The Audacity of Hope (12 page)

What the framework of our Constitution can do is organize the way by which we argue about our future. All of its elaborate machinery—its separation of powers and checks and balances and federalist principles and Bill of Rights—are designed to force us into a conversation, a “deliberative democracy” in which all citizens are required to engage in a process of testing their ideas against an external reality, persuading others of their point of view, and building shifting alliances of consent. Because power in our government is so diffuse, the process of making law in America compels us to entertain the possibility that we are not always right and to sometimes change our minds; it challenges us to examine our motives and our interests constantly, and suggests that both our individual and collective judgments are at once legitimate and highly fallible.

The historical record supports such a view. After all, if there was one impulse shared by all the Founders, it was a rejection of all forms of absolute authority, whether the king, the theocrat, the general, the oligarch, the dictator, the majority, or anyone else who claims to make choices for us. George Washington declined Caesar’s crown because of this impulse, and stepped down after two terms. Hamilton’s plans for leading a New Army foundered and Adams’s reputation after the Alien and Sedition Acts suffered for failing to abide by this impulse. It was Jefferson, not some liberal judge in the sixties, who called for a wall between church and state—and if we have declined to heed Jefferson’s advice to engage in a revolution every two or three generations, it’s only because the Constitution itself proved a sufficient defense against tyranny.

It’s not just absolute power that the Founders sought to prevent. Implicit in its structure, in the very idea of ordered liberty, was a rejection of absolute truth, the infallibility of any idea or ideology or theology or “ism,” any tyrannical consistency that might lock future generations into a single, unalterable course, or drive both majorities and minorities into the cruelties of the Inquisition, the pogrom, the gulag, or the jihad. The Founders may have trusted in God, but true to the Enlightenment spirit, they also trusted in the minds and senses that God had given them. They were suspicious of abstraction and liked asking questions, which is why at every turn in our early history theory

yielded to fact and necessity. Jefferson helped consolidate the power of the national government even as he claimed to deplore and reject such power. Adams’s ideal of a politics grounded solely in the public interest—a politics without politics—was proven obsolete the moment Washington stepped down from office. It may be the vision of the Founders that inspires us, but it was their realism, their practicality and flexibility and curiosity, that ensured the Union’s survival.

I confess that there is a fundamental humility to this reading of the Constitution and our democratic process. It seems to champion compromise, modesty, and muddling through; to justify logrolling, deal-making, self-interest, pork barrels, paralysis, and inefficiency—all the sausage-making that no one wants to see and that editorialists throughout our history have often labeled as corrupt. And yet I think we make a mistake in assuming that democratic deliberation requires abandonment of our highest ideals, or of a commitment to the common good. After all, the Constitution ensures our free speech not just so that we can shout at one another as loud as we please, deaf to what others might have to say (although we have that right). It also offers us the possibility of a genuine marketplace of ideas, one in which the “jarring of parties” works on behalf of “deliberation and circumspection”; a marketplace in which, through debate and competition, we can expand our perspective, change our minds, and eventually arrive not merely at agreements but at sound and fair agreements.

The Constitution’s system of checks and balances, separation of powers, and federalism may often lead to groups with fixed interests angling and sparring for narrow advantage, but it doesn’t have to. Such diffusion of power may also force groups to take other interests into account and, indeed, may even alter over time how those groups think and feel about their own interests.

The rejection of absolutism implicit in our constitutional structure may sometimes make our politics seem unprincipled. But for most of our history it has encouraged the very process of information gathering, analysis, and argument that allows us to make better, if not perfect, choices, not only about the means to our ends but also about the ends themselves. Whether we are for or against affirmative action, for or against prayer in schools, we must test out our ideals, vision, and values against the realities of a common life, so that over time they may be refined, discarded, or replaced by new ideals, sharper visions, deeper values. Indeed, it is that process, according to Madison, that brought about the Constitution itself, through a convention in which “no man felt himself obliged to retain his opinions any longer than he was satisfied of their propriety and truth, and was open to the force of argument.”

IN SUM, the Constitution envisions a road map by which we marry passion to reason, the ideal of individual freedom to the demands of community. And the amazing thing is that it’s worked. Through the early days of the Union, through depressions and world wars, through the multiple transformations of the economy and Western expansion and the arrival of millions of immigrants to our shores, our democracy has not only survived but has thrived. It has been tested, of course, during times of war and fear, and it will no doubt be tested again in the future.

But only once has the conversation broken down completely, and that was over the one subject the Founders refused to talk about.

The Declaration of Independence may have been, in the words of historian Joseph Ellis, “a transformative moment in world history, when all laws and human relationships dependent on coercion would be swept away forever.” But that spirit of liberty didn’t extend, in the minds of the Founders, to the slaves who worked their fields, made their beds, and nursed their children.

The Constitution’s exquisite machinery would secure the rights of citizens, those deemed members of America’s political community. But it provided no protection to those outside the constitutional circle—the Native American whose treaties proved worthless before the court of the conqueror, or the black man Dred Scott, who would walk into the Supreme Court a free man and leave a slave.

Democratic deliberation might have been sufficient to expand the franchise to white men without property and eventually women; reason, argument, and American pragmatism might have eased the economic growing pains of a great nation and helped lessen religious and class tensions that would plague other nations. But deliberation alone could not provide the slave his freedom or cleanse America of its original sin. In the end, it was the sword that would sever his chains.

What does this say about our democracy? There’s a school of thought that sees the Founding Fathers only as hypocrites and the Constitution only as a betrayal of the grand ideals set forth by the Declaration of Independence; that agrees with early abolitionists that the Great Compromise between North and South was a pact with the Devil. Others, representing the safer, more conventional wisdom, will insist that all the constitutional compromise on slavery—the omission of abolitionist sentiments from the original draft of the Declaration, the Three-fifths Clause and the Fugitive Slave Clause and the Importation Clause, the self-imposed gag rule that the Twenty-fourth Congress would place on all debate regarding the issue of slavery, the very structure of federalism and the Senate—was a necessary, if unfortunate, requirement for the formation of the Union; that in their silence, the Founders only sought to postpone what they were certain would be slavery’s ultimate demise; that this single lapse cannot detract from the genius of the Constitution, which permitted the space for abolitionists to rally and the debate to proceed, and provided the framework by which, after the Civil War had been fought, the Thirteenth, Fourteenth, and Fifteenth Amendments could be passed, and the Union finally perfected.

How can I, an American with the blood of Africa coursing through my veins, choose sides in such a dispute? I can’t. I love America too much, am too invested in what this country has become, too committed to its institutions, its beauty, and even its ugliness, to focus entirely on the circumstances of its birth. But neither can I brush aside the magnitude of the injustice done, or erase the ghosts of generations past, or ignore the open wound, the aching spirit, that ails this country still.

The best I can do in the face of our history is remind myself that it has not always been the pragmatist, the voice of reason, or the force of compromise, that has created the conditions for liberty. The hard, cold facts remind me that it was unbending idealists like William Lloyd Garrison who first sounded the clarion call for justice; that it was

slaves and former slaves, men like Denmark Vesey and Frederick Douglass and women like Harriet Tubman, who recognized power would concede nothing without a fight. It was the wild-eyed prophecies of John Brown, his willingness to spill blood and not just words on behalf of his visions, that helped force the issue of a nation half slave and half free. I’m reminded that deliberation and the constitutional order may sometimes be the luxury of the powerful, and that it has sometimes been the cranks, the zealots, the prophets, the agitators, and the unreasonable—in other words, the absolutists—that have fought for a new order. Knowing this, I can’t summarily dismiss those possessed of similar certainty today—the antiabortion activist who pickets my town hall meeting, or the animal rights activist who raids a laboratory—no matter how deeply I disagree with their views. I am robbed even of the certainty of uncertainty—for sometimes absolute truths may well be absolute.

I’M LEFT THEN with Lincoln, who like no man before or since understood both the deliberative function of our democracy and the limits of such deliberation. We remember him for the firmness and depth of his convictions—his unyielding opposition to slavery and his determination that a house divided could not stand. But his presidency was guided by a practicality that would distress us today, a practicality that led him to test various bargains with the South in order to maintain the Union without war; to appoint and discard general after general, strategy after strategy, once war broke out; to stretch the Constitution to the breaking point in order to see the war through to a successful conclusion. I like to believe that for Lincoln, it was never a matter of abandoning conviction for the sake of expediency. Rather, it was a matter of maintaining within himself the balance between two contradictory ideas—that we must talk and reach for common understandings, precisely because all of us are imperfect and can never act with the certainty that God is on our side; and yet at times we must act nonetheless, as if we are certain, protected from error only by providence.

That self-awareness, that humility, led Lincoln to advance his principles through the framework of our democracy, through speeches and debate, through the reasoned arguments that might appeal to the better angels of our nature. It was this same humility that allowed him, once the conversation between North and South broke down and war became inevitable, to resist the temptation to demonize the fathers and sons who did battle on the other side, or to diminish the horror of war, no matter how just it might be. The blood of slaves reminds us that our pragmatism can sometimes be moral cowardice. Lincoln, and those buried at Gettysburg, remind us that we should pursue our own absolute truths only if we acknowledge that there may be a terrible price to pay.

SUCH LATE-NIGHT meditations proved unnecessary in my immediate decision about George W. Bush’s nominees to the federal court of appeals. In the end, the crisis in the Senate was averted, or at least postponed: Seven Democratic senators agreed not to filibuster three of Bush’s five controversial nominees, and pledged that in the future they would reserve the filibuster for more “extraordinary circumstances.” In exchange, seven Republicans agreed to vote against a “nuclear option” that would permanently eliminate the filibuster—again, with the caveat that they could change their minds in the event of “extraordinary circumstances.” What constituted “extraordinary circumstances”

no one could say, and both Democratic and Republican activists, itching for a fight, complained bitterly at what they perceived to be their side’s capitulation.

I declined to be a part of what would be called the Gang of Fourteen; given the profiles of some of the judges involved, it was hard to see what judicial nominee might be so much worse as to constitute an “extraordinary circumstance” worthy of filibuster. Still, I could not fault my colleagues for their efforts. The Democrats involved had made a practical decision—without the deal, the “nuclear option” would have likely gone through.

No one was more ecstatic with this turn of events than Senator Byrd. The day the deal was announced, he walked triumphantly down the halls of the Capitol with Republican John Warner of Virginia, the younger members of the Gang trailing behind the old lions. “We have kept the Republic!” Senator Byrd announced to a pack of reporters, and I smiled to myself, thinking back to the visit that the two of us had finally been able to arrange a few months earlier.

It was in Senator Byrd’s hideaway on the first floor of the Capitol, tucked alongside a series of small, beautifully painted rooms where Senate committees once regularly met. His secretary had led me into his private office, which was filled with books and what looked to be aging manuscripts, the walls lined with old photographs and campaign memorabilia. Senator Byrd asked me if it would be all right if we took a few photographs together, and we shook hands and smiled for the photographer who was present. After the secretary and the photographer had left, we sat down in a pair of well- worn chairs. I inquired after his wife, who I had heard had taken a turn for the worse, and asked about some of the figures in the photos. Eventually I asked him what advice he would give me as a new member of the Senate.