“The Constitution gives every American the inalienable right to make a damn fool of himself.” I first heard this wise insight into the American way of life from Sam Ervin, who was, as I have since learned, quoting John Ciardi. I should not be surprised: Poets always get to the heart of the matter a lot quicker and cleaner than politicians do.
What Ciardi and Senator Sam meant by this, I believe, was that our original Constitution and Bill of Rights designed a very limited government that restricted the ability of the federal government to compel virtue. If an employer preferred to hire a less qualified white male rather than a qualified black female, it was his loss. But lurking behind this aphorism is an unspoken assumption that our Constitution embodies the American spirit summed up in the common phrase, “Mind your own business.”
We have a written Constitution, to be sure, but behind that Constitution is a set of assumptions that everyone once took for granted, such as the belief that no professing atheist can be elected president. The broadest set of these assumptions, one whose significance is still debated, was the acceptance of English common law in cases where no statute obviously applied.
It is often said that we are the first people to have a written Constitution. In the literal sense, this cannot be true. If we set aside such oddities as the constitution of...