Supreme Court Justice Antonin Scalia sat with his ideological counterpart Stephen Breyer before the Senate Judiciary Committee in early October 2011. He echoed the perhaps apocryphal story of his meeting years ago with a group of law students.
In that meeting, the story goes, Scalia asked the budding jurists what made America more free than the other nations of the world. Predictably the responses centered on the Bill of Rights and its enunciated freedoms. Scalia nodded along. When the students finished Scalia roared at them, “wrong.” The learned judge pointed out that most nations have a bill of rights, even stating that not only did Soviet Russia have such “parchment guarantees,” but that the Soviet bill of rights was actually vastly better than our American version.
This shocking exchange reminds me of a professor I encountered at the University at Albany during my undergraduate years. Instructing U.S. Constitutional history, the professor led the class into a debate about the nature of the Constitution – the ageless argument over original jurisprudence (strict constructionism) or a living constitution. I admired this professor as one of the very few who harbored sympathy for conservative views. He settled the ill-informed point-counterpoint of the class by coming down on the side of the living constitution. In fact he went further.
The good professor stated that there really is no Constitution beyond what we accept as a constitution. In other words, the Constitution has and ever will say what we want it to say. The grand “we” is the American body public.
The combination of anger and betrayal I felt is hard to convey, possibly because such a reaction to an academic discussion is itself unusual. To say I was crushed would be an understatement. How could any fair-minded person say that there is no constitution beyond the popular will? For me the words are clear. If the rules say I can speak my mind, or own a gun, or thwart an unreasonable search, than there was no question. As a citizen I could do those things. Case closed. The immutability of the document, the clarity of the language, the recognition of the individual possessed of natural rights is secular scripture.
No other moment is as vividly remembered from my four years of undergraduate study.
Naturally, to hear the echo of my Professor in the remarks of Justice Scalia to the Judiciary Committee jolted me.
“Of course, just words on paper. What our framers would have called “a parchment guarantee.” And the reason is that the real constitution — think of the word “constitution.” It doesn’t mean a bill of rights. It means structure. Say, a person has a sound constitution. It’s a sound structure.
The real constitution … which is what our framers debated that whole summer in Philadelphia in 1787, they didn’t talk about the Bill of Rights. That was an after-thought, wasn’t it? That constitution of the Soviet Union did not prevent the centralization of power in one person or in one party. And when that happens, the game is over.
So the real key to the distinctiveness of America is the structure of our government. One part of it, of course, is the independence of the judiciary, but there’s a lot more. There are very few countries in the world, for example, that have a bicameral legislature. So England has a House of Lords for the time being, but the House of Lords has no substantial power. They can just make the Commons pass a bill a second time.
Very few countries in the world have a separately elected chief executive. Sometimes, I go to Europe to talk about separation of powers, and when I get there, I find that all I’m talking about is independence of the judiciary because the Europeans don’t even try to divide the two political powers — the two political branches, the legislature and the chief executive.
In all of the parliamentary countries, the chief executive is the creature of the legislature. There’s never any disagreement between them and the prime minister as there is sometimes between you and the president. When there’s a disagreement, they just kick him out. They have a no-confidence vote, a new election, and they get a prime minister who agrees with the legislature.”[i]
Where Scalia moves back to the a written rule set as a foundation for what will become in our language American Exceptionalism, the non-descript professor from the middling state school goes much further. I fear that professor is right.
Nations, as differentiated from mere states, can and do change. The culture of a nation is a massive determining factor. Of course, a state can alter a nation, and vice versa, and of course the formidable clarity of the United States Constitution is as Justice Scalia avers, a foundation. It is in fact a mooring against the tides of time and prejudice. The U.S. Constitution is invaluable as a protector of American Exceptionalism, but it is not infallible. The mooring can come undone.
The idea of American Exceptionalism is older than America itself. Howard Zinn, no fan of Exceptionalism, sets the common starting point for our faith – and his myth – in the Massachusetts Bay Colony of the 17th century. There Governor John Winthrop in 1630 uttered the phrase “a city upon a hill.”[ii]
Colonists aboard the Mayflower adopted a compact in 1620, just before settling ashore, that embodies may of the hallmarks of American Exceptionalism, including a sense of purpose, a break with the past, and civil government by peers, but this too is inadequate. Tracing the beginnings of Exceptionalism can not be done, not by a believer in its existence or merit.
Exceptionalism is an idea. Perhaps one could argue with only a hint of idealism, that it is an idea that has existing throughout all time. Trite though this may be there is some truth in it. Men have long sought to be masters of their own fate, to possess and exercise liberty.
Captain John Smith, who we remember for his dealing with the Powahatan Confederacy in the founding of the Jamestown colony, wrote in 1616 of stout-hearted men, who gaze over the sea, dreaming of a better life. These men, said Smith, will in time come to the New World. When they do, “the most curious may find pleasure, profit, and content,” beyond anything they could attain in Europe.
J. Hector St. John de Crèvecœur was one such man. He arrived in North America in 1755. After fighting with the French against the English and Americans in the Seven Years War he moved to New York’s Hudson Valley and took an American woman as his bride. His 1782 book Letters from an American Farmer became the first book by an American author to win acclaim in Europe. In his Letters, Crevecoeur shares his amazement of his adopted land.
Crevecoeur insists repeatedly that America is a special place, blessed by God. In this new land the freedom offered by property ownership, and a wide mixing of nationalities was already demonstrating something exceptional to the world. Crevecoeur’s farmer asks, “what then is the American, this new man?”
He answers, “He is an American, who leaving behind him all his antient prejudices and manners, receives new ones from the new mode of life he has embraced.”[i] This new culture, the American culture, is one of freedom, tolerance, equality, and prosperity. Crevecoeur’s clarion call rang out all over Europe, enlivening imaginations until the French Revolution came along and soured people on making the world over again.
It fell to a fellow native Frenchman to reignite the torch of American exceptionalism. The work of Alexis de Tocqueville, published in 1835, holds true today, and remains compulsory reading for all students of American history, politics, and literature.
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[i] Oct 5, 2011 Scalia testimony to the Senate Judiciary Committee.