When addressing the Harvard Law School Association in 1913, Oliver Wendell Holmes, Jr. worried that “that fear was translated into doctrines that had no proper place in the Constitution or the common law.” His corrective was simple: “It seems to be at this time that we need education in the obvious more than the investigation of the obscure.” Although Holmes was speaking about socialism and judges he deemed “naïf and simple-minded,” his admonition seems equally appropriate for our own constitutionally contentious era. Of course, bitter disputes over the meaning of the Constitution are nothing new; they have been a hallmark of public discourse since the 39 signing delegates left Philadelphia. So other than a reminder that controversy and division are common to our history, what “education in the obvious” do we require today?
We too often forget that the Constitution is a revolutionary document. It embodied a fundamental re-scripting of assumptions about government. Chief among them was the invention of popular sovereignty, a conception of the people as both rulers and ruled, or as John Jay noted, “sovereigns without subjects” who “had none to govern but themselves.” This concept was necessary to accommodate another innovation, federalism, which James Madison acknowledged was “unprecedented … It stands by itself.” But it was the only way to resolve the inconsistency of imperium in imperio, a sovereignty within a sovereignty. Over two centuries, these solutions, radical for their time (and for ours), have been instrumental in the development of a more democratic and egalitarian nation because once marginalized and excluded groups demanded to be counted among the people who ruled themselves. And they usually succeeded first in the states, Brandeis’s famed “laboratories of democracy,” before the nation-at-large accepted their claims. But as often happens with revolutionary legacies, there is a counter-narrative to this progressive story. The inventions of popular sovereignty and federalism also have produced great mischief: they have offered a veneer of legitimacy to a variety of “isms” racism, nativism, separatism, and the like that acted to deny liberty rather than advance it.
The Constitution also established a new but untested and controversial theory about the relationship between power and liberty, the two lodestars of the revolutionary struggle. Early republicanism treated power and liberty as implacable foes, and both the first state constitutions and Articles of Confederation sharply limited governmental power generally as the best way to protect liberty. They likewise elevated the legislature, the people’s representatives, over the executive in distributing power within government. But commercial rivalries among the states and widely perceived tyrannies of the majority spurred a re-thinking of the calculus of liberty and power. The Constitution proposed a different relationship, one in which governmental power became the friend and promoter of liberty, a result made possible by the extension of the representative principle to the national government and by the separation and balancing of authority among its three branches and between national and state governments. We all know this story but we often overlook the resistance to this redefinition of republican ideas. The Anti-Federalists were not persuaded, and even the addition of a Bill of Rights did not calm their fear of centralized power for long, as the Jefferson-Hamilton debate of the 1790s revealed. This tension government as the friend of liberty, government as the foe of liberty is a trope that has shaped our constitutional politics more than any other, from the early controversy over the necessary and proper clause to debates over the 2010 heath care reform act.
Finally, we should remember that the Constitution was in fact the result of hard-fought compromises among practical politicians. It aimed above all to save the great experiment in liberty that had begun in 1776. But no one imagined that it had solved the problems that confronted the new nation. Instead, it offered a framework to allow future generations to work out what revolutionary ideas meant for their own circumstances. The founding generation found the answer for its time, but they offered no eternal solution for the tensions and conflicts we face. Rather, they invited us to struggle over constitutional meaning and to develop generational solutions that renew the nation’s revolutionary heritage. And ultimately they trusted that we, the people, would answer for ourselves how best to strike the balance that would further their goal of a more perfect union.
Explanation:
you have to study whatever you are on
