Vol. 33 No. 1 (January 2023) pp. 12-15A CONSTITUTION FOR THE LIVING: IMAGINING HOW FIVE GENERATIONS OF AMERICANS WOULD REWRITE THE NATION’S FUNDAMENTAL LAW, by Beau Breslin. Stanford, CA: Stanford University Press, 2021. pp.359. Cloth $28.00. ISBN: 9780804776707. Epub $25.00.
Reviewed by Staci Beavers. Department of Political Science. California State University San Marcos. Email: sbeavers@csusm.edu.
Picking up Beau Breslin’s new book ten years ago likely would have proven an engaging exercise that I could have then promptly set aside to go back about my own business. Breslin puts forward an intriguing idea with his “experiment in constitutional imagination” (p. 29). His experiment is envisioning shifting constitutional debates through narrative accounts of imagined constitutional conventions held at several inflection points throughout U.S. history. But, reading this work in the aftermath of an insurrection and evidence of a high-level, coordinated effort to undermine a presidential election proved quite a different experience entirely. The underlying concept here still intrigues. However, when addressing contemporary U.S. challenges, Breslin’s effort feels as if it were written in a vacuum devoid of important recent context.
Breslin’s starting point is the founding-era debate over the appropriate lifespan of a written constitution, specifically Philadelphia’s 1787 effort. James Madison, of course, won with a “stable, lasting, and enduring” charter (p. 25), though Breslin largely leaves alone the debate over how such an “enduring” constitution should be interpreted and applied centuries after its ratification. He focuses instead on Jefferson’s losing argument that written constitutions should be formally re-examined and potentially even replaced for the governing of each successive generation. Taking up Jefferson’s call for periodic constitutional re-examinations, Breslin envisions how a series of constitutional conventions could have played out at several points across U.S. history. As Breslin articulates his quest, “…what would America’s constitution have looked like in each major era if Jefferson had convinced” his contemporaries “that each generation ought to draft its own text?” (p. 29).
While sci-fi fans’ antennae may quiver at the time-travel dilemmas potentially in play here, Breslin assumes the throughline of U.S. history remains essentially unchanged despite significant constitutional changes he thinks could have resulted from each convention. The reader must fight the explicitly denied (yet persistently implicit) message that such constitutional changes would yield no practical effects. The approach is understandable, but it can prove wearing.
To structure his narrative, Breslin strives to honor the spirit of Jefferson’s support for generational change while recognizing that increased human life expectancy makes Jefferson’s own suggestion of a 19-year sunset clause on a written constitution (p. 22) less plausible. He gives a fair bit of attention to life expectancy calculations over time (p. 37) to set upon constitutional conventions for 1825, 1863, 1903, 1953, and 2022.
How to determine the debates to fuel these dramas? Breslin provides his criteria here:
What was happening at the time of the fictional constitutional convention that might influence the thinking of the delegates? What constitutional design characteristics were currently in vogue? How might the environment and design preferences interact with each other to produce a particular constitutional outcome? These are fundamental questions that all constitutional framers consider (p. 39).To answer these questions, Breslin utilizes “Supreme Court opinions; the political, economic, and social events of the time; broad policy initiatives; crises, and much more” (p. 41). While their translation to national-level constitutional debates is far from perfect, Breslin also draws heavily on state-level constitutional debates from each respective era, particularly state constitutional conventions (pp. 42-43).
For my own part, the thought experiment plays out most successfully for Breslin’s 1825 convention. The concept is freshest in the book’s early chapters, but Breslin also very effectively reminds the reader of the enduring relevance of 1825’s constitutional controversies. For example, the discussion of early Electoral College debacles (pp. 49-50) will surely resonate with contemporary readers. Breslin puts Daniel Webster at the center of his narrative to flesh out debates over the voting franchise and class divides (pp. 66-77) at a time when the U.S. was significantly less demographically diverse than it is today. His discussion of possible federal constitutional status for public education (pp. 81-87) also resonates given today’s high-octane constitutional battles over public funding for private religious schools and public school funding and instruction. On the other hand, one puzzling omission is the pre-Civil War debate over nullification. Also, in Breslin’s telling, convention delegate Daniel Webster determined “the country was too fragile and too varied” (p. 93) for a debate over slavery at this point in U.S. history, so this issue remains largely unexamined until the following chapter where it, of course, comes to the forefront.
Breslin’s successive fictional conventions follow similar paths. For example, Breslin’s imagined 1863 convention witnesses debates over federalism, the institution of slavery, and competing approaches to addressing the economic, political, and social impacts of emancipation. Of these later chapters, perhaps Breslin’s 1903 convention is the most surprising in how it resonates so heavily with some of today’s flash points which explore U.S. policy towards American Indian tribes (pp. 188-193) and proposals to address Jim Crow in the aftermath of PLESSY v. FERGUSON (1896). Women’s suffrage is discussed in part as an effort by some supporters at even “further suppressing [and diluting] the Black [male] vote” (p. 168) that ultimately backfired. Breslin also gives attention here to the nation’s then-burgeoning taste for imperialism by mentioning potential foreign policy provisions (pp. 193-200).
But, Breslin’s effort hits snags when he turns his attention to the present. Breslin’s second stated objective with this book is “to take up the ultimate present-day question: should we return to Philadelphia to draft a new constitution?” (p. xix). Under the Constitution’s Article V, a constitutional convention can be called at the request of 2/3rds of the states. The book’s Preface and Epilogue, as well as its 2022 fictional narrative, touch on some of today’s leading governance challenges and critical issues. But, lifting up the idea of a contemporary constitutional convention without examining either the current on-the-ground reality or contemporary arguments for and against such a convention provides the reader with a concerningly incomplete picture.
Breslin’s fictional 2022 convention briefly mentions the Conference of States (p. 262), and even quotes one of their constitutional proposals (p. 289) from a 2016 “mock convention” hosted for conservative activists (Panetta and Griffiths). Where his Preface speaks directly to reality rather than his fictional world, Breslin briefly mentions contemporary calls for constitutional conventions, including the somewhat rough “Friends of Article V” website (pp. 29-30, footnoted p. 324) and the Kentucky Legislature’s 2011 call for a constitutional convention, specifically to address budget deficits (p. 31).
But such mentions do not adequately address the very real and serious efforts already underway to bring about such a convention, and this context is important. Following model language provided by the Convention of States, 19 Republican-controlled state legislatures have, as of 2022, already issued formal calls for a constitutional convention, and several other legislatures have seen support in one legislative chamber already (https://conventionofstates.com/). While not all contemporary efforts at wholesale constitutional change have come from the political right, the better-coordinated and better-funded efforts seem to be the work of political conservatives, supported by organizations such as the American Legislative Exchange Council (ALEC) (Wines, 2016; Panetta and Griffiths, 2022). Whether one supports or despairs of such efforts, not addressing this context, or airing arguments for and against a contemporary convention, is a significant gap.
Admittedly, my own guard goes up these days at “both sides-isms”, such as Breslin’s early reference to “a citizenry that absorbs hysteria and hyperbole from both sides of the political aisle” (p. xiv), so perhaps I’m not able to bring sufficient objectivity to bear. At this point, can anyone? To be fair, Breslin’s work had gone to press before the January 6, 2021 insurrection and broad public exposure of the wide-ranging plot to undermine the 2020 election and plan the attack on the U.S. Capitol. But surely, enough warning signs of legitimate threats to American representative democracy have been evident for years that a more holistic and context-grounded discussion was worth including here.
As previously noted, there is much to like in the thought experiment of exploring what a baked-from-scratch constitution to meet today’s needs could be. But with such high stakes in play in contemporary America, the fiction here merits some reality checking.
REFERENCES:
CASES:
PLESSY v. FERGUSON, 163 U.S. 537 (1896}.
REFERENCES:
Wines, Mike (2016, August 23). “Inside the Conservative Push for States to Amend the Constitution.” NEW YORK TIMES. Retrieved at https://www.nytimes.com/2016/08/23/us/inside-the-conservative-push-for-states-to-amend-the-constitution.html
Panetta, Grace and Brent D. Griffiths. (2022, July 31). “Republicans’ Next Big Play is to ‘Scare the Hell out of Washington’ by Rewriting the Constitution. And They’re Willing to Play the Long Game to Win.” BUSINESS INSIDER. Retrieved at https://www.businessinsider.com/constitutional-convention-conservatives-republicans-constitution-supreme-court-2022-7
© Copyright 2023 by author, Staci Beavers.
