April 27, 2007

"The happiness of this Country depend much upon the deliberations of the federal Convention which is now sitting."

"It, however, can only lay the foundation — the community at large must raise the edifice."

So wrote George Washington in 1787, from the Constitutional Convention in Philadelphia, in a letter, found just recently, that had been pasted into a young girl's scrapbook in 1826. Very nice. The words evoke the notion of a living Constitution.

29 comments:

joe said...

The words evoke "living constitution" only if that is what you want to see in them. The quoted language is so open ended. Washington only meant that the Constitution was a bare framework for the structure of government. I doubt he believed it would guarantee a right to abortion, for example.

Michael said...

Would you build a "foundation" on solid rock or ever-shifting quicksand, Ann?

I'm really not sure how you would get a "living Constitution" from this statement.

paul a'barge said...

Joe+1, sort of.

I'm surprised (not quite gob smacked) that you would read the linked article and take away from it anything that would encourage Althouse to think of the living constitution canard.

the community at large must raise the edifice

Into this, I would read "the legislature". In other words, I would interpret Washington to be speaking directly against a living constitution.

ricpic said...

A "living" constitution makes for a shakey foundation.

Jeff said...

He evokes the metaphor of the Constitution as a foundation for a building. The "living constitution" seems like a weedy growth that would shatter the foundation and return the building and its inhabitants to the dismal swamp from which they struggled to emerge.

I stand by my tortured reasoning!

Steven said...

So when Benjamin Franklin, asked what kind of government the convention had produced, famously (if perhaps apocryphally) replied, 'A republic, if you can keep it,' was he too expressing support for the idea of a living constitution?

I think your reading is a bit of a stretch, myself.

Simon said...

Your penchant for architectural metaphors resurfaces. ;)

The words evoke the notion of a constitution whose applicablity is ongoing. But I think Michael's comment is spot on - the metaphor much better lends itself to the originalist's conception of the Constitution as a rock to which the polity is anchored, a solid foundation. Also worth noting is that the parts of the Constitution one usually thinks of as "evolving" when the "living constitution" is invoked are the provisions of the Bill of Rights and subsequent amendments - most of the Constitution Washington wrote of were structural, and the structure is the part of the document least likely to be subjected to an "evolving standards" test.

An Edjamikated Redneck said...

I believe Washington knew the Constitution was the basis for a government, not the workings for it. Alot has been written about how each action and inaction of Washington's in his two terms laid teh groundwork for relations between the three branches on government.

I think he knew there would need to be changes to the way the government worked over time, but not changes to the basic framework. Who could have anticipated the rise of the third branch to the power it now has? In Washington's day the courts were the step child of the Federal government.

So much has been built on the original framework, some good and some bad, would Washington even recognize the government he retired from 200 years ago?

the jackal said...

the community at large must raise the edifice

Into this, I would read "the legislature". In other words, I would interpret Washington to be speaking directly against a living constitution.


I'm pretty sure that's exactly what he didn't say -- the federal convention being the legislature. It seems to me to stand for the much less politically / legally charged proposition that lawmakers, and their laws, won't make us happy. That's something we all pursue in our own communities.

Revenant said...

Yeah, the "Constitution as foundation" metaphor only makes sense if you assume the Constitution is relatively static. Plus, the language used suggests that he is drawing a distinction *between* the Constitution and the rest of the work of building a great nation -- not saying that the Constitution itself would grow to build a great nation.

Fritz said...

These deliberations for the formation of a government must be met with a citizenry that raise it up. Not a US Senator protesting the Ohio Electorors.

Smilin' Jack said...

In good building practice foundations are not living, nor would one want them to be.

Simon said...

An Edjamikated Redneck said...
"I believe Washington knew the Constitution was the basis for a government, not the workings for it. Alot has been written about how each action and inaction of Washington's in his two terms laid teh groundwork for relations between the three branches on government."

Right, and the relationship is fluid. The genius of the Constitution is that it doesn't try to micromanage how these three co-equal branches are going to get along; it stands back and allows ambition to check ambition. It sets the broad parameters and then leaves the details to history. The relationship between the President and Congress was very different in Madison's administration than, say, Jackson's.
Living Constitutionalists sometimes like to make the argument that the Constitution must be read to evolve, or it will become brittle and eventually snap. Peculiarly, it's them who want to freeze the Constitution, to constitutionalize more and more issues, to make constitutional practise less fluid. By trying to make the constitution more rigid, they're creating a self-fulfilling prophecy: there would be no need for it to evolve if it can freely bend in the wind, yet they're the ones who want to use it to set rigid the very issues on which fluidity and give are most desirable and flexibility most likely to become necessary.

Methadras said...

Why is this notion of a living Constitution still making the rounds of discussion? It's crystal clear that the Constitution is not a living document. Historical precedent alone is proof of this. It's articles are proof of this. It's bill of rights are proof of this. This type of mental preening is nothing more than political masturbation and I wish it would just come to the climax so we can all throw the tissue away once and for all...

statusquobuster said...

What merits attention today is understanding why congress has prevented the faithful implementation of Article V and blocked an Article V convention; learn more at www.foavc.org...

Hey said...

Even in his day, there were lots of great constitutions that didn't do what they purported to (the Founders were revolting against a government that they saw as transgressing against Magna Carta, etc.). The many Republics of France, and Germany's "Weimar" constitution, not to mention all of the post-colonial constitutions and the very many documents of Latin America, show how a constitution can be only a foundation, with the implementation left to the people.

This would seem to be one of the most trenchant voices of the Founders in favor of a permanent constitution (the pinnacle being the contemporary amendments, most of which stem from language in the original document that could have been expcted to be understood or "read-in" to the document).

Outside of some very high-tech tall buildings in California and Japan, you design a foundation to be static and inflexible. Even in an earthquake zone, foundations are created to be constant in all but large and fast shocks, returning to their original configuration as soon as the trauma is over. This would best be exemplified by Lincoln's actions during the Civil War, rather than by those of the Warren and Berger courts.

Cedarford said...

Simon - Living Constitutionalists sometimes like to make the argument that the Constitution must be read to evolve, or it will become brittle and eventually snap. Peculiarly, it's them who want to freeze the Constitution, to constitutionalize more and more issues, to make constitutional practise less fluid. By trying to make the constitution more rigid, they're creating a self-fulfilling prophecy: there would be no need for it to evolve if it can freely bend in the wind, yet they're the ones who want to use it to set rigid the very issues on which fluidity and give are most desirable and flexibility most likely to become necessary.

I doubt Washington and others saw the Constitution as the Holy Parchment of the All-Knowing Founding Fathers of Eternal Wisdom....They just had tried improving on other "Sacred Parchments" from Britain, had not yet heard of John Marshall saying the 9 lawyers in robes would be the final Word, not the Legislature or The People.

Washington and others knew that the Constitution was a better National Operating Manual than the failed Articles of Confederation the same All-Knowing Founding Fathers had voted on years before.

As Simon said, we have gotten in real trouble when partisan politics prevents Amending the old Operating Manual and it falls behind the times, and when Judges defeat the very intent of flexibility by issuing rigid decrees based on their interpretation of unwritten words revealed in the penumbra of emenations...or when they fail to reconcile vague language and decide that slavery must be allowed to be eternal because the Holy 5th absolutely bars the taking of one mans property without public use and without fair compensation.
That SCOTUS screwup cost the nation the Civil War.
The Roe screwup has cost the nation 35 years of political paralysis on a number of issues and effectively ended the Amending Process in gridlock.

Michael said...

edifice
One entry found for edifice.
Main Entry: ed·i·fice
Pronunciation: 'e-d&-f&s
Function: noun
Etymology: Middle English, from Anglo-French, from Latin aedificium, from aedificare
1 : BUILDING; especially : a large or massive structure
2 : a large abstract structure (holds together the social edifice -- R. H. Tawney)

So now buildings are "living?" Sorry, I don't think so.

hdhouse said...

Up jumps the devil. Of course the constructionists on here who flocked like sheep to this post have it down pat. they can't possibly see old George advocating anything other than what they think. Just not possible. Everything in their lives supports their thinking..just one more log on the fire.

Why for heaven's sake, you can trot out all the facts and fresh thinking on an issue that you want and these rock solid foundation types, because they know what they know and for heaven's sake can't be bothered with trying to inspect that foundation...well you get the idea.

Now if only they were judges. The really wouldn't need oral arguments or, for heaven's sake, lawyering would they? just give the facts..dog bites man will suffice..but don't give me any piffle like "why dog bit man" or "man teases dog and gets bit". Likewise I've built this foundation. The edifice that will be placed on the foundation..that's not relevant to the foundation is it? not at all. I'm going to raise a house over time but only stare at the foundation...that wonderous old hymn...rock is thy foundation....

George couldn't possibly mean that "we gave you the basic outline, now write the paper" could he? no need to think like that for heaven's sake. no need to think past the written page. no need to look at the house past the foundation. no need to think of the constitution as anything other than an alpha and omega document. why have courts for heaven's sake..

why have bible class for heaven's sake? why have ministers who add insight into the bible's teachings? it says what it says for heaven's sake.

for heaven's sake.

Bissage said...

I’m disappointed that Washington called the Constitution a "foundation."

Everyone knows it is a shrine. You know, as in the anti-anti-same sex marriage battle cry: “Don’t enshrine prejudice in the Constitution.”

Washington was a shrine denier! QUEER-HATER!!!!!!!!

But not me. I think the best metaphor for the U.S. Constitution is a “Shine.”

That way, everybody's happy!

Cause my hair is curly
And just because my teeth are pearly
Just because I always wear a smile
Likes to dress up in the latest style
Just because I'm glad I'm livin'
Takes my troubles all with a smile
Just because my color's shady
Maybe baby, that's why they call me shine.


(Well, almost everybody.)

Cousin Don said...

The Constitution is supposed to change. The issue is whether it is supposed to change through Amendments or a single judge pontificating from on high.

George Washington was always afraid of too much power resting in one person, and was afraid of the presidency becoming kinglike.

I choose to believe that Washington would not have like the fact we haven't amended the Constitution in a long time and that we let judges basically admend it through their overreaching decisions.

I also don't think he would have liked the Bush, Cheney, Nixon concept of the very powerful Executive Branch.

But it's all just my opinion until someone invents a time machine.

Fen said...

The words evoke the notion of a living Constitution

Washington was a great man, but not one I'd go to as a source re the constitution. And I think its a stretch read his words as support for a living constitution.

Fen said...

I also don't think he would have liked the Bush, Cheney, Nixon concept of the very powerful Executive Branch.

Well, he did admonish us to avoid foreign entanglements. You don't need a strong executive if you don't intend to shoulder the burden of superpower.

Bissage said...

This recently discovered letter is a treasure trove of new information about George Washington.

For example, we now know that George Washington was born “Jerome Silberman” on June 11, 1933.

We also now know that he was a big fan of the “living Constitution” and we have the exact words he exclaimed upon hearing of its ratification.

Ann Althouse said...

"Would you build a "foundation" on solid rock or ever-shifting quicksand, Ann? I'm really not sure how you would get a "living Constitution" from this statement."

He says the founders provide the foundation and the people build the edifice on that foundation. That's a concrete architectural image. I've seen a lot of foundations, and they do not dictate the form of the edifice. They set a place where something good and strong can be constructed, and they establish the horizontal dimension of the building, but there are many choices left.

Fen said...

"The happiness of this Country depend much upon the deliberations of the federal Convention which is now sitting,” reads the second paragraph of the quill-and-ink letter. “It, however, can only lay the foundation — the community at large must raise the edifice.”

Happiness of country depends on delegate deliberations that will lay foundation, but community must do the rest. Sorry Ann, I do not see what you see.

Simon said...

Ann Althouse said...
"[Washington] says the founders provide the foundation and the people build the edifice on that foundation. That's a concrete architectural image. I've seen a lot of foundations, and they do not dictate the form of the edifice. They set a place where something good and strong can be constructed, and they establish the horizontal dimension of the building, but there are many choices left."

I don't disagree with a word of that, but I think Fen's point (and I agree with it) that so conceptualizing the Constitution doesn't get you any closer to a "living" constitution, and likely gets you further from it.

If you're going to analogize the Constitution to a foundation - which is a good metaphor for it - that doesn't establish that the Constitution changes, it establishes that many different edifices can be built on what the Constitution provides, all of which are equally-acceptable to the text of the Constitution, none of which are mandated by it.

To be sure, it depends what you mean by saying it's a living document. If all that was meant by terming the Constitution "living" was that it has continuing and ongoing relevance today, and that as new technologies appear, the Constitution applies to them too (the first amendment comprehends the internet; the fourth amendment comprehends infra-red scans, and so forth), that is, if saying "the living constitution" were justa fancy way to express one's disapproval of Sandy Levinson, then I don't think anyone worth speaking of would disagree with that. But what's usually meant by the term "the living constitution" is the idea that the rights-bearing portions of the Constitution can be re-interpreted by judges as time marches on to impose new restrictions on what structures can be built that foundation would otherwise support. And like Fen, I respectfully disagree that you can convincingly wring that conception out of what Washington wrote.

Patrick said...

They set a place where something good and strong can be constructed, and they establish the horizontal dimension of the building, but there are many choices left.

Construction yes. But by edifice I don't think Washington meant the Winchester house.

dericksch said...

I think Washington's meaning is clear. The Convention can lay the foundation for a new government ("the edifice") by framing the Constitution, but it will only come into being if the people ("the community at large") ratify it.

Federalists commonly used architectural metaphors in 1787-88. Francis Hopkinson wrote a popular song "The Raising," which compared the new government to a new roof, and a widely circulated series of woodcut illustrations depicted each state ratification as the raising of a new "federal pillar."