American romantic poet, philosopher, and diplomat once referred to the U.S. Constitution, in an address to the Reform Club of New York in 1888, as “a machine that would go of itself.” More precisely, in using this phrase, he meant to diagnose a dangerous complacency infecting American political life, one born of the misguided belief that the Constitution itself provided a powerful enough governing framework to keep the American democratic system from ever derailing.
The nation’s confidence in this document, he lamented to his audience, “has in some respects made us neglectful of our political duties.” His point was precisely that the Constitution is not “a machine that would go of itself” but rather requires the political vigilance of the people to uphold and make work.
Masha Gessen, staff writer for The New Yorker and author of the recent book Surviving Autocracy, recently reiterated this point emphatically when they appeared on MSNBC’s Morning Joe to discuss accusations made by Michael Caputo, the former top communications official at HHS, that left-wing hit squads were being trained for insurrection. The Constitution, Gessen noted, like all of our democratic norms, depends on people honoring and adhering to its framework and playing by the rules.
As we have seen with Trump’s administration, while the framework of our constitutional democracy rests on a theoretical design of checks and balances, if members of Congress do not actually put that theory in practice, the constitutional authority granted that body is rather meaningless.
And, of course, the Republican senate has only enabled Trump’s defiance of the law and its constitutional authority to exercise oversight
And Trump, for his part, has himself re-written the Constitution, insisting that Article II basically endows him with autocratic powers, even though the most cursory reading of the article makes clear at every turn that most of the powers granted to executive authority are limited by “the advice and consent of the Senate.”
Of course, as historian Michael Kammen has detailed in his book A Machine That Would Go of Itself: The Constitution in American Culture, most Americans have little actual understanding of the contents of the Constitution and understandings of the document have in fact historically been remarkably fluid, subject to the ideological persuasions and predilections of the Supreme Court, not always aligned, perhaps, with the spirit of the document.
The career of Justice Ruth Bader Ginsburg, upon which her passing gives us occasion for reflection, really highlights this point.
Ginsburg spent her life trying to realize basic principles of the Constitution that would seemingly, indeed undeniably, afford all Americans equal protection under the law.
Indeed, just recall the language of the 14th amendment, passed in 1866, which includes the clause:
“nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
This language would seem pretty basic and clear, and yet it took until 1964 to have civil rights legislation passed that outlawed discrimination in the workplace “on the basis of sex.”
And still one can find Supreme Court Justices serving well into the 21st century who either completely disregarded the 14th amendment or else did not consider women, people of color, or transgender people to actually fall under the definition of “person.”
Antonin Scalia, for example, as late as 2011, continued to argue that women’s equality was not accounted for in the Constitution, even being quoted as saying “nobody ever voted for that” and dismissing the Supreme Court’s role in enforcing such a concept of equal rights, saying, if “society wants to outlaw discrimination by sex, hey, we have things called legislatures.”
And Justice Samuel Alito, in his recent dissent in a landmark Supreme Court ruling that granted LGBTQ people protection from discrimination in the workplace by deciding that the definition of “sex” in the phrase “on the basis of sex” included sexual and gender identity, ranted for the dozens of pages arguing that the word “sex” could and should not refer to sexual and gender identity because it only referenced the biological binary identities of man and woman.
Again, the real issue is why are we even having this discussion? Unless, of course, there are questions as to whether LGBTQ people are actually “persons.” If they do constituted “persons,” then they are already granted such protections by the 14th amendment.
The point? Well, it’s clear the Constitution is open to invention and disregard subject to people’s prejudices, such as Scalia’s sexism and Alito’s homophobia.
We already see repressive autocratic tendencies in such disavowals and re-inventions of the Constitution by the likes of Scalia, Alito, and many other justices throughout American history who refused to grant women, people of color, LGBTQ people, and often working-class people, basic protections of their civil rights under the law.
Trump and his entourage of all “the best people” have shown us that it’s the people who matter when it comes to enforcing and insisting upon democracy.
As Lowell rightly lamented, the Constitution is not “a machine that would go of itself,” but a statement of principles that can only work if people fight for them.
As voters in four states already started voting in impressive numbers yesterday in four states, it may be that voters are waking up to this fact, recognizing that if we want democracy and humanity—equal rights and protections for all—we cannot be “neglectful of our political duties.”
This neglect enables autocracy. We know because we have been watching materialize autocracy before our eyes, enabled by the neglect of the Republican senate.
Tim Libretti is a professor of U.S. literature and culture at a state university in Chicago. A long-time progressive voice, he has published many academic and journalistic articles on culture, class, race, gender, and politics, for which he has received awards from the Working Class Studies Association, the International Labor Communications Association, the National Federation of Press Women, and the Illinois Woman’s Press Association.