Historical anniversaries are powerful moments in shaping national self-consciousness. Consider the impact of the 2009 bicentenary of Abraham Lincoln’s birth, linked to the inauguration of America’s first black president. In the late 19th century, Americans wallowed in centennial celebrations of their foundation as a nation – not just the obvious dates such as 1876 and 1887 (one hundred years since the Declaration of Independence and Constitutional Convention) but also a series of centenaries associated with the founders.
Hamilton versus Jefferson: a century on
Of the two men usually identified as rival ideologues of the new nation in the 1790s, Thomas Jefferson was under a cloud at the end of the 19th century. The apostle of limited government and states’ rights, he was tarred in the north after the Civil War with the brush of slavery and secession. By contrast, Alexander Hamilton’s advocacy of strong national government resting on sound credit and productive manufacturing seemed entirely appropriate to these years of Republican predominance and industrial revolution. Laudatory biographies of Hamilton were published by Henry Cabot Lodge (1882) and William Graham Sumner (1890); the centenary of his death (1904) coincided with the presidency of Theodore Roosevelt – one of the most passionate Hamiltonians ever to occupy the White House.
Although regretting Hamilton’s elitist unwillingness to trust the people, Roosevelt felt that he had rightly divined what was needed to fit the United States for political and economic greatness. As a progressive reformer, Roosevelt also believed that America’s economic and social problems stemmed from an overdose of Jeffersonian individualism, arguing that during the century since Jefferson’s presidency America had experienced ‘a riot of individualistic materialism, under which complete freedom for the individual . . . turned out in practice to mean perfect freedom for the strong to wrong the weak.’ Roosevelt believed that the ‘power of the mighty industrial overlords of the country had increased with giant strides, while the methods of controlling them, or checking abuses by them, on the part of the people, through the Government, remained archaic and therefore practically impotent.’
He was echoing the influential progressive publicist Herbert Croly, whose book The Promise of American Life (1909) also wrestled with the heritage of Hamilton and Jefferson. Croly did not disguise his preference for Hamilton, the ‘sound thinker’ and ‘constructive statesman’, over Jefferson, the ‘amiable enthusiast’ who could not translate his ‘fine phrases’ into ‘a set of efficient institutions’. But he acknowledged that Hamilton had ‘perverted the American national idea almost as much as Jefferson perverted the American democratic idea.’ What the country needed, according to Croly, was the new application of national power to create a ‘more highly socialised democracy’ and curb the ‘excessively individualized democracy’ that had fostered the robber barons.
Radical progressives pushed the argument even farther. One such was J Allen Smith, a professor at the University of Washington and author of The Spirit of American Government (1907) – a book little known now but in its time more widely read than Croly’s. Smith depicted US history as an extended struggle between aristocracy and democracy, with the spirit of democracy animating the Declaration of Independence and the spirit of aristocracy embodied in the Constitution. He paved the way for a book that is still remembered: Charles Beard’s An Economic Interpretation of the Constitution, published in 1913. A midwestern progressive who became a professor at Columbia University in New York, Beard used neglected US Treasury archives to argue that the Constitution was designed by those with a financial stake in the new order, was pushed through by the ‘upper classes’ in the states and then ratified by a vote of probably no more than one-sixth of all adult males. Scholars were not shocked by Beard’s findings, but politicians and the public certainly were. In Ohio, the Marion Star, edited by future president Warren Harding, ran its denunciation of Beard’s ‘filthy lies and rotten perversions’ under the headline: ‘Scavengers, hyena-like, desecrate the graves of the dead patriots we revere’.
Beard, it should be noted, did not accuse Hamilton of any misconduct and by the 1910s, with the crises of secession and Civil War almost ancient history, the focus of political discussion was shifting from 1787 to 1776, from the Federal Constitution to the Declaration of Independence. This brought Jefferson back into the frame, albeit a different kind of Jefferson from the slave-owning advocate of states’ rights denigrated in the late 19th century. Yet Beard also noted that ‘today nearly half of us belong to the ‘mobs of the great cities’ – sores on the body politic’ that Jefferson had condemned, which prompted Beard to ask ‘what message has the sage of Monticello for us?’ The thrust of his argument was, in fact, to move Americans on from their veneration for the founding generation and foster a truly modern discussion about the nature and purpose of government.
That indeed was the trajectory of 20th-century debate – towards a more abstract analysis of political values, less fixated on iconic figures from the past. These icons also seemed less relevant and resonant for foreign audiences, to whom the United States was increasingly appealing as it became a global power in the course of the century. We can see all this – the new Jeffersonianism and the increasing abstraction – in the political philosophies of Woodrow Wilson and Franklin Roosevelt.
As a professor at Princeton, Wilson had shared in the general veneration of Hamilton but in his 1912 presidential campaign, faced with Theodore Roosevelt’s advocacy of a ‘new nationalism’, he advocated an updated Jeffersonianism, a ‘new freedom’ in which competition would break up monopolies. ‘This is a second struggle for emancipation,’ Wilson declared grandiloquently in a speech in Denver on October 7, 1912. ‘If America is not to have free enterprise, then she can have freedom of no sort whatever.’ In practice, however, Roosevelt and Wilson did not differ much on business policy, prompting journalist William Allen White’s famous remark that between the new nationalism and the new freedom lay only the imaginary gulf between Tweedledum and Tweedledee. Wilson’s Jeffersonianism was more evident, and more significant, in foreign policy as the country was sucked into the cauldron of a great European war.
In 1917, Wilson insisted that the United States enter the conflict as an ‘associate’ power rather than a formal ‘ally’ of Britain and France. In other words, although co-operating with these powers of the old world in the immediate task of destroying German militarism, America did not share the same broader aims. In fact, he believed that Allied militarism and imperialism had played a fateful role in the origins of the war and needed to be reformed in the new world order that he wanted to create. ‘We are provincials no longer,’ Wilson declared in his second inaugural on March 4, 1917. ‘The tragic events of the thirty months of vital turmoil through which we have just passed have made us citizens of the world. There can be no turning back.’ And yet, he asserted, Americans must remain ‘true to the principles in which we have been bred’, which were ‘not the principles of a province or of a single continent’ but those of ‘a liberated mankind’. Among these principles were the ‘equality of nations in all matters of right or privilege’ and the belief that ‘governments derive all their just powers from the consent of the governed.’
These themes of the ‘equality of nations’ and the ‘consent of the governed’ – rooted in Jefferson’s Declaration of Independence – became staples of Wilsonianism, though during 1918 the second theme was transmuted into the Bolshevik slogan ‘self-determination’ in an effort to match the rhetoric of Lenin. In the process, Wilson was forced to shift some of his political positions at home: basing government on the consent of the governed in the 20th century required, for instance, his belated acceptance of women’s suffrage. But in foreign affairs Wilson disappointed those in the old world and the new who had lauded him as Messiah. The Treaty of Versailles in 1919 was a far cry from the liberal peace he had promised, while his panacea, the League of Nations, was stillborn because the president failed to get it through the US Senate.
Yet this Wilsonian moment in 1918, though brief, had lasting influence. For many colonial leaders, his insistence that just government must rest on the consent of the governed was a clarion call. One who heeded it was an itinerant Vietnamese cook and waiter who lobbied the Paris peace conference for his country’s independence from France. He was unsuccessful but when, a quarter-century later, in 1945, that same man, Ho Chi Minh, proclaimed the new Democratic Republic of Vietnam, he explicitly invoked the preamble of America’s Declaration of Independence.
Like Wilson, Franklin Roosevelt adopted and then transcended Jefferson. He had served in the Wilson administration and had been the Democrats’ vice-presidential candidate in 1920, but after their resounding defeat and his personal disaster – crippling polio – FDR sought to relaunch himself politically by adopting the thesis of Claude Bowers in his Jefferson and Hamilton: The Struggle for Democracy in America (1925). For Bowers, a partisan journalist with a black-and-white view of the past, this was a ‘stirring story’ pitting ‘two giants’ in a fundamental battle between ‘aristocracy and democracy’ which decided whether the United States would be ‘not only a republic, but a democratic republic’. In the only book review he ever wrote, FDR said he felt like exclaiming ‘at last’ on reading Bowers’ ‘thrilling’ volume. He confessed to being ‘fed up’ with the ‘romantic cult’ surrounding Hamilton, which seemed oblivious to his ‘contempt for the opinion of the masses’. Roosevelt said: ‘I have a breathless feeling as I lay down this book – a picture of escape after escape which this nation passed through in those first ten years; a picture of what might have been if the Republic had been finally organised as Alexander Hamilton sought.’ This was no mere history lesson, because Roosevelt feared that the anti-democratic forces of the 1790s were again rampant in the 1920s.
FDR’s review was entitled ‘Is There a Jefferson on the Horizon?’ This was a shrewd political move for a New Yorker who desperately needed southern support: Roosevelt was mindful of the failure of his mentor Al Smith to appeal beyond the urban northeast in the Democratic campaigns in 1924 and 1928. His tactics paid off nationally as boom turned to bust; in 1932 FDR blasted the Republicans as plutocratic Hamiltonians, the forces of economic privilege ranged against the people. Although his New Deal lacked a consistent philosophy, it cohered around a set of symbols, of which the most potent was Jeffersonian democracy. This also served Roosevelt well personally: as he said at Monticello on the Fourth of July, 1936, Jefferson was both a ‘great gentleman’ and a ‘great commoner’ – adding coyly that ‘the two are not incompatible.’ This was a convenient political line for the man often dubbed the ‘Squire of Hyde Park’.
Roosevelt was one of the guiding spirits behind the Jefferson Memorial on the Tidal Basin in Washington DC, which he dedicated on the bicentenary of Jefferson’s birth, April 13, 1943. That day was the culmination of a decade-long battle over the principle, the site, the design and even the sacred cherry trees that would be felled, but by the time Roosevelt finally unveiled the memorial – a circular, domed colonnade centred on a statue of the great man – Jefferson, the champion of liberty, had achieved a significance far transcending his domestic battles with Hamilton. Speaking in the midst of the world war, FDR said that Jefferson ‘faced the fact that men who will not fight for liberty can lose it. We, too, have faced that fact. He lived in a world in which freedom of conscience and freedom of mind were battles still to be fought through – not principles already accepted of all men. We, too, have lived in such a world. He loved peace and loved liberty – yet on more than one occasion he was forced to choose between them. We, too, have been compelled to make that choice.’ And so, declared Roosevelt, ‘in the midst of a great war for freedom, we dedicate a shrine to freedom.’
Freedom and the Cold War
By now, in fact, the word ‘freedom’ – shorn of its explicitly Jeffersonian associations – had become a feature of Roosevelt’s diplomatic discourse. In his State of the Union Address on January 6, 1941, the president adumbrated ‘four essential human freedoms’ that should be basic to any future peace. These were: ‘Freedom of speech and expression’; ‘Freedom of every person to worship God in his own way’; ‘Freedom from want,’ which meant ‘economic understandings which will secure to every nation a healthy peacetime life for its inhabitants’; and ‘Freedom from fear,’ which required ‘a world-wide reduction of armaments’ to the point where ‘no nation will be in a position to commit an act of physical aggression against any neighbour.’
Roosevelt insisted that these four freedoms must apply ‘everywhere in the world’. Nor was this a ‘vision of a distant millennium’ but ‘a definite basis for a kind of world attainable in our own time and generation’. Against the Axis ‘new order’ Roosevelt therefore set out a globalist American ideology whose realisation was now the goal of US policy. Here was the framework of America’s worldview in wartime and in the Cold War that followed.
Before looking more closely at the rhetoric of freedom in the postwar era, we need to examine a parallel shift in discussion about American ‘national security’ – a term that came of age during the Second World War. Belligerency in 1917 had not proved a fundamental break with the verities of past US diplomacy. The war was finished in 19 months and, after Wilson’s failure in the League fight, the United States shunned foreign commitments, especially as the storm clouds gathered again in the 1930s. ‘Of the hell broth that is brewing in Europe we have no need to drink,’ wrote novelist Ernest Hemingway. ‘We were fools to be sucked in once in a European war, and we shall never be sucked in again.’
Those who opposed foreign entanglements endlessly recited the words of America’s first president, George Washington, in his ‘Farewell Address’ of September 19, 1796. ‘The great rule of conduct for us in regard to foreign nations is, in extending our commercial relations to have with them as little political connection as possible,’ Washington told his compatriots. ‘It is our true policy to steer clear of permanent alliances with any portion of the foreign world.’ He was mainly concerned to get through the crisis of the 1790s, when the infant nation was trying to survive amid a world war between Great Britain and revolutionary France that threatened to split it internally between partisans of the two sides, led respectively by Hamilton and Jefferson, but subsequently his words were often accorded almost scriptural reverence, decreeing an eternal policy of isolationism for the United States.
It was Franklin Roosevelt, more than any other president, who broke the mould. In the new age of airpower, he argued, America’s front line could no longer be Long Island or the California coast but must be drawn in Western Europe and the Pacific Islands. ‘When your enemy comes at you in a tank or a bombing plane,’ he declared in a radio address on May 27, 1941, ‘if you hold your fire until you see the whites of his eyes, you will never know what hit you. Our Bunker Hill of tomorrow may be several thousand miles from Boston.’
In parallel with the president’s rhetoric, the crisis of 1941 prompted American internationalists to develop a new discourse of Atlanticism. ‘The Atlantic Ocean is not the frontier between Europe and the Americas,’ insisted the influential journalist Walter Lippmann. ‘It is the inland sea of a community of nations allied with one another by geography, history, and vital necessity.’ Slogans such as ‘the Atlantic area’ and ‘the Atlantic community’ – popularised during the war – laid the intellectual basis of Nato long before the North Atlantic Treaty was signed in 1949.
The treaty defined a bipolar Europe within an increasingly bipolar world. Roosevelt’s Jeffersonian rhetoric of freedom – which he had intended as global in scope – became applied in the Cold War era to America’s sphere of influence; phrases such as the ‘free world’, the ‘free market’ and ‘free enterprise’ became clichés. Between September 1947 and January 1949, a ‘freedom train’ painted red, white and blue toured all 48 states and was viewed by 3.5 million people. It carried not only the classics of American liberty, including the Declaration and the Constitution, but also contemporary documents such as the Truman Doctrine speech about a world split between freedom and totalitarianism. Even the old antithesis between liberty and slavery was reworked in the Cold War. ‘There is a basic conflict between the idea of freedom under a government of laws, and the idea of slavery under the grim oligarchy of the Kremlin,’ Pentagon planners warned in 1950. ‘The implacable purpose of the slave state to eliminate the challenge of freedom has placed the two great powers at opposite poles.’
The meaning of freedom in a bipolar world was expressed concretely in the Berlin Wall. ‘Two thousand years ago the proudest boast was ‘civis Romanus sum’,’ President John Kennedy declared in front of West Berlin’s City Hall on June 26, 1963. ‘Today, in the world of freedom, the proudest boast is ‘Ich bin ein Berliner’.’ The president went on: ‘There are many people in the world who really don’t understand, or say they don’t, what is the great issue between the free world and the communist world. Let them come to Berlin.’
The ‘rights’ revolution
Yet, as the same time that Kennedy was manning the ramparts of freedom abroad, he was fighting a rearguard action on America’s vulnerable flank at home. A century after Lincoln’s proclamation emancipating the slaves, African Americans remained second-class citizens – subjected to segregated facilities in the South and unable to vote, discriminated against in jobs and housing across the rest of the country. When the ‘freedom train’ visited Birmingham, Alabama, in 1948, city officials demanded separate lines and separate visiting hours for black and white citizens to ensure that freedom was observed according to ‘Southern etiquette’. In the 1960s, Kennedy and his successor Lyndon Johnson were acutely conscious that race was America’s Achilles heel in the Cold War, compromising its grand rhetoric about freedom and democracy. The issue had become even more sensitive because of the rising tide of decolonisation in the developing world. ‘We have waited for more than 340 years for our constitutional and God-given rights,’ Martin Luther King Jr declared in April 1963. ‘The nations of Asia and Africa are moving with jet-like speed toward the goal of political independence, and we still creep at horse-and-buggy pace toward the gaining of a cup of coffee at a lunch counter.’
As this quotation indicates, black protest was expressed in the language of rights, picking up a strand of American political thought that featured in the Declaration of Independence and the Bill of Rights and again in the Reconstruction legislation of the 1860s, only to be neglected thereafter. The Civil Rights Act of 1964 and the Voting Rights Act of 1965 were intended to complete the work begun by the Fourteenth and Fifteenth Amendments of 1868 and 1870, by adding powers of federal enforcement to override the authority of states’ rights. Though radical in its effect on American life – helping outlaw racial discrimination – the so-called Second Reconstruction of the 1960s was therefore essentially backward looking.
Yet ‘rights’ were now assuming a broader meaning, very different from that intended by the founders in their Bill of Rights of 1791. The rights championed there were predominantly civil and political: freedom of speech, of assembly, worship and legal process echoing the list affirmed by the British Parliament a century before. During the Cold War these were also the ‘rights’ consistently privileged by US administrations of both parties: the failure of communist regimes to hold ‘free’ elections or permit ‘free’ speech were therefore seen as the marks of Cain. By contrast, the Soviet Union and its acolytes highlighted economic and social rights – for instance to food, shelter, jobs and medical care – as the foundations of a just society.
This was the ideological front line of the Cold War: political rights versus economic rights. Yet Franklin Roosevelt had blazed a very different path. The thrust of New Deal legislation was to use federal power to support interest groups hitherto disadvantaged in the economic market, particularly workers, consumers, retirees and the unemployed. During the 1930s, over a third of the population received public aid or social insurance at one time or other. Public funds for such programmes scarcely existed in 1929; ten years later, they accounted for more than a quarter of all government spending. Although the amounts were cut back in the 1940s, both the programmes and the constituencies for them endured.
FDR’s critics damned all this as a socialist revolution violating America’s free-market tradition, but one Democratic Senator retorted: ‘Don’t let anyone tell you that government bounties were not being given in those days. The difference was that the real pioneers who grubbed and slaved and really developed the country got none of them. The railroads got their sections in each township.’ So did the timber magnates, while protective tariffs imposed ‘hidden taxes’ on ‘everyone who laboured in industry and agriculture’. In short, there were ‘bounties galore’ but ‘the people who worked and who bought and consumed our products never got in on them.’
In his State of the Union address on January 11, 1944, looking towards the postwar era, FDR advocated nothing less than a ‘Second Bill of Rights’ to complement the essentially political rights affirmed by the founders – including the right to a job, a home, health care and a decent education. He warned that people who were hungry or unemployed were ‘the stuff of which dictatorships are made.’ This idea of a ‘Second Bill of Rights’ came to nothing; though it was cleverly high-jacked by the American Legion to push through more selective legislation it dubbed a ‘GI Bill of Rights’ giving government subsidies for veterans’ housing and education. The legislation was passed in June 1944; over the next decade 3.7 million former soldiers took out guaranteed home loans and 7.8 million received grants for education and training. In the 1960s, however, President Lyndon Johnson picked up Roosevelt’s torch in his ‘War on Poverty’. Building on his landslide victory in 1964 and deploying his legendary powers as a congressional manager, LBJ rammed through an Education Act to provide, for the first time, substantial federal funding for elementary and secondary schools, and legislation establishing Medicare (health insurance for the aged) and Medicaid (government-supported healthcare for the poor).
Johnson, like Roosevelt, was applying the power of the federal government to affirm the rights of hitherto marginalised groups, but what really shaped the rights revolution of the 60s and 70s was the way these groups took up the struggle themselves. King and his supporters, especially more radical students, used direct action techniques – bus boycotts, marches and sit-ins – in peaceful confrontations with racist authorities. Police violence against the protestors outraged the nation and forced the federal government to act. In April, 1963 images of snarling police-dogs and fire-hoses turned on black children in Birmingham, Alabama, helped make Kennedy serious about a Civil Rights Act. In March 1965, the ‘Bloody Sunday’ attack by state troopers on marchers in Selma, Alabama, was the catalyst for passage of Johnson’s Voting Rights Act.
The success of the civil rights movement emboldened others to emulate its methods and rhetoric, demanding ‘rights’ that had hitherto been denied them. These groups included homosexuals, Native Americans and, most significantly, American women. Female suffrage had been conceded in 1918 but ‘second wave’ feminism really took off after the Civil Rights Act of 1964, which outlawed discrimination on grounds of sex as well as race. The pioneering organisation was the National Organisation for Women, formed in October 1966 and explicitly modelled on the civil rights movement for blacks. The women’s movement soon fragmented – with professionals concentrating on issues such as pay equity, and radicals demanding women’s liberation: at the annual Miss America pageant in 1968, feminists threw bras, curlers and high-heeled shoes into a ‘freedom trash can’. The common demand, however, was ‘rights’, and women’s groups in the late 60s focused on passage of an Equal Rights Amendment to the Constitution. The idea had been around since the 1920s but it took the fresh wind of women’s liberation to help it sail through Congress in 1972. By the end of that year, 22 states had approved the ERA and it seemed to be coasting to ratification – until Phyllis Schlafly came along.
Schlafly, the wife of a successful lawyer in Alton, Illinois, was a Republican activist and fervent anti-communist. Her opposition to the ERA was predicated on a supposed tension between ‘rights’ and ‘freedom’. The amendment, she argued, would impose a ‘doctrinaire equality’ under which women would lose their legally guaranteed freedom to be women, such as exemption from the draft and alimony if divorced. ‘It will take away a woman’s present freedom of choice to take a job – or to be a full-time wife and mother,’ she declared. ‘In short, it will take away the right to be a woman.’ By 1978, 35 states had approved the ERA – three short of the threshold for ratification – but, thanks to Schlafly, no more states followed suit and five legislatures voted to withdraw their original ratification. Schlafly’s campaign was symptomatic of a backlash against the rights revolution, which gained momentum during the 70s. In suburbs across the South and in northern cities like Boston, white parents mobilised against bussing programmes to enforce racially integrated schools. Other groups monitored school textbooks and lobbied against sex education for their children, invoking local, democratic ‘rights’ against the dictates of experts and the federal government. At the end of the decade, evangelical Protestants formed Moral Majority and similar organisations to campaign for the right to prayer in schools. The most contentious issue was abortion, pitting a woman’s ‘right to choose’ against the ‘right of the unborn child’. Equally significant, the abortion debate highlighted the novel role of the federal judiciary in the shaping the parameters of American life. In doing so, the judiciary, and especially the Supreme Court, brought the Constitution back into the frame of political debate.
The Supreme Court: ‘rights’ and ‘originalism’
The power of judicial review that Chief Justice John Marshall famously arrogated to the Supreme Court in his decision on Marbury v Madison (1803) was used very sparingly in the early decades of the Republic. Although the court overturned 156 Acts of Congress, in whole or in part, between 1791 and 2000, it did so only twice before the end of the Civil War. Judicial activism became more evident in the late 19th century and especially in the court’s head-on collision in 1935 with some of the key statutes of the New Deal, but it was from the 1950s that the court, including jurists of various political persuasions, really intruded into the daily life of America as never before.
In 1954, for instance, in the case of Brown v Board of Education, the court unanimously decreed that racially segregated schools deprived black children of their right to equal educational opportunity. This triggered the civil rights movement in the South and, in turn, an angry white backlash. In 1965, the court’s majority verdict in the Griswold case from Connecticut opened the way to birth control across the nation, legitimising the Pill revolution. And in Roe v Wade (1973), another majority decision, the court turned the United States at a stroke from one of the most conservative nations in the world to one of the most liberal on the issue of abortion. That decision became a litmus test in American politics, a fundamental marker between right and left. Two common threads ran through these decisions. One was a predominant belief among justices, especially during the tenure of Chief Justice Earl Warren (1953–69), that the court had to interpret the Constitution in the light of contemporary social values. Warren’s opinion on the Brown case cited recent works of psychology and sociology to show the effect of discrimination on blacks. He also argued that education was now central to democratic citizenship in a way that had not been true in the 19th century; consequently the court could not ‘turn the clock back’ and rest its decision on what may or may not have been intended in 1896 when the court affirmed the constitutionality of facilities that were ‘separate but equal’. Having considered public education in the ‘light of its full development and its present place in American life throughout the nation,’ Warren stated that the court had no doubt that ‘separate educational facilities are inherently unequal.’
The other thread running through most of these decisions was a broad interpretation of the Fourteenth Amendment. When ratified in 1868, this was intended to confirm the civil rights of freed slaves, by ensuring that those rights could not be overturned by a future Congress after the old Confederacy had been readmitted into the Union. But section one of the amendment included a broad affirmation that no state should ‘deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ A century on, in the 1960s, the Supreme Court based its legitimation of abortion and homosexuality on the Fourteenth Amendment, spinning out from the ‘due process’ clause a nebulous ‘right to privacy’. Similarly, ‘equal protection’ was used to justify a range of affirmative action programmes to advance the rights of disadvantaged groups.
But some jurists felt that the court was going too far. In his angry dissent from the pro-abortion majority, Justice Byron White said he could ‘find nothing in the language or history of the Constitution to support the court’s judgment. The court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 states are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand.’ White condemned the judgment as ‘an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.’
White, like many conservatives, argued that the court was making law rather than merely interpreting law – its proper role. He insisted that law-making was properly the responsibility of democratically elected legislators in the states and the nation. The problem was that on many of these societal issues, notably race and abortion, late 20th-century America was so polarised that legislatures hesitated to act; the courts therefore stepped into the breach by tailoring the language of the past to fit what they judged to be the needs of the present. In an effort to rein in these practices, conservative jurists in the 1980s propounded the doctrine of ‘originalism’ – asserting that the court should simply interpret the Constitution in the light of the original intent of its authors or, more commonly, the generally accepted meaning of its language in the 1780s. Originalism, in reality, is not very original, being a variant on the older doctrine of ‘strict construction’ of the Constitution that dates right back to Jefferson’s own battles with Hamilton. It is also methodologically problematic, since the founding documents, especially the Constitution, were political compromises in which key words were used with calculated ambiguity rather than philosophical precision.
Furthermore, the leading originalists on the current Supreme Court – Antonin Scalia and Clarence Thomas – do not seem to behave as purists when issues arouse them. In 2000, for instance, the court intervened to settle the outcome of the presidential contest between Al Gore and George W Bush. Its 5-4 majority verdict in favour of Bush was based squarely on the ‘equal protection’ clause of the Fourteenth Amendment, whose abuse conservatives had so vehemently decried in the past. Moreover, the majority (all Republicans, though there were also Republicans in anguished dissent) issued the remarkable caveat that ‘our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.’ Legal analyst Jeffrey Toobin has translated that to mean that the opinion ‘did not reflect any general legal principles; rather the Court was acting only to assist a single individual – George W Bush.’
This brief discussion of how the founding myths have been interpreted in the 20th century reminds us of a broader truth: the United States, usually regarded as the epitome of all that is modern, is often very backward-looking in its political debate. Its ideology is derived from the 1770s and 1780s. Yet there is no single historical focus: the founding charter, the written Constitution and ten seminal amendments (the Bill of Rights) have provided various, often conflicting points of reference. For much of the 19th century, the Constitution took centre-stage, as north and south argued about states’ rights and secession. In the 20th century, however, Jefferson’s Declaration gained new resonance in the global struggles for ‘freedom’ against ‘totalitarianism’ and in the rights revolution at home. In the last third of the 20th century, however, the Constitution and its amendments became important once again as the Supreme Court interpreted and, frankly, made the law in situations where lawmakers could not agree.
This essay was originally published in On The Idea of America – Perspectives from the Engelsberg Seminar, Axess, in collaboration with Axel and Margaret Ax:son Johnson Foundation, 2009.