This is Democracy – Episode 320: Is the U.S. Constitution Broken?

[00:00:00] Intro: This is Democracy,

a podcast about the people of the United States, a podcast about citizenship,

about engaging with politics and the world around

you. A podcast about educating yourself on today’s important issues and how to have a voice in what happens next.

[00:00:19] Jeremi: Welcome to our new episode of This Is Democracy.

This week we are going to address the most fundamental of all issues in American politics, the US Constitution. What is it? What does it really mean? What are its limitations? And is it still a workable document for our country? The best way to approach this issue, as always is to turn to history, to understand what the Constitution really is, where it came from, what it means historically, and what we can therefore learn about the present.

We are really, uh. Privilege to be joined, uh, by a wonderful historian who has written a very important, and if I might say, somewhat radical new book on the US Constitution. It’s a book I encourage all of our listeners to read. I will be assigning it to students at some point soon. Uh, the author is Mark Peterson, and the title of the book is The Making and Breaking of the American Constitution, A 1000 Year.

History. Uh, mark, we’re really excited to talk about this with you. Thank you for joining us.

[00:01:22] Mark Peterson: Well, thank you very much for having me on your show.

[00:01:25] Jeremi: Just a little background on Mark. Uh, Mark Peterson is the Edmund s Morgan professor of History at Yale University. And, uh. Gosh, I remember Ed Morgan as a graduate student.

He had just retired from Yale, but, uh, there’s no, in my mind, there’s no better name for someone doing the work of, uh, colonial history than Edmund Morgan. So, mark, it’s really wonderful to even introduce you as the Edmund Morgan. No,

[00:01:46] Mark Peterson: thank you. I, I appreciate that myself.

[00:01:48] Jeremi: Uh, mark has written three books, three major books.

His first book was The Price of Redemption, the Spiritual Economy of Puritan New England. His second book, uh, which I’ve dipped into, is the city, state of Boston, the rise and fall of an Atlantic Power, 1630 to 1865. A really wonderful global history. You learn a lot more than just the history of Boston in that book.

And then his most recent book, which I mentioned already, and I book, I encourage all of you to read the Making and Breaking of the American Constitution a thousand year history. We are joined as well, of course, by Mr. Zachary Suri. Uh, Zachary, how are you today?

[00:02:23] Zachary: Good morning. I’m doing well.

[00:02:25] Jeremi: And, uh, you were in Mark’s class, were you not?

[00:02:28] Zachary: I was, I was in a class on a very, very similar, unrelated topic, uh, that touched so much of the same material on the American Revolution.

[00:02:35] Jeremi: That’s great. And I, uh, obviously Mark has taken advantage of the same privilege I do, which is to impose our work on students before we publish so we can get their reactions.

That’s

[00:02:44] Mark Peterson: absolutely right. Impose, but learn a tremendous amount from them at the same time.

[00:02:49] Jeremi: I couldn’t agree more. I couldn’t agree more. So on that note, mark, um, you really do take a new approach to thinking about the US Constitution. Every colonial historian in one way or another has written about it.

Every American historian has written about the US Constitution. I’ve tried to write about it too. Um, but you take a very different approach and maybe tell us a bit about the, the the thousand year approach you take, uh, beginning with the Doms Day book and William the Conqueror, and, uh, how that leads you to think about constitutionalism in a new way.

[00:03:19] Mark Peterson: Oh, great. Well thanks for the question and, and for the opportunity to talk about the book. So, you know, from where I sit it seems that, uh, the way most Americans think about, uh, the United States Constitution, and the way most historians, especially historians in law schools, in the the Legal Academy write about it, is as if the American Constitution was.

To the document that was drafted in Philadelphia, ratified and amended now 27 times and. The thing about that claim, which, which has come ever more prominent over the past century or so, I would say, is that that’s not how any of the people involved in the making of the United States constitution in 1787 thought about constitutions and about what they were.

And the same is true of the people who made the new American state constitutions and of the hundreds of years of British constitutionalism that, that those people drew on. And so that’s at the basis for this idea that this is a thousand year history. Uh, and specifically what I mean is that the book aims to understand our constitution in particular, constitutions generally as not just single documents, but as relationships.

Mm-hmm. Between. The land and the people who are working out, uh, their forms of government, the, the frame of government itself, the, the kinds of institutions, structures, forms that govern a people. And then finally also written instruments, written documents that both empower and restrict the powers of the government itself.

And, and this understanding of the Constitution as a relationship between the body of the people, the frame of government and written documents is, is profoundly present through English history from, uh, the Middle Ages onward and, and was, uh, completely central. To what I sometimes refer to as, as the great realignment that happens, uh, after the American Revolution, when the former colonists now have to think about what aspects of their constitutional tradition.

Will suit them going forward for the particular kind of country that the United States was becoming.

[00:05:50] Jeremi: A And so for you, it’s not just about Magna Carter, which some would argue is a kind of early, uh, model. It’s about a, a larger experience that’s really related to. To census taking. Yes. I mean, that’s what you spend a lot of time on in the book.

[00:06:04] Mark Peterson: Yeah. Census taking and in particular its relationship to, to land the ownership, the control, the government of land. Uh, and, and, and this has aspects that are absolutely distinctive to European and more specifically English conditions going back centuries. Um. And so that’s why I talk about the Doomsday Book of 10 86 as a constitutional document.

It’s the, the, the survey, uh, that William the Conqueror, uh, had made, um, a couple of decades after his conquest of England, essentially defined out what it was that he claimed that he owned as the, the king of this new realm. And it assesses in excruciating detail, uh. Something like 16,000 plots of land throughout England, that in one way or another, falls under the control of the crown.

And each and every one of these surveys of land record, the number of people who live there, the number of livestock animals used to farm it, and ultimately what the king was looking for. The amount of revenue that you expected from each plot of land, the revenue that would filter its way up into his government, and be the basis of his capacity as king to keep the peace over the land.

And in that sense, I argue this is really the first major constitutional document in English history because it is spelling out in detail the relationships of the people to power, and that power is grounded in the ownership and control of productive land.

[00:07:49] Jeremi: And, and just one quick follow up, uh, what is the relationship between that then in the US Constitution you emphasize the, um, issue of westward expansion as really being the central issue.

So just, just connect those dots for us, if you would.

[00:08:03] Mark Peterson: Right. So it’s kind of a long string of dots, but I’ll try to do it as, as rapidly as I can. So whether listeners are, are aware of this or not. When the Crown, the British monarchy founds colonies in America, the form of land holding given to the colonists is despite a few changes here and there, more or less identical to this version of the Middle Ages, that is the king granted land to colonists as well as written charters.

Essentially telling them what the rules would be for the government of those colonies. And so as colonists moved to America, gained control of land, it always involved resting it away from indigenous owners. It meant that. Uh, the governments of the colonies themselves under their charters was essentially within that same structure that had been created with the Doomsday book in, in 10 86.

So when, you know, a century and a half or more after colonization, these now much transformed American colonies. Some of them that is 13 of them, rebel against English government and become independent. Essentially they are remaking their new governments, their new constitutions, first at the state level, and then collectively out of the remnants of these forms of land owning and government that had their roots in the distant middle ages.

[00:09:38] Jeremi: Got it, Zachary.

[00:09:39] Zachary: Yeah. I’m curious if you could speak a little bit to, um, how colonial, like at an individual co colony level, local governance developed. I mean, obviously it differs across regions and across colonies, um, and how that fits into. Um, the story you tell about the creation of the American Constitution, this was at least something that we talked about a lot in class.

The influence of of, of first colonial charters and then state constitutional conventions on the eventual makeup of the American constitution.

[00:10:08] Mark Peterson: Right? Absolutely. You, you, uh, you get at the very least an a minus for your, your recollection of last year’s events. Um, maybe better. Um, so. The, the critical difference, I would say between the way things worked in England from, uh, the Doomsday Book and Magna Carta forward to what’s happening in America, is that in 10 86, the land of England was already densely populated and cultivated and settled.

And what the colonists were trying to do was essentially. Project that system borrowed from England onto a landscape that looked nothing like that, where land was owned, farmed, occupied, used by indigenous people, but who did not use those kind of structures of ownership control, permanent settlement that were common in.

And so what this meant then was that in every colony, and yes, they, they do vary one from another. But in every colony, the work of colonization involved impressing this vision of land holding, land use, land development onto a landscape at, in which it was new. And so every colony from its origins, usually a little settlement on the coast expands over time into the interior and decade by decade as it projects, uh, ownership control, use of the land into the interior.

The governments in every case develop. Out of the need of the founders of the colony, again, usually stationed on the coast to incorporate, to bring in representatives from their own colonies that are moving out into some kind of decision making body. And so all of the colonial assemblies evolve out of this dispersion of people across the land and the need for the colony government to actually get the buy-in from the people as they move ever farther away from the center of government to sort of accept the terms and represent the interests and needs of the colonists as they’re moving into the interior.

So it wasn’t like some kind of formal plan that the English government or the British government imposed, but rather a kind of evolutionary process that leads each of the colonies, however different they might have been in their founding, to develop assemblies and councils that would in advise the, in most cases, royal governors that were appointed.

And so by the time of the revolution, pretty much every colony has some sort of. Semi accurate replica of the king, the House of Lords, and the House of Commons that Britain had in the form of a governor, a council, and an assembly. And so it’s out of those, you know, evolved roots over the course of a century and more that the colonial governments become the basis.

For the new state constitutions after independence,

[00:13:13] Jeremi: and, and you have a wonderful map in chapter two that shows the extension of some of these colonies, uh, into the Great Lakes region, right? For example, um, you argue, um, that. Really, the Constitution is not about slavery because there’s no agreement on slavery, but it is about, you say Dispossessing natives and developing Western lands for white settlers that you see is at the core of what the Constitution is about.

Is that, is that accurate?

[00:13:41] Mark Peterson: Well, pretty close. Uh, the tricky word there is about, uh, in that the US Constitution is about a lot of things. As any constitutional scholar knows, there’s a kind of infinity of issues and interpretations inside it’s four corners. Um, but what I would say is that. Uh, among all of the compromises, fights, eventual agreements that are put together, uh, to make the Constitution at the Phil Philadelphia Convention, the delegates fought over all kinds of issues.

Slavery being one of them in a very prominent one. And so you get the various clauses in the Constitution having to do with slavery, the three-fifths clause, fugitive, slave clause, et cetera, et cetera, out of compromise, out of disagreement that this was what both sides would, would, would say. Okay, that’s fine.

So the, the Constitution is about those things in its way, but what I’m suggesting is that. The, the, the very felt need to expand into the West, which the United States gains. When the Treaty of Paris that ends the war in 1783 grants, the United States control of this huge Western territory that it doesn’t actually own, that it hasn’t conquered, that is still Indian country.

That’s the thing that everybody agrees on in the Constitutional convention, that unless the United States can gain control of this and move its booming population into the territory, then this new nation is gonna fail just the way the British Empire did in 1763 when it tried to control this territory.

[00:15:25] Jeremi: Right?

[00:15:25] Mark Peterson: So I would say the Constitution is about many things, but the one overriding purpose. That everyone who made it agreed upon was that this has to be something that this new government under the Constitution has to be given. The power, the power in the form of taxation, of the ability to raise armies, to have an executive branch, to control them, to have a judiciary, to, to adjudicate disputes over this land.

That’s the driving force. That’s the common denominator in the Constitution. Right. And so there are any number of things in it that, uh, that were, you know, desirable that people wanted to have in them. But that’s the sort of underlying purpose behind it,

[00:16:08] Jeremi: and that’s what brings people together in supporting it and ratifying it.

[00:16:12] Mark Peterson: Absolutely, ostensibly and interestingly in that regard. That’s one of the things that its proponents during the ratification debates, harped on again and again. Interesting, interesting that if you don’t ratify this, then we’re gonna lose the west. Right. Interesting. We won’t

[00:16:25] Jeremi: have

[00:16:25] Mark Peterson: the power to do it.

[00:16:27] Jeremi: So why is a Louisiana purchase such a turning point for you?

You make a big deal out of, uh, as everyone does. We as diplomatic historians make a big deal out of Louisiana purchase. But you argue this is a real, um, movement away from what the Constitution would’ve expected for Thomas Jefferson as president.

[00:16:42] Mark Peterson: Right. And this is one of the things that, if you called the book Radical at the beginning, uh, I would say yeah, it is kind of radical.

It’s not consensus, uh, in the past history on this subject. So, yeah. I mean, anytime a country suddenly doubles its size, that’s a big deal, right? Uh, but that in a way is not the, the most dramatic thing that’s going on at this moment. What I would say is, is, is this, and, and when people ask me about the title of the book, the Making in the Breaking of the American Constitution.

I don’t mean that it was made in 1787 and then everything was fine for two centuries and then it’s just broken. Now what I mean is that this making and breaking process goes on continuously.

[00:17:28] Intro: Mm.

[00:17:29] Mark Peterson: And so the Louisiana purchase is one of these first break moments, and this is why

when the 13 states come together to create the constitution, well actually 12. ’cause Rhode Island wasn’t at the convention. The, the institutions they’re building and the compromise that they’re making were designed for what some of them refer to as the fixed territory of the United States. Then that was, you know, from the Atlantic to the Mississippi, from the Gulf of Mexico to the Great Lakes, and there were a fixed number of states Then.

And through all of these compromises, they work out what was essentially a compact among them. And included in that compact was a set of agreements about how to add new states. To the union out of territory that all of the states owned collectively. That was the Northwest Territory.

[00:18:27] Jeremi: Mm-hmm.

[00:18:28] Mark Peterson: And so when they signed the Constitution, they were signing onto that a plan for the states as they were, plus a few more in the Northwest Territory.

And so when Jefferson and his diplomats purchased Louisiana from France and double the possible territory of the United States. The issue that which itself was not a, a, a power that was granted to Congress in the Constitution. The real issue comes when thinking about if and how the nation can add new states to the union.

Out of what, until the day before had been foreign territory had been France. And Jefferson himself in this very revealing private correspondence with his friends, has all kinds of qualms about this. And what he says to them is that if we’re gonna admit a new state, Louisiana. We have to have a constitutional amendment to do that because this is such a serious change in the Constitution because the Constitution doesn’t say you can add states from foreign countries.

And because it was so deliberately and carefully made as a compact over the fixed territory that that this is a change. That requires the same kind of buy-in from the people of all of the states that you needed when you ratified the Constitution to begin with. And what he says this is revealing is that if you can admit one state out of territory that we acqui acquire from foreign countries, well then there’s no conceivable limit to the number of states that could be in the United States, the entire world.

And, and he says at that time, you know, England or the Netherlands could be a state of the United States if the US conquers them or acquires them. And, and, and this of course seems crazy for a country that has just renounced monarchy and broken away from England.

[00:20:21] Jeremi: Right.

[00:20:21] Mark Peterson: He wants there to be amendments, but none of the members of his party are all hot on that idea because they think they have the votes to just push it through.

[00:20:31] Jeremi: Hmm.

[00:20:31] Mark Peterson: And when the incident or, or when the issue comes before Congress in 1811. There are dozens of members of Congress, mostly from the north, who themselves agree with Jefferson that this is gonna change the fundamental nature of the country, so much to add states out of foreign territory that an amendment is required for this.

Of course, they’re voted down and Jefferson. Stay silent on this. He does. Even though, you know, Congress is, parts of Congress are calling for it, he does not express his opinions. And so Louisiana, the state is voted in in a majority vote in Congress. And what that does is that it does a curious thing to the future of American politics.

It generates this new way of gaining majorities in congress. Right. Not by persuading your opponents, your ideas are better not by organizing, you know, parties or voters better, but by turning to expansion as a way to gain more territory and more states and with it more representatives and more voters.

[00:21:39] Intro: Hmm.

[00:21:40] Mark Peterson: So I argue in the book that, although of course when the US comes to civil war, slavery is the deep motive cause. This style of politics that comes from this too easy admission of new states to the union is the actual trigger of the war It. It’s the issue that again and again and again. Terror at the heart of national unity by repeating the expansionist uh, pattern and using expansion as ways for, in this case, you know, slavery versus free labor interests to try to win permanent majorities on, on their side of Congress.

Sure,

[00:22:21] Jeremi: sure. Right.

[00:22:21] Mark Peterson: So from the Missouri Compromise to Texas, the Mexican War, the Kansas, Nebraska Acts, every one of those are driven by this new kind of politics that, that Louisiana made possible. And that was a real change from the Constitution as it was drafted in 1783.

[00:22:40] Jeremi: Zachary.

[00:22:41] Zachary: And, and bringing us closer to the present, or at least the, the recent past.

[00:22:46] Mark Peterson: Mm-hmm.

[00:22:46] Zachary: Uh, with this history, how does the Constitution go from this document that is so closely aligned with the Western expansion of the United States and whose, whose very purpose, at least in many cases, seems to be aligned with the westward expansion of the United States? What happens to that document when.

The land is all, is, is all taken up, you know? Right. By the early 20th century, the document remains the central pillar of American democracy. But the question of how, how it can conquer the west, so to speak, seems moot. Yeah. So what, what happens to the document debt?

[00:23:19] Mark Peterson: Absolutely. So by the second decade of the 20th century, the entirety of the, you know, continental logo map is filled in with states, right?

That project is done. And it’s, I think, not a coincidence that it’s in those final expansionist years that you start to see a variety of movements in the United States and its politics, progressive, populist, et cetera, that are beginning to say that the US Constitution actually isn’t very well suited to the United States anymore.

Um, and out of that come the, uh. Amendments of the early 20th century, like the income tax amendment to the direct election of senators, and I would argue, uh, the 19th, the, the, um, uh, en enfranchisement of women as, as voters in the United States are all recognizing that the agrarian republic of the founding generation is not what the United States is anymore.

The problem though is that after those first few amendments of the early 20th century. Uh, the project of using amendments to sort of progressively adapt the Constitution to the changing country comes to a stop. And what I argue in the book is that it is, it is halted by the rise of what we might call the politics of emergency that begin with the Great Depression and the New deal and ease into World War II and the Cold War continuously.

And the argument emerges and it emerges, uh, quite clearly in the voice of Franklin Roosevelt in his fireside chats in the 1930s that the United States is now such a different country. That the amendment process no longer works.

[00:25:14] Jeremi: Hmm.

[00:25:15] Mark Peterson: In the midst of the new deal when Roosevelt and his very strong democratic majorities in Congress are trying to push through dramatic changes in the powers and the capacity of the federal government to deal with the depression.

The Supreme Court, of course, keeps striking down these measures as, uh, unconstitutional is beyond the delegated powers of of, of Congress and the executives. And there’s a, a movement within his administration to use the amendment process to change the constitution so that these will be legitimate powers.

And despite the fact that he had three quarters majorities in both houses of Congress, that he had won 49 of the 50 states in the 1936 election, Roosevelt. Not only decides, but announces to the American public that the amendment process is obsolete in the modern era. That that it only takes 5% of the US population spread across 13 states to block any amendment, no matter how popular and that the modern institutions of radio, mass communications corporations can use.

Its organizing power. To block amendments. And so literally, Roosevelt rejects that idea. And what that means is that from that point forward. Dramatic changes to the nature of American government. You know that the last half of the 20th century witness are done by the president, by Congress, and by a mostly quiescent court going along with it so that the United States in that sense becomes err radically different country from what it had been.

With no significant change to the written instrument, to the Constitution that’s supposed to be its organizing and limiting foundation. And so in my view, that’s, that’s, that’s really at the heart of the kind of crisis that has emerged in recent decades, the this huge gap. Between what the United States is as a people in a nation, what its government is and does, and then this antiquated and unrevised constitution that now can be used as a kind of straight jacket to restrain the government from doing things that people want it to do.

[00:27:36] Jeremi: It, it’s a very powerful argument and it’s one that draws on on a lot of other scholarship. Of course. That points to, as you say, uh oh.

[00:27:42] Mark Peterson: No, no. I invented it all myself.

[00:27:46] Jeremi: Well, you, you were so brilliant. You anticipated what so many others had been writing. Uh, it’s Man.

[00:27:51] Mark Peterson: Did this book rely on the excellent work of other scholars, uh, from, from beginning to end.

[00:27:57] Jeremi: And you do a wonderful job with that Mark. And, and thank you, as you put it, the 20th century witnessed the great unbalancing of the federal government.

[00:28:04] Mark Peterson: That’s

[00:28:05] Jeremi: it. You give, you give a lot of agency to the president in particular. You’ve talked about that with Roosevelt already. Mm-hmm. And you give a lot of agency to what you call and what others have called the National Security state.

Why is that so significant for you?

[00:28:17] Mark Peterson: Well, you know, uh. And, and one of the great historians I borrow from here is my friend Andrew Preston, who just this past year published this great new book on, on where the concept of national security comes from. Yes. The book, I think is called Total Defense.

[00:28:35] Jeremi: Yes.

[00:28:36] Mark Peterson: Um, one of the many people I relied on in this and, and essentially it has everything to do with the way the advent of nuclear weapons.

Changed among other things. The time scale on which you could imagine government operating with respect to, you know, life and death issues like war and peace, right? Mm-hmm. With the prospect of, you know, hours to minutes between, uh, you know, the launch of nuclear weapons and Soviet missiles arriving, the idea that you could, you know, gather.

535 members of Congress together in two houses and have long debates on whether and when to declare war seemed. You know, suicidal at least. Right. And so with the, the kind of congressional granting of executive power over these life and death issues, you’ve got a sort of explosion in the number of institutions, agencies, spy services, surveillance services, the military itself and all of its branches and the industrial world that supported it so that the.

The, the size and the scale and the power of the executive branch just balloons in, in every possible way. Military, yes, but also administrative. And you know, the idea of, just to take one of these, like the CIAA, a secretive government branch with a secret budget that no one is allowed to know. Well, that’s just utterly anathema to the 1787 Constitution, right?

The, you know, it, it, it smacks of monarchical forms of government.

[00:30:14] Jeremi: Yes.

[00:30:14] Mark Peterson: But, you know, uh, nothing was ever done with the constitutional document to allow for this radically different way of thinking about, you know, one of the critical issues that any nation faces. And so that, that’s the sort of thing, I mean, that, that, that we live under a government.

That, you know, for all kinds of often very good reasons have has grown, shaped, evolved in, in all kinds of ways and has, has left the written document of the Constitution far behind in that evolution.

[00:30:46] Jeremi: You, you write on page three 10 at the end of, uh, chapter 12, right before your, your epilogue, uh, since the Cold War ended at the close of the nation’s second century, the United States has been constitutionally adrift.

And then you close by talking about loss of faith in democratic self-government, which you connect to that, that, that, that’s the problem with this, right? Not simply that it’s inconsistent with the constitution, but that it detracts from the legitimacy of our democratic process. Is, is that your argument?

[00:31:14] Mark Peterson: Yeah, I think that’s right. And I, I was actually giving a, a talk on the book last night to a, at a public library here in Connecticut, and one of the, the people asked, well, what is it? What’s missing? What does it need? And I, I think when a lot of people debate the Constitution today, they talk about fixing it in terms of like tweaking what’s already there.

Right. But the example I gave to, to this question, or as an alternative was, was this, that. So now the, if we look at the number of employees that each branch of government has Congress of, you know, the legislative branch employs about 30,000 people. The judicial branch employs about 30,000 people, and under the authority of the executive, there are more than 4 million employees, right?

These are not co-equal branches of government and there are 4 million because over the past century and more, every agency that Congress has created from cabinet departments down to the, well, they, they have staff that right, make up these 4 million people and. The alarming thing is that the Constitution is actually extremely vague about anything like an administrative state.

It’s not that clear who’s supposed to control it. It has fallen under the hands of the executive because of the evolution of the cabinet and the like. But, but what I’m saying is that our Constitution doesn’t actually support the administrative state in any clear and solid way. And that’s exactly why and how it has become this political football, you know, especially in the current administration because, because the Constitution is inadequate to describing, explaining and locating and legitimizing something.

Any modern state really has to have, you know Yeah. Which is the set of employees who do everything from protecting the environment to regulating air traffic control, to you know, everything. Right, right. Uh, and, and so there’s so many ways in which the Constitution that was written in 1787. It’s not that it gets X or Y, right or wrong, it’s that it simply doesn’t speak to all kinds of aspects, that there’s an enormous consensus in this country that government should do.

Right, right,

[00:33:38] Jeremi: right. Zachary? Yeah.

[00:33:40] Zachary: So if the Constitution has become so outdated at, at such a fundamental level, um, and the amendment process seems, as Roosevelt already seemed to recognize in the early 20th century, right, that was 90 years ago, sort of outdated or incapable of real adaptation, how might the, um, constitution today, or at least our form of government be adjusted to better reflect these concerns?

[00:34:06] Mark Peterson: Yeah, well that was the question I was dreading as I reached the end of the book. I, I knew I was gonna have to say something about this, right? And do I know all the answers? I I do not. And so, uh, as my sort of cop out about this, my answer is to revert to the historians. Well, I can’t predict the future, but I do think aspects of the past can be useful for us to think about in this regard.

And one of the points that I make throughout the book going all the way back to the, you know, medieval English, uh, background, is that when major changes, major interventions in the constitutional system take place, they almost never happen constitutionally. That is, they don’t happen according to the current rules that people agree on.

And, and, and there’s a kind of logic to that, right? That if you could solve the problem under the, the current rules, well then it wouldn’t be that big a problem, right? But whether you’re talking about the English Bill of Rights in 1689 after the glorious revolution, or the American Revolution itself, or the US Constitution.

The making of these new interventions happens unconstitutionally, right. The, the Convention in Philadelphia ignored the directions of the Articles of Confederation Congress by throwing out the articles and creating a different model. By throwing out the requirement that all of the states had to ratify it, for it to go into effect.

And in that sense, conducted a kind of coup, right? So, so made a constitution that was not constitutional under the articles. And so my own sense is that we may be reaching the kind of crisis moment in the United States where in one way or another a crisis, a catastrophe, uh, will. Uh, reveal the inadequacy of the current structure to, to, to resolve, to go forward in that, and that when, if that happens, new forms of Constitution making will emerge.

I do not think it will happen by the, the Convention of states that the current constitution calls for is the only way to do this. My only hope is that if and when this happens, people can figure out relatively peaceful, uh, ways to go forward in this, that it won’t require, you know, wars, catastrophes of one kind or another.

And in that sense, my ultimate purpose in writing this book now is to encourage as many smart people, and I’m looking at you, Zachary, uh, to, to start thinking hard about. These questions now because the other observation I would make on this thousand years of constitutional history is that when these crises happen.

The people who go into them with a plan already tend to come out better, tend to get their way. So I think we need to start having a plan now for what new American constitutions will look like to be ready for the crisis when it happens.

[00:37:12] Jeremi: Very well said. And Zachary, that is pointing at you, I think Mark is speaking to a rising generation.

Of young thinkers. Uh, and, and I think it’s a call to arms at the end of the book to start writing new constitutions or planning for something new. Um, is that persuasive? Are, are, is your generation gonna do that, Zachary?

[00:37:33] Zachary: I, I mean, I think so. I think there’s, there’s very little option other than to think outside of the constitutional box, so to speak.

Uh, I think the question is whether that will have any impact or whether those changes, um. We’ll ever, you know, find a place. I think, uh, it, it’s, it’s difficult not to be pessimistic when our political system and our institutions seem at the same time, ossified and falling apart. Uh, and, and so I think the, uh, the urge to want to create something be bigger and better and more suited to our society is certainly present.

The question is whether it will break through that, that noise.

[00:38:11] Jeremi: Right, right. Final question for you, mark. Are you optimistic that we can break through the noise?

[00:38:18] Mark Peterson: Hmm.

I don’t have a good answer to that one. I’m not wildly optimistic, but. If, if this is a bizarre species of optimism, I think there’s so many directions that the potential for crisis is coming from, you know, political, economic, environmental, climate, wars and violence that the odds that some kind of crisis forcing people to, to, to react in new ways.

I, I think the odds for that are pretty high. Yeah. Do you call that optimism?

[00:38:55] Jeremi: Right. Right. I don’t know if that’s optimism, but I, I, I agree with you. I think as a historian or, you know, one sees that moments of disorder do open up new opportunities for order making.

[00:39:06] Mark Peterson: Right.

[00:39:07] Jeremi: Both. And, and you make a very hinted point at the end of your book about the international dimensions of this too.

And

[00:39:13] Mark Peterson: Sure.

[00:39:14] Jeremi: United States is not the only country going through this, so,

[00:39:16] Mark Peterson: right.

[00:39:16] Jeremi: So perhaps, um. Mark Peterson. This is, uh, really a phenomenal book, a book that has opened up clearly so many avenues of worthwhile historical and contemporary discourse. I, again, wanna encourage our readers to pick up your book and, and read it, um, the Making and Breaking of the American Constitution a thousand year history.

Mark, thank you so much for joining us today.

[00:39:39] Mark Peterson: Well, thank you to both, uh, you, Jeremy, and Zachary for having me on your show. This was a great treat.

[00:39:46] Jeremi: And Zachary, thank you as always for your excellent questions and participation. And thank you, most of all, to our loyal listeners who join us each week and subscribe to our substack.

Thank you for joining us for this week of This Is Democracy.

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