Vol. 8 No. 1 (January 1998) pp. 52-55.

THE AMERICAN CONSTITUTION AT THE END OF THE TWENTIETH CENTURY by Ralph Clark Chandler and William A. Ritchie (Editors). Kalamazoo, Michigan: New Issues Press, 1996. 611 pp. $40.00 Cloth. $20.00 Paper. ISBNs: 0-932926-34-2 Cloth. 0932826-35-0 Paper.

Reviewed by Richard A. Glenn, Department of Political Science, Millersville University, Pennsylvania.

The Constitution is an endlessly intriguing object of study; arguably no other American document has received its voluminous attention. It has been searched extensively by lawyers, quoted confidently by historians and political scientists, interpreted magisterially by the Supreme Court, and worshipped more as a sacred object than a governing document by others. THE AMERICAN CONSTITUTION AT THE END OF THE TWENTIETH CENTURY is a collection of rather lengthy, often repetitive, and somewhat disconnected essays dealing with the remarkably complex policymaking mechanisms established by the Constitution. This collection of twelve essays, edited by Ralph Clark Chandler and William A. Ritchie, examines the Constitution as both a symbol and a fundamental instrument of government.

Constitutional arrangements, so the argument goes, have a two-fold basic purpose: simultaneously to constrain and empower the exercise of political authority:

Insofar as the balance between empowerment and constraint is determined . . . , it is a function of how a particular constitution settles three basic governmental requirements[:] the principle of legitimacy itself, the established patterns of empowerments granted to constraints placed upon government, and the arrangements of political offices. Legitimacy is simply a principled means of distinguishing the exercise of naked force from the assertion of authority. Insofar as its legitimacy (popular consent) is concerned, the Constitution "carries its age well." Yet it is not so easy to say the same of the other two governmental requirements. Flexibility survives through the substantial empowerments given to the federal government and the cryptic and imprecise language of the empowering clauses. (Take, for example, the Commerce Clause, where operative terms are not subject to formal explication.) This "running interpretation" has resulted (absent a full constitutional debate) in a shift in the balance between constraints and empowerments, usually to the latter’s advantage. As a result, four problems persist. First, the Constitution does not formally recognize a distinction between crisis and normalcy. Thus, the United States has reached ad hoc adjustments to its crises. Second, Congress, the intended preeminent branch, has fallen into public disrepute (as evidenced by public opinion polls, term limitation proposals, mutterings of recall provisions, etc.). Third, too many politicians view the amendment process as a means of legislation. This "invites unintentional damage to one of America’s primary means of sustaining its national identity and communicating it across generations of increasingly divergent citizens." Fourth, difficulty persists in maintaining the effectiveness of symbolic structures under current conditions. Open information, cynicism, a thirst for the exposé, and an inability to separate the public and private persona of historical figures make it "awkward at best to transmit values, beliefs, and commitments via the constitutional boundaries."

It is incomplete, however, to view the Constitution as a quintessential eighteenth-century instrument of government concerned only with the management of political power, the source of authority, and the distribution of offices, while silent on direct issues of social justice and economic and social rights. The remarkable flexibility of the Constitution has achieved, in a process culminating with the New Deal, the capacity to permit government under its aegis to address questions of social justice and inclusive welfare. The continued viability of the Constitution is at issue here. "Failure to maintain the Constitution’s relevance to such issues would make the United States a nastier and probably more insecure place."

Regrettably, the volume’s introduction is its greatest contribution to constitutional debate. The remaining twelve essays read like eleven detailed chapters in a textbook and a summary of a doctoral dissertation in political philosophy. Although the editors opt not to do so, the essays could be divided into four sections: (1) foundations and principles; (2) institutions; (3) influence; and (4) viability. The reader knows little about the editors or the authors. Other than names, no other biographical information is provided.

Foundations and Principles. We are told that "the Constitution was the product of innumerable political compromises. It was not so much the creature of a single, systematic political theory, as the realization of a variety of philosophical ideas gleaned from historical experience . . . ." Nothing new here. In what is the most difficult chapter to comprehend, Ritchie revisits the ideological divide between the Federalists and the Jeffersonians and Jacksonians so as to locate correctly the parties relative to the main political currents of the late eighteenth and early nineteenth centuries. His thesis is worth repeating (if only because it is among the few novel conclusions reached):

[E]arly Federalism, far from being primarily a reaction to the reforming impulse of the Revolution . . . as is still frequently averred, was the closest American expression of the venerable republican tradition; and further, it represented the American manifestation of the then emerging conception of liberal democracy. Conversely, the Revolution’s left, contrary to continued authoritative interpretations and claims, was disassociated from both republicanism and liberal democracy. Its roots tapped the same anti-republican and populist democratic ideas that nourished contemporary radical democratic movements in France and England. Ritchie’s most relevant insights come when he discusses this schism as it pertains to modern American political philosophy.

Chapters on constitutionalism, federalism, and individual rights are primarily descriptive. One essay examines the well-documented rift between the Federalists and the Antifederalists over a proposed Bill of Rights. Another espouses the successes and failures of America’s federal system, warning that the successes of federalism--its achievement of national integration while, on balance, enhancing the causes of liberty--are at risk (i.e., signs of ethnic and racial detachment indicate a loosening of America’s civil bonds). A third discusses the incorporation of the Bill of Rights; and the expansion, contraction, and refinement of individual liberties under Chief Justices Warren, Burger, and Rehnquist, respectively.

INSTITUTIONS. Both the chapters on Congress and the presidency are concerned with the adequacy of the policy making process under current conditions. And both are disappointing. The authors provide pro forma examinations of the functions and responsibilities assigned to the two branches and explore the factors that have contributed to those functions. Little discussed in these chapters cannot be found in introductory texts on American government. The chapter on the judiciary, however, covers some not-so-well-traveled ground. Relying almost exhaustively on the records of the Constitutional Convention, the author calls judicial review an "accidental conspiracy": a small group of delegates "shaped the Constitution to permit the later adoption of judicial review, but they did this without making any specific provision for judicial review so as to avoid the Constitution’s rejection by state ratifying conventions." The research, analysis, and conclusions, here, are worth reading. No essay on the bureaucracy can be found.

INFLUENCE. Two articles discuss the influence of the Constitution. Suffice it to repeat, the federal Constitution influenced state constitutions and vice-versa. Also, the federal Constitution, specifically its workable federalism and judicial review, has impacted heavily the governing documents of other countries, most notably those in Africa and South America.

VIABILITY. The final two entries inquire into the viability of the Constitution to maintain its legitimacy and provide effective governance relevant to current issues. While one author notes, "a number of . . . emerging stresses . . . will test the resiliency of the Constitution," the primary focus of the chapter is how the United States has overcome past dilemmas. A discussion of some of the more divisive and intractable issues (i.e., racism, hate speech, treatment of homosexuals) would have enhanced this volume’s contemporary appeal. The anthology concludes with a reminder that the triumph of American constitutionalism is not yet. Part of the Constitution’s durability and dynamism has been its provision of stability (allowing the Supreme Court and other political branches to act as agents of adaptation and social change). Two concerns threaten that provision. First, the Supreme Court is less influential in (and some might say, less desirous of) effecting social change. Second, the decline of respect for government and public service and officials.

Among the most fascinating aspects of the Constitution is its brevity. The same claim cannot be made about THE AMERICAN CONSTITUTION AT THE END OF THE TWENTIETH CENTURY. Careful editing would have eliminated repetition. For instance, the reader is treated to two separate, yet similar, versions of the incorporation of the Bill of Rights; two accounts of John Marshall and judicial review; and three discussions of religion and the origins of the Constitution. Moreover, some rather obvious misstatements and contradictions could have been corrected. The Constitution has been amended twenty-seven times, not twenty-six. When listing the substantive protections of the Constitution (post-Civil War), one author omits the Twenty-fourth Amendment. And in back-to-back chapters, judicial review, at the time of the Constitutional Convention, was "unknown, even unthinkable" AND viewed as "legitimate and useful."

The United States is unique in that the Constitution is both a fundamental instrument of government and the key component of the nation’s constitutional narrative. "It behooves us, therefore, to approach the Constitution in its first function with a caution that reflects an awareness of the fragile and unparalleled complexity of our constitutional document. Contemporary American political culture offers limited confidence that we will recognize our historic responsibility." This volume reminds us of that responsibility.