On Barbara Jordan's recent death, most Americans warmly recalled her dramatic declaration to the House Judiciary Committee as it undertook to propose the impeachment of President Nixon.
"My faith in the Constitution is whole, it is complete, it is total, and I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution," she said.
On Nixon's resignation, his successor jubilantly proclaimed:
"The Constitution works."
If nearly everyone now takes the Constitution for granted, it wasn't always so. Its ratification occasioned fierce debate. There was secession talk in New England long before the South took the idea seriously. The abolitionist William Lloyd Garrison, deploring the deals that had been made to keep Jordan's ancestors in bondage, called the Constitution "a covenant with death, an agreement with hell," and inaugurated an enduring form of dissent by publicly burning a copy. America's bloodiest war, the Civil War, was in fact the direct, inevitable consequence of the Constitution's failure to provide for the eventual elimination of slavery.
But if Abraham Lincoln (and virtually everyone since) thought that the Civil War had made America safe for democracy, Daniel Lazare comes along to say it isn't so. With impressive scholarship but highly selective logic, he argues in The Frozen Republic: How The Constitution Is Paralyzing Democracy (Harcourt Brace, $25) that the Constitution has been obsolete since before it was ratified and should, in a word, be overthrown. He scorns the faith of Barbara Jordan, Gerald Ford and millions of others as "Constitution worship" and "civic religion," which are about the kindest things he has to say of it.
Lazare's fault-finding is for the most part factually sound; it is his inferences that do not persuade. As Sen. Bob Graham recently remarked matter-of-factly to a large St. Petersburg audience, "The American government is the first government in the history of the world that was consciously designed not to work." Having recently been at war with a strong government, the founders wanted theirs to be hemmed and hedged with checks and balances. Except on rare occasions, such as the government shutting down for want of a budget, the citizens have generally been satisfied with what Lazare, in his apparently superior wisdom, scorns as "the absurd proposition that trusting to the intelligence of a bygone generation is the key to muddling through all difficulties." (Any writer who can claim that it is "child's play nowadays to pick apart Madison's writings in the papers" plainly has an exaggerated opinion of himself.)
Lazare's preferred model is the unwritten British constitution, which he credits for the United Kingdom's painless abolition of slavery and for its easy enactment, a century later, of a national health care system, and for its greater respect for civil liberties with regard to not jailing millions of people over the use of drugs. In this bizarre view, American civil liberties would be more secure if they depended on the Congress (!) instead of the Supreme Court for their protection.
Any reasonably attentive middle school student should quickly detect the fatal flaw in Lazare's comparison. As Britain approached the 18th century, it was still essentially a homogeneous, monocultural society with a dominant tradition, economy, ethnicity, faith and crown. Its rebellious offspring were 13 disparate colonies reflecting multiple faiths, languages and origins and united by little more than their isolation from the Mother Country and their resentments toward it. They were, in fact, more than a little fearful of each other, and to have united them in a nation that ultimately became the most powerful and influential on Earth was an enormous accomplishment that would have been impossible without the Constitution.
Lazare acknowledges the mighty engine of the American economy only as an innate response to "a lack of initiative in the political sphere." The Marshall Plan, the Apollo program, the victories in World War II and the Cold War, the national commitment to clean air and water and the overthrow, however belated, of legal segregation are hardly the achievements of a unresponsive, moribund political structure. To blame America's obvious failures _ among them, the decline of the cities and the lack of a rational health care system _ on the system of government is to excuse too glibly the failures of individual politicians to wisely use the powers that are theirs _ as in Congress' failure to control campaign fund-raising and spending _ and of the failure of the voters to hold them responsible.
Granted, it can be tough going to rely on an ever-changing Supreme Court to say what the Constitution means and what the people through their government can or cannot do. Within this century, it has been so ruthlessly reactionary that Franklin Roosevelt tried to pack it, so unabashedly liberal under Chief Justice Earl Warren that conservatives dreamed of impeaching him, and so right-leaning again under the sway of William Rehnquist and Antonin Scalia that one might even be tempted by Lazare's scintillating vision of a popular democracy freed of the dead hand of the past.
But what Winston Churchill said of democracy _ that it is the worst form of government except for all the others that have been tried _ is true of the U.S. Constitution. For all of Lazare's nitpicking, he does not conjecture a single alternative except for the House of Representatives to declare the Senate hopelessly and irreparably malapportioned and overthrow it, along with the Constitution itself. (Under Article V, no state may be deprived without its consent of equal representation in the Senate, making this the one unamendable provision in the entire Constitution. Given the Senate's recent noble role in restraining the wretched excesses of House leaders who misread their mandate, the Senate's structure may be no vice at all.)
In Lazare's dream world, the House, not the Supreme Court, would become the final arbiter of a worthless Constitution. Popular democracy would govern all. No model comes to mind except the one notably unmentioned by Lazare: the French Revolution.
"For a people who like their guarantees in writing, this may not sound like much," Lazare concedes. That much, at least, he has right.
It is a tribute to the Constitution for which he has so little use that Lazare could write as he does. In more countries than space remains to list, such a book would be banned and its author jailed, if not worse. Here, the worst he has to fear is an unfriendly review.
Yes, the Constitution works.