Hanna Fenichel Pitkin The requirement to be extremely brief today is welcome to me, for on the idea of a constitution, if I know anything at all, I am surely a hedgehog (who "knows one big thing") rather than a fox (who "knows many things").' All I have to offer is the fact that our idea of what a constitution is, is inevitably tied to how we "ordinarily"-that is, naturally, spontaneously-use the word "constitution" and related words; and that the patterns of use of such important, abstract, and politically contested words always involve deep inconsistencies. So, to understand what a constitution is, one must look not for some crystalline core or essence of unambiguous meaning but precisely at the ambiguities, the specific oppositions that this specific concept helps us to hold in tension. In particular, it is worth attending to two uses of the word "constitution" which may at first seem wholly irrelevant to our obviously public and polit- ical concerns, irrelevant to the Constitution of the United States, whether considered as the document whose bicentennial we celebrate or as a tradition of interpretation and public practice. The first of these uses is "constitution" in the sense of composition or fundamental make-up, the "constituent parts" of something and how they are put together, its characteristic frame or nature. Concerning a person, ''constitution" can mean either physical make-up (we say someone has a "robust" or a "delicate" constitution) or temperament, the frame of one's character. With respect to a community, this use of "constitution" suggests a characteristic way of life, the national character of a people, their ethos or fundamental nature as a people, a product of their particular history and social conditions. In this sense, our constitution is less something we have than something we are. This sense, is, I think, what Charles Mcllwain meant by the "ancient" idea of a constitution; no doubt he had in mind Aristotle's politeia, which refers not to fundamental law or the locus of sovereignty but to the distinctive shared way of life of a polis, its mode of social and political Hanna Fenichel Pitkin is Professor of Political Science, University of California at Berkeley. This paper was prepared for the Plenary Session program, "The Idea of the Constitution," held at the annual meeting of the Association of American Law Schools in Los Angeles on January 5, 1987. The paper has been prepared from a transcription of oral remarks, without the qualifi- cations and citations one might expect in a formal paper. 1. Sir Isaiah Berlin, The Hedgehog and the Fox (New York, 1957). 01987 by the Association of American Law Schools. Cite as 37 J. Legal Educ. 167 (1987). Journal of Legal Education articulation as a community. 2 When Aristotle wrote his Constitution of Athens, he produced primarily a history of that city. The second use of "constitution" which deserves our attention is its func- tion as a verbal noun pointing to the action or activity of constituting-that is, of founding, framing, shaping something anew. In this sense, our consti- tution is neither something we have nor something we are so much as something we db-or at any rate can do. It is an aspect of the human capacity to act, to innovate, to break the causal chain of process and launch some- thing unprecedented. How do these two uses of constitution-as fundamental character or way of life and as the activity of constituting -illuminate the political and legal sense of "constitution"? The latter use serves to remind us that constitutions are made, not found. They do not fall miraculously from the sky or grow naturally on the vine; they are human creations, products of convention, choice, the specific history of a particular people, and (almost always) a political struggle in which some win and others lose. Indeed, in this vein one might even want to argue that our constitution is more something we do than something we make: we (re) shape it all the time through our collective activity. Our constitution is (what is relatively stable in) our activity; a stranger learns its principles by watching our conduct. From the perspective of this sense, there is nothing particularly sacred or inviolable about a constitution. Our "founding fathers" were men, not gods, and the same powers that they exercised in framing our Constitution are latent in us as well, in our ordinary human capacity for creative action, particularly for collective, shared creativity. We are the species that consti- tutes itself, that collectively shapes itself, not just genetically through repro- duction, as all species do, but culturally, through history. That is what Marx meant, I think, by calling us the "species being," and what Aristotle meant by calling us the "political animal." I am far more different from a woman of ancient Egypt than my cat is from her cat, because I am so much a product of my culture, shaped by all the intervening history. For most of us most of the time, our history-making and species-shaping 4re, of course, inadvertent, the unintended, collective by-product of our myriad private activities. But our capacity for human self-constituting is most fully realized when it is consciously and deliberately exercised, collectively. This sense of "constitu- tion," then, is activating and empowering, calling us to our powers as co- founders and to our responsibilities. And yet, constituting is not just doing whatever one pleases, the expres- sion in action of just any impulse or appetite. To constitute, one must not merely become active at some moment but must establish something that lasts, which, in human affairs, inevitably means something that will enlist and be carried forward by others. Unless we succeed in creating-together 2. Sir Charles Howard Mcllwain, Constitutionalism: Ancient and Modern (Ithaca, N.Y., 1947). Idea of a Constitution with others-something lasting, inclusive, principled, and fundamental, we have not succeeded in constituting anything. And so we come back to "constitution" as fundamental ethos or tempera- ment. For not every choice we make, no matter how active, innovative, or willful, succeeds in expressing the chooser's real needs or basic commit- ments, whether the chooser be one person or a whole polity. So, although constituting is always a free action, how we are able to constitute ourselves is profoundly tied to how we are already constituted by our own distinctive history. Thus there is a sense, after all, in which our constitution is sacred and demands our respectful acknowledgement. If we mistake who we are, our efforts at constitutive action will fail. So there you have the hedgehog's song: the constitution we have depends upon the constitution we make and do and are. Except insofar as we do, what we think we have is powerless and will soon disappear. Except insofar as, in doing, we respect what we are-both our actuality and the genuine potential within us-our doing will be a disaster. Neglect any one of these dimensions, and you will get the idea of our United States Constitution very wrong. The Idea of the Constitution: A Metaphor-morphosis Laurence H. Tribe It is possible to trace a trajectory of the Constitution, to use Hanna Pitkin's concept, as something that we have as a physical artifact: from its departure at eleven in the morning on a stagecoach from Philadelphia to New York the day after it was signed, to its last-minute rescue, stuffed into a linen sack en route to Virginia, as the British advanced on Washington in August of 1814, to its storage for nearly half a century in an old green cabinet together with some seven ancient swords in a basement in Washington out of public view, to its current resting place at the National Archives-where, I can report, I saw it myself on September 17, 1986, the day (as it happens) that William Rehnquist was sworn in as Chief Justice of the United States. But I want to focus instead on a different trajectory, the trajectory of something considerably less stable-the Constitution less as an object than as a subject of legal and social consciousness and discourse-to see what, if anything, might be learned, even 'from a brief overview, of the terms in which the Constitution has been conceived, imagined, discussed, and either venerated or challenged. It is a commonplace, best documented in Carl Becker's Heavenly City of the Eighteenth-Century Philosophers, that the metaphysical and epistemo- logical heirs of Issac Newton tended to see the world as a great machine. In the 1770s, 80s, and 90s, many of the leading American revolutionaries certainly imagined government in terms of a machine. John Quincy Adams, at the Constitution's Golden Jubilee in 1839, gave the machine wheels-and wheels within wheels. And in 1888, James Russell Lowell felt compelled to warn that perhaps too many had come to see the Constitution as a machine that would go of itself-the title of Michael Kammen's provocative recent study of the Constitution in our culture. The metaphorical machine has never quite come apart, but in the early decades of the twentieth century, the metaphor was largely replaced by one that was more vibrant and vital: as Woodrow Wilson wrote in 1908, the Constitution is "not a machine but a living thing." Wilson said the Consti- Laurence H. Tribe is Tyler Professor of Constitutional Law, Harvard University. This paper was prepared for the Plenary Session program, "The Idea of the Constitution," held at the annual meeting of the Association of American Law Schools in Los Angeles on January 5, 1987. The paper has been prepared from a transcription of oral remarks, without the qualifica- tions and citations one might expect in a formal paper. @1987 by the Association of American Law Schools. Cite as 37 J. Legal Educ. 170 (1987). A Constitutional Metaphor-morphosis tution's checks and counterpoises-the elaborate clockwork that Richard Epstein extols in the separation of powers and in the federal-state structure, the checks and counterpoises that Newton might have recognized as sugges- tive of the mechanism of the universe-are, at best, a scaffolding. For Wilson, the Constitution properly "falls not under the theory of the universe, but under the theory of organic life." It is, he said, "accountable to Darwin, not to Newton." Holmes echoed the sentiment in 1914. He said the "provisions of the Constitution are not mathematical formulas .... they are organic living institutions." Cardozo said much the same in 1925. This "metaphor-morphosis" reflected, in part, a quite self-conscious rejec- tion of the static, the and-progressive, the self-satisfied, the anti-evolutionary nature of the earlier imagery. (Compare some of the recent attacks by conser- vatives on the notion of a "living" constitution.) But it would be a mistake, I think, to treat the choice of image as primarily a matter of political strategy. I am persuaded that the image trajectory, if not politically neutral, is at least not politically determined but is to a large degree a mirror of surrounding movements in thought. And I think this phenomenon becomes clearest when we observe the next transformation-the transformation from consti- tution as organism to constitution as idea, a concept that became dominant sometime before the constitutional crisis of 1937. In his famous Lochner dissent in 1905-the dissent from the Lochner decision which Richard Epstein would resurrect-Holmes said the Constitu- tion embodies "no particular economic theory." Wilson went him one better when he wrote, "The Constitution contains no theories." But by 1936, Edward Corwin could write his seminal essay, The Constitution as Instru- ment and as Symbol. It seems to me that the past half century has been dominated by theory, by symbol, and by the notion of reality as a construct of mind. The modem era is dominated by inquiry into the interdependence between the observer and the observed. From Einstein to Heisenberg, from Chomsky to Levi-Strauss, from Freud to the Frankfurt School, ours is less the era of the machine or the era of the organism than the era of the ghost that dwells within both. It is this characteristic which the move to economics and the move to deconstruc- tion have in common. Not surprisingly, the Constitution has undergone a similar shift in focus, with a spate of would-be visionaries nearly stumbling over one another to depict the Constitution as resting on, or best seen as, expressing this or that central idea. Sometimes the idea borrows heavily from Kant and the kingdom of ends, as in Ronald Dworkin's Law's Empire and in David Richard's Toleration and the Constitution. Sometimes the idea borrows heavily from Bentham and from the faction-transcending, utilitarian vision-either in a blend like Richard Epstein's, whose book Takings seems to me to mix John Locke and Malthus and the Chicago School of Economics, or in a blend rather more like John Ely's, whose Democracy and Distrust would reduce the constitutional idea to the fine-tuning of political rather than economic markets. Sometimes the idea borrows, knowingly or not, from Hegel, as in those commentators who would treat constitutional Journal of Legal Education law as historical or moral prophecy or critique. I obviously cannot hope in this brief presentation to describe fairly, much less to critize, each of those efforts to reduce the Constitution to a central idea. My aim, rather, is to suggest that all efforts at such reduction are, in a very important way, misguided. Whatever else it is, the Constitution is not, and should not be reduced to, the expression of any supposedly coherent political theory or idea-to any "one grand tradition," to use Gerry Lop z's phrase. In its composition, as in its operation, the Constitution has not been, over our history, the projectionoof any unitary philosophy or vision. It is standard to critize such unitary approaches as "clausebound interpret- ivism," which seeks meaning in isolated constitutional passages and provi- sions. It is standard to criticize such approaches for ignoring the way in which constitutional elements fit together and play off each other as parts of a structured whole. It is, after all, a constitution and not just a disjointed collection of constitutional pieces which must be interpreted. This sort of critique has been quite standard-and seems sound. It is less standard to critize approaches as seemingly different as those of John Ely, Richard Epstein, and Ronald Dworkin by observing that all such approaches tend to ignore the character of the Constitution as a series of complex compromises loosely knit, and only precariously held together over time. The fighting of which Gerry Lop~z spoke is not over. And it was not proclaimed over by the Constitution. It is not simply that the "original intent" is often indeterminate and multiple. The fact is that, as with the original Constitution's treatment of a subject such as slavery, deeply irrecon- cilable ideals and premises are at work in the very same text and in the same series of interlocking traditions. It seems to me to be profoundly anti-constitutional to read substantive, enlightenment-based ideals of natural rights completely out of the four- teenth amendment's privileges or immunities clause; or, simply because one is wedded to the ideal of representative democracy, to reduce the ninth amendment to a formula for having courts improve processes of representa- tion. These interpretations represent a willingness to carve away those intractable constitutional themes and principles which fail to fit one's preferred vision of the Constitution's dominant mission and of the judicial role in perfecting that mission. And, needless to say, I feel even more strongly about the willingness to bend everything in the Constitution into a program for preserving a system of property entitlements against any political inter- ference qjat "general economic theory," as Richard Epstein would have it, condemns as tending to reduce aggregate wealth. That, it seems to me, is reductionism with a vengeance. To say that the Constitution does not embrace anyone's theory of demo- cracy or of economics or of moral philosophy is not to say that it would be possible or desirable to construe its terms in a disembodied way, without attention to the purposes and ideas that underlie and connect them. This much theory is indispensable. But there is a very great difference between "connecting the dots," as it were, on the Constitution's surface and projecting the entire structure into a single, seamless geodesic dome. A Constitutional Metaphor-morphosis In Bowers v. Hardwick (last summer's sodomy decision), for example, I think the Supreme Court can be faulted for not asking itself in any serious way how the first and fourth amendment protections for speech, for peaceful assembly and association, and for the privacy of the home can be given any genuine sense without positing at least a presumptive right of consensual private intimacy. But micro-theory is one thing. Macro-theory is quite another. It is crucial to recognize, and to remember, that the Constitution is not the product of any one mind, any one time, any one aspiration. The Civil War amend- ments, as Bruce Ackerman has stressed in his Storrs Lectures, are not of a piece with the 1787 Constitution-to note just the most dramatic example of discontinuity. So it should hardly be a surprise if we find that the Constitu- tion as a whole embraces conflicting, even radically inconsistent, ideas and visions at one and the same time: ideas of liberal individualism and of civic republicanism; of persons as political and social beings and of persons as isolated and lonely spirits; of perfecting political representation and of restricting the domain of collective political action; of transcending faction- alism and of reconstituting and continuing the process of struggle. I see this unruly plurality of the Constitution's ideas not as a jungle to be tamed, a Hobbesian wilderness to be cut down, but as a garden to be cultivated. Perhaps this pluralistic emphasis reflects the bias of someone who is struggling to finish the second edition of a treatise that tries to embrace the clash of competing constitutional visions. But I think my emphasis reflects something deeper than that. For me, the Constitution's greatness is in large measure its resistance to ideological reductionism-its resistance to neat encapsulation in any one grand tradition that defines the aspirations of some of the dispossessed as outside the boundaries of the constitutive and defining charter of the society. Is the Constitution, then, sometimes at war with its own premises? Perhaps it speaks in the words of Walt Whitman: "Do I contradict myself? Very well then, I contradict myself. I am large, I contain multitudes."