I’ve been working for decades on a book about the 1787 Constitutional Convention. Why?
In college, I worked for a collateral descendant of George Mason who was a member of that Convention. When, years later at a Reunion, I told Prof. Mason that I was working on what the Founders meant when they wrote the Constitution, he asked me why? I’d worked on one of Mason’s books that presented the U.S. Supreme Court as a great agency of decency and civilization. And he treated a famous footnote in a 1938 decision as laying down the principles that guided the Court. Prof. Mason himself had been a protégé of Justice Louis Brandeis and depicted the Court in the long swing which would reach from the 20s through the early 80s, during which it was increasingly sensitive to the ways that authorities took advantage of the powerless – blacks, workers, women, prisoners. And that Court saw the connections. There was much to admire for precisely the reasons conservatives despised it. That Court cared, from the time of Chief Justice Taft through the time of Chief Justice Burger. Mason understood that conservative history could be a way to take all that apart.
I remember giving him a kind of naïve answer, that I trusted Madison much more than contemporary conservatives, but on reflection I wish I had just said we have no choice. Either we let conservatives define the Founders or we have to do it ourselves.
But it hardly seems to matter now. Our system makes the U.S. Supreme Court the arbiter of the meaning of the Constitution. I’ve written articles attempting to change their views. This isn’t going to do it. It’s not that the Founders didn’t fear the dictatorship of demagogues, the ways that demagogues could twist the Constitution to give themselves absolute power and use it for their own enrichment at the expense of the people. They talked a lot about that. And they wrote many provisions in the Constitution designed to prevent it. But we watched Trump ignore many of those guardrails and change the personnel of the Court and federal agencies to weaken any possibility of holding him in check. Will the Constitution hold? Can it hold when the people with the reins of power are determined to ignore and pervert it? When one House of the Congress that is supposed to hold the President in check is determined to put partisanship above principle, above democracy and above accountability, and, so that they can stay in power, encourage their partisans to exclude opposing voters from the ballot box, miscount those they can’t shut out, and wink at the violence, threats and intimidation of thugs who’ll support them, can the Constitution hold?
Then I realized studying how our Constitution was shaped is like reading a good novel. You can lose yourself in it. And you know how it comes out. I never thought of history as escapism but it’s become that for me. Each new pathway I try to explore is just another plot in the story. I’ve a draft of most of the book. But will I have time to finish it before the infirmities of old age? If it’s just a story, maybe it doesn’t matter.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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