The Human Factor

Joseph Tartakovsky
The Lives of the Constitution: Ten Exceptional Minds That Shaped America’s Supreme Law, by Joseph Tartakovsky (Encounter, 320 pp., $25.99)

Writing a book is hard, writing a good book harder still. One promising strategy for writing a good book is to take an old subject and try to make it fresh and new. By that standard, Joseph Tartakovsky has written a very good book in The Lives of the Constitution.

The author is joining the ranks of thousands of authors who have written millions upon millions of words in commentary on or exegesis of the U.S. Constitution, an unbroken chain of scribblers (myself included) dating back to the fall of 1787, when the Constitutional Convention submitted its finished product to the Congress of the Confederation.

To be blunt, one would not guess that a fellow such as Tartakovsky would be the sort to write something fresh on such an old subject. A lawyer by training, Tartakovsky is a fellow in constitutional law at the Claremont Institute — and in my experience, lawyers tend to write the most but say the least about the Constitution. Yet, playing against professional type, he has offered a fascinating and lively way to recast the nation’s founding document.

His central premise is that “the success and perpetuation of our Constitution depends on many things, but ultimately it must rely on the people and their unforced fidelity to the constitutional character that pervades our national existence.” It is not checks and balances, the Bill of Rights, or a strong military that defend our system of government, but rather “patriotism, good sense, decency, compromise, and a love of order.”

After this commonsensical starting point, he introduces a novel twist: The proper way to understand the Constitution is not simply to engage in historical exegesis or textual commentary, but to view it primarily as “a story of human beings.” And so, for Tartakovsky, the “lives of the Constitution” are actually the lives of those who “had a hand in conceiving, drafting, and ratifying the Constitution, or in interpreting, challenging, amending, preserving, or applying it to radically new conditions.”

Tartakovsky selects ten historical personages who exemplify some aspect of our constitutional regime — and it is here that his book goes from merely offering a novel idea to executing that idea very well. Such a premise could be an opportunity to retell the easy and obvious tales, by selecting such titans as James Madison, John Marshall, Abraham Lincoln, and William Brennan. While Tartakovsky does discuss some major characters — Alexander Hamilton, Daniel Webster, Alexis de Tocqueville, and Woodrow Wilson make the list — he prefers spotlighting oft-overlooked Americans. In the parlance of the recording industry, he supplements the “greatest hits” with “B-sides” and “deep tracks.”

There is James Wilson, the Pennsylvania democrat who argued passionately at the Convention for popular sovereignty. There is James Bryce, the foreign visitor who noted the conservative spirit the Constitution imposed on American civilization. There is Stephen Field, the Gilded Age jurist who defended the rights of industry and private property. There is Ida Wells-Barnett, the great suffragette who railed against the barbarism of lynching. There is Robert Jackson, Franklin D. Roosevelt’s attorney general during the height of the New Deal, who later carved out an independent and thoughtful career on the Supreme Court. And in a choice that will thrill conservatives, there is Antonin Scalia, the late, great jurist who warned that an overlarge judiciary degraded the right of the people to rule themselves.

Tartakovsky does not offer much structure for these narratives, instead relying on five broad categories that he does not spend a lot of time explaining — “builders,” “fighters,” “interlude from abroad,” “dreamers,” and “restorers.” Yet the looseness of the structure advances one of the author’s underlying themes: As a framework for ordered liberty that can succeed only by virtue of the near-uniform consent of each generation, the constitutional project must by necessity be one of endless, semi-bounded reinvention. For its meaning and spirit to endure for almost two and a half centuries, the Constitution must be rediscovered again and again — it must have, as the title suggests, many lives, similar in important respects but separated by time, space, personalities, and ideologies.

The most enjoyable aspect of this book is that Tartakovsky communicates this point not by bashing the reader over the head with it — stating, restating, defending, and recapitulating the thesis as if this were an academic or law-review article. Rather, he allows the idea to get across informally, at times indirectly. His introductory and concluding sections are very short — giving needed space to develop the biographical sketches of each of the lives he examines. It is here, almost in the background, that his main thesis is proffered — an approach that makes it all the more persuasive.

Tartakovsky is well served by his ability to communicate important points with an enviable brevity and directness. For instance, in describing Webster’s relationship to the two-party system, he writes, “His generation of Whigs tried to save the union through compromise; their heirs, the Republicans, accepted war when the compromises ran out.” I have read more than my fair share of antebellum histories, and never have I seen the matter put with such succinctness. Of Wells-Barnett, he writes that “she became a sort of clearinghouse to document lynchdom in order to bear witness to its medieval fiendishness.” Again, a perfect description of the brutality of the practice. Of Wilson, he writes that the 30th president recognized “the monumental imbalance between a private business sector that had surged since the Civil War, reaching staggering proportions by 1890, and primitive modes of government, skeletal and passive, that hadn’t even begun to catch up.” One would be hard pressed to find a better single-sentence description of the Wilsonian project. This ability to turn a good phrase enables him to analyze without seeming pedantic, and thereby to let the characters remain the center of attention.

The list of ten subjects is manifestly not meant to be definitive — that much is evident from the author’s emphasis on deep tracks rather than greatest hits. This, too, works in service of his overarching thesis: If the Constitution thrives because it is supported by all sorts of people — not simply the “Platonic guardians,” as Tartakovsky puts it — it must be because there have been countless lives of the Constitution. As he argues, these are the “unknown Americans of all stripes” who “teach their children, even unconsciously, that the Constitution is noble and worthy of our affection and, at times, even our lives.”

This is the sort of comment that a Jefferson or a Madison would have made late in his retirement. Having participated in the grand work of framing and forging a new government, they understood at the end of their lives how the project succeeded because it was not just supported, but embraced, by their countrymen. It is a point that is easily forgotten amid the endless academic and legal scholarship on the Constitution, not to mention the constant political disagreements. But it is nevertheless a true point, and it is a credit to Tartakovsky that he has reminded us of the vitality of our founding document in such a novel and unassuming way.

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