What George Washington Thought About the Constitution

Hint: He probably wouldn't agree with Antonin Scalia or Clarence Thomas

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One of the joys of reading Ron Chernow -- one of the joys of reading any great historian -- is learning new detail and nuance about long-ago great events. I've known for years what Alexander Hamilton, Thomas Jefferson, James Madison and John Adams thought of the Constitution. But I never really knew precisely where George Washington stood -- apart from the general view that he supported strong federal authority and stayed purposely aloof from the sturm und drang of the 1787 Convention.

So I am slowly (and, yes, belatedly) reading Chernow's masterful Washington -- A Life. And I just got to the part (page 539 in case you want to read along) where Chernow is addressing what Washington thought about the Constitution after it was drafted but before it was ratified. Chernow writes:

In correspondence, Washington admitted to imperfections in the new charter but trusted to the amendment process to refine it. The Constitutional Convention was no conclave of sages in Roman togas, handing down eternal truths engraved in marble, and he wondered how long the document would last....

For Washington, the beauty of the document was that it charted a path for its own evolution. It's very brevity and generality -- it contained fewer than eight thousand words -- meant it would be a constantly changing document, susceptible to shifting interpretations. It would be left to Washington and other founders to convert this succinct, deliberately vague statement into a working reality.

When I read that passage, I thought immediately of Oliver Wendell Holmes's famous dissent in Abrams v. United States, a 1919 Supreme Court case about free speech in a time of war. Holmes wrote:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises.

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
 
That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. [My emphasis.]
Back to Chernow and his Washington. As we all know from history class, our nation's beloved bedrock charter was not a shoo-in for ratification. Chernow writes: "The Constitution cherished by generations of Americans was fiercely controversial at first, producing heated polemics on both sides." It has been 234 years, and some of the remnants of that early debate still resonate throughout America. Indeed, on topics like taxes, immigration and health care, conservatives have made the eternal tension between state and federal power their calling card this election season.
 
Some debates never die; they just fade in and out. For example, one debate that is now back in vogue is one of both process and substance: how should the Constitution be interpreted? If the choice is between Washington and Holmes on the one hand, each acknowledging the fluidity of the document, and Justices Antonin Scalia and Clarence Thomas on the other hand, arguing that the text must be interpreted today as the founders meant it, you can count me in with the dead icons rather than with the live jurists. And if the choice is a false one, I'd like to hear more from originalists on how Washington's evident view affects their own.
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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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