The Constitution: Its Past, Its Present...

These three books are three different ways of grappling with the Constitution, a document that in our society has some of the functions, much of the venerability and many of the ambiguities of Holy Writ.

Archibald Cox’s book is confined--to continue the analogy--to papal authority; it is a study of how the Supreme Court has developed doctrine. Richard B. Morris’ is a plain Protestant account of the original makers and their times. Daniel T. Rodgers is a historian of later heresies. Let me say something of the characteristic style and content of each and then offer comment and comparison.

Cox, university professor emeritus at Harvard, former solicitor general of the United States, and famous as the Watergate special prosecutor, gives a comprehensive account of the court’s shaping of the nation by its shaping of constitutional law.

To take a typical chapter, “The Nonconformists,” he begins with the adoption of the First Amendment, and goes on to such “spasms of intolerant repression” as the 19th-Century persecution of the Mormons and the 20th-Century persecution of the Jehovah’s Witnesses. He then moves on to an account of how the 1940s brought the judiciary to the enforcement of the Religion Clauses.

The court went from Gobitis in 1941, denying constitutional protection to Jehovah’s Witnesses whose children would not salute the American Flag in school, to Barnette in 1943, when the court reversed its understanding of the Constitution and extended its protection to those who objected to the flag salute as idolatry forbidden by Scripture. Cox finds Justice Jackson’s words for the court to be of central significance: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.”

He then reviews the school prayer case, concluding with the 1985 Jaffree decision. He confesses his own surprise at the first school prayer case but defends the court’s position as flowing “ineluctably from a true understanding of the original intent of the framers of the First Amendment.”

He contends that original intent is what the framers of the Constitution, in today’s circumstances of a society composed of many believers, unbelievers and disbelievers, “would tell us.”

Morris, professor of history emeritus at Columbia, tells us about the framers themselves. In his chapter on the “actual convention,” he identifies the more prominent--the 81-year-old Benjamin Franklin; George Washington, the key to the consensus; and James Madison, the best prepared, whose “audacious plan” for a national government prevailed.

Morris notes with some surprise the long debate--1 1/2 months--on the representation to be accorded the states in the Congress. He records the second long debate from Aug. 6 to Sept. 10 over the powers of Congress and the overarching debate on the nature and election of the national executive. He marks, again with a little surprise, the scant time the framer’s gave to the court that looms so large in Cox’s approach. He cites Hamilton’s contradictory statements in “The Federalist,” that the judiciary would be “the weakest of three departments of power” and that it would have the right to declare all laws, state or federal, unconstitutional.

“Experience,” he quotes John Dickinson saying at the convention, “must be our only guide. Reason may mislead us.” Experience led the experienced men who made the Constitution; experience also influenced the meaning their words took.

Rodgers, professor of history at Princeton, examines this experience in terms of seven key words--freedom, government, interests, national rights, the people, the state and utility. The examination is historical. Rodgers takes the meaning of these political concepts to be contested, that is, worked out in conflict. For example, the state he sees as an invention of post-Civil War America. The actual creators of the term he identifies as the first generation of political scientists--Columbia had led the way with its School of Political Science in 1880; by 1910 there were more than 100 universities teaching the new subject. Woodrow Wilson captured the spirit of the enterprise with his book entitled “The State” (1889).

The concept underlying the word drew on John Austin’s jurisprudence and on German Idealism. The origin of the state was fuzzy but its power was, in the view of the political scientists, omnipotent. “Natural rights,” a favorite notion of the critics of slavery, was an anti-scientific notion, banished by the new scientists: for them all rights flowed from the state.

The notion caught on, Rodgers maintains, because in an America full of conflict it provided coherence. It fulfilled, he even suggests, a religious function, satisfying “a common pain within Protestant, middle-class America . . . a longing for reassurance that something like a ‘common mind,’ a social will still ruled--or could be made to rule again.” The lawyers took to it like ducks to water. With its aid they could teach the people “to look past the flesh-and-blood justices themselves, past their erratic judgments--to the higher entities they sensed.”

It is evident no doubt from Rodgers’ tone that he does not share the scientific political theorists and constitutional lawyer’s beliefs. It is something not unlike those beliefs that Cox still champions: The people must believe that the court, with all the choices it has examined, is bound by law. Morris, with his plain month-by-month account of the convention, suggests that the framers were carpenters too busy with building a social structure to concern themselves with what the people would believe. That the Constitution could not survive without some kind of faith is, I think, demonstrable. What that faith is is open to argument.

Cox has the special force of personal experience to sustain him. For him the greatest accomplishment of the Constitution is that under it the head of the government may be made accountable. The Watergate prosecutor’s subpoena of President Nixon is the evidence that the Constitution so works. In his theodicy, it is a proof. In an era where unaccountable rulers still flourish, who can doubt that such an accomplishment is very great, making possible that liberty of conscience where “no official, high or petty, can prescribe what shall be orthodox?” But can one have the authority of the court without underlying assumptions about what is orthodox in the political structure?

Morris has the sense and sensibilities of a sound historian. He will not go beyond the data. The workmanlike convention he describes cannot be taken for something grander than experienced men at work. What they would have thought in other circumstances Morris does not hazard to guess. It is not unreasonable, however, to ask: If experience was their watchword in 1789, why would experience not be their watchword 200 years later? But what is the sieve which refines raw experience and produces the decisive distillation?

Rodgers’ approach is abstract. After all, it is no accident that the notion of the state flourished after the Civil War: The war had forged the nation. But he digs deepest into the world of ideas that have interacted with the Constitution. He is the least conventional and least comforting of the three.

“The words for common happiness,” he observes in an epilogue, “still elude us.” His work, probing and dissatisfied, points us on to the next century of constitutional contests.