Consider the Constitution
Consider the Constitution is a podcast from the Robert H. Smith Center for the Constitution at James Madison's Montpelier. The show provides insight into constitutional issues that directly affect every American. Hosted by Dr. Katie Crawford-Lackey the podcast features interviews with constitutional scholars, policy and subject matter experts, heritage professionals, and legal practitioners.
Consider the Constitution
Constitutional Endurance
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Inside the debate between James Madison and Thomas Jefferson over the endurance of the U.S. Constitution. Jefferson believed that each generation should rewrite the Constitution, while Madison argued for a Constitution that endures over time to build up necessary reverence and respect. Host Dr. Katie Crawford-Lackey is joined by Skidmore College Political Science Professor Dr. Beau Breslin to discuss the implications if Jefferson's argument had prevailed and what it would mean for political engagement today.
Professor Breslin is the author of A Constitution for the Living: Imagining How Five Generations of Americans Would Rewrite the Nation’s Fundamental Law. Stanford, CA: Stanford University Press, 2021.
Welcome to Consider the Constitution, the podcast that cuts through the noise and provides insight into constitutional issues that directly affect every American. Hosted by Dr. Katie Crawford Lackey and featuring interviews with constitutional scholars, policy and subject matter experts, heritage professionals, and legal practitioners. We examine the rights and responsibilities of citizenship. Consider the Constitution is brought to you by the Robert H. Smith Center for the Constitution at James Madison's Montpelier.
SPEAKER_02Hello and welcome back to Consider the Constitution. I'm your host, Dr. Katie Crawford Lackey, Director of the Robert H. Smith Center for the Constitution at James Madison's Montpelier. In mid-September 1787, James Madison and his fellow delegates had just concluded months of closed-door debate in Philadelphia, where they drafted a new founding charter, the U.S. Constitution. Madison eagerly sends a copy of the document to his friend and colleague, Thomas Jefferson, who was then serving as a diplomat in France. In contrast to Madison, who favored an enduring constitution, Jefferson responded, no society could make a perpetual constitution. The earth belongs always to the living generation. Was Jefferson right? How would America be different today if Jefferson's argument for constitutional renewal prevailed? To help us navigate these questions is Dr. Bo Breslin, the Joseph C. Palamountain Jr. Chair in Government at Skidmore College in Saratoga Springs, New York. He holds a PhD in constitutional thought from the University of Pennsylvania. Dr. Breslin is the author of A Constitution for the Living, Imagining How Five Generations of Americans would rewrite the nation's fundamental law and other works. Bo, welcome to Consider the Constitution.
SPEAKER_00Katie, thank you so much for having me. It's so exciting to be back at uh Montpelier or one of my favorite places on the planet. Me too.
SPEAKER_02Now, can you tell us more about this political debate or conversation that's happening between Madison and Jefferson and why is it so important at the time?
SPEAKER_00Yeah, so I think there are a couple of reasons why it's so important at the time. The story is exactly as you described it. So Madison thinks of Jefferson as his mentor and uh ships off the Constitution to Jefferson to get his reactions to it. And Jefferson has some concerns about it. He's overall relatively pleased with it. He has concerns about a lack of Bill of Rights, and he has some concerns about the presidential term and so on. But what he's really upset about is the idea that a constitution would endure over many, many generations. And for him, he didn't use this term, but for Jefferson, the idea was that each generation ought to write its own constitution and that a constitution ought to have a sunset clause. And he, being the mathematician that he was, he had figured out that a generation transition to a new generation every 19 years. So for Jefferson, the idea was to sort of return metaphorically to Philadelphia and make necessary adjustments to the Constitution every 19 years. So he writes that to Madison in a series of letters, most famously a September 6, 1789 letter, where he writes, the earth belongs to the living and the dead have neither rights nor powers over it. And for Jefferson, that meant that every 19 years, a constitution ought to be updated, tinkered with, or scrapped altogether, and a new constitution forms every 19 years. He writes that to Madison, and Madison responds in the traditional Madison way, he's has some pleasantries, not really that nasty in response. But Madison's idea was that the Constitution ought to endure over time to build up the necessary veneration and reverence and respect that a nation needs to be credible. So Jefferson and Madison always disagreed about the idea that constitutions are durable, constitutions endure over time. Now, of course, we know Madison won that debate. What is interesting is what would have happened if Jefferson had convinced people like Madison and others that new constitutions ought to arise every generation. That is a fascinating work of speculation.
SPEAKER_02I agree. I think this is a really fascinating idea to consider. It sounds like Jefferson is advocating for the next generation, the generation that will kind of live under the laws of this constitution. They should be involved in shaping what that looks like. And I wonder when we think about that today, we hear a lot about the need to participate or engage in the democratic process. But what exactly does this mean? And should we distinguish between the two? Is that important?
SPEAKER_00Going back to Jefferson, his great fear was tyranny. For him, tyranny could come in a lot of different forms. Tyranny could come in the form of a colonial power that illegitimately taxes a people across the Atlantic. That was a form of tyranny. For Jefferson, tyranny could come in the form of what Madison described as tyranny of the majority, the famous Federalist 10 argument in which a permanent majority could always tyrannize a permanent minority, and that expanding the sphere, as Madison said, or bringing in as many different groups as possible would kind of offset that. Jefferson understood that notion of tyranny, but he also understood that tyranny can come in the form of generational control, right? So if you are Generation Z or Generation X or millennials, and you're being essentially bound by a constitution written at least 12 or 13, now 14 generations previous, that's a form of tyranny too. And so Jefferson really understood that tyranny could come in many forms, and one to avoid was generational tyranny. It's fun to think about what would happen, both in terms of our political engagement, as you describe, if Jefferson had won that debate. Now, this is speculative. There's no way of knowing because we're approaching the 250th anniversary of the country, and then 13 years from now, the 250th anniversary of the writing of the Constitution. So Madison really did win that debate. That said, I firmly believe that Americans would be more politically engaged, and I do think there's a difference between political participation and political engagement, if periodically we set out to tinker with, update, or even rewrite the Constitution throughout American history. If that was part of our DNA, if that was part of the water in which we drank that occasionally we returned to Philadelphia to rewrite the Constitution, I think we'd have more political engagement at the moment.
SPEAKER_02How much weight should we give Madison's part of the argument where he's talking about the Constitution needs to be enduring, it needs to have this legitimacy. In your opinion, is there a way to balance what Jefferson is proposing with Madison's viewpoint as well?
SPEAKER_00So I'm a Madison and I think enduring constitutions do make a difference. I do believe that, you know, Madison was nervous about amendments and he was nervous about a variety of things. He wanted the Constitution to be revered. He worried about stability over the long term. And so I have no problem with Madison winning this particular disagreement. What I do have a problem with, um, and what is interesting as a related conversation, Katie, is the high bar Article V sets for amendment. The way in which you kind of bridge the gap between a Jeffersonian idea of constitutionalism where each generation writes its own constitution and the Madison durable 250-year-old constitution is to amend it from time to time. And as you know all too well, and your guests have talked about in the past, 27 amendments, 10 in 1791, and then only 17 since, it is hard to amend the Constitution. And so there are many things that I hope we can talk about that if, you know, I could wave my magic wand and a lot of people could wave their magic wands, we would change about the Constitution. I found it interesting that recently Governor DeSantis is now proposing four new constitutional amendments. He's like the most visible person proposing constitutional amendments, but it is, Katie, a conversation people are having about is the 1787 Constitution relevant in the 21st century? And I think the amendment process makes it hard for it to become even more relevant. That's the middle ground between Jefferson and Madison would have been to lower the bar for amendments.
SPEAKER_02I want to dig deeper into something you just said, whether the Constitution is relevant to us today. And it's interesting because of course it is in that we all live under this, it's the rule of our nation. It acts on us every single day, even if we don't actually see it. Our lives are shaped by the U.S. Constitution. But it sounds like, and I think many Americans are probably experiencing this at this moment, we don't really have a say in what that looks like, or at least not enough. And something you write about in your book that we mentioned earlier is why it's important for us to consider our commitment as individuals to democratic self-rule. Can you talk a little bit about what you mean by that?
SPEAKER_00Sure. The founders were deeply invested in the notion that our political system required political engagement. And by political engagement, I mean that there's a commitment to something larger than one's self-interest, right? There's a principle out there that one might have to sacrifice one's own self-interest for the common good, right? Political engagement isn't just showing up on election day and voting, but it's also not having to run for office. It is an engagement with the political world that makes one think about how one's mind can be changed, how the opposite side of a political debate can influence your side. It is a willingness to talk over differences. It's all of those things that the founders did, right? Not all the founders. Think of the anti-federalists and the federalists, or the federalists and the Jeffersonian Republicans. These people disagreed fiercely, but they were willing to talk over their differences and come up with compromise consensus and so on, right? The Constitution itself is a document that's filled with compromise. So what I mean today is that we've lost sight of what it means to be a democratic republic. It means to be a citizen in the democracy. And that requires us to be a little bit more engaged than just sitting in our echo chambers and then showing up one day a year to vote for Congress member, senator, or president.
SPEAKER_02I don't know about your family and what your family reunions and holidays look like, but the rule at our house is you don't talk politics at the dinner table. Right. But as a lot of our listeners probably know, here at James Madison's Montpelier, that's exactly what the Madisons did. James Madison and his wife, Dolly Madison, invited people of different political perspectives to dine at the same table and discuss. And I think we do less of that today. So you make a very important point with that. And I wonder, we talked about the relevance of the Constitution. Do you think it still resonates with the public today? Do we still feel a connection and an investment in it?
SPEAKER_00The answer is yes and no. And I'll start by saying I am unabashedly a fan of the Constitution. I revere the Constitution. I don't love everything in it, but before I launch into a conversation or an answer to your question about its relevance today, let's remember a few things. One, our constitution changed the world. That's not hyperbolic. It changed the world. It is the most enduring, the most durable national constitution out there. Some state constitutions have outlived it, but it's the most enduring national constitution. And when Madison and others arrived in Philadelphia to rewrite the Constitution, you know, the Articles of Confederation, one thing, we'll have to keep that in mind. But when they arrived in Philadelphia, there were no national constitutions in the world. Now all but three nations of the world have a written national constitution, right? And the three nations of the world, Israel, New Zealand, and the U.K., there are good reasons why they don't have a written constitution. So let's, as we think about whether or not it's relevant today, let's always remember that the Constitution fundamentally changed the political landscape. Late 18th century America was known for a lot of inventions. The greatest of them is the written national constitution. As for today, yes, the Constitution still is meaningful. It still resonates. People have said that they too venerate the Constitution. They too respect the Constitution, and they they wouldn't necessarily change much of the Constitution. However, I will say that the Constitution is flawed, and the Constitution also has gaps that have made politics tricky, especially in the last 30 or 40 years. One of the virtues of our constitution, Katie, you know is that it's short. At 4,400 words, it's roughly the length of a feature Time Magazine article. That's not a big constitution. Most constitutions around the world and most state constitutions are three, four, five times as long. They're detailed. One of the great aspects of our constitution is that it's flexible enough that the political institutions can work within the parameters, the borders, the limitations, as you describe of the Constitution and can move us ahead towards a more perfect union. It's also problematic. And the brevity of the constitutional document at 4,400 words doesn't make it any easier. So it's relevant in that it still demands respect and people still rally around it. And you see people, you know, uh at various town hall meetings or Congress or whatever hold up the Constitution as it's the kind of the old testament of our civic religion. That said, it has so many gaps and so many flaws that it needs a it needs an update. Um and so Jefferson was right, at least in that regard.
SPEAKER_02I appreciate you mentioning the Articles of Confederation, which was this government that was put in place right after the Declaration of Independence through the American Revolution, but it was very, very flawed. And that's why Madison, among others, thought we really needed a new structure because the Articles were not working. And that led to the Constitutional Convention of 1787. And this constitution that Madison and others drafted that summer, as you mentioned, is the first of its kind. They did something absolutely unique and brilliant, but that was two and a half centuries ago. And while there is flexibility in the Constitution, we live in a very different time today.
SPEAKER_00Yeah, so um I I will always say to my students, the most revolutionary moment in American history is not the American Revolution. It's the moment in which Madison and his colleagues in Philadelphia decided to scrap the Articles of Confederation and start over again. Talk about rebels. They were amazingly courageous people who essentially didn't know what the outcome would be. And one of the great things that I love to talk about with my students is ratification and so on. That said, fast forward to today, there are things that the Constitution does not anticipate and could use a tune-up. So for example, there are ideas floated out there about perhaps lessening the power of the Senate or adding more Congress members to the House of Representatives to make it a little bit more powerful, shifting some responsibilities over. How about term limits for federal court judges, right? That's a very popular one. Right now you've got, on average, Supreme Court justices staying on the bench for 30, 35, uh, even as much as 40 years. How about an 18-year term? Um that's plenty of time for a Supreme Court justice to have an impact. What about term limits for Congress members? Or uh what about the idea that um you could have a single term for a president or a national day of election? There are some things that really do need to be part of a conversation about uh constitutional reform, about constitutional uh updates. And that's not to mention, we haven't mentioned yet, um, although it's super fun to think about, what would you change in quote unquote the Bill of Rights? Um the idea, remember, both Hamilton and Madison thought it was dangerous to write the uh to to enumerate the rights for a variety of reasons, not the least of which is that the Bill of Rights will become kind of the entirety of the list of rights that individuals have. Hamilton and Madison both thought that that was dangerous. And the right of privacy is a perfect example of that. It's not in the Constitution, and so we're going to use the political, um, the political machine out there to figure out whether or not it's a constitutional right. So what would you add if you um returned to Philadelphia and had a new Bill of Rights, a new list of freedoms? Certainly environmental rights would be uh in play, absolutely, but there would be other rights, right to same-sex marriage, right to privacy, as I discussed. There are some other things. The preamble would change. There's there's lots of areas we could talk about that need updating.
SPEAKER_02You've given us so much to think about from how revolutionary it was for Madison and the other delegates to draft this constitution to its flexibility today, to how we're engaging with it. And I just want to thank you for coming on the show. It's been just an absolute pleasure to speak with you today, Bo.
SPEAKER_00The pleasure's all mine, Katie.
SPEAKER_02And I want to thank everyone listening to the podcast today. I hope you all will subscribe and share the show with family and friends. And please join us again in two weeks as we consider the Constitution.
