The Lives Of The Constitution: An Interview With Joseph Tartakovsky

It's the story of our founding document, told through profiles of ten great individuals who shaped it.

The Constitution is, you could say, “having a moment.” Thanks to our controversial president, clauses and concepts that don’t get much love — like impeachment, the pardon power, and the Emoluments Clause — are suddenly in the public spotlight.

In Constitutional Law courses, the story of our founding document often unfolds through cases, from Marbury to Brown to Obergefell. But we must remember that it’s also the story of people — We the People, who brought the Constitution into being and who live under its principles.

So if you want to intelligently discuss the latest constitutional issues triggered by the current administration, then you need to understand the people behind the provisions — which is where a notable new book, The Lives of the Constitution by Joseph Tartakovsky, comes in. I recently interviewed Tartakovsky, a Biglaw associate turned appellate attorney turned author, about his work.

DL: Like many of our readers, you started your legal career by clerking for a federal judge and working at a top law firm, but now you spend your days in a very different way. Tell us a bit about your transition from lawyer to author.

JT: Thanks, David. For four years before law school I was a journalist, writing for magazines and newspapers on literature and history, and an editor at the Claremont Review of Books. By the middle of law school I knew that I wanted to see constitutional law in practice. After three great years at Gibson Dunn & Crutcher LLP, in San Francisco, I joined the Nevada Attorney General’s Office, as Deputy Solicitor General. Perfect for me, since no state gives you a better vantage to see federalism and the separation of powers as they look in real life. Nevada is 86% federal land, so collisions with the U.S. authorities are frequent and tense. Meanwhile, over many nights and weekends, I labored away on The Lives of the Constitution. This makes me, unavoidably, an author, but I still see myself as a lawyer, just one with an almost uncontrollable preoccupation with history.

DL: The conceit of The Lives of the Constitution, telling the story of our nation’s founding document through biographies of ten great individuals who influenced its development, is an excellent one. How did you come up with the idea for this book?

Joseph Tartakovsky

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JT: I believe that the story of the Constitution is not merely the story of court cases or theories of interpretation. It is the story of human beings; of Americans; of our politics, culture, economics, elections, wars, depressions, struggles, victories. Plutarch, in his history of the Greeks and Romans, proved that the best way to capture a civilization is to pick a number of figures who did exceptional things and then to follow them through their adventures in life. Examining an individual’s life gives you insights that you’d miss if you just read, say, the documents they wrote. For instance, you can’t understand Alexander Hamilton’s constitutional thought without studying his revolutionary war service.

DL: You’ve picked ten important and influential individuals to profile — but given the longevity and significance of the Constitution, you had to leave many out. Can you share with us how you settled upon these ten figures for the book?

JT: I wanted to recount the history of America from founding to present and to introduce readers to unknown stories. I have famous but misunderstood people, like Alexis de Tocqueville and Woodrow Wilson, and largely forgotten folks like James Bryce and Robert Jackson. Above all I went for people who said striking things that teach us something enduring about our constitutional history.

For instance, I first heard of Ida Wells-Barnett, an ex-slave who became our leading anti-lynching crusader in the 1890s, when I read her remark that all black families ought to have a Winchester rifle in a “place of honor” in their home. There’s a lot of constitutional history packed into that statement. I have a chapter on James Wilson, the most important framer no one has heard of, who produced a volume on our Constitution that is as good as the Federalist. And Justice Stephen Field, a Gold Rush lawyer appointed by Lincoln, made arguments about the right to work and regulation that failed to carry the day but that, a century after his death, are now being adopted by courts.

DL: You mention Ida Wells-Barnett, a fascinating figure who might be new to many readers (and I must confess, I wasn’t very familiar with her story until now). This does remind me of something I noticed in my reading: nine out of your ten profile subjects are men. Have you received any comments or complaints about this?

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JT: Yes. Some are surprised to see the face of a black woman on the cover of a book on people who “shaped” the Constitution. Good. Wells-Barnett proves that our constitutional history is not the sole preserve of wise judges, war presidents, and declaiming Senators. But she still is, as you say, just one of ten. That’s because, for most of our history, it has in fact been men atop the platforms of power. Yet that’s why my book also takes up the inspiring story of women’s suffrage and the 19th Amendment, our most powerful epic about how ordinary Americans – in this case, mostly female activists – fundamentally altered our Constitution. Susan B. Anthony (one of many cameo appearances in my book, by the way) is only the most famous of these unacknowledged framers.

DL: The book reflects a tremendous amount of historical research and reflection about the Constitution. Can you share with us something that surprised you during the course of researching or writing The Lives of the Constitution?

JT: Yes, and let me put it provocatively: there is no such group as the “Founding Fathers.” Not as we use the term — as a band of brother-statesmen who stood united on constitutional questions and whose wisdom we have but to apply to our predicaments. We are indebted to the generation of 1787 for the philosophical and institutional fundamentals they gave us. But they fell out, bitterly, over the application of their handiwork: over the bank, control of foreign policy, the scope of the Commerce Clause, the contours of free speech.

Commentators should be fined for starting a sentence, “The Founders believed that….” Pick any issue today, and I suspect that they would clash over it, just as they did in their day. What our 230 years of life under the Constitution proves is that the task is not to ventriloquize the founders, as if we could, but to acknowledge the complexity and richness of their thought and try instead to confront our constitutional challenges with their learning, patriotism, and intensity.

DL: And you have tackled the topic of the Constitution and its history with learning, patriotism, and intensity. Thanks for taking the time to chat, and congratulations on the book!

The Lives of the Constitution [Amazon (affiliate link)]


DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.