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Framed for Posterity: The Enduring Philosophy of the Constitution
by Ralph Ketcham
Product Group: Book
Publisher: University Press Of Kansas (1993-05-01)
ISBN: 0700605916
EAN: 9780700605910
Dewy Decimal #: 342.73029
Hardcover: 220 pages
SKU: 30-54M2-FLY2
Condition: New
Comments: Brand new hardcover with dust jacket. Gift quality. Expedited shipping is available.
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Editorial Reviews
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Product Description
In Marbury v. Madison, Chief Justice John Marshall defined the Constitution as "a superior, paramount law", one that supersedes the laws passed by Congress and state legislatures. What makes it paramount? This book sets out to recover the enduring principles, purposes, and meanings that inform the founders' charter and continue to offer us political guidance more than 200 years later. In so doing, it steers a middle course between "originalists", who restrict interpretation to constitutional specifics, and "relativists", who adapt the Constitution to the moment by ignoring original meaning. "Original intent", Ralph Ketcham argues, is best discerned by a study of the political climate that nourished the Constitution and the Bill of Rights and, more particularly, by undertaking the broader meanings, intentions, and purposes of the framers. To recover this full context of political thinking, Ketcham delves not only into the meaning of the documents but also into the connotations of the framers' vocabulary, the reasoning behind both accepted and rejected propositions, arguments for and against, and unstated assumptions. In his analysis the fundamental or enduring principles are republicanism (as part of the broader doctrine of balance of powers). Ketcham answers those who question the relevance to modern constitutional interpretation of the finding that the founders were both republican and liberal. He asserts that the rights-protecting character of the Constitution and the Bill of Rights derived from the founders' belief that private rights depended upon active government and public virtue. In other words, private liberties rested on the citizenry's right to self-governance.
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Customer Reviews
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An elegant and learned meditation on the Constitution.
Rating  (4)
Date: 2007-06-10
Writing this sort of book should be a requirement for certain sort of people. For one thing, anyone who wants to sit on the Supreme Court should be expected to provide the Congress with a volume like this before their confirmation hearings. Then we would have some idea what we were getting into with their nomination.
Ketcham's previous writings positioned him superbly for this task. He has not only written biographies of both Madison and Franklin but worked early in his career as an editor of their papers. He also edited an edition of the Federalist papers along with some of the essential anti-federalists writings. In other words, he has studied deeply the writings of the Confederation and early National periods.
From my reading, Ketcham's central theme seems to be that the liberalism/republicanism debate was useful only to the extent that we now understand that both intellectual traditions undergird the Constitution and the Bill of Rights. In fact, any one particular right, e.g., freedom of speech has to be seen both from the point of view of a personal liberty and a political freedom.
Ketcham starts off his book by examining the evolution of the 18th century idea of a constitution. Ketcham draws one conclusion from this brief sketch that I want to emphasize: a constitution had to embody certain principles that spoke to what the American community saw as the good life. Those principles were seen by some as religious in origin (the higher law)and by others as secular in origin (natural law). But they embody universal truths about humanity that had to be incorporated into government in order for it to work well. Ketcham emphasizes that this grounding in natural (I am an atheist so I am going to go with the secular version. All part of my personal war against Christmas.) law already distances the original understanding of the Constitution from the jurisprudence of contemporary thinkers as different as Robert Bork or William Brennan.
Ketcham's second section discusses what he sees as four of the basic principles that are embodied in the Constitution: republicanism, liberty, the common good and federalism. He sandwiches his discussion of each of these principles with a chapter on the Enlightenment and on the ratification debates between the Federalists and the Anti-Federalists.
The chapter on the Enlightenment suggests that the Founders wanted the American government as a project that would evolve along with the expanse of human knowledge/understanding. The Enlightenment meant a "search for new facts and new principles that would propel the rational progress of humankind to previously unknown heights" (p.22). This idea of the Constitution as an Enlightenment project is important to understand how Ketcham interprets the constitutional resolution of contemporary issues.
Ketcham's four chapters on republican, liberty, the common good and federalism are gems of argumentation. Throughout his overriding theme is the presence in the Constitution of both the minimum government possible to maximize personal liberty AND an assertive national government that works together with the state governments to maximize political freedom.
Consider the way Ketcham sees the principle of federalism. The national government seperated power among the three branches of government and provide each branch with checks and balances to use against the others should they try to ursurp their bounds. Similarly, the individual states and the national government were to focus on the areas of governance which were most appropriate for each.
It is too often forgotten that the drive for the Constitution came from the state governments ignoring or working against the needs of the nation (p.66). The Constitution created a national government that was to be decisive and effective in its areas of governance. Recall that the Constitution grants only 17 specific powers to Congress (p. 70). The Tenth Amendment drove the point home although it should be noted that the word "explicitly" was struck from the final version.
But what Ketcham wants us to see is that, in many ways, the way powers were seperated between the states and the national government encouraged the public to participate by placing the locus of power as close to the people as was practicable (p.72). He feels that part of the purpose of federalism was to energize republican government by keeping it as close as possible to the sovereign people. Which also insured the preservation of personal liberty.
The ratification debates spurred Federalists like Madison to the realization that they had erred badly by leaving off a Bill of Rights. Ketcham's third section deals with the history of the passage of the Bill of Rights and how it fits in to his understanding of both republicanism and good government. The most interesting part of this discussion for me is Ketcham's discussion of Justice Frankfurter's dissent in West Virginia vs. Barnette. His dissent argues for the right of a legislature to pass a law that arguable abrogates an individuals freedom of religion, speech, etc. (The actual law required school children to do the flag salute and several Jehovah's Witnesses brought suit against the law). Ketcham's discussion brings out the issues nicely (it starts on p. 111). Are there 'natural rights' which cannot be legislatively overridden (or by executive order)?. If so, in overturning legislation, are not the justices overturning the right of the people to a republican form of government? Shouldn't the people be allowed to learn their mistakes and then correct them? Which is more fundamental, the sovereign people or their natural rights?
I want to mention one more belief of Ketcham of which I remain unconvinced. He argues throughout the book that the Founders saw the Constitution as having an evolving meaning in one sense. He feels that the Founders maximized freedoms as much as they could given the times. He feels that they expected both personal liberty and political freedoms to increase. He makes an extended argument for this idea vis-a-vis slavery (p. 151). I am sorry but I don't buy it. I think that all evidence indicates that while some of the Founders were tormented by the issue of slavery, most of them weren't bothered enough to do anything about it.
I also don't necessarily buy the idea of the Constitution as an Enlightenment project. I think both the Declaration of Independence and the Bill of Rights can be seen as strengthening that argument but I would need a lot more source quotation to be convinced the Founders saw it that way at the 1787 Convention or at the state ratifying conventions.
All in all, I feel Ketcham has written an excellent book. He argues with great knowledge and verve for his positions. I remain unconvinced of some of his conclusions but I have learned much from my reading of this book. It is well worth the time of any student of the Constitution.
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