Founding Fathers Fetish

When did it become heretical to question the Constitution?

Mitt Romney speaks during his debate with President Obama.
Mitt Romney at Wednesday’s debate at the University of Denver

Photo by Nicholas Kamm/AFP/Getty Images.

When asked about the role of government in Wednesday’s presidential election debate, Mitt Romney referred to the many virtues of the Declaration of Independence and the Constitution, which were prominently displayed behind the candidates. The founding fathers once argued bitterly over the Constitution. When did questioning it become political heresy?

Sometime after World War II. Constitution worship has always been practiced by the majority in American politics, but it used to exist alongside a significant strain of skepticism. Abolitionist William Lloyd Garrison referred to the Constitution as “a covenant with death and an agreement with hell” and publicly burned a copy. Future president Woodrow Wilson praised parliamentary systems in an 1885 book and argued that the U.S. Constitution handed too much power to the executive. In the early 20th century, prominent politicians suggested a series of constitutional amendments. Victor Berger, a Socialist member of the House of Representatives from Wisconsin, proposed repealing the presidential veto power and abolishing the Senate. (Socialists were a powerful force at the time, winning 6 percent of the vote in the 1912 presidential election.) There was even open talk of a new constitutional convention, as the Supreme Court repeatedly blocked reform laws. Conservatives tarred reformers as constitutional tinkerers, while progressives accused their opponents of fetishizing the Constitution. This lively back-and-forth began to wane around the time of World War II, when Americans searched for defining national characteristics to separate themselves from Nazi Germany and Stalinist Russia. During this period, the view of the Constitution as an “almost divine instrument” went from the popular view to the only view.

How does the Constitution constantly overcome its doubters? It bends before breaking. When the Constitution was first proposed, many criticized it as an anti-democratic counterrevolution, and it was ratified only narrowly. After Patrick Henry and his fellow Anti-Federalists lost the ratification debate, they immediately realized it would be easier to reinterpret the Constitution than repeal it. Henry wrote in 1791: “Although the form of government into which my countrymen determined to place themselves, had my enmity, yet as we are one and all embarked, it is natural to care for the crazy machine, at least so long as we are out of sight of a port to refit.” Henry and his allies eventually argued that the limited government provisions represented the core of the document, ignoring the sections that were so objectionable to them only a few years before.

Even during the Civil War, when the country broke in half, only the abolitionists seriously questioned the Constitution’s merits. The dispute was over interpretation, not the greatness of the Constitution itself. Alexander Stephens, vice- president of the Confederacy, argued that the South’s new constitution preserved “all the essentials of the old constitution, which have endeared it to the hearts of the American people.” Frederick Douglass himself eventually came to the view that the Constitution was an anti-slavery document.

The same interpretive plasticity seems to have killed off constitutional skepticism in the mid-20th century. American politicians and judges proved to reformers that the Constitution needn’t be scrapped or fundamentally changed to accommodate a changing society: The Supreme Court blinked in its standoff with Franklin Roosevelt, allowing the president to pass his social and economic agenda; and the Warren Supreme Court ruled that the Constitution prohibited segregation, appeasing civil rights reformers. The overwhelming majority of progressives stopped advocating for a different Constitution and went back to arguing over how to interpret the one we have.

It should be noted that the Declaration of Independence has been even more resistant to critique throughout American history than the Constitution. Patrick Henry and Samuel Adams argued that the Declaration was inviolable. The nation celebrated the 150th anniversary of the Declaration with great fanfare in the early 20th century, but did very little to commemorate the same milestone for the Constitution. Even today, it’s the Declaration that most people truly adore. For example, although Romney mentioned both the Constitution and the Declaration of Independence in Wednesday’s debate, the values he listed came almost exclusively from the Declaration.

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Explainer thanks Richard Beeman of the University of Pennsylvania and author of Plain, Honest Men: The Making of the American Constitution; Michael Klarman of Harvard Law School, author of From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage; and Aziz Rana of Cornell University Law School, author of The Two Faces of American Freedom.

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