“The earth belongs . . . to the living,” Thomas Jefferson famously wrote to James Madison in 1787, and “the dead have neither power nor rights over it.” Jefferson offered these words in support of his belief that succeeding generations of Americans had the right to develop their own constitutions. But Madison shot down Jefferson’s idea, arguing that “improvement made by the dead . . . form a debt against the living who take the benefit of them.”
Governing: What led you to this project?
Beau Breslin: I’m a professor at Skidmore, and this project grew out of a conversation I had with a student. I had been thinking about the famous debate between Jefferson and Madison about how the earth belongs to the living, and I began wondering what would have happened if Jefferson had won that debate. We started projecting the ways in which American history would’ve changed, and what those constitutions would’ve looked like if they’d been rewritten every generation.
Governing: Madison wrote an extraordinary letter that essentially crushed Jefferson’s idea. Was Madison right?
Governing: It seems very unlikely that a fresh constitutional convention could, for example, successfully change or rewrite the Second Amendment.
Beau Breslin: If you sat down and crafted a new Second Amendment today, it would be very different, but the notion of the right to own guns wouldn’t go away in this highly politicized environment. What’s frustrating for me is that the story of the Bill of Rights gets only partially told. Madison first came into Congress with 17 amendments, but only 12 make it through the congressional part, and only 10 were ultimately ratified by the states. One that Madison successfully got through was the Ninth Amendment — “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The goal of the founding generation was the expansion of liberty, not the limitation of liberty. And yet that amendment has been largely wiped off the face of the constitutional landscape. Hugo Black had such an influence in the 20th century on the way in which courts interpret the constitution that the Ninth Amendment no longer has any real standing.
Governing: For the court to say in 2022, “We see no enumerated right of abortion in the Constitution of the United States,” would not sit well with Jefferson.
Beau Breslin: It goes against Jefferson’s notion that we’re endowed by our creator with natural rights. There was a moment during the ’65 Griswold case when the Ninth Amendment had the potential to put down roots, and again with some of the cases that came between Griswold and Roe. But Black said to his fellow justices, “Who are you to decide what is and what isn’t in the Constitution?” And some of the justices, quite frankly, were cowards. Felix Frankfurter was the only one who fought him hard on it. But that notion of wiping the Ninth Amendment off the landscape of constitutional interpretation is antithetical not only to Jefferson but also to Madison. The major players in the American founding all understood that the rights in the Bill of Rights were not the only ones we had.
Governing: If these jurors were the originalists they claim to be, it seems they’d be fighting for the Ninth Amendment instead of ignoring it.
Beau Breslin: That notion of originalism is the fraud on the right. It’s a bit of a pick-and-choose situation. The Alitos and of the world are result-oriented judges. They come up with a result, such as overturning Roe v. Wade, and then they rationalize it. Scalia was a little like that too. But there’s been equal fraud on the left. As much as he’s a hero of mine, William Brennan was like that. He’d have an outcome that he wanted on the left, and he’d rationalize his way there. Griswold v. Connecticut was rightly decided — there is a constitutional right of privacy — but I would’ve embedded it in the Ninth Amendment. For William Douglas, a great liberal justice, to say, “It’s part of the penumbras of the First, Third, Fourth, Fifth, and Ninth Amendments,” was just ridiculous. There’s no logic to that rationalization. So there are problems on both the left and the right when it comes to constitutional interpretation. The Supreme Court is a political branch making political decisions. Ultimately, they’re interested more in the outcome than in any objective, reasonable, enlightenment-type decision-making process.
What tends to happen is that courts, the Supreme Court in particular, forget the function of a constitution. A constitution does many things, but its main goal is the limitation of the power of majorities. Anytime there’s a rights-oriented decision that pits the majority against the minority, it’s the responsibility of the court to seriously consider the protection of minority interests. Our four major institutions of the federal government all represent different constituencies. The House of Representatives represents local constituencies, the Senate represents states, and the president represents the nation as a whole. What’s left are the unaccountable, undemocratic, life-tenured, fixed-salary, federal court judges, and their responsibility is to be the voice of those who don’t otherwise have a voice in the political process. There’s a rationalization for cases like Griswold v. Connecticut and Roe v. Wade because you’re protecting the interest of minorities. But today the court is throwing things to the states. That’s just throwing it back to the majority. That doesn’t make sense from a Supreme Court perspective.
Beau Breslin: Absolutely. Jefferson acutely understood that a judiciary as powerful as that we see in 2022 was going to be the death knell of the democratic process, particularly the House of Representatives. And Congress, quite frankly, loves having a federal judiciary that takes up the hard challenges. One of the things that I talk about in the book is term limits for members of Congress. That would be phenomenally advantageous for our country. Another thing I would do to lower the power of the courts would be to draw down the power of the Senate, which is perhaps the most undemocratic legislative institution in the world. I’d give enormous power to the House of Representatives by making it a truly representative institution. That would reduce the power of the courts by forcing the House to make tough decisions. Right now it’s easy for them to defer to the other branches of government.
Governing: In your book you propose 18-year term limits for justices, along with an increased and even number of justices. How does that happen?
Beau Breslin: An even number forces a majority opinion to be separated by more than a single vote. That makes the difference when you think about cases like Bush v. Gore. But for whatever reason, nine has become the sacred number. I don’t know that it’s possible to make changes. The Biden commission talked about fixed terms, but nobody’s paying any attention. The political landscape isn’t receptive to any significant change on the Supreme Court. But let’s imagine that it is possible. How do you get there? Give the president two picks automatically. Eliminate the Merrick Garland problem, the Amy Coney Barrett problem, where it’s just a matter of who controls the Senate. Start the 18-year clock now for Supreme Court justices. You eventually create the opportunity for a president to nominate two justices per term. That makes a whole lot of sense. Make it as nonpartisan as possible. Lower the power of the Senate and make the House of Representatives the branch that confirms important federal and Supreme Court justices.
Governing: If we could somehow put together a constitutional convention, could these reforms happen?
Beau Breslin: I do not believe that we would have the type of reforms we need if we sat in Philadelphia in the next four months and tried to bang something out. We’re not in a good enough space. That said, let me be an optimist here. I do think this is a temporary moment in America. I’m 56, and this is the worst political moment of my lifetime. But I also think that had we been heeding Jefferson’s advice all along and had at least had one or two conventions over the years, we would be in a much more progressive situation now.
Beau Breslin: We’re approaching Rome at the end of its Republic. But I don’t think we are irretrievably broken. We can still recover parts of what was, for a while, a really solid republic. One of the problems we face is the media. They tend to highlight our flaws. There are moments where good politics is happening. They tend to be at the local and sometimes at the state level, which the media tends to ignore. I’m not saying that the media should gravitate to the school board and city council meetings, but there’s real debate going on there that never sees the light of day.
The bickering of our tribal society right now gets the media attention, and that contributes to the perpetuation of the idea that we have a broken political system. Politics today is a zero-sum game. You win by cutting your opponent off at the knees. If we could get back to a Jeffersonian way, where civic life is the greatest of all virtues and your commitment to the public realm exceeds your commitment to your own passions and interests, we’d get out of this mire and start moving forward.
Governing: How do we recover that civic virtue?
Beau Breslin: Make it a more important part of our everyday lives. Incentivize it. Value it. People need practice. National public service sometime between the ages of 18 and 25. It doesn’t have to be the military, but some sort of national public service where you learn what it means to have a higher purpose. The country spends a lot of time, especially around the Fourth of July, examining Jefferson’s soaring language at the beginning of the Declaration of Independence. But it’s Jefferson’s last line that goes to the question of civic virtue. He writes, “And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred honor.” Jefferson put “sacred honor” at the end for a reason. It was more important to him than our lives and our fortunes. Nowadays, lives and fortunes are more important. Sacred honor has been buried somewhere in the list of things we aspire to, and that’s a shame. We lost something there.
You can also hear more of Clay Jenkinson’s views on American history and the humanities on his long-running nationally syndicated public radio program and podcast, The Thomas Jefferson Hour. He is also a frequent contributor to the Governing podcast, The Future in Context. Clay’s most recent book, The Language of Cottonwoods: Essays on the Future of North Dakota, is available through Amazon, Barnes and Noble and your local independent book seller. Clay welcomes your comments and critiques of his essays and interviews. You can reach him directly by writing cjenkinson@governing.com or tweeting @ClayJenkinson.
Related Articles
