Joseph Tartakovsky on The Lives of the Constitution - Encounter Books

Joseph Tartakovsky on The Lives of the Constitution

AN ENCOUNTER BOOKS INTERVIEW
By Ben Weingarten | May 15, 2018

Joseph Tartakovsky discussed his new book The Lives of the Constitution with our own Ben Weingarten. What follows is a full transcript of their discussion, slightly modified for clarity.

You can also listen to their interview in its entirety below. And to instantly receive Encounter Books Podcast interviews like this one upon publication, be sure to subscribe.

Ben Weingarten: If one were writing any kind of American history, it would seem to be a daunting task to pick only 10 people through which to trace the arc of our nation. Lives of the Constitution tells the story through the characters of Alexander Hamilton, James Wilson, Daniel Webster, Stephen Field, Alexis de Tocqueville and James Bryce, Woodrow Wilson, Ida B. Wells-Barnett, and justices Robert Jackson and Antonin Scalia. What was your rationale for picking these 10 figures specifically?

Joseph Tartakovsky: Well, these are all people that I’ve been drawn to for various reasons. I liked things they had written or things they had done. And I liked them in particular because at least a good half of them are people that are quite unknown, I think, today. No one remembers Stephen Field, Ida Wells-Barnett, James Wilson, Robert Jackson, and I wanted to do a little bit of restoration work with their reputations to bring them to popular attention. And then for the people that are well-known, Hamilton, Wilson, Scalia, for instance, I try to focus on their less known contributions. They all did something exceptional…and in different ways. Four of them are justices, but I have a journalist, a president. Two of them aren’t even American. And they all allowed me to reflect in different ways on how the Constitution has been…has changed, its interpretations have changed over two-and-a-half centuries now.

Ben Weingarten: The success of the play aside, I think there’s substantial evidence to suggest that we are living in Hamilton’s America today, Alexander Hamilton’s America today, that is, in many respects. You quote him during the Revolutionary War as saying that, “We run much greater risk of having a weak and disunited federal government than one which will be able to usurp upon the rights of the people.” And he would seem to be a living testament to this fear as a public administrator who amassed substantial power via the Treasury and someone who supported, among other things, economic interventionism, perhaps to a greater degree than many of the other Founders might have been comfortable. Has his fear held true, the idea of a weak and disunited federal government being an evil, and the Constitution, in Hamilton’s interpretation, being the response to it?

We've arrived at a place where Hamilton has prevailed almost across the board

Joseph Tartakovsky: I think his fear was a quite valid one through the Civil War…Two years before he died, he wrote a letter to Gouverneur Morris who had served in the Philadelphia Convention. Hamilton said that…he wondered glumly why he had wasted so much of his career trying to prop up what he said was “the frail and worthless Constitution.” Those were his words. This was a time when the federal government was a few thousand people. His political opponents thought that it was unconstitutional for the federal government to build a lighthouse. And here was Hamilton trying to create a Coast Guard, trying to create a network of international trade. It was a dispiriting time, and I think that he was right about it. Everything about the size of government and the threat of an over large government, it’s all relative. You have to know what point in time you’re talking about.

So in this day and age, the concern is perhaps the government is too big. Hamiltonian spirit, I think, prevailed. That’s one of the reasons I wanted to focus on him. I think you can divide all of American legal political history into these two strains of Hamiltonian thought and Jeffersonian thought. I think it works pretty well throughout the entire two-and-a-half centuries. It seems to me, we’ve arrived at a place where Hamilton has prevailed almost across the board. At a typical State of the Union, a president gets up and talks about how strong our commerce is, how powerful our military is, how well the president is doing in keeping our financial order safe. These were all Hamilton’s preoccupations, and these were all things that Jefferson, and to a lesser extent, Madison, thought were alarming or unconstitutional, the idea of a standing military or of federal regulation of the economy writ large. Hamilton won in the end.

Ben Weingarten: Our listeners will be familiar with the debate over the Bill of Rights and whether it should have been or needed to be included in the first place. There was a fear that perhaps if you had to enumerate those rights specifically, that the implication was that they could have been taken away in the first place. And you write of James Wilson’s view of the Bill of Rights, and he had a fear that, quoting here, “Instead of asking whether government has the power, we would ask whether the Bill of Rights withdrew it.” Speak a bit to Wilson’s perspective on the Bill of Rights and a little bit more broadly on the man himself, who ambitiously sought to supplant William Blackstone.

Joseph Tartakovsky: James Wilson was born in Scotland, got a great education in Scottish Enlightenment thinking, and then came to Philadelphia in his 20s just to start a new life. Before that, by the way, he became the only Founder known to have golfed. And he was…he practiced as a lawyer and gave himself an education in law and in philosophy…He served in Congress and then at the Philadelphia Convention. And he was, in my view, without question the most far-seeing member of the Convention. He’s sometimes placed alongside Madison as…they’re the two people that had the most influence on the Convention. But I think in many respects, Wilson had greater influence. And his views were actually borne out in the end, just in the way that Hamilton’s were.

James Wilson, for instance, thought that there should be direct elections of the senators. He fought hard for that. [America] eventually got that a hundred and something years later. He was the most searching mind when it came to the principles of the government, the philosophical principles: human equality, popular sovereignty. And he wrote a series of lectures, the first law lecture series under the Constitution, at the University of Philadelphia, that is, I think, as good as the Federalist Papers. They should be read together.

He had a number of arresting ideas and one of them was over the Bill of Rights…He wrote the most important pamphlets in favor of ratification, and in the Bill of Rights, whether there ought to be a Bill of Rights is one of the big sticking points. And there were states that were refusing to ratify unless the Federalists would agree to amend the Constitution.

James Wilson was one of those opposed to the Bill of Rights. But today everyone says that the Bill of Rights is sort of the…one of the crowning glories of our Constitution. And I’m not saying anything against that, except the following: He made the argument that once you…that we have hundreds of rights, and once you begin down the path of enumerating them, that would become sort of the exclusive list. And that you would only have…instead of asking the question, “Does the government have power to do this?” You would say, “Why doesn’t the government have power? Which one of the Bill of Rights withdrew the power?”

I remember seeing Justice Scalia speak, and someone asked him that question, said, “Is the Bill of Rights…Don’t we have more rights than are listed in the Bill of Rights?” The Bill of Rights is just a number of provisions that were strict classic abuses of power as the Founders knew them from England: Barging into the houses of pamphleteers as the Fourth Amendment; restricting political and religious speech as the First Amendment; the various abuses during criminal trials; the Fifth, Sixth Amendment. And Scalia said, “Well, how would it make sense to say, “Here are these rights. And then there is everything else that’s not listed.” But Scalia was walking into the very inference that Hamilton and Wilson and many of the Federalists warned against. And the reality is that that is exactly what it has become. If you wish to challenge an exercise of federal power, 99 percent of the time you have to point to one of the specific provisions of the Bill of Rights. You’d have to say that…

Ben Weingarten: …Of course even if you point to the proper provision, you might not have standing.

Joseph Tartakovsky: Yeah. Exactly right. So the Bill of Rights has become, just as James Wilson warned, the exclusive catalog of all rights against the government. This is just how it works every single day in every courthouse in America. We have come to think of it in this way, that the federal government presumptively has the power, unless the Bill of Rights says they can’t do it. And we don’t talk in terms of, “Where in Article One, for instance, does this power come from?” And there’s been an effort in Congress to sort of say…the’ll pass a resolution that says you have to point to the specific federal power under which this law is passed. But we don’t do that. And so it’s worth remembering, this point that James Wilson made because it’s actually been borne out in practice.

Ben Weingarten: Of Daniel Webster you assert that he is the link between Federalists like Hamilton, Wilson and George Washington, and Republicans like Abraham Lincoln. Explain what you mean there.

Joseph Tartakovsky: Webster was one of the pre-eminent statesmen of the first generation after the Founders. So his Dad had served in the Revolutionary War. His Dad had guarded George Washington. Webster had met and served when Congressman Madison was president. And Webster’s preoccupation was to preserve the founding. And it was in peril when he was serving in office. He joined Congress in the late 1810s and then served in public life until 1850. He was watching the thing unravel as we headed towards the Civil War. And he couldn’t believe that it would be the first generation to follow the Founders that was about to fumble away what he felt was the greatest glory in human history, the winning of the Revolutionary War and the framing of the Constitution.

Webster stood…this is just another example of these quirks of history, that Webster was clearly, like Hamilton and like Lincoln, they were sort of conservatives of the day. They wanted a federal power to help spur the economy and to defend the country. And that was the task, that was the task of his generation. Webster tried as best he could to channel the Founders. He would say that he imagined them sort of looking down on him from the clouds above. And everything that his famous speeches [intimated]…we see them in Lincoln’s speeches. Webster was the one that talked about “a house divided can’t stand.” Webster had the line about the “last…best hope on Earth.” Lincoln had the last best hope on Earth. Lincoln…said one of Webster’s speeches was the best speech he’d ever read. So I think you can draw this clear line between them. But I guess for our purposes it’s a bracing thing to think about, because the conservatives of the day, of the first, let’s say, 80 years of our history, were devoted to building up federal power against state power. Now, that’s sort of flipped because they achieved what they sought to achieve.

The Bill of Rights has become, just as James Wilson warned, the exclusive catalog of all rights against the government

Ben Weingarten: They were too successful.

Joseph Tartakovsky: Yeah, perhaps. Yeah.

Ben Weingarten: In Stephen Field, we see a man who, on the one hand, at least frequently supported free market economics with his rulings and, in particular, private property rights, but who only selectively supported free people. Speak to the paradox of Stephen Field.

Joseph Tartakovsky: Stephen Field was a justice that served from 1863 to almost the end of the century. He’s the second longest serving justice in history. And he was the greatest libertarian free marketeer that ever served on the court. His fingerprints are all over a lot of our constitutional economic doctrine, everything from…the idea that there’s a right to pursue your calling in lawful ways without government restrictions, which still crops up in challenges to, say, licensing regimes, to the idea that corporations are people under the 14th Amendment, which came up so prominently in the Citizens United case. It’s a very rich body of thought and some of it…and a lot of it didn’t win in his day but is winning today.

Just to give you one quick example, there was a case in Louisiana in which a bunch of Benedictine monks who made caskets and other woodworking things for a living challenged a rule that said that only funeral directors can sell caskets. It was pure protectionism. And the Fifth Circuit held that protectionism, in favoring one group of market participants over another, is not a valid state interest. This had been Stephen Field’s argument for years and it hadn’t really gone anywhere. And now there have been two federal appeals courts to say just that. And there’s actually two that have said the opposite, so it may get to the Supreme Court, and one of Stephen Field’s life’s missions, writing into the Constitution this idea that states cannot engage in protectionism as a favored industry will get written into the Constitution.

But there was this weird, puzzling and ultimately tragic blind spot for Stephen Field, which was that he seemed to have no sympathies for the plight of black Americans. He was sympathetic to cases involving the Chinese which he had seen, because he was from…he began his career out West. He served as a justice. He used to roam around and he handled a number of cases in which San Francisco did cruel things to Chinese residents, and he would strike down laws oppressing the Chinese. But he didn’t do it with respect to black Americans. It’s not clear why — it seems to have something to do with his politics as a Democrat. He just was not able to buck his party’s general unsympathy to the former slaves, but I think it ultimately keeps him out of the pantheon of the greatest liberty-minded Justices.

Ben Weingarten: The prevailing narrative, with respect to Tocqueville, is that he was a preeminent observer of early America. And you suggest, not to denigrate Tocqueville, that he was in many ways a stylist who frequently generalized, to a large extent, whereas James Bryce had under-appreciated insights about the American political system. What did Bryce emphasize that Tocqueville missed?

Tocqueville was self-consciously trying to craft memorable sentences

Joseph Tartakovsky: For a while, Bryce was considered…Bryce tried to displace de Tocqueville as the greatest European writer on America. And I think for a time, he wasn’t…they were in a rivalry and Tocqueville’s now eclipsed him. I find that Bryce is just generally more accurate, more historically correct, more politically perceptive. Bryce’s starting assumption was that the…America was sort of a revised version, and he thought in many ways improved version of the English system. And he felt that American values were middle class values.

He noted all the different ways in which we had actually taken on…taken constitutional provisions from England: For instance, the idea that the House of Representatives has to originate money bills from the House of Commons — the House of Commons had had that power.

By contrast, Tocqueville, as great as he was, I do think…I do think self-consciously, he said it in letters. He said…someone wrote him and said, “I hear you’re working on this great book of political philosophy and you wanna make it a classic. I bet it has a lot of good ideas.” And he said, “Well, forget about…I don’t know…forget about ideas, tell me the books that are remembered because of the ideas in them.” And he was self-consciously trying to craft memorable sentences, and I think that he does…in many cases he’ll say things that are endlessly quotable for any purpose. You know, they’re perfect for these quotation websites, for someone spending an hour trying to come up with a speech. So they’ll say things like, “The democratic men…men in democracy are so busy with their business and money-making that they have no times for public affairs.” Then later on he’ll say that, “In democracies all we do is public affairs.” He says, “We love tradition in America.” Later on he says that what characterizes us is our sense of innovation and tossing tradition out the window.

I think that in many other ways he’s accurate, but there’s a reason that he is favored by political philosophers…professors in political philosophy, and not…and historians sort of distrust him. And what’s particularly revealing to me about it, about Tocqueville, is that his book does…it’s full of these sweeping statements about America and often they’re very beautiful and they capture something essential. He doesn’t have a lot of…there’s not a lot of fact-specific stuff, but we know from his notes that he actually…he got into the weeds with respect to a lot of things…He was studying various laws or studying Indian languages. He wrote letters about his experiences, meeting Boston merchants or watching federal military maneuvers, whatever it may be, but very little of that made into the book. He wanted it to be — to have this sort of generalized tone — I think it was very effective for his success.

Bryce’s book is, I think, is very long. I think most readers wouldn’t tolerate it. Someone should abridge it. But he has a lot of arresting thoughts. And he agrees with Tocqueville on a lot of stuff, but they disagree on a lot of stuff. And on the stuff they disagree with, I think often Bryce has the better of the argument.

I’ll just give you one or two examples. Tocqueville, for instance, never mentions American universities. He says almost nothing about American literature. He just thought it didn’t really exist. And above all, Tocqueville never mentions the idea of parties. He mentions our…he talks about our institutions and our politics, but he doesn’t…he just seems to have missed this idea that parties would be the engine of politics in this country, whereas Bryce is very perceptive on parties.

Ben Weingarten: Now we jump ahead to Woodrow Wilson, and Wilson, I have to say, gets a less scathing treatment than I was expecting, given the progressive practices and principles that he helped enshrine in our government. And to be fair, maybe it’s because in part to your earlier point, you have to grade these figures on a curve and put them in the context of the era in which they were serving, and Woodrow Wilson was one of many prominent progressives in politics in his day. What should listeners know about Woodrow Wilson?

Joseph Tartakovsky: My take on Woodrow Wilson is sort of the way that the Soviet Union would rehabilitate long dead criminals, political criminals, which is to say he wasn’t as guilty as charged. And in particular, I disagree…let me say that when I started the book…I wanted him to be a sort of villain of the book. But the rap on Wilson is that he was the first president to repudiate the Founders, to say things like, “They are outdated and we must go our own way and we don’t have to be bound by them.”

I found that Wilson actually spoke almost without exception respectfully of the Founders. He seems to have worshiped them. He thought Lincoln too was the supreme American…

And what Wilson set out to do was to do what he thought was to restore the founding. In particular, Wilson is blamed for having been hostile to the separation of powers. What Wilson was actually talking about was the congressional dominance that had been…that had come to be in American institutions in the second half of the 19th century. Nobody remembers the names of the presidents after Grant until maybe TR or McKinley because they had been so weak. The entire government was managed by Congress. The Speaker of the House was the most powerful guy in the country. And Wilson thought this was out of whack from the Framers’ three-part structure of government.

For instance, Jefferson had stopped the practice of having the president speak to Congress directly. He thought that’s what kings did. Woodrow Wilson said, “Why is that? Why can’t the President go talk to Congress?” The Constitution itself says that the President shall recommend measures to Congress. George Washington went to Congress. Hamilton was sort of hanging out in Congress all the time, proposing measures and lobbying. And he [Wilson] became the first since Jefferson to appear, to speak to Congress, and made speeches on measures. He gave the State of the Union in person. Members of Congress thought this was a violation of the separation of powers. But I think it wasn’t. I think what he was doing was actually more consistent with what the Constitution contemplated.  And so on that and a number of issues Woodrow Wilson was not trying to do what everyone says he is.

The other thing that people say Woodrow Wilson did was he’s sort of the mind behind the modern administrative state. I find that the creation of what we call the administrative state and the apparatus of government that implements laws has been in steady creation since Hamilton. Hamilton is where we have the beginnings of the administrative state. And it’s just grown steadily, and it was growing before Wilson and it was growing after.

The single biggest…the enduring legislative achievements of Woodrow Wilson was the Federal Trade Commission, the Clayton Antitrust Act, which was just a sort of bulked up antitrust law, and the Federal Reserve. Those are the enduring legislative accomplishments of Woodrow Wilson. No conservatives today actually think that those are unconstitutional or would like to reverse them. Just as the three Republican Presidents, Harding, Coolidge and Hoover, after Woodrow Wilson, did not reverse any of Woodrow Wilson’s legislative achievements.

I don’t know where this comes from, this idea that he was the father of the administrative state, except to say that he wrote about it a little bit as a scholar. He had been a scholar for about 25 years. But Woodrow Wilson is a very interesting person with whom to reflect on America because he has a body…there’s no president that, including even Madison, had produced such a systematic body of constitutional scholarship. And so once you spend time with Woodrow Wilson, I think you come away a little more impressed than you might and I think that helps reframe things in a new light. I tried to do that in the book.

My take on Woodrow Wilson is sort of the way that the Soviet Union would rehabilitate long dead criminals, political criminals, which is to say he wasn't as guilty as charged

Ben Weingarten: Speak to the significance of the life of Ida B. Wells-Barnett.

Joseph Tartakovsky: Ida Wells was a black woman, born a slave in Mississippi, during the [Civil] War. Her parents die young, from yellow fever, and she raises her siblings teaching school in Memphis. Ida Wells-Barnett seems to me an example, an illustration of the way in which cultural and political change can eventually become written into our interpretations of the Constitution.

That’s one of the points of my book is to show that the…the text, outside of amendments doesn’t change, but our interpretations of it are undergoing almost constant change, and sometimes the source of the change is cultural. Her life changes when her best friend is murdered, lynched. And she starts writing about it. She had been dabbling in journalism, but she starts hammering the white leadership of Memphis. They chased her out of town, she goes to Chicago and starts doing it on the national level, and becomes the most important crusader against lynching in the country.

At her peak in the 1890s she was second only to Frederick Douglass in terms of her renown as a black public intellectual. She not only wrote about…she wrote about it as a journalist but also pioneered certain techniques that we would think of as associated with criminal defense. So when someone would get arrested she would go to the jail, interview the person, take a statement, and sometimes it would be used in court. This was a time when the Supreme Court had done almost nothing to stop the institution, the acts of…thousands of acts of lynching, which sometimes were just sort of street murders, but also at other times were legalized murder, using the forms of state criminal justice to kill people.

Her work on exposing how sordid and brutal lynching was helped awaken the conscience of the North, and this eventually even got to the Supreme Court. There was a terrible massacre in 1919 in Arkansas. A hundred black farmers were killed, actually by their neighbors. It was like a pogrom. She was apparently the first on the scene. This is in a town called Elaine, Arkansas. She interviewed some of the black men who had been arrested for supposedly killing a white man and she takes their statement, and it’s used in a petition at the Supreme Court. It was just a long shot. But the facts were so shocking that even the Supreme Court decided that they were going to make one of their first humanitarian interventions, if not the first. Among other things, the state of Arkansas had set the execution date weeks before the trial date had begun. The Supreme Court said, “This is not constitutional justice. This is not permissible in this country.” And it was the beginning of a change in which federal courts would start doing their job with respect to protecting the rights of black citizens in the South. It would pick up steam in the ’30s, and then by the ’60s we’d have a full-scale rights revolution. But I think Ida Wells played an important role in inaugurating that change.

Ben Weingarten: Justice Robert Jackson who, it bears noting, received no undergraduate or law degree — and I concur with your assessment in the book that he had a lot less to unlearn than many of our betters who have served at the higher levels of our justice system or our judiciary branch — he had a meteoric rise as a jurist from solicitor general to attorney General to the Supreme Court to chief U.S. prosecutor at the Nuremberg Trials, in no small part by kind of hitching his wagon to FDR. What is Justice Jackson’s legacy?

Joseph Tartakovsky: Yeah, Justice Jackson, as you say, he began doing these sort of livestock cases when people are fighting over the paternity of a horse or something in barns. And then he later became FDR’s Attorney General as the Second World War began, and then during the war he’s put on the [Supreme] Court. Justice Jackson…made a number of contributions, but just to take one example.

He was the…I think he’s our greatest theorist of war powers, much in the news as of late, and it came from his practical experience. FDR was probably in terms of just the raw power that he exercised…during the war, was probably the most powerful president that we’ve ever had. And Jackson, by contrast, was the most powerful attorney general. And he had to deal with a country going into this total war. He came up with, for instance, I think, the best way that you could think of war powers. War powers have always been one of these indefinable parts of the Constitution. Some of the powers seemed to be given to Congress, some to the president. He came up with the idea that you’d have a three-part system, where…if Congress gives the president a certain power, then the president has almost free rein. If Congress is silent, the president has a sort of…is in this twilight zone of power. And if Congress attempts to withdraw a certain power over war, immigration, foreign diplomacy, then the president’s power is at its weakest.

He did a great deal to keep this country liberal but…in which I mean not in the partisan sense, but in the free sense, during the war. Employers were writing him at the beginning of the war. He was getting letters from all the major corporations and asking, should they fire all their foreign-born employees as part of the war effort. And he was saying, “No, no, no. They have a duty to remain loyal, but we a duty to be fair to them.” And [there were] many other instances like that.

Ben Weingarten: Last, but certainly not least, we come to Justice Antonin Scalia. And he could be chosen as your 10th and final figure in Lives of the Constitution for any of a number of reasons, from his immense intellect to his kind of underdog upbringing, his forceful personality, his artistic writing, and the clear joy that he exuded in his position as a Supreme Court justice and in lower positions as well. What was the reason that Scalia was the modern Supreme Court judge that you chose as the 10th and final figure to profile in Lives of the Constitution?

Joseph Tartakovsky: I was drawn to him for all the reasons you mentioned, but I wanted to give him the last word because his life’s work seems to me to have been, above all, warning Americans that ever greater parts of their life are being subsumed by the federal courts, in particular, the Supreme Court. To point out to people that every time the Court makes a new constitutional decision in ever more areas — prisons, schools, welfare, free speech, religion, national security — the court is withdrawing that issue from the democratic realm, is constricting the scope of decision-making power that the people have. He warned about this for 25 years. I agree with Justice Scalia that that is the single biggest danger to our constitutional order. It’s something that I think the Founders did not predict, the way that the courts, federal courts would aggrandize power, over time. It’s an exceptional power.

And at present, it’s now making its forays into, in the last few years at least, its forays into what was essentially the last off-limits area, which was national security. And I don’t think anyone, a few years ago, would have imagined that a federal court would say that the president does not have power to prevent foreigners who have no connection to the country or no statutory right to be here, from coming into the country, as occurred with the travel ban…I don’t agree with the wisdom of the travel ban, but as a matter of constitutional law…that would have been sort of unquestioned a few years ago. And the fact that the courts… feel comfortable saying, “We don’t think the president has proved this national security question to our satisfaction,” is an extraordinary thing, and I think a dangerous thing. And so, Scalia’s lesson, I wanted to do my small part to amplify that.

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BEN WEINGARTEN is a Senior Fellow at the London Center for Policy Research, Senior Contributor at The Federalist and Founder & CEO of ChangeUp Media LLC, a media consulting and production firm dedicated to advancing conservative principles. You can find his work at benweingarten.com, and follow him on Facebook and Twitter.


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