Greve, Michael S. The Constitution: Understanding America’s Founding Document. Washington, D.C.: AEI Press, 2013.
The United States Constitution is the most enduring constitution the world has ever known. Now 232 years from its inception, that charter continues to serve as the guarantor of American liberty. Yet Americans today grow increasingly fractured concerning what this document does and does not stipulate. Each angle of every domestic policy argument in today’s politics claims to have the Constitution on its side. In short, the Constitution has become a battleground for the persistence of the American experiment.
Michael S. Greve, for twelve years a scholar at the American Enterprise Institute, writes in his book The Constitution that his small volume is not a comprehensive instruction manual, but rather “an introduction to constitutional theory—emphasis on introduction.”[1] Such a small treatise, only twice the total length of the Constitution and the Bill of Rights combined, cannot pretend to exhaust the discussion of even one minor present-day constitutional question. But Greve offers a different approach when he states that his purpose is to help readers understand not “what to think about the Constitution” but rather “how to think seriously about our constitution and constitutions in general.”[2]
Greve’s offering diverges from the prevailing obsession with the demarcation of individual rights, with which “contemporary constitutional debates are preoccupied.”[3] He instead submits that an understanding of the founders’ unique opportunity can afford us a proper context within which to understand the document they created.[4] If the goal is better thinking, an examination of the founders’ thought processes is well in order. Part of this unique opportunity was the uncertainty of America’s newly-won independence. The world watched as the fledgling nation struggled even to quell internal strife and squabble. Greve claims that this uncertainty “[enabled] the people to consider constitutional rules from the perspective of long-term collective gains rather than from short-term, partial advantage.”[5] This contributed to the broad consensus at which the founders arrived in the sweltering summer of 1787 Philadelphia.
Greve identifies five particular qualities that comprise the successful structure of the United States Constitution: “written-ness, minimalism, rigidity, decision rules (rather than distribution rules), and institutional competition.”[6] Of these five, minimalism is perhaps the most abrogated within the constitutional discussions of today. Greve writes that this minimalism (only four large pages for the world’s most enduring constitution!) was not due “to the founders’ ignorance of the problems and conditions of our modern, complex, (post-) industrial, high-tech society.”[7] While it is definitely true that the founders could not anticipate the difficulties presented by contemporary issues such as nationalized healthcare or homosexual marriage, it is equally true that the writers omitted any provisions regarding specific issues with which they were concerned, “such as infrastructure improvement and education.”[8]
In a day and age when the tax code alone is multiple thousands of pages, and any piece of legislation is susceptible to a rapid acquisition of “pork barrel” pages, it is a wonder we have a constitution so incredibly brief. Greve adds that institutional competition vets and scrutinizes legislated agreements to keep them within reasonable bounds.[9] These agreements are broadly acceptable enough that the terms are profitable for all parties. That is something missing from modern debates concerning individual rights, in which activists cling to exceedingly specific lists enumerating detailed case-by-case expectations for others’ observance of their rights. With so many parameters and stipulations even a general consensus is difficult to reach, whereas the Constitution was agreed to unanimously by the representatives of the 12 states present at the 1787 convention (albeit with a pair of notable dissenters), despite the fact that not all of them were entirely pleased with the finished product. They had room to maneuver within the broad constitutional structure.
Greve specifically addresses the Bill of Rights when he states that it must be understood with “harmony and continuity” within the larger context of the Constitution’s “structural principles.”[10] He argues that because the Constitution requires a “bold confidence”[11] in the guiding self-interest of individuals following its basic principles, the Bill of Rights should therefore be treated with a similar confidence.[12] That means not altering the list of enumerated rights to conform to contemporary societal tides and currents. Detailed prescriptions should be left to the states or more local governments, or left alone entirely.
One drawback to Greve’s work is his inclusion of the catchphrase “separation of church and state,” which he states “the establishment clause requires,” when discussing the competition of institutions (checks and balances) within the constitutional arrangement.[13] Greve’s point is not that politics and religion cannot mix—he instead means “separation” in terms of the federal government not propping up any particular denomination or sect as that favored by the government. One could say the goal is to prevent crony capitalism with religious institutions. While Greve proffers a valid consideration, I think his use of the phrase “separation of church and state,” especially in reference to a “requirement” of the Constitution, hurts his delivery and opens his work to potential misunderstanding.
Greve writes from a conservative perspective consistent with other scholars of the American Enterprise Institute, examining the original words and intent of the founders. While some might contend that this starting point invalidates his conclusion, I do not think that this approach represents a harmful bias. His leaning is evident in the close of his work with his inclusion of a quote from John Marshall, the fourth chief justice of the U.S. Supreme Court. In his concluding remarks about the debate over an originalist versus a loose constructionist understanding of the Constitution, Greve recalls Marhsall’s words from Marbury v.Madison (1803), when he wrote “It cannot be presumed…that any clause in the constitution is intended to be without effect.”[14] That is something we would do well to remember as we engage in discussions with people who favor expanding the Constitution to detail more and more specific rights. Thankfully, Greve writes finally that “Constitutional disagreement…is a sign of a healthy constitutional democracy.”[15] We certainly hope that he is correct.
ENDNOTES
[1] Greve, Michael S. The Constitution: Understanding America’s Founding Document (Washington, D.C.: AEI Press, 2013), 102.
[2] Ibid., 4.
[3] Ibid., 5.
[4] Ibid., 21.
[5] Ibid., 16.
[6] Ibid., 24.
[7] Ibid., 26.
[8] Ibid., 26.
[9] Ibid., 40.
[10] Ibid., 57.
[11] Ibid., 27.
[12] Ibid., 57.
[13] Ibid., 62.
[14] Ibid., 94.
[15] Ibid., 104.
Comments