Has the US Constitution Run its Course?

Walter J. Smith, PhD

US Supreme Court Justice Antonin Scalia has recently, again emphasized his opinion that the US Constitution is "not a living document." He continues the claim he has made over the years, now insisting emphatically that the Constitition is "dead, dead, dead!" Indeed, the recent outburst has given the chattering class media echo chambers a mythical, if charming uptick of topics with which to occupy their ordinary musings in the proverbial gardens of dubious wisdom.

But there may be a deeper and richer historical current of aged American political thinking indicated in Justice Scalia's outbursts, a current that is worth a little more serious attention. Indeed, in the very founding moment of the US Constitution, there was an intense national debate over the merits and/or defects in the proposed Constitution, and that debate casts a bit of light on today's political posturing, squirming, squabbling, shucking and jiving. Anyone interested in that debate would do themselves a significant favor by revisiting the brilliant little book by Herbert J. Storing, What the Anti-Federalists Were For. (University of Chicago Press, 1981)

Herbert Storing spent most of his professional life teaching, and much of that time at the University of Chicago. He devoted his last years to collecting and studying the writings of the Anti-Federalists, the opponents of ratification, and in that little book presented his summation of their thought. Re-reading the book now is like picking up a favorite old prophetic text. The debate over ratification the Constitution brought out the best and the worst of what was then American Political Thinking; reading what was then put forth calls forth a host of charming insights regarding all of today's confusions and strangeness regarding today's political charms, dangers, and distractions.

Unlike most of the American Historians who have revisited the Anti-Federalists, Storing takes them seriously. He gracefully and meticulously puts in their proper perspective the earlier silly academic dismissals of those Anti-Federalists as "men of little faith" or as naively overlooking the grave and critical situation in which the early nation found itself following the successful revolt against England. Storing most appropriately shows the Anti-Federalists are solidly among the founders.

The newborn nation had barely won that drawn-out conflict. Among the most dire difficulties encountered through the period, General Washington found himself and the entire war effort repeatedly under-funded or worse, not funded at all, while he was attempting to train soldiers who served on short tours and had to build their own quarters and scrounge their own food on the move, while fighting a war against what was then the world's greatest empire. His troops were chronically unclothed and underfed. The society at large seemed to ignore the war until the war came into their own neighborhoods.

The government under the Articles of Confederation was long experienced as little more than a chatter-fest among idle fops; it was run by a familiar-feeling radically incompetent Congress which seemingly and routinely reduced itself to an endless and petty squabble over silly distractions and minor issues while the very life and death of the newborn nation was almost daily at stake. The government's debt continued piling up; revenue continued drying up. Washington, like most of the war vets, withdrew himself to mostly private attentions. Even after the war, the petty squabbles ruled. Washington would, however, make himself heard at times, as with his famous refusal to consider being crowned king of the US.

Storing's little book is now worth our reconsideration; it will help us decide for outselves if, as Justice Scalia insists repeatedly, the Constitution is dead.