. Says Columbia Law Professor Jack Greenberg, former director-counsel of the N.A.A.C.P. Legal Defense and Educational Fund: "The original Constitution not only accepted slavery, but it gave the South a bonus for it" -- the stipulation in Article I, Section 3 that in apportioning Representatives for the House, "three fifths of all other persons" should be added to the "whole number of free persons."

Deeds as well as words have made the Constitution -- sometimes deeds that were considered illegal. As Harvard Law Professor Laurence Tribe remarks, "The framing of the Constitution has been a continuous process rather than a purely episodic one. I think the real framers were not only the gentlemen who met in Philadelphia and those who drafted and ratified the crucial amendments, such as the amendments following the Civil War, but also the many people who often in the roles of dissent and rebellion, sat in, or marched and sang, or sometimes gave their lives, in order to translate their vision of what the Constitution might be and how it should be understood into political and legal reality."

The law of the land evolves, sometimes from grotesque early versions. In its Dred Scott decision in 1857, the Supreme Court declared that blacks do not have the rights of citizens. The law has been changed at barricades, in the streets, by a procession of Americans like John Brown, Rosa Parks, Martin Luther King Jr. Women struggled for two or three generations to acquire the right to vote.

A dozen years ago, Supreme Court Justice Potter Stewart gave a speech to a group of journalists regarding the First Amendment's protection of a free press. "The Constitution," he said, "is not a self-executing document . . . If you went back to the original understanding of our ancestors, back in the early years of the 19th century, you would find that their understanding of this clause and the Constitution in their judgment allowed them to enact the Alien and Sedition laws. And if those laws were still on the books, Richard Nixon would still be President of the U.S. and Spiro Agnew would still be Vice President, and all of you people would probably be in prison."

America now is incomparably more democratic than it was 200 years ago. Originally, only the House of Representatives was elected directly by the people. Now the Senate is directly elected, and sees itself as responsive to the people. The President is in effect directly elected by the people, not by the vestigial Electoral College that the founders invented. Even the Supreme Court has long since taken on a representative character. Said Justice Thurgood Marshall of the founders: "They could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendant of an African slave."

But where does salutary reinvention of America leave off and dangerous tampering with the nation's governmental structure begin? Today, various forces have been agitating for changes. Some have called for a constitutional convention or a constitutional amendment to force the Federal Government to balance its budget.

In Congress a group of conservative Republicans, led by Jesse Helms of North Carolina and Orrin Hatch of Utah in the Senate and by Philip Crane of Illinois in the House, has been trying to reduce the Supreme Court's authority by introducing so-called court-stripping bills. The bills may be constitutional, under Article III, Section 2, which provides that Congress may set limits on the Supreme Court's appellate jurisdiction. "At stake in all of this," writes Historian Michael Kammen, "is nothing less than a campaign against the system of checks and balances intended by the founders."

Helms proclaims his purposes clearly: "Article III, Section 2 is the fundamental key for congressional efforts to restrain federal judges who distort rather than enforce the Constitution." A prime target: abortion cases. "Through similar legislative enactments," Helms said, "Congress could restore voluntary school prayer and severely limit enforced busing. There are other areas in which Congress could act as well." Barry Goldwater, hardly a liberal, is enraged by the tactic: "I've spent my whole life railing against those who use any excuse to get around the law or the Constitution." For the moment, however, the stripper bills are going nowhere in a Congress controlled by the Democrats.

In another part of the forest, some Anglophile theorists would like to see the American system take on the British parliamentary form. Not long ago in American Heritage magazine, Historian James MacGregor Burns declared, "I would favor a constitutional amendment permitting the President not only to choose members of his Cabinet or top executive officers from the Senate or the House, but allowing those appointees to retain their seats in Congress. This not only would draw the President and Congress into somewhat closer teamwork, but would serve as a stabilizing force in the Executive and an enhancement of executive leadership in Congress."

The parliamentary form would effectively destroy the Congress as an equal and separate branch of the Federal Government. That, of course, is the intent. Congress tends to be a nuisance to Presidents. Those favoring the parliamentary arrangement want to make a majority-party President more powerful, influential and effective -- precisely what the founders feared to do.

Moreover, the parliamentary idea might dramatically shift the ballast and introduce considerable instability. Even in the stable British system, governments can be voted out of office by Parliament. Would Americans in the midst of a crisis -- the Iran-contra scandal, for example -- wish to subject the Administration to no-confidence votes?

It is a tribute to the Constitution's adaptability that since the Bill of Rights was added in 1791, only 16 more amendments have been ratified. Yet new contexts have arisen that Madison and his contemporaries could not foresee. The Bill of Rights, for example, says nothing directly about the right of privacy, what Supreme Court Justice Louis Brandeis called the "right to be let alone." In the 18th century, the power of Government to intrude on the individual was acknowledged in the Fourth Amendment ban on unreasonable searches and seizures. But the bureaucracies, technologies -- and social problems -- of the late 20th century make the issue of privacy considerably more complex and important. Government is not the only intrusive agent. Says Harvard Law Professor Arthur Miller: "Whether you are talking about computer data banks or AIDS testing or drug testing or surveillance, the notion that the only threat to the individual in our society comes from the nation-state is nuts. The primary threat to individual privacy in this country comes from < entities that are not governmental: hospitals, corporations, each other." The Constitution contains no guarantees against nongovernmental threats to privacy.

There are other contexts in which the Constitution offers little guidance: in genetic engineering, in the issues of the right to die and the right to life. At a time when doctors can perform surgery on a fetus before delivery, when exactly does the law consider that life has begun? Does that fetus have constitutional rights? What is death? Who has the right to be alive, and who has the right to choose death?

Another area of silence in the Constitution: economic rights, the right to a job, the right to shelter, the right to food. The first constitution to address such rights was the Mexican constitution of 1917. Since then, the idea has spread to many 20th century constitutions around the world. But as Rutgers Law Professor Albert Blaustein points out, "civil and political rights are rights of abstinence. They are rights against the state. When you start talking about social and cultural rights, you are asking for rights of action, affirmative rights."

Most well-drafted constitutions of this century -- those of India, Nigeria and Liberia, for example -- have separated economic rights from political rights and placed them in different sections. Political rights are justiciable. Economic rights are "aspirational" or "programmatic," which is touching but perhaps no more than that. Aspirational clauses are impossible to enforce unless the government runs the economy. Food, jobs, shelter and other needs of that kind are most acute in countries that can least afford to supply them, however handsomely a constitution is composed. Besides, countries like Liberia and Nigeria may cherish the most articulate aspirations, but as T.S. Eliot wrote, "between the idea and the reality . . . falls the shadow." The reality may be one of coups, civil wars and misery.

The Constitution is endlessly unfinished business. The founders worried intensely about protecting property. Americans now worry intensely about protecting individual rights. The morale of the tribe must be considered, along with the rights of the individual and the appetites of the lawyer. In many ways, the U.S. is a hopelessly overlawyered society, the air thick with litigating birds of prey.

One of the Federalist papers, in a grandiose moment, predicted that the Constitution would "vindicate the honor of the human race." What the founders created, at any rate, was an extraordinary civilizing program, and a moral style in which conscience -- the Judiciary, the third eye -- was turned into an institution. The genius of the Constitution has been the moral restlessness it embodies, and its capacity to change even while its basic structure abides. Today, all but six of the world's nations either have or are committed to having a single-document constitution. That idea was born in Philadelphia. Reverence is due to those men in the hot summer of the Enlightenment. They changed the world.

With reporting by Alain L. Sanders/New York and Neil MacNeil/Washington