The continuing importance of Ernest Renan

Guest Blogger

Sandy Levinson

John Mikhail has written a wonderful (in every sense of the word) review of Alison LaCroix’s pathbreaking reminder of the importance of what she calls “the interbellum Constitution,” i.e., the Constitution that developed following the War of !812 through the outbreak of the Civil War.  He emphasizes the “forgotten” debate during the Virginia ratification convention, where  Patrick Henry altogether plausibly argued that the new Constitution, correctly understood, would allow Congress to abolish slavery at some point in the future.  By the early 19^th century, however, what has come to be called “the federal consensus” had developed, by which it was taken as a given that Congress lacked any such powers, most certainly regarding enslavement in the states where it already existed.  Lincoln agreed, as evidenced in his First Inaugural.  His “red line,” so to speak, was expansion of slavery into the territories.  As for Virginia and other enslaving states, he articulated his support of the “original Thirteenth Amendment,” which would have offered a textual guarantee to those states that the status of the peculiar institution would never be changed save by their own voluntary agreement.

Mikhail’s essay should lead us to return to what is surely one of the most important lectures ever given on the actualities of historical scholarship, Ernest Renan’s Qu’est-ce qu’une nation? (What Is a Nation?), delivered at the Sorbonne in February 1882.  Not at all coincidentally, I offer an extensive analysis of Renan’s lecture in a forthcoming essay that will be part of a symposium published by the William & Mary Bill of Rights Law Journal on Jack Balkin’s important book Memory and Authority:  The Uses of History in Constitutional Interpretation.  Histories are regularly the subject of “essential contests,” as philosophers might put it.  There is rarely genuine consensus precisely because readers (and political actors) believe that it is politically important which version of the past one accepts.

Among many of Balkin’s fruitful ideas is the notion of “memory entrepreneurs,” i.e., individuals or movements who attempt to create and then sell certain notions of the American past in order to serve what are very much present-day interests.  Such “entrepreneurs” are not disinterested scholars, but, instead, more comparable to hucksters eager to make a sale.  Among the “memory entrepreneurs” noted by Mikhail, drawing on LaCroix, are such notables as William Wirt and Daniel Webster, not to mention the remarkable Maria Henrietta Pinckney, the daughter of Charles  Cotesworth Pinckney, an important delegate to the Philadelphia Convention.  All of these collaborated, in a very real sense, in effacing the memory of Henry’s observations or the fact, for example, that an overt attempt to add the word “expressly” to the words of the Tenth Amendment was rejected.  The Necessary and Proper Clause remained quite “sweeping indeed,” especially if one in addition took the Preamble seriously as enunciating that a new, far more “consolidated” government was replacing what Hamilton in Federalist 15 called the “imbecilic” government created by the Articles of Confederation.  Whatever else one thinks of Henry and his opposition to the Constitution, he was not stupid.

But the point is not only that Henry lost the war, but, just as importantly, that his particular battle has also been forgotten.  And this forgetting began remarkably quickly, as Mikhail illustrates especially well with regard to William Wirt’s presentation in his biography of Henry.    As is so often the case, the winners write the histories, which often feature unreliable narrators, including Madison, Wirt, Pinckney, Webster, and Lincoln, for starters.  But that should not in the least surprise us.  All of Renan’s eleven-page essay is worth close reading and analysis.  But its principal takeaway is perhaps the following single sentence:  “Forgetting, I would even say historical error, is an essential factor in the creation of a nation and it is for this reason that the progress of historical studies often poses a threat to nationality.”

No nation dwells on the unhappy aspects of its past that threaten any sense of national unity and the creation of a common narrative that can serve as a source of inspiration to the citizenry, especially to the young who must be socialized into the culture and maintain it unto the next generations.  The young are encouraged—or in fact gently coerced—into pledging their allegiance to a country that has alleged featured “liberty and justice for all.”  Thus the anger by many over the “1619 Project” and the extent to which it challenges this comforting illusion.  Or one might think of the ongoing controversies about memorialization and “cancellation.”  Everyone now seems to agree that Bill Cosby is no longer worthy of being honored, regardless of his notable philanthropic gifts prior to his downfall.  But (almost) everyone appears to agree that it would be unacceptable to replace the Jefferson Memorial or Washington Monument simply because Jefferson and Washington, among other things, were slaveowners.  But then there is everyone in between!

So one way of understanding Mikhail’s comments (and LaCroix’s overall narrative) is that the primary focus of the “interbellum Constitution” was maintaining a Union that rested on what Lincoln would memorably call a “House Divided.”  But we tend to forget that Lincoln did not declare that we had to stop living in such a house; indeed, as noted, he wanted to reinforce the timbers by supporting the Corwin amendment and assuaging any fears on the part of the enslaving states that the arrival in Washington of a Republican President would threaten slavery.  He also pledged, incidentally, to continue enforcing the Fugitive Slave Law.  Like Joseph Story in his 1842 decision in Prigg v. Pennsylvania, a seminal moment in the interbellum Constitution, he accepted Story’s form of “originalism” that viewed what we know as the “Fugitive Slave Clause” (though, as Frederick Douglass would later emphasize, it does not use the term “slave” and could be interpreted, artfully, as referring only to “indentured servants” who had entered into voluntary contracts for service) as a solemn contract with the enslaving states to protect their property should any of those enslaved attempt to flee to so-called “free states.”  Standing Henry’s fears on their head, Story offered the most “sweeping” interpretation of implied powers in our history to justify Congress’s decidedly non-enumerated power to pass the Fugitive Slave Law of 1793.   Lincoln in fact was willing, in his later Peoria Speech, to commend the even more draconian Fugitive Slave Law of 1850 as part of his idol Henry Clay’s wise Compromise of 1850.  In fact, the historian William Freehling has called it the “Armistice of 1850” that purchased time for industrial development in the North that would in fact enable Lincoln to go to war with the secessionist South and prevail in a way that almost certainly would (and could) not have occurred ten years earlier.

But one reason I was eager to resurrect Renan’s great essay in discussing Jack Balkin’s book is precisely because we should not easily submit to “memory entrepreneurs” who necessarily are engaging in thoroughly motivated reasoning.  A “hermeneutics of suspicion” is always warranted.  We should always ask what is being omitted, and why.  One might well agree that “forgetting” and even what Freud would call “repression” are essential to human development.  Grudges should not be kept forever, and all of us should “move on,” at least most of the time.  Even if one suffers from the ability to recall everything, one must still decide what in effect to place on the back burner and what to keep boiling.  At the same time, of course, we may well decide, for excellent reasons, that ruling elites (or other powerful persons like one’s parents) may have engaged in decades-long cover-ups in order to reinforce their own authority.  As Ecclesiastes might have put it, if there is a time for forgetting, there is also a time for remembering.

So one could read Mikhail’s illuminating observations, along with similar arguments being made by other contemporary scholars like Richard Primus and David Schwartz, that we should rediscover the genuinely radical thrust of the Preamble and the full panoply of powers that were in fact given to the national government by the Constitution of 1787.  Whether or not Madison is the “father” of that Constitution, a proposition that I find dubious for a number of reasons, it is far more arguable that he is one of the parents of the overthrow of that Constitution via his writing of the Virginia Resolutions of 1798 and 1799, not to mention his speech to the House of Representatives opposing the chartering of the Bank of the United States in 1791.  If Primus is correct, Madison basically invented the doctrine of “enumerated powers” out of whole cloth (though Pinckney had, as Mikhail notes, also stumbled on the notion in order to reassure his South Carolina colleagues that they had nothing to worry about from the new Constitution).

The point, as far as I am concerned, is not to proclaim, in 2024, whether the “anti-slavery constitutionalists” were “right after all” in spite of anything to the contrary proclaimed, say, by John Marshall, Joseph Story, and every other sitting federal judge during this entire period.  I am content to say that both arguments were available, though only one, as a matter of empirical fact, gained sufficient support among those actually viewed as entitled to rule and therefore shape the principal contours of American political and constitutional development during this period.   One might regret that, but little is gained, say, by denouncing Dred Scott as simply a dishonest reading of the available materials.  Other materials were available, and the task of the historian is first to dredge them up and then to offer explanations for why they were ignored or forgotten.   For the scholar, at least, understanding is more important than either praise or denunciation.  It is always a good idea to assume that people are doing “the best they can,” given their own readings of the situations within which they are living their lives.  That obviously does not mean that some invisible hand will lead to concord; civil war was an ever-present possibility in the United States that was actualized in 1861 and could possibly return today.

Along the way, as we try both to understand our situation and to decide, as citizens rather than scholars, how to allocate our own political energies, we can also ask what part of our own favored narratives of the American past rest on convenient forgetting of materials that would, if acknowledged, cause us serious discomfort.  It is unlikely that we have a achieved a perfect balance of remembering and forgetting.