Idea of a Constitution

The Idea of a Constitution

Hanna Fenichel Pitkin
The requirement to be extremely brief today is welcome to me, for on the
idea of a constitution, if I know anything at all, I am surely a hedgehog (who
"knows one big thing") rather than a fox (who "knows many things").' All I
have to offer is the fact that our idea of what a constitution is, is inevitably
tied to how we "ordinarily"-that is, naturally, spontaneously-use the
word "constitution" and related words; and that the patterns of use of such
important, abstract, and politically contested words always involve deep
inconsistencies. So, to understand what a constitution is, one must look not
for some crystalline core or essence of unambiguous meaning but precisely at
the ambiguities, the specific oppositions that this specific concept helps us
to hold in tension.
In particular, it is worth attending to two uses of the word "constitution"
which may at first seem wholly irrelevant to our obviously public and polit-
ical concerns, irrelevant to the Constitution of the United States, whether
considered as the document whose bicentennial we celebrate or as a tradition
of interpretation and public practice.
The first of these uses is "constitution" in the sense of composition or
fundamental make-up, the "constituent parts" of something and how they
are put together, its characteristic frame or nature. Concerning a person,
''constitution" can mean either physical make-up (we say someone has a
"robust" or a "delicate" constitution) or temperament, the frame of one's
character. With respect to a community, this use of "constitution" suggests a
characteristic way of life, the national character of a people, their ethos or
fundamental nature as a people, a product of their particular history and
social conditions. In this sense, our constitution is less something we have
than something we are. This sense, is, I think, what Charles Mcllwain meant
by the "ancient" idea of a constitution; no doubt he had in mind Aristotle's
politeia, which refers not to fundamental law or the locus of sovereignty but
to the distinctive shared way of life of a polis, its mode of social and political
Hanna Fenichel Pitkin is Professor of Political Science, University of California at Berkeley.
This paper was prepared for the Plenary Session program, "The Idea of the Constitution," held
at the annual meeting of the Association of American Law Schools in Los Angeles on January
5, 1987. The paper has been prepared from a transcription of oral remarks, without the qualifi-
cations and citations one might expect in a formal paper.
1. Sir Isaiah Berlin, The Hedgehog and the Fox (New York, 1957).
01987 by the Association of American Law Schools. Cite as 37 J. Legal Educ. 167 (1987).
Journal of Legal Education
articulation as a community.
2
When Aristotle wrote his Constitution of
Athens, he produced primarily a history of that city.
The second use of "constitution" which deserves our attention is its func-
tion as a verbal noun pointing to the action or activity of constituting-that
is, of founding, framing, shaping something anew. In this sense, our consti-
tution is neither something we have nor something we are so much as
something we db-or at any rate can do. It is an aspect of the human capacity
to act, to innovate, to break the causal chain of process and launch some-
thing unprecedented.
How do these two uses of constitution-as fundamental character or way
of life and as the activity of constituting -illuminate the political and legal
sense of "constitution"? The latter use serves to remind us that constitutions
are made, not found. They do not fall miraculously from the sky or grow
naturally on the vine; they are human creations, products of convention,
choice, the specific history of a particular people, and (almost always) a
political struggle in which some win and others lose. Indeed, in this vein one
might even want to argue that our constitution is more something we do
than something we make: we (re) shape it all the time through our collective
activity. Our constitution is (what is relatively stable in) our activity; a
stranger learns its principles by watching our conduct.
From the perspective of this sense, there is nothing particularly sacred or
inviolable about a constitution. Our "founding fathers" were men, not gods,
and the same powers that they exercised in framing our Constitution are
latent in us as well, in our ordinary human capacity for creative action,
particularly for collective, shared creativity. We are the species that consti-
tutes itself, that collectively shapes itself, not just genetically through repro-
duction, as all species do, but culturally, through history. That is what Marx
meant, I think, by calling us the "species being," and what Aristotle meant
by calling us the "political animal." I am far more different from a woman
of ancient Egypt than my cat is from her cat, because I am so much a product
of my culture, shaped by all the intervening history. For most of us most of
the time, our history-making and species-shaping 4re, of course, inadvertent,
the unintended, collective by-product of our myriad private activities. But
our capacity for human self-constituting is most fully realized when it is
consciously and deliberately exercised, collectively. This sense of "constitu-
tion," then, is activating and empowering, calling us to our powers as co-
founders and to our responsibilities.
And yet, constituting is not just doing whatever one pleases, the expres-
sion in action of just any impulse or appetite. To constitute, one must not
merely become active at some moment but must establish something that
lasts, which, in human affairs, inevitably means something that will enlist
and be carried forward by others. Unless we succeed in creating-together
2. Sir Charles Howard Mcllwain, Constitutionalism: Ancient and Modern (Ithaca, N.Y.,
1947).
Idea of a Constitution
with others-something lasting, inclusive, principled, and fundamental, we
have not succeeded in constituting anything.
And so we come back to "constitution" as fundamental ethos or tempera-
ment. For not every choice we make, no matter how active, innovative, or
willful, succeeds in expressing the chooser's real needs or basic commit-
ments, whether the chooser be one person or a whole polity. So, although
constituting is always a free action, how we are able to constitute ourselves is
profoundly tied to how we are already constituted by our own distinctive
history. Thus there is a sense, after all, in which our constitution is sacred
and demands our respectful acknowledgement. If we mistake who we are,
our efforts at constitutive action will fail.
So there you have the hedgehog's song: the constitution we have depends
upon the constitution we make and do and are. Except insofar as we do,
what we think we have is powerless and will soon disappear. Except insofar
as, in doing, we respect what we are-both our actuality and the genuine
potential within us-our doing will be a disaster. Neglect any one of these
dimensions, and you will get the idea of our United States Constitution very
wrong.
The Idea of the Constitution:
A Metaphor-morphosis
Laurence H. Tribe
It is possible to trace a trajectory of the Constitution, to use Hanna
Pitkin's concept, as something that we have as a physical artifact: from its
departure at eleven in the morning on a stagecoach from Philadelphia to
New York the day after it was signed, to its last-minute rescue, stuffed into a
linen sack en route to Virginia, as the British advanced on Washington in
August of 1814, to its storage for nearly half a century in an old green cabinet
together with some seven ancient swords in a basement in Washington out of
public view, to its current resting place at the National Archives-where, I
can report, I saw it myself on September 17, 1986, the day (as it happens) that
William Rehnquist was sworn in as Chief Justice of the United States.
But I want to focus instead on a different trajectory, the trajectory of
something considerably less stable-the Constitution less as an object than
as a subject of legal and social consciousness and discourse-to see what, if
anything, might be learned, even 'from a brief overview, of the terms in
which the Constitution has been conceived, imagined, discussed, and either
venerated or challenged.
It is a commonplace, best documented in Carl Becker's Heavenly City of
the Eighteenth-Century Philosophers, that the metaphysical and epistemo-
logical heirs of Issac Newton tended to see the world as a great machine. In
the 1770s, 80s, and 90s, many of the leading American revolutionaries
certainly imagined government in terms of a machine. John Quincy Adams,
at the Constitution's Golden Jubilee in 1839, gave the machine wheels-and
wheels within wheels. And in 1888, James Russell Lowell felt compelled to
warn that perhaps too many had come to see the Constitution as a machine
that would go of itself-the title of Michael Kammen's provocative recent
study of the Constitution in our culture.
The metaphorical machine has never quite come apart, but in the early
decades of the twentieth century, the metaphor was largely replaced by one
that was more vibrant and vital: as Woodrow Wilson wrote in 1908, the
Constitution is "not a machine but a living thing." Wilson said the Consti-
Laurence H. Tribe is Tyler Professor of Constitutional Law, Harvard University. This paper
was prepared for the Plenary Session program, "The Idea of the Constitution," held at the
annual meeting of the Association of American Law Schools in Los Angeles on January 5,
1987. The paper has been prepared from a transcription of oral remarks, without the qualifica-
tions and citations one might expect in a formal paper.
@1987 by the Association of American Law Schools. Cite as 37 J. Legal Educ. 170 (1987).
A Constitutional Metaphor-morphosis
tution's checks and counterpoises-the elaborate clockwork that Richard
Epstein extols in the separation of powers and in the federal-state structure,
the checks and counterpoises that Newton might have recognized as sugges-
tive of the mechanism of the universe-are, at best, a scaffolding. For
Wilson, the Constitution properly "falls not under the theory of the
universe, but under the theory of organic life." It is, he said, "accountable to
Darwin, not to Newton." Holmes echoed the sentiment in 1914. He said the
"provisions of the Constitution are not mathematical formulas .... they are
organic living institutions." Cardozo said much the same in 1925.
This "metaphor-morphosis" reflected, in part, a quite self-conscious rejec-
tion of the static, the and-progressive, the self-satisfied, the anti-evolutionary
nature of the earlier imagery. (Compare some of the recent attacks by conser-
vatives on the notion of a "living" constitution.) But it would be a mistake, I
think, to treat the choice of image as primarily a matter of political strategy.
I am persuaded that the image trajectory, if not politically neutral, is at least
not politically determined but is to a large degree a mirror of surrounding
movements in thought. And I think this phenomenon becomes clearest
when we observe the next transformation-the transformation from consti-
tution as organism to constitution as idea, a concept that became dominant
sometime before the constitutional crisis of 1937.
In his famous Lochner dissent in 1905-the dissent from the Lochner
decision which Richard Epstein would resurrect-Holmes said the Constitu-
tion embodies "no particular economic theory." Wilson went him one better
when he wrote, "The Constitution contains no theories." But by 1936,
Edward Corwin could write his seminal essay, The Constitution as Instru-
ment and as Symbol.
It seems to me that the past half century has been dominated by theory, by
symbol, and by the notion of reality as a construct of mind. The modem era
is dominated by inquiry into the interdependence between the observer and
the observed. From Einstein to Heisenberg, from Chomsky to Levi-Strauss,
from Freud to the Frankfurt School, ours is less the era of the machine or the
era of the organism than the era of the ghost that dwells within both. It is
this characteristic which the move to economics and the move to deconstruc-
tion have in common.
Not surprisingly, the Constitution has undergone a similar shift in focus,
with a spate of would-be visionaries nearly stumbling over one another to
depict the Constitution as resting on, or best seen as, expressing this or that
central idea. Sometimes the idea borrows heavily from Kant and the
kingdom of ends, as in Ronald Dworkin's Law's Empire and in David
Richard's Toleration and the Constitution. Sometimes the idea borrows
heavily from Bentham and from the faction-transcending, utilitarian
vision-either in a blend like Richard Epstein's, whose book Takings seems
to me to mix John Locke and Malthus and the Chicago School of
Economics, or in a blend rather more like John Ely's, whose Democracy and
Distrust would reduce the constitutional idea to the fine-tuning of political
rather than economic markets. Sometimes the idea borrows, knowingly or
not, from Hegel, as in those commentators who would treat constitutional
Journal of Legal Education
law as historical or moral prophecy or critique.
I obviously cannot hope in this brief presentation to describe fairly, much
less to critize, each of those efforts to reduce the Constitution to a central
idea. My aim, rather, is to suggest that all efforts at such reduction are, in a
very important way, misguided. Whatever else it is, the Constitution is not,
and should not be reduced to, the expression of any supposedly coherent
political theory or idea-to any "one grand tradition," to use Gerry Lop z's
phrase. In its composition, as in its operation, the Constitution has not been,
over our history, the projectionoof any unitary philosophy or vision.
It is standard to critize such unitary approaches as "clausebound interpret-
ivism," which seeks meaning in isolated constitutional passages and provi-
sions. It is standard to criticize such approaches for ignoring the way in
which constitutional elements fit together and play off each other as parts of
a structured whole. It is, after all, a constitution and not just a disjointed
collection of constitutional pieces which must be interpreted. This sort of
critique has been quite standard-and seems sound.
It is less standard to critize approaches as seemingly different as those of
John Ely, Richard Epstein, and Ronald Dworkin by observing that all such
approaches tend to ignore the character of the Constitution as a series of
complex compromises loosely knit, and only precariously held together over
time. The fighting of which Gerry Lop~z spoke is not over. And it was not
proclaimed over by the Constitution. It is not simply that the "original
intent" is often indeterminate and multiple. The fact is that, as with the
original Constitution's treatment of a subject such as slavery, deeply irrecon-
cilable ideals and premises are at work in the very same text and in the same
series of interlocking traditions.
It seems to me to be profoundly anti-constitutional to read substantive,
enlightenment-based ideals of natural rights completely out of the four-
teenth amendment's privileges or immunities clause; or, simply because one
is wedded to the ideal of representative democracy, to reduce the ninth
amendment to a formula for having courts improve processes of representa-
tion. These interpretations represent a willingness to carve away those
intractable constitutional themes and principles which fail to fit one's
preferred vision of the Constitution's dominant mission and of the judicial
role in perfecting that mission. And, needless to say, I feel even more strongly
about the willingness to bend everything in the Constitution into a program
for preserving a system of property entitlements against any political inter-
ference qjat "general economic theory," as Richard Epstein would have it,
condemns as tending to reduce aggregate wealth. That, it seems to me, is
reductionism with a vengeance.
To say that the Constitution does not embrace anyone's theory of demo-
cracy or of economics or of moral philosophy is not to say that it would be
possible or desirable to construe its terms in a disembodied way, without
attention to the purposes and ideas that underlie and connect them. This
much theory is indispensable. But there is a very great difference between
"connecting
the dots," as it were, on the Constitution's
surface and
projecting the entire structure into a single, seamless geodesic dome.
A Constitutional Metaphor-morphosis
In Bowers v. Hardwick (last summer's sodomy decision), for example, I
think the Supreme Court can be faulted for not asking itself in any serious
way how the first and fourth amendment protections for speech, for peaceful
assembly and association, and for the privacy of the home can be given any
genuine sense without positing at least a presumptive right of consensual
private intimacy.
But micro-theory is one thing. Macro-theory is quite another. It is crucial
to recognize, and to remember, that the Constitution is not the product of
any one mind, any one time, any one aspiration. The Civil War amend-
ments, as Bruce Ackerman has stressed in his Storrs Lectures, are not of a
piece with the 1787 Constitution-to note just the most dramatic example of
discontinuity. So it should hardly be a surprise if we find that the Constitu-
tion as a whole embraces conflicting, even radically inconsistent, ideas and
visions at one and the same time: ideas of liberal individualism and of civic
republicanism; of persons as political and social beings and of persons as
isolated and lonely spirits; of perfecting political representation and of
restricting the domain of collective political action; of transcending faction-
alism and of reconstituting and continuing the process of struggle. I see this
unruly plurality of the Constitution's ideas not as a jungle to be tamed, a
Hobbesian wilderness to be cut down, but as a garden to be cultivated.
Perhaps this pluralistic emphasis reflects the bias of someone who is
struggling to finish the second edition of a treatise that tries to embrace the
clash of competing constitutional visions. But I think my emphasis reflects
something deeper than that. For me, the Constitution's greatness is in large
measure its resistance to ideological reductionism-its resistance to neat
encapsulation in any one grand tradition that defines the aspirations of some
of the dispossessed as outside the boundaries of the constitutive and defining
charter of the society.
Is the Constitution, then, sometimes at war with its own premises?
Perhaps it speaks in the words of Walt Whitman: "Do I contradict myself?
Very well then, I contradict myself. I am large, I contain multitudes."