A Constitution For The Living: Imagining How Five Generations of Americans Would Rewrite The Nation’s Fundamental Law by Beau Breslin (Hardcover; 384 Pages)
The U.S. Constitution is often considered (sorry San Marino) the oldest continuing constitution in existence. Many argue that this is a good thing. James Madison, the “Father of the Constitution,” argued that continuing respect over a long period of time was fundamental.
Thomas Jefferson, Madison’s friend and writer of the Declaration of Independence, disagreed. Jefferson argued that constitutions should be for the living. And, after a period of time (he estimated nineteen years), a majority of the people who agreed would be dead. The living, said Jefferson, should not be stuck with founding documents authorized by their ancestors.
The U.S. Constitution, as it often does, contains a compromise. There is a means to amend the Constitution, and there have been twenty-seven amendments ratified. But, it is very hard to amend the Constitution, multiple supermajorities are required. So, it doesn’t happen much.
Beau Breslin, in a bit of counterfactual imagination, was inspired by Jefferson’s vision. What if there were multiple constitutional conventions over our history, automatically taking place based on current life expectancy numbers? In other words, if the life expectancy of the time is fifty years, a constitution ratified in 1800 would be followed by one in 1850.
This tweak of Jefferson’s vision would mean there were constitutional conventions in 1787, 1825, 1863, 1903, 1953, and 2022. Each convention would have great names of the day such as Daniel Webster, Charles Sumner, Thurgood Marshall, and many others. They would have to determine what if any changes were appropriate given the needs of their times.
The result, like all good counterfactuals, provides a look at the times with realistic considerations of the possibilities. The Constitution starts with a statement that it is ratified by and for “We the People.” This includes each one of us, at least those who are citizens of the United States. What if you had to take part in its creation?
This book provides a fresh perspective on the call for constitutional renewal. It is a book that entertains the possibility of future constitutional reform primarily by imagining past constitutional texts.
Beau Breslin considers current discontent in our current political system and calls for change. Breslin argues it is important to seriously consider if the current constitution should be retained or significantly changed. His thought experiment provides insights into making this important decision, using possible moments of constitutional making to help guide us.
Should I Read It?
I found this an interesting thought experiment. I did not agree with all of the choices made. But, that probably is a matter of personal taste. Overall, this is a serious attempt at historical imagination that also requires to reader to think about the possibilities.
It is a worthwhile effort. The book is ultimately appropriate for the average member of the political community who would take part in the constitutional making imagined. It has a lot of history and some constitutional theory. Nonetheless, I think it should be enjoyed by a general audience. A basic understanding of United States history and constitutional practice is helpful.
People interested in history, the Constitution, and open to the imagination involved (some people do not like counterfactuals) should enjoy this book. Many people these days have a passion for civic involvement and are engaged in constitutional debates. This book should be for you.
It has no pictures and is over three hundred pages, so those desiring a more breezy volume might want to look elsewhere. The author talks about the book on C-SPAN here.
We have reviewed various books that readers of this one might find helpful:
- The Great Decision: Jefferson, Adams, Marshall, and The Battle For The Supreme Court By Cliff Sloan and David McKean
- Lincoln in Private: What His Most Personal Reflections Tell Us About Our Greatest President, By Ronald C. White
- Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck, by Adam Cohen
- Daddy King: An Autobiography By The Reverend Martin Luther King, Sr.
- Taking Back the Constitution: Activist Judges and The Next Age of American Law by Mark Tushnet
The concept of this book is an excellent teaching opportunity. The book’s ideas can be adapted into workshops, class debates, and test questions. A useful adaption would include more pictures, discussion questions, and more simplified text as appropriate.
The book opens with a visit to the National Constitution Center, America’s first and only museum devoted entirely to the U.S. Constitution.
The visitor goes on a tour that ends with Signer’s Hall, which portrays the Founding Fathers who wrote and signed the document. We are then offered a choice: to either sign (your signature temporarily appears on screen as if you yourself signed the Constitution) or not sign.
For many, this might be seen as a bit of fun. Breslin suggests it has more weight. It is a chance for each visitor to decide for themselves if they endorse the Constitution. What would happen if we had to formally make this decision? Should we have to periodically make it?
1787: An Introduction
Thomas Jefferson was appointed minister to France in the mid-1780s, replacing Benjamin Franklin. He loved France and Enlightenment ideals that thrived there.
One day, two years after the Founding Fathers completed their work writing the Constitution, Jefferson had a small dinner with French intellectuals. They chatted about politics, including the opening events of the French Revolution. Jefferson was full of ideas about such matters.
Among the guests was one who inspired Jefferson’s idea that constitutions were for the living. The concept was in the air, and Thomas Paine (of Common Sense fame) agreed with it. Constitutions were agreed to by specific populations. When half of them died, a majority of the original parties to the document were no longer living. Did the new population really agree to it?
James Madison disagreed. A constitution is agreed to by the people and gains authority through its veneration over the years. And, it is not like the people do not have an opportunity to change or repeal it. The Constitution (Article V in particular) allows that. If they do not decide to agree to amendment, the people in effect have consented to the existing document.
The Rules: Breslin offers a thought experiment, tweaking Jefferson a bit. Breslin’s rule will be that the Constitution will be up for revision when the average years of life expectancy at the time of framing passes. This would require, for example, a new convention in 1825.
Breslin also assumes amendments can and will take place between the conventions. The history of the United States will also be generally the same as it was. This is an artificial construct since once you change constitutional provisions, events will change. And, to skip ahead, none of the constitutional changes proposed in the conventions apparently were rejected by the people.
Each chapter has a basic format. We first get a sense of the time and place of the constitutional convention. We learn about some of the people involved, including who is chosen (like George Washington originally) to be the chair of the convention. A major player here is Daniel Webster while Jefferson (who would die in 1826) presides over things.
Then, the constitutional delegates settle in to get to work. What are their main concerns? For instance, the power of the judiciary was a major issue in this imagined convention. The Marshall Court was still going on and had more power than many of the original framers thought. Thus, one result of this imagined convention is a limit on judicial terms and a tweak on life tenure.
And, each time, which is something that is often forgotten about constitutional making that might seem to be a foregone conclusion, there are some failures. Some delegates (like the first here who supported national support of education, then seen as violating federalism principles) proposed things that the convention as a whole rejected.
The original Constitution did not change too much in this imagining. The original still was a recent memory, some of the original framers (those directly involved) and founders (people like Jefferson who were not directly involved in the actual writing and ratified) were still alive. But, changes were made. A notable thing avoided: much talk about slavery.
A final thing to note involved rights. The Bill of Rights, as was the practice at the time for many state constitutions (which guided the convention delegates) was moved to the front of the Constitution. The new Constitution also protected the right to vote, but only for whites, taking rights away in the process. I am not clear about this — why was this not merely a “floor” (as many federal constitutional rights now) with individual states having the power to go further?
The second imagined constitutional convention took place in the midst of the Civil War. President Abraham Lincoln was a key figure, if not directly involved. Lincoln’s message honored “the Fathers” and he greatly believed in their values. Was their vision going to fail? Or, was the Civil War just a harsh test, one which would end in a “reconstruction” of this great land?
A major difficulty with this convention was that only some of the country was involved. The so-called (Lincoln insisted they were not independent but still part of the Union) Confederate states refused to send delegates. A special rule would be agreed to that would require a smaller number of states to ratify the final document. Did this somehow taint the results?
The lack of involvement of most of the (slave) South made the convention lean Radical Republican, conservatives and Democrats in the minority. Slavery was abolished. But, there were limits to how far the delegates were willing to go. An attempt to pass a provision to specifically establish a permanent department to protect freed slaves was rejected.
One interesting thing to consider is how such a convention would lead things to happen differently than actual history. The imagined convention dealt with issues of slavery, black voting rights, and reconstruction that were addressed by presidential and congressional action (including a loyalty oath) as well as multiple amendments.
And, the amendments were influenced by events. The Fourteenth Amendment, for instance, arose from battles between Congress and President Andrew Johnson, who reacted to events such as Black Codes very differently. We should remember once more than in actuality the changes imagined in these chapters would have significantly influenced historical events.
The next moment of imagined constitutional making is a sort of in-between time.
The Civil War Era was over and the 20th Century was beginning. We saw the beginnings of the Progressive Era where major changes in society and government were taking place. The western frontier was “closed.” An influx of immigrants came in the midst of a great industrial expansion.
But, the old ways continued in many ways, including segregation, lack of women’s suffrage, and limited rights for workers. The new convention showed this in various ways, including the first Native American and African-American (Booker T. Washington) members but no women.
Another major player in the convention was Joseph Cannon, who eventually became known for his role in the House of Representatives. The president the convention chose, however, was a more modest politician (Lloyd Lowndes Jr.), respected for his progressive views.
A notable part of this convention (the first convention was secret) was that it was open and widely covered by the press. It is unclear how this changed matters, but it was the way of the future. The most current convention would be aired in real time ala C-SPAN.
The convention passed a women’s suffrage provision (about twenty years sooner than the real-life 19th Amendment). The convention accepted a vague statement of rights based on the opening of the Declaration of Independence (“enjoying and defending life and liberty” etc.), but a more specific one protecting workers was rejected. Native American rights were ignored.
The end of the 19th Century was also the beginning of the United States moving into the world’s stage, including imperialistic moves such as the Spanish American War. The timing of the convention influenced things here as in the past. Remember when the last one took place?
A provision was added that explicitly gave the president authority in foreign affairs. Presidents always had an important role in foreign policy, including as the commander-in-chief of the military. The 20th Century would increase their role here considerably. An explicit authorization would have only increased their power. How much? That’s open to debate.
Times are changing. Life spans are longer, resulting in more time between constitutional conventions. The Constitution is getting longer, becoming more like state constitutions and many modern constitutions in foreign nations have much more minutiae. The 1950s are here.
(One thing noted as particularly “pronounced” is bargains and horse-trading between delegates. If this is meant to suggest some golden age when this was not done, it is somewhat misleading. Historians have explained that the original constitutional convention had a lot of such things.)
Presiding at this convention is a rising political star: Gerald Ford. Various familiar faces are there, including the civil rights fighter Thurgood Marshall, currently in the midst of his biggest victory (Brown v. Bd. of Education). One little quirk: the four terms of FDR still worried people, but a constitutional term limit provision was held in abeyance for a few years. After all, a constitutional convention was due a few years after 1945 (when FDR died), so why not wait?
Marshall’s success so far in the courts helped encourage delegates to think his proposal to strengthen equal rights was unnecessary. But, there were now women delegates though they like the rest (by this account) did not focus too much on Cold War matters. There was a provision added to require unanimous state approval for ratification. Sounds misguided.
Iceland in 2011 considered a new constitution, using “crowdsourcing” methods that allowed national input. The 2022 convention had the benefit of a lot more national input. It was a true national debate. Sandy Levinson, a law professor who has for years been pushed for a new constitution convention, was one of the delegates. A true fantasy comes true in that respect!
(I personally engaged with Prof. Levinson’s comments when he talked about his ideas on his blog. I found them a bit pie-in-the-sky.
Anyways, the book was published in 2021, so 2022 was a bit in the future, though we knew that Biden won the presidential election at the very least. How would it have gone down otherwise?)
The convention’s president is a rather symbolic choice: a descendant of Thomas Jefferson and Sally Hemings. (It is generally understood such a union took place though a few dissenters argue Hemings might have had children with a member of his family.)
Various modern concerns were debated though some such as abortion and an overall right to privacy were avoided. [A constitutional right to privacy very well might have passed in the 1970s. The book was published before the Supreme Court overturned Roe v. Wade.]
For instance, congressional term limits were put in place, and an obligation for environmental protection was honored. The Electoral College was replaced by a national popular vote. A somewhat curious (to me) single six-year term for president was accepted as well. Levinson’s dream of a broad change of the U.S. Senate among other things, however, failed.
Overall, the convention was a positive development. It was a moment for various groups to be represented and debate the issues of the day as well as the nation at large doing so. Jefferson’s vision still seem viable though as life spans expanded, the difference between him and Madison shrunk. The next convention would after all come only in the 22nd Century!
The writing of the book took place during the Obama and Trump years. This was a period of growing tension and division. Compromise and consensus were treated as dirty words.
The existing Constitution helps these divisions in various ways. Would a Jeffersonian requirement of a constitutional convention help? Multiple states require at least allowing the people a chance to call a constitutional convention (a few years, the voters of New York, myself not included, said “no”). Jefferson’s home state of Virginia is not one of them.
The author ends with an open question: just what is the responsibility of each one of us to be “active constitutionalists,” contemplating and in some way deciding whether or not we still believe in the current document? The “imagination” of this book perhaps will help us decide.
Points to Ponder
One thing that the book considers is how the Constitution should be understood and how the thought experiment provided would change that understanding. What would happen if we had to, for instance, agree to keep the First Amendment? What exactly would we be keeping?
Let me use an example. The Equal Rights Amendment was first sent to the states for ratification in the early 1970s. The amendment would protect gender equality but was never ratified. Or was it? Three states recently “ratified” the ERA, but it was not recognized as binding because Congress originally set forth a time limit for ratification.
What if the ERA was ratified? Would we determine gender equality based on how that was understood when the ERA was first proposed or when it was ratified? Surely, the understanding of gender equality greatly changed in the last forty years.
If the First Amendment was maintained after Congress and the states agreed to retain it, we would probably say that a modern-day understanding of its terms was now accepted. This would include a more inclusive understanding of religious liberty. Is a formal vote needed to do that?
Beau Breslin is a professor of political science at Skidmore College. He also wrote:
- From Words to Worlds: Examining Constitutional Functionality
- The Communitarian Constitution
Is A Constitution For The Living a Reliable Source?
The author has a background in political science. His scholarship has examined constitutional principles. He is not a lawyer or someone who went to law school.
He is a political scientist. Breslin is also not a professional historian. But, he has examined history as part of his analysis of constitutional thought. For instance, he has researched President Lincoln’s actions during the Civil War in previous writings.
Breslin is not trying to bite more than he has chewed before.
This book is an exercise of historical imagination that requires a lot of research on the times covered. I would be wary about trusting every detail (for instance, I caught an apparent mistake in the 1863 chapter: Stephen Douglas died in 1861), but the general history is sound.
The book is well-researched with professional endnotes. The acknowledgments favor political scientists and legal thinkers. It is unclear how much he vetted his chapters with professional historians. Again, however, I generally found the chapters realistically imagined scenarios.
The constitutional theory material is “in his wheelhouse” and is fine overall. I would argue that A Constitution For the Living is as a whole a reliable source.