At the centre of American politics is the constitution – a document which has provided a structure for the development and consolidation of American democracy. On the 19th May, the Cambridge Union held a fascinating panel on Democracy in America. In it, the three panel members discuss the history of the US constitution and how it shapes contemporary political discourse today. If you missed it, then you can watch it on Youtube at your leisure.
Following the event, two of the panellists, Adam Lebovitz and Alison LaCroix, agreed to be interviewed by TCS. Adam is a historian of constitutional ideas, and a Fellow of Trinity Hall, Cambridge. Alison is the Robert Newton Reid Professor of Law at the University of Chicago Law School, and an Associate Member of the Department of History. On top of this, she has recently been appointed to the Presidential Commission on the Supreme Court of the United States. With such interesting backgrounds to their names, the interview promised to be insightful from the start- and it did not disappoint.
We start the interview by discussing the power of the US Supreme Court – a powerful institution which plays an important role in strengthening and upholding the US constitution. However, it has also come under criticism for being too powerful. Adam refutes this, arguing that it is a mistake to view the problem with democracy as the excessive power of the Supreme Court. “The Supreme Court is a necessary institution which enforces the constitution against other political branches.” Instead, he argues that the problem for the Supreme Court is that “constitutional amendments are so difficult to make.”
Alison, thinking historically and legally, wonders what the alternative to the Supreme Court would be. The twentieth-century criticism of the Supreme Court is that it is countermajoritarian, but Alison does not consider this a flaw of the court. “It is designed to be that way – it is their job to check the majority at times, so I’m not sure what a better alternative would be.” She cites landmark court rulings such as Brown vs Board of Education in 1954, ruling against segregation, as an example of when the Supreme Court was necessarily countermajoritarian.
Next, we discuss the future of American democracy and the potential for constitutional change. Adam explains that if we are currently entering a cycle of constitutional change, then we are in “the very early stages of this”. Most current discussions surrounding constitutional reform surround matters which can be accomplished by statute [a written law passed by a legislative body], such as the admission of new states or many of the proposed Supreme Court reforms. “In terms of actually rethinking basic structural features of the constitution, or remaking it in some radical way, I don’t see much evidence of that.”
Alison is heartened by the fervent discussion surrounding the political debates of recent years, such as the election of Trump in 2016, Covid-19 and Black Lives Matter. She informs us that “there is more widespread discussion about things that are esoteric.” With more media focus on political issues such as the electoral college and the qualified immunity of police officers, American people are “more willing to learn” about the politics and history of the USA.
This brings potential for more constitutional discussions in the future. Alison hopes that we can harness this political fervour, and that something will come of it. On top of this, Adam notes that the current state of American politics bears many similarities to the progressive movement in the twentieth century, an era of constitutional change with multiple amendments and landmark Supreme Court decisions made. With some of that spirit being reclaimed today, it may be an indicator of prospective constitutional change.
We ask Adam and Alison to discuss the elements of the Constitution itself that require nuanced teaching, and whether efforts are being made to implement these nuances in schools. Alison herself wonders about this, especially in light of the debate surrounding the role of slavery in the Founding. She cites the example of the 1619 Project, a collaboration between investigative journalist Nikole Hannah-Jones and writers of The New York Times, which aims to calculate the exact time when, based on historical records, people were first brought as slaves or servants to the US. She says that such a question is rarely posed in the history books of the mainstream school curriculum in America. Alison also dismisses the notion that being critical of the constitution is unpatriotic: “Social media is harmful in this regard, in that everyone in discussing the constitution stakes a claim and blunts their argument into team sports.” She adds that most schools are challenged for time and resources: “the humanities are hard to teach, and encouraging critical thinking at an early age is especially difficult.”
Finally we ask both panellists which of the figures of the early history of the Constitution or Supreme Court they’d most like to meet. Alison says that she’d most like to meet Chief Justice John Marshall: “I teach a lot of his cases and we spend a lot of time in American law schools building up the early Marshall Supreme Court as the people who built the nation. We don’t have to worship them… they were acting in day-to-day ugly politics just like we are.” A particular question Alison has for Marshall is whether, in the case of Marbury vs. Madison, he was doing a huge power-grab in saying the court had judicial review even when they couldn’t hear the case. As well as doctrinal questions, Alison says she would also ask Marshall about his slave owning, and how that may have influenced his jurisprudence.
Adam says he wants to meet the Founding Father Gouveneer Morris. “He’s one of the most important figures in writing the actual words of the constitution, especially the preamble.” Adam describes how Morris witnessed the key moments of the French Revolution as America’s ambassador to France and shortly after his return from France he contributed to the policies of the Federalist Era. “He was wordly, speaking perfect French, so he’s socially interesting to me. Ideologically, he was at once one of the most democratically minded members of the Founding generation and also the most oligarchical.” Adam explains how on the one hand Morris wanted to open the constitution to lots of forms of popular and democratic participation. On the other, he really believed in hierarchy in a way few Founding Fathers would admit to. “Such a paradox, between democracy and oligarchy, really underscores the Founding. If one could understand it properly, they could go a long way in understanding the Federalist mentality and the mentality of the American Founding overall.”