Vol. 26 No. 1 (May 2016) pp. 3-5
THE CIVIC CONSTITUTION: CIVIC VISIONS AND STRUGGLES IN THE PATH TOWARD CONSTITUTIONAL DEMOCRACY, by Elizabeth Beaumont. New York: Oxford University Press. 2014. 343pp. Cloth. ISBN: 978-0199940066. $49.95
Reviewed by Steven B. Lichtman, Department of Political Science, Shippensburg University, Email: SBLichtman@ship.edu
One of the most notable features of contemporary debates about judicial review is the emergence of the “popular constitutionalism” school. As prominently represented by scholars such as Larry Kramer (2004) and Mark Tushnet (1999), popular constitutionalists insist that the Supreme Court should not have the monopoly on judicial decision making that it has maneuvered to acquire. Many such scholars couch their argument in the perils of judicial supremacy, but many others – Kramer, in particular – focus on the Framers’ purported intentions that the American people should play a major role, and perhaps a dispositive role, in interpreting and applying the Constitution.
It is probably inaccurate to shoe-horn Elizabeth Beaumont’s marvelous new book into the popular constitutionalism school, because a critique of judicial review is not the thrust of her project. But it is certainly accurate to suggest that she shares a perspective with popular constitutionalists, in that she likewise stresses that constitutional development is not a relentlessly top-down process driven largely by institutions and institutional actors. A la Kramer, she believes that much can be learned about the Constitution by studying the people themselves; not only as a prism for constitutional beliefs, but also as a process for adapting the Constitution to political and historical change, and redefining the contours of the Constitution as fundamental American law.
Crucially, this is a process that occurs over the wide sweep of American history. Contrary to Originalists who insist that the meaning of a constitutional provision is fixed at the time of its adoption (and that any ambiguities in the meaning are to be resolved by consulting the divinable intentions of the drafters), Beaumont maintains that constitutional meaning is contestable, and further that these contests are broad-based. It is the people, not the officials, who establish and redefine constitutional meaning.
Moreover, it is not only the people of the founding era who performed this task. The seminal strength of this impeccably researched book is Beaumont’s account of the constitutional contributions of social movements in the 19th and 20th centuries. It is not only the rivalry between Federalists and Anti-Federalists that shaped the Constitution. We must also, Beaumont reminds us, contemplate the impact of the abolitionist movement and the women’s suffrage movement on the evolution of the Constitution.
There is assuredly some common ground between Beaumont’s project and the work of Bruce Ackerman (1991), particularly his thesis about the “dualities” of the Founding era. Beaumont similarly observes that constitutionalism at the Founding was a process of “constraining ‘the people’ of the revolution and being constrained by them” (p. 87). Just as Ackerman stressed [*4] “constitutional moments” which transform the meaning of constitutional provisions, Beaumont likewise stresses that constitutionalism is a political as well as a legal phenomenon. Two features which distinguish Beaumont’s book are, first, the degree to which she traces these tensions long past the Founding and into the 20th century, and second, her emphasis on the role played by organized social movements in constitutional development. “The arena of constitutional politics overlaps with civic life,” Beaumont argues, “and that process of constitutional formation, interpretation, and change can be significantly influenced by mobilized civic reformers” (p. 214).
After an introductory chapter, the book is divided into two parts. In Part One, Beaumont reexamines the immediate post-revolutionary period. In turn, this section of the book is subdivided into two sections. Chapter Two explores the 18th century theoretical perspectives on citizenship, rights, and power. Beaumont places these airy ideals into accounts of contemporaneous workaday political activism. From this account, the reader can mine a rich understanding of exactly why there was such post-revolutionary clamor for freedom of speech and freedom of association, as Beaumont connects these desires to a broader-developing theory of the right to resist tyranny.
That notion of resistance serves as the theme of Chapter Three, in which Beaumont compares the fate of a nascent abolitionist movement in the early republic to the response to followers of Massachusetts insurrectionist Daniel Shays. Shaysite constitutionalism represented the ultimate triumph of mob rule and anarchy. The delegates to the Constitutional Convention felt a particular obligation to thread the constitutional needle: they needed to produce a document that could legitimately restrain “democratic turbulence” without creating a pathway to future abuse of power. The Convention delegates, however, did not feel obligated to address the merits of the slavery question, opting instead to crudely bargain on it as a means of securing Southern support for the new constitution, all the while hoping that the institution would eventually die of its own accord. Here, though, as Beaumont explains, the delegates inside the hall were insulating themselves from the incipient wave of anti-slavery activists outside the hall. The fear of Shaysites colored the Constitution; the fear of slavery did not.
Many contemporary scholars, such as Pauline Maier (2010), remind us that the conclusion of proceedings in Philadelphia was hardly the end of the matter, and the once-overlooked ratification debates in the states are now well-documented. Beaumont’s treatment of the ratification debates is by no means comprehensive, but it is an important and lively component of her overall project of prompting a reassessment of the concept of constitutionalism and the role that people on the ground play.
It is in Part Two of the book that Beaumont’s project truly takes off. Here, Beaumont meticulously tracks how this percolating version of constitutionalism was shaped by the burgeoning abolitionist movement beginning in the late 1820’s, and then further shaped by the women’s suffrage movement that emerged decades later. Abolitionists, of course, had to contend with a Constitution that had not merely protected slavery, but in fact enshrined it as something of a larger imperative. Although some abolitionists felt that the only feasible response was to turn away from the document often derided as a “covenant with [*5] the Devil,” others felt that the Constitution could be perfected through the public cultivation of new ideals of citizenship and equality. As Beaumont shows, this was not really a battle for the hearts and minds of the people, but rather a careful attempt to encourage the people to develop their own sense of constitutional probity, and a concomitant offering of assurances that it was acceptable – and even imperative – that the people then try to implement this collectively developed vision. And even though, as Beaumont reveals, anti-slavery constitutionalists were a “sprawling loose-knit, often fractious movement with a diverse array of groups and goals,” they were able to promote an ideal of constitutional reinvention that took on proslavery constitutionalism on competitive terms.
The women’s suffrage movement that materialized out of the Seneca Falls conference in 1848 likewise confronted a constitution structured against it, and likewise produced a challenge to the old constitutional order that eventually won the day. Despite these starting and finishing similarities, however, the experiences of the suffragists proved to be a much different process of constitutional reformation, and Beaumont chronicles these distinctions with verve and skill. In particular, advocates of gender justice were calling for a much more universalist constitutional vision. Where abolitionists were seeking to undo the immorality of human bondage, and to alter the constitution so it could be used as the weapon against it, suffragists waved that reformed constitution and questioned why its new ideals stopped short. Like the abolitionists, the suffragists encouraged the people to reconsider and operationalize their own sense of constitutional principle.
THE CIVIC CONSTITUTION is a vibrant and in some ways path-setting work of scholarship, and it stands as an important contribution to the literature on constitutionalism and American political development. Teachers of political science, history, and constitutional law – especially teachers of advanced undergraduates or graduate students – will find it a worthwhile addition to their courses.
Ackerman, Bruce. 1991. WE THE PEOPLE, VOL. 1: FOUNDATIONS. Cambridge, MA: Belknap.
Kramer, Larry D. 2004. THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW. New York: Oxford University Press.
Maier, Pauline. 2010. RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION, 1787-1788. New York: Simon & Schuster.
Tushnet, Mark. 1999. TAKING THE CONSTITUTION AWAY FROM THE COURTS. Princeton: Princeton University Press.
© Copyright 2016 by author, Steven B. Lichtman.