HERE’S A SAYING that senators frequently use when asked to describe their first year on Capitol Hill: “It’s like drinking from a fire hose.”

The description is apt, for during my first few months in the Senate everything seemed to come at me at once. I had to hire staff and set up offices in Washington and Illinois. I had to negotiate committee assignments and get up to speed on the issues pending before the committees. There was the backlog of ten thousand constituent letters that had accumulated since Election Day, and the three hundred speaking invitations that were arriving every week. In half-hour blocks, I was shuttled from the Senate floor to committee rooms to hotel lobbies to radio stations, entirely dependent on an assortment of recently hired staffers in their twenties and thirties to keep me on schedule, hand me the right briefing book, remind me whom I was meeting with, or steer me to the nearest restroom.

Then, at night, there was the adjustment of living alone. Michelle and I had decided to keep the family in Chicago, in part because we liked the idea of raising the girls outside the hothouse environment of Washington, but also because the arrangement gave Michelle a circle of support—from her mother, brother, other family, and friends—that could help her manage the prolonged absences my job would require. So for the three nights a week that I spent in Washington, I rented a small one-bedroom apartment near Georgetown Law School, in a high-rise between Capitol Hill and downtown.

At first, I tried to embrace my newfound solitude, forcing myself to remember the pleasures of bachelorhood—gathering take-out menus from every restaurant in the neighborhood, watching basketball or reading late into the night, hitting the gym for a midnight workout, leaving dishes in the sink and not making my bed. But it was no use; after thirteen years of marriage, I found myself to be fully domesticated, soft and helpless. My first morning in Washington, I realized I’d forgotten to buy a shower curtain and had to scrunch up against the shower wall in order to avoid flooding the bathroom floor. The next night, watching the game and having a beer, I fell asleep at halftime, and woke up on the couch two hours later with a bad crick in my neck. Take-out food didn’t taste so good anymore; the silence irked me. I found myself calling home repeatedly, just to listen to my daughters’ voices, aching for the warmth of their hugs and the sweet smell of their skin.

“Hey, sweetie!”

“Hey, Daddy.”

“What’s happening?”

“Since you called before?”

“Yeah.”

“Nothing. You wanna talk to Mommy?”

There were a handful of senators who also had young families, and whenever we met we would compare notes on the pros and cons of moving to Washington, as well as the difficulty in protecting family time from overzealous staff. But most of my new colleagues were considerably older—the average age was sixty—and so as I made the rounds to their offices, their advice usually related to the business of the Senate. They explained to me the advantages of various committee assignments and the temperaments of various committee chairmen. They offered suggestions on how to organize staff, whom to talk to for extra office space, and how to manage constituent requests. Most of the advice I found useful; occasionally it was contradictory. But among Democrats at least, my meetings would end with one consistent recommendation: As soon as possible, they said, I should schedule a meeting with Senator Byrd—not only as a matter of senatorial courtesy, but also because Senator Byrd’s senior position on the Appropriations Committee and general stature in the Senate gave him considerable clout.

At eighty-seven years old, Senator Robert C. Byrd was not simply the dean of the Senate; he had come to be seen as the very embodiment of the Senate, a living, breathing fragment of history. Raised by his aunt and uncle in the hardscrabble coal-mining towns of West Virginia, he possessed a native talent that allowed him to recite long passages of poetry from memory and play the fiddle with impressive skill. Unable to afford college tuition, he worked as a meat cutter, a produce salesman, and a welder on battleships during World War II. When he returned to West Virginia after the war, he won a seat in the state legislature, and he was elected to Congress in 1952.

In 1958, he made the jump to the Senate, and during the course of forty-seven years he had held just about every office available—including six years as majority leader and six years as minority leader. All the while he maintained the populist impulse that led him to focus on delivering tangible benefits to the men and women back home: black lung benefits and union protections for miners; roads and buildings and electrification projects for desperately poor communities. In ten years of night courses while serving in Congress he had earned his law degree, and his grasp of Senate rules was legendary. Eventually, he had written a four-volume history of the Senate that reflected not just scholarship and discipline but also an unsurpassed love of the institution that had shaped his life’s work. Indeed, it was said that Senator Byrd’s passion for the Senate was exceeded only by the tenderness he felt toward his ailing wife of sixty-eight years (who has since passed away)—and perhaps by his reverence for the Constitution, a pocket-sized copy of which he carried with him wherever he went and often pulled out to wave in the midst of debate.

I had already left a message with Senator Byrd’s office requesting a meeting when I first had an opportunity to see him in person. It was the day of our swearing in, and we had been in the Old Senate Chamber, a dark, ornate place dominated by a large, gargoyle-like eagle that stretched out over the presiding officer’s chair from an awning of dark, bloodred velvet. The somber setting matched the occasion, as the Democratic Caucus was meeting to organize itself after the difficult election and the loss of its leader. After the new leadership team was installed, Minority Leader Harry Reid asked Senator Byrd if he would say a few words. Slowly, the senior senator rose from his seat, a slender man with a still-thick snowy mane, watery blue eyes, and a sharp, prominent nose. For a moment he stood in silence, steadying himself with his cane, his head turned upward, eyes fixed on the ceiling. Then he began to speak, in somber, measured tones, a hint of the Appalachians like a knotty grain of wood beneath polished veneer.

I don’t recall the specifics of his speech, but I remember the broad themes, cascading out from the well of the Old Senate Chamber in a rising, Shakespearean rhythm—the clockwork design of the Constitution and the Senate as the essence of that charter’s promise; the dangerous encroachment, year after year, of the Executive Branch on the Senate’s precious independence; the need for every senator to reread our founding documents, so that we might remain steadfast and faithful and true to the meaning of the Republic. As he spoke, his voice grew more forceful; his forefinger stabbed the air; the dark room seemed to close in on him, until he seemed almost a specter, the spirit of Senates past, his almost fifty years in these chambers reaching back to touch the previous fifty years, and the fifty years before that, and the fifty years before that; back to the time when Jefferson, Adams, and Madison roamed through the halls of the Capitol, and the city itself was still wilderness and farmland and swamp.

Back to a time when neither I nor those who looked like me could have sat within these walls.

Listening to Senator Byrd speak, I felt with full force all the essential contradictions of me in this new place, with its marble busts, its arcane traditions, its memories and its ghosts. I pondered the fact that, according to his own autobiography, Senator Byrd had received his first taste of leadership in his early twenties, as a member of the Raleigh County Ku Klux Klan, an association that he had long disavowed, an error he attributed—no doubt correctly—to the time and place in which he’d been raised, but which continued to surface as an issue throughout his career. I thought about how he had joined other giants of the Senate, like J. William Fulbright of Arkansas and Richard Russell of Georgia, in Southern resistance to civil rights legislation. I wondered if this would matter to the liberals who now lionized Senator Byrd for his principled opposition to the Iraq War resolution—the MoveOn.org crowd, the heirs of the political counterculture the senator had spent much of his career disdaining.

I wondered if it should matter. Senator Byrd’s life—like most of ours—has been the struggle of warring impulses, a twining of darkness and light. And in that sense I realized that he really was a proper emblem for the Senate, whose rules and design reflect the grand compromise of America’s founding: the bargain between Northern states and Southern states, the Senate’s role as a guardian against the passions of the moment, a defender of minority rights and state sovereignty, but also a tool to protect the wealthy from the rabble, and assure slaveholders of noninterference with their peculiar institution. Stamped into the very fiber of the Senate, within its genetic code, was the same contest between power and principle that characterized America as a whole, a lasting expression of that great debate among a few brilliant, flawed men that had concluded with the creation of a form of government unique in its genius—yet blind to the whip and the chain.

The speech ended; fellow senators clapped and congratulated Senator Byrd for his magnificent oratory. I went over to introduce myself and he grasped my hand warmly, saying how much he looked forward to sitting down for a visit. Walking back to my office, I decided I would unpack my old constitutional law books that night and reread the document itself. For Senator Byrd was right: To understand what was happening in Washington in 2005, to understand my new job and to understand Senator Byrd, I needed to circle back to the start, to America’s earliest debates and founding documents, to trace how they had played out over time, and make judgments in light of subsequent history.

IF YOU ASK my eight-year-old what I do for a living, she might say I make laws. And yet one of the surprising things about Washington is the amount of time spent arguing not about what the law should be, but rather what the law is. The simplest statute—a requirement, say, that companies provide bathroom breaks to their hourly workers—can become the subject of wildly different interpretations, depending on whom you are talking to: the congressman who sponsored the provision, the staffer who drafted it, the department head whose job it is to enforce it, the lawyer whose client finds it inconvenient, or the judge who may be called upon to apply it.

Some of this is by design, a result of the complex machinery of checks and balances. The diffusion of power between the branches, as well as between federal and state governments, means that no law is ever final, no battle truly finished; there is always the opportunity to strengthen or weaken what appears to be done, to water down a regulation or block its implementation, to contract an agency’s power with a cut in its budget, or to seize control of an issue where a vacuum has been left.

Partly it’s the nature of the law itself. Much of the time, the law is settled and plain. But life turns up new problems, and lawyers, officials, and citizens debate the meaning of terms that seemed clear years or even months before. For in the end laws are just words on a page—words that are sometimes malleable, opaque, as dependent on context and trust as they are in a story or poem or promise to someone, words whose meanings are subject to erosion, sometimes collapsing in the blink of an eye.

The legal controversies that were stirring Washington in 2005 went beyond the standard problems of legal interpretation, however. Instead, they involved the question of whether those in power were bound by any rules of law at all.

When it came to questions of national security in the post–9/11 era, for example, the White House stood fast against any suggestion that it was answerable to Congress or the courts. During the hearings to confirm Condoleezza Rice as secretary of state, arguments flared over everything from the scope of Congress’s resolution authorizing the war in Iraq to the willingness of executive branch members to testify under oath. During the debate surrounding the confirmation of Alberto Gonzalez, I reviewed memos drafted in the attorney general’s office suggesting that techniques like sleep deprivation or repeated suffocation did not constitute torture so long as they did not cause “severe pain” of the sort “accompanying organ failure, impairment of bodily function, or even death”; transcripts that suggested the Geneva Conventions did not apply to “enemy combatants” captured in a war in Afghanistan; opinions that the Fourth Amendment did not apply to U.S. citizens labeled “enemy combatants” and captured on U.S. soil.

This attitude was by no means confined to the White House. I remember heading toward the Senate floor one day in early March and being stopped briefly by a dark- haired young man. He led me over to his parents, and explained that they had traveled from Florida in a last-ditch effort to save a young woman—Terri Schiavo—who had fallen into a deep coma, and whose husband was now planning to remove her from life support. It was a heartbreaking story, but I told them there was little precedent for Congress intervening in such cases—not realizing at the time that Tom DeLay and Bill Frist made their own precedent.

The scope of presidential power during wartime. The ethics surrounding end-of-life decisions. These weren’t easy issues; as much as I disagreed with Republican policies, I believed they were worthy of serious debate. No, what troubled me was the process—or lack of process—by which the White House and its congressional allies disposed of opposing views; the sense that the rules of governing no longer applied, and that there were no fixed meanings or standards to which we could appeal. It was as if those in power had decided that habeas corpus and separation of powers were niceties that only got in the way, that they complicated what was obvious (the need to stop terrorists) or impeded what was right (the sanctity of life) and could therefore be disregarded, or at least bent to strong wills.

The irony, of course, was that such disregard of the rules and the manipulation of language to achieve a particular outcome were precisely what conservatives had long accused liberals of doing. It was one of the rationales behind Newt Gingrich’s Contract with America—the notion that the Democratic barons who then controlled the House of Representatives consistently abused the legislative process for their own gain. It was the basis for the impeachment proceedings against Bill Clinton, the scorn heaped on the sad phrase “it depends on what the meaning of the word ‘is’ is.” It was the basis of conservative broadsides against liberal academics, those high priests of political correctness, it was argued, who refused to acknowledge any eternal truths or hierarchies of knowledge and indoctrinated America’s youth with dangerous moral relativism.

And it was at the very heart of the conservative assault on the federal courts.

Gaining control of the courts generally and the Supreme Court in particular had become the holy grail for a generation of conservative activists—and not just, they insisted, because they viewed the courts as the last bastion of pro-abortion, pro-affirmative-action, pro-homosexual, pro-criminal, pro-regulation, anti-religious liberal elitism. According to these activists, liberal judges had placed themselves above the law, basing their opinions not on the Constitution but on their own whims and desired results, finding rights to abortion or sodomy that did not exist in the text, subverting the democratic process and perverting the Founding Fathers’ original intent. To return the courts to their proper role required the appointment of “strict constructionists” to the federal bench, men and women who understood the difference between interpreting and making law, men and women who would stick to the original meaning of the Founders’ words. Men and women who would follow the rules.

Those on the left saw the situation quite differently. With conservative Republicans making gains in the congressional and presidential elections, many liberals viewed the courts as the only thing standing in the way of a radical effort to roll back civil rights, women’s rights, civil liberties, environmental regulation, church/state separation, and the entire legacy of the New Deal. During the Bork nomination, advocacy groups and Democratic leaders organized their opposition with a sophistication that had never been seen for a judicial confirmation. When the nomination was defeated, conservatives realized that they would have to build their own grassroots army.

Since then, each side had claimed incremental advances (Scalia and Thomas for conservatives, Ginsburg and Breyer for liberals) and setbacks (for conservatives, the widely perceived drift toward the center by O’Connor, Kennedy, and especially Souter; for liberals, the packing of lower federal courts with Reagan and Bush I appointees). Democrats complained loudly when Republicans used control of the Judiciary Committee to block sixty-one of Clinton’s appointments to appellate and district courts, and for the brief time that they held the majority, the Democrats tried the same tactics on George W. Bush’s nominees.

But when the Democrats lost their Senate majority in 2002, they had only one arrow left in their quiver, a strategy that could be summed up in one word, the battle cry around which the Democratic faithful now rallied:

Filibuster!

The Constitution makes no mention of the filibuster; it is a Senate rule, one that dates back to the very first Congress. The basic idea is simple: Because all Senate business is conducted by unanimous consent, any senator can bring proceedings to a halt by exercising his right to unlimited debate and refusing to move on to the next order of business. In other words, he can talk. For as long as he wants. He can talk about the substance of a pending bill, or about the motion to call the pending bill. He can choose to read the entire seven-hundred-page defense authorization bill, line by line, into the record, or relate aspects of the bill to the rise and fall of the Roman Empire, the flight of the hummingbird, or the Atlanta phone book. So long as he or like-minded colleagues are willing to stay on the floor and talk, everything else has to wait—which gives each senator an enormous amount of leverage, and a determined minority effective veto power over any piece of legislation.

The only way to break a filibuster is for three-fifths of the Senate to invoke something called cloture—that is, the cessation of debate. Effectively this means that every action pending before the Senate—every bill, resolution, or nomination—needs the support of sixty senators rather than a simple majority. A series of complex rules has evolved, allowing both filibusters and cloture votes to proceed without fanfare: Just the threat of a filibuster will often be enough to get the majority leader’s attention, and a cloture vote will then be organized without anybody having to spend their evenings sleeping in armchairs and cots. But throughout the Senate’s modern history, the filibuster has remained a preciously guarded prerogative, one of the distinguishing features, it is said—along with six-year terms and the allocation of two senators to each state, regardless of population—that separates the Senate from the House and serves as a firewall against the dangers of majority overreach.

There is another, grimmer history to the filibuster, though, one that carries special relevance for me. For almost a century, the filibuster was the South’s weapon of choice in its efforts to protect Jim Crow from federal interference, the legal blockade that effectively gutted the Fourteenth and Fifteenth Amendments. Decade after decade, courtly, erudite men like Senator Richard B. Russell of Georgia (after whom the most elegant suite of Senate offices is named) used the filibuster to choke off any and every piece of civil rights legislation before the Senate, whether voting rights bills, or fair employment bills, or anti-lynching bills. With words, with rules, with procedures and precedents—with law—Southern senators had succeeded in perpetuating black subjugation in ways that mere violence never could. The filibuster hadn’t just stopped bills. For many blacks in the South, the filibuster had snuffed out hope.

Democrats used the filibuster sparingly in George Bush’s first term: Of the President’s two-hundred-plus judicial nominees, only ten were prevented from getting to the floor for an up-or-down vote. Still, all ten were nominees to appellate courts, the courts that counted; all ten were standard-bearers for the conservative cause; and if Democrats maintained their filibuster on these ten fine jurists, conservatives argued, there would be nothing to prevent them from having their way with future Supreme Court nominees.

So it came to pass that President Bush—emboldened by a bigger Republican majority in the Senate and his self-proclaimed mandate—decided in the first few weeks of his second term to renominate seven previously filibustered judges. As a poke in the eye to the Democrats, it produced the desired response. Democratic Leader Harry Reid called it “a big wet kiss to the far right” and renewed the threat of a filibuster. Advocacy groups on the left and the right rushed to their posts and sent out all-points alerts, dispatching emails and direct mail that implored donors to fund the air wars to come. Republicans, sensing that this was the time to go in for the kill, announced that if Democrats continued in their obstructionist ways, they would have no choice but to invoke the dreaded “nuclear option,” a novel procedural maneuver that would involve the Senate’s presiding officer (perhaps Vice President Cheney himself) ignoring the opinion of the Senate parliamentarian, breaking two hundred years of Senate precedent, and deciding, with a simple bang of the gavel, that the use of filibusters was no longer permissible under the Senate rules—at least when it came to judicial nominations.

To me, the threat to eliminate the filibuster on judicial nominations was just one more example of Republicans changing the rules in the middle of the game. Moreover, a good argument could be made that a vote on judicial nominations was precisely the situation where the filibuster’s supermajority requirement made sense: Because federal judges receive lifetime appointments and often serve through the terms of multiple presidents, it behooves a president—and benefits our democracy—to find moderate nominees who can garner some measure of bipartisan support. Few of the Bush nominees in question fell into the “moderate” category; rather, they showed a pattern of hostility toward civil rights, privacy, and checks on executive power that put them to the right of even most Republican judges (one particularly troubling nominee had derisively called Social Security and other New Deal programs “the triumph of our own socialist revolution”).

Still, I remember muffling a laugh the first time I heard the term “nuclear option.” It seemed to perfectly capture the loss of perspective that had come to characterize judicial confirmations, part of the spin-fest that permitted groups on the left to run ads featuring scenes of Jimmy Stewart’s Mr. Smith Goes to Washington without any mention that Strom Thurmond and Jim Eastland had played Mr. Smith in real life; the shameless mythologizing that allowed Southern Republicans to rise on the Senate floor and somberly intone about the impropriety of filibusters, without even a peep of acknowledgment that it was the politicians from their states—their direct political forebears—who had perfected the art for a malicious cause.

Not many of my fellow Democrats appreciated the irony. As the judicial confirmation process began heating up, I had a conversation with a friend in which I admitted concern with some of the strategies we were using to discredit and block nominees. I had no doubt of the damage that some of Bush’s judicial nominees might do; I would support the filibuster of some of these judges, if only to signal to the White House the need to moderate its next selections. But elections ultimately meant something, I told my friend. Instead of relying on Senate procedures, there was one way to ensure that judges on the bench reflected our values, and that was to win at the polls.

My friend shook her head vehemently. “Do you really think that if the situations were reversed, Republicans would have any qualms about using the filibuster?” she asked.

I didn’t. And yet I doubted that our use of the filibuster would dispel the image of Democrats always being on the defensive—a perception that we used the courts and lawyers and procedural tricks to avoid having to win over popular opinion. The perception wasn’t entirely fair: Republicans no less than Democrats often asked the courts to overturn democratic decisions (like campaign finance laws) that they didn’t like. Still, I wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy.

Just as conservatives appeared to have lost any sense that democracy must be more than what the majority insists upon. I thought back to an afternoon several years earlier, when as a member of the Illinois legislature I had argued for an amendment to include a mother’s health exception in a Republican bill to ban partial-birth abortion. The amendment failed on a party line vote, and afterward, I stepped out into the hallway with one of my Republican colleagues. Without the amendment, I said, the law would be struck down by the courts as unconstitutional. He turned to me and said it didn’t matter what amendment was attached—judges would do whatever they wanted to do anyway.

“It’s all politics,” he had said, turning to leave. “And right now we’ve got the votes.”

DO ANY OF these fights matter? For many of us, arguments over Senate procedure, separation of powers, judicial nominations, and rules of constitutional interpretation seem pretty esoteric, distant from our everyday concerns—just one more example of partisan jousting.

In fact, they do matter. Not only because the procedural rules of our government help define the results—on everything from whether the government can regulate polluters to whether government can tap your phone—but because they define our democracy just as much as elections do. Our system of self-governance is an intricate affair; it is through that system, and by respecting that system, that we give shape to our values and shared commitments.

Of course, I’m biased. For ten years before coming to Washington, I taught constitutional law at the University of Chicago. I loved the law school classroom: the stripped-down nature of it, the high-wire act of standing in front of a room at the beginning of each class with just blackboard and chalk, the students taking measure of me, some intent or apprehensive, others demonstrative in their boredom, the tension broken by my first question—“What’s this case about?”—and the hands tentatively rising, the initial responses and me pushing back against whatever arguments surfaced, until slowly the bare words were peeled back and what had appeared dry and lifeless just a few minutes before suddenly came alive, and my students’ eyes stirred, the text becoming for them a part not just of the past but of their present and their future.

Sometimes I imagined my work to be not so different from the work of the theology professors who taught across campus—for, as I suspect was true for those teaching Scripture, I found that my students often felt they knew the Constitution without having really read it. They were accustomed to plucking out phrases that they’d heard and using them to bolster their immediate arguments, or ignoring passages that seemed to contradict their views.

But what I appreciated most about teaching constitutional law, what I wanted my students to appreciate, was just how accessible the relevant documents remain after two centuries. My students may have used me as a guide, but they needed no intermediary, for unlike the books of Timothy or Luke, the founding documents—the Declaration of Independence, the Federalist Papers, and the Constitution—present themselves as the product of men. We have a record of the Founders’ intentions, I would tell my students, their arguments and their palace intrigues. If we can’t always divine what was in their hearts, we can at least cut through the mist of time and have some sense of the core ideals that motivated their work.

So how should we understand our Constitution, and what does it say about the current controversies surrounding the courts? To begin with, a careful reading of our founding documents reminds us just how much all of our attitudes have been shaped by them. Take the idea of inalienable rights. More than two hundred years after the Declaration of Independence was written and the Bill of Rights was ratified, we continue to argue about the meaning of a “reasonable” search, or whether the Second Amendment prohibits all gun regulation, or whether the desecration of the flag should be considered speech. We debate whether such basic common-law rights as the right to marry or the right to maintain our bodily integrity are implicitly, if not explicitly, recognized by the Constitution, and whether these rights encompass personal decisions involving abortion, or end-of-life care, or homosexual partnerships.

And yet for all our disagreements we would be hard pressed to find a conservative or liberal in America today, whether Republican or Democrat, academic or layman, who doesn’t subscribe to the basic set of individual liberties identified by the Founders and enshrined in our Constitution and our common law: the right to speak our minds; the right to worship how and if we wish; the right to peaceably assemble to petition our government; the right to own, buy, and sell property and not have it taken without fair compensation; the right to be free from unreasonable searches and seizures; the right not to be detained by the state without due process; the right to a fair and speedy trial; and the right to make our own determinations, with minimal restriction, regarding family life and the way we raise our children.

We consider these rights to be universal, a codification of liberty’s meaning, constraining all levels of government and applicable to all people within the boundaries of our political community. Moreover, we recognize that the very idea of these universal rights presupposes the equal worth of every individual. In that sense, wherever we lie on the political spectrum, we all subscribe to the Founders’ teachings.

We also understand that a declaration is not a government; a creed is not enough. The Founders recognized that there were seeds of anarchy in the idea of individual freedom, an intoxicating danger in the idea of equality, for if everybody is truly free, without the constraints of birth or rank or an inherited social order—if my notion of faith is no better or worse than yours, and my notions of truth and goodness and beauty are as true and good and beautiful as yours—then how can we ever hope to form a society that coheres? Enlightenment thinkers like Hobbes and Locke suggested that free men would form governments as a bargain to ensure that one man’s freedom did not become another man’s tyranny; that they would sacrifice individual license to better preserve their liberty. And building on this concept, political theorists writing before the American Revolution concluded that only a democracy could fulfill the need for both freedom and order—a form of government in which those who are governed grant their consent, and the laws constraining liberty are uniform, predictable, and transparent, applying equally to the rulers and the ruled.

The Founders were steeped in these theories, and yet they were faced with a discouraging fact: In the history of the world to that point, there were scant examples of functioning democracies, and none that were larger than the city-states of ancient Greece. With thirteen far-flung states and a diverse population of three or four million, an Athenian model of democracy was out of the question, the direct democracy of the New England town meeting unmanageable. A republican form of government, in which the people elected representatives, seemed more promising, but even the most optimistic republicans had assumed that such a system could work only for a geographically compact and homogeneous political community—a community in which a common culture, a common faith, and a well-developed set of civic virtues on the part of each and every citizen limited contention and strife.

The solution that the Founders arrived at, after contentious debate and multiple drafts, proved to be their novel contribution to the world. The outlines of Madison’s constitutional architecture are so familiar that even schoolchildren can recite them: not only rule of law and representative government, not just a bill of rights, but also the separation of the national government into three coequal branches, a bicameral Congress, and a concept of federalism that preserved authority in state governments, all of it designed to diffuse power, check factions, balance interests, and prevent tyranny by either the few or the many. Moreover, our history has vindicated one of the Founders’ central insights: that republican self-government could actually work better in a large and diverse society, where, in Hamilton’s words, the “jarring of parties” and differences of opinion could “promote deliberation and circumspection.” As with our understanding of the Declaration, we debate the details of constitutional construction; we may object to Congress’s abuse of expanded commerce clause powers to the detriment of the states, or to the erosion of Congress’s power to declare war. But we are confident in the fundamental soundness of the Founders’ blueprints and the democratic house that resulted. Conservative or liberal, we are all constitutionalists.

So if we all believe in individual liberty and we all believe in these rules of democracy, what is the modern argument between conservatives and liberals really about? If we’re honest with ourselves, we’ll admit that much of the time we are arguing about results— the actual decisions that the courts and the legislature make about the profound and difficult issues that help shape our lives. Should we let teachers lead our children in prayer and leave open the possibility that the minority faiths of some children are diminished? Or do we forbid such prayer and force parents of faith to hand over their children to a secular world eight hours a day? Is a university being fair by taking the history of racial discrimination and exclusion into account when filling a limited number of slots in its medical school? Or does fairness demand that universities treat every applicant in a color-blind fashion? More often than not, if a particular procedural rule—the right to filibuster, say, or the Supreme Court’s approach to constitutional interpretation—helps us win the argument and yields the outcome we want, then for that moment at least we think it’s a pretty good rule. If it doesn’t help us win, then we tend not to like it so much.

In that sense, my colleague in the Illinois legislature was right when he said that today’s constitutional arguments can’t be separated from politics. But there’s more than just outcomes at stake in our current debates about the Constitution and the proper role of the courts. We’re also arguing about how to argue—the means, in a big, crowded, noisy democracy, of settling our disputes peacefully. We want to get our way, but most of us also recognize the need for consistency, predictability, and coherence. We want the rules governing our democracy to be fair.

And so, when we get in a tussle about abortion or flag burning, we appeal to a higher authority—the Founding Fathers and the Constitution’s ratifiers—to give us more direction. Some, like Justice Scalia, conclude that the original understanding must be followed and that if we strictly obey this rule, then democracy is respected.

Others, like Justice Breyer, don’t dispute that the original meaning of constitutional provisions matters. But they insist that sometimes the original understanding can take you only so far—that on the truly hard cases, the truly big arguments, we have to take context, history, and the practical outcomes of a decision into account. According to this view, the Founding Fathers and original ratifiers have told us how to think but are no longer around to tell us what to think. We are on our own, and have only our own reason and our judgment to rely on.

Who’s right? I’m not unsympathetic to Justice Scalia’s position; after all, in many cases the language of the Constitution is perfectly clear and can be strictly applied. We don’t have to interpret how often elections are held, for example, or how old a president must be, and whenever possible judges should hew as closely as possible to the clear meaning of the text.

Moreover, I understand the strict constructionists’ reverence for the Founders; indeed, I’ve often wondered whether the Founders themselves recognized at the time the scope of their accomplishment. They didn’t simply design the Constitution in the wake of revolution; they wrote the Federalist Papers to support it, shepherded the document through ratification, and amended it with the Bill of Rights—all in the span of a few short years. As we read these documents, they seem so incredibly right that it’s easy to believe they are the result of natural law if not divine inspiration. So I appreciate the temptation on the part of Justice Scalia and others to assume our democracy should be treated as fixed and unwavering; the fundamentalist faith that if the original understanding of the Constitution is followed without question or deviation, and if we remain true to the rules that the Founders set forth, as they intended, then we will be rewarded and all good will flow.

Ultimately, though, I have to side with Justice Breyer’s view of the Constitution—that it is not a static but rather a living document, and must be read in the context of an ever-changing world.

How could it be otherwise? The constitutional text provides us with the general principle that we aren’t subject to unreasonable searches by the government. It can’t tell us the Founders’ specific views on the reasonableness of an NSA computer data-mining operation. The constitutional text tells us that freedom of speech must be protected, but it doesn’t tell us what such freedom means in the context of the Internet.

Moreover, while much of the Constitution’s language is clear and can be strictly applied, our understanding of many of its most important provisions—like the due process clause and the equal protection clause—has evolved greatly over time. The original understanding of the Fourteenth Amendment, for example, would certainly allow sex discrimination and might even allow racial segregation—an understanding of equality to which few of us would want to return.

Finally, anyone looking to resolve our modern constitutional dispute through strict construction has one more problem: The Founders and ratifiers themselves disagreed profoundly, vehemently, on the meaning of their masterpiece. Before the ink on the constitutional parchment was dry, arguments had erupted, not just about minor provisions but about first principles, not just between peripheral figures but within the Revolution’s very core. They argued about how much power the national government should have—to regulate the economy, to supersede state laws, to form a standing army, or to assume debt. They argued about the president’s role in establishing treaties with foreign powers, and about the Supreme Court’s role in determining the law. They argued about the meaning of such basic rights as freedom of speech and freedom of assembly, and on several occasions, when the fragile state seemed threatened, they were not averse to ignoring those rights altogether. Given what we know of this scrum, with all its shifting alliances and occasionally underhanded tactics, it is unrealistic to believe that a judge, two hundred years later, can somehow discern the original intent of the Founders or ratifiers.

Some historians and legal theorists take the argument against strict construction one step further. They conclude that the Constitution itself was largely a happy accident, a document cobbled together not as the result of principle but as the result of power and passion; that we can never hope to discern the Founders’ “original intentions” since the intentions of Jefferson were never those of Hamilton, and those of Hamilton differed greatly from those of Adams; that because the “rules” of the Constitution were contingent on time and place and the ambitions of the men who drafted them, our interpretation of the rules will necessarily reflect the same contingency, the same raw competition, the same imperatives—cloaked in high-minded phrasing—of those factions that ultimately prevail. And just as I recognize the comfort offered by the strict constructionist, so I see a certain appeal to this shattering of myth, to the temptation to believe that the constitutional text doesn’t constrain us much at all, so that we are free to assert our own values unencumbered by fidelity to the stodgy traditions of a distant past. It’s the freedom of the relativist, the rule breaker, the teenager who has discovered his parents are imperfect and has learned to play one off of the other—the freedom of the apostate.

And yet, ultimately, such apostasy leaves me unsatisfied as well. Maybe I am too steeped in the myth of the founding to reject it entirely. Maybe like those who reject Darwin in favor of intelligent design, I prefer to assume that someone’s at the wheel. In the end, the question I keep asking myself is why, if the Constitution is only about power and not about principle, if all we are doing is just making it up as we go along, has our own republic not only survived but served as the rough model for so many of the successful societies on earth?

The answer I settle on—which is by no means original to me—requires a shift in metaphors, one that sees our democracy not as a house to be built, but as a conversation to be had. According to this conception, the genius of Madison’s design is not that it provides us a fixed blueprint for action, the way a draftsman plots a building’s construction. It provides us with a framework and with rules, but fidelity to these rules will not guarantee a just society or assure agreement on what’s right. It won’t tell us whether abortion is good or bad, a decision for a woman to make or a decision for a legislature. Nor will it tell us whether school prayer is better than no prayer at all.

What the framework of our Constitution can do is organize the way by which we argue about our future. All of its elaborate machinery—its separation of powers and checks and balances and federalist principles and Bill of Rights—are designed to force us into a conversation, a “deliberative democracy” in which all citizens are required to engage in a process of testing their ideas against an external reality, persuading others of their point of view, and building shifting alliances of consent. Because power in our government is so diffuse, the process of making law in America compels us to entertain the possibility that we are not always right and to sometimes change our minds; it challenges us to examine our motives and our interests constantly, and suggests that both our individual and collective judgments are at once legitimate and highly fallible.

The historical record supports such a view. After all, if there was one impulse shared by all the Founders, it was a rejection of all forms of absolute authority, whether the king, the theocrat, the general, the oligarch, the dictator, the majority, or anyone else who claims to make choices for us. George Washington declined Caesar’s crown because of this impulse, and stepped down after two terms. Hamilton’s plans for leading a New Army foundered and Adams’s reputation after the Alien and Sedition Acts suffered for failing to abide by this impulse. It was Jefferson, not some liberal judge in the sixties, who called for a wall between church and state—and if we have declined to heed Jefferson’s advice to engage in a revolution every two or three generations, it’s only because the Constitution itself proved a sufficient defense against tyranny.

It’s not just absolute power that the Founders sought to prevent. Implicit in its structure, in the very idea of ordered liberty, was a rejection of absolute truth, the infallibility of any idea or ideology or theology or “ism,” any tyrannical consistency that might lock future generations into a single, unalterable course, or drive both majorities and minorities into the cruelties of the Inquisition, the pogrom, the gulag, or the jihad. The Founders may have trusted in God, but true to the Enlightenment spirit, they also trusted in the minds and senses that God had given them. They were suspicious of abstraction and liked asking questions, which is why at every turn in our early history theory yielded to fact and necessity. Jefferson helped consolidate the power of the national government even as he claimed to deplore and reject such power. Adams’s ideal of a politics grounded solely in the public interest—a politics without politics—was proven obsolete the moment Washington stepped down from office. It may be the vision of the Founders that inspires us, but it was their realism, their practicality and flexibility and curiosity, that ensured the Union’s survival.

I confess that there is a fundamental humility to this reading of the Constitution and our democratic process. It seems to champion compromise, modesty, and muddling through; to justify logrolling, deal-making, self-interest, pork barrels, paralysis, and inefficiency—all the sausage-making that no one wants to see and that editorialists throughout our history have often labeled as corrupt. And yet I think we make a mistake in assuming that democratic deliberation requires abandonment of our highest ideals, or of a commitment to the common good. After all, the Constitution ensures our free speech not just so that we can shout at one another as loud as we please, deaf to what others might have to say (although we have that right). It also offers us the possibility of a genuine marketplace of ideas, one in which the “jarring of parties” works on behalf of “deliberation and circumspection”; a marketplace in which, through debate and competition, we can expand our perspective, change our minds, and eventually arrive not merely at agreements but at sound and fair agreements.

The Constitution’s system of checks and balances, separation of powers, and federalism may often lead to groups with fixed interests angling and sparring for narrow advantage, but it doesn’t have to. Such diffusion of power may also force groups to take other interests into account and, indeed, may even alter over time how those groups think and feel about their own interests.

The rejection of absolutism implicit in our constitutional structure may sometimes make our politics seem unprincipled. But for most of our history it has encouraged the very process of information gathering, analysis, and argument that allows us to make better, if not perfect, choices, not only about the means to our ends but also about the ends themselves. Whether we are for or against affirmative action, for or against prayer in schools, we must test out our ideals, vision, and values against the realities of a common life, so that over time they may be refined, discarded, or replaced by new ideals, sharper visions, deeper values. Indeed, it is that process, according to Madison, that brought about the Constitution itself, through a convention in which “no man felt himself obliged to retain his opinions any longer than he was satisfied of their propriety and truth, and was open to the force of argument.”

IN SUM, the Constitution envisions a road map by which we marry passion to reason, the ideal of individual freedom to the demands of community. And the amazing thing is that it’s worked. Through the early days of the Union, through depressions and world wars, through the multiple transformations of the economy and Western expansion and the arrival of millions of immigrants to our shores, our democracy has not only survived but has thrived. It has been tested, of course, during times of war and fear, and it will no doubt be tested again in the future.

But only once has the conversation broken down completely, and that was over the one subject the Founders refused to talk about.

The Declaration of Independence may have been, in the words of historian Joseph Ellis, “a transformative moment in world history, when all laws and human relationships dependent on coercion would be swept away forever.” But that spirit of liberty didn’t extend, in the minds of the Founders, to the slaves who worked their fields, made their beds, and nursed their children.

The Constitution’s exquisite machinery would secure the rights of citizens, those deemed members of America’s political community. But it provided no protection to those outside the constitutional circle—the Native American whose treaties proved worthless before the court of the conqueror, or the black man Dred Scott, who would walk into the Supreme Court a free man and leave a slave.

Democratic deliberation might have been sufficient to expand the franchise to white men without property and eventually women; reason, argument, and American pragmatism might have eased the economic growing pains of a great nation and helped lessen religious and class tensions that would plague other nations. But deliberation alone could not provide the slave his freedom or cleanse America of its original sin. In the end, it was the sword that would sever his chains.

What does this say about our democracy? There’s a school of thought that sees the Founding Fathers only as hypocrites and the Constitution only as a betrayal of the grand ideals set forth by the Declaration of Independence; that agrees with early abolitionists that the Great Compromise between North and South was a pact with the Devil. Others, representing the safer, more conventional wisdom, will insist that all the constitutional compromise on slavery—the omission of abolitionist sentiments from the original draft of the Declaration, the Three-fifths Clause and the Fugitive Slave Clause and the Importation Clause, the self-imposed gag rule that the Twenty-fourth Congress would place on all debate regarding the issue of slavery, the very structure of federalism and the Senate—was a necessary, if unfortunate, requirement for the formation of the Union; that in their silence, the Founders only sought to postpone what they were certain would be slavery’s ultimate demise; that this single lapse cannot detract from the genius of the Constitution, which permitted the space for abolitionists to rally and the debate to proceed, and provided the framework by which, after the Civil War had been fought, the Thirteenth, Fourteenth, and Fifteenth Amendments could be passed, and the Union finally perfected.

How can I, an American with the blood of Africa coursing through my veins, choose sides in such a dispute? I can’t. I love America too much, am too invested in what this country has become, too committed to its institutions, its beauty, and even its ugliness, to focus entirely on the circumstances of its birth. But neither can I brush aside the magnitude of the injustice done, or erase the ghosts of generations past, or ignore the open wound, the aching spirit, that ails this country still.

The best I can do in the face of our history is remind myself that it has not always been the pragmatist, the voice of reason, or the force of compromise, that has created the conditions for liberty. The hard, cold facts remind me that it was unbending idealists like William Lloyd Garrison who first sounded the clarion call for justice; that it was slaves and former slaves, men like Denmark Vesey and Frederick Douglass and women like Harriet Tubman, who recognized power would concede nothing without a fight. It was the wild-eyed prophecies of John Brown, his willingness to spill blood and not just words on behalf of his visions, that helped force the issue of a nation half slave and half free. I’m reminded that deliberation and the constitutional order may sometimes be the luxury of the powerful, and that it has sometimes been the cranks, the zealots, the prophets, the agitators, and the unreasonable—in other words, the absolutists—that have fought for a new order. Knowing this, I can’t summarily dismiss those possessed of similar certainty today—the antiabortion activist who pickets my town hall meeting, or the animal rights activist who raids a laboratory—no matter how deeply I disagree with their views. I am robbed even of the certainty of uncertainty—for sometimes absolute truths may well be absolute.

I’M LEFT THEN with Lincoln, who like no man before or since understood both the deliberative function of our democracy and the limits of such deliberation. We remember him for the firmness and depth of his convictions—his unyielding opposition to slavery and his determination that a house divided could not stand. But his presidency was guided by a practicality that would distress us today, a practicality that led him to test various bargains with the South in order to maintain the Union without war; to appoint and discard general after general, strategy after strategy, once war broke out; to stretch the Constitution to the breaking point in order to see the war through to a successful conclusion. I like to believe that for Lincoln, it was never a matter of abandoning conviction for the sake of expediency. Rather, it was a matter of maintaining within himself the balance between two contradictory ideas—that we must talk and reach for common understandings, precisely because all of us are imperfect and can never act with the certainty that God is on our side; and yet at times we must act nonetheless, as if we are certain, protected from error only by providence.

That self-awareness, that humility, led Lincoln to advance his principles through the framework of our democracy, through speeches and debate, through the reasoned arguments that might appeal to the better angels of our nature. It was this same humility that allowed him, once the conversation between North and South broke down and war became inevitable, to resist the temptation to demonize the fathers and sons who did battle on the other side, or to diminish the horror of war, no matter how just it might be. The blood of slaves reminds us that our pragmatism can sometimes be moral cowardice. Lincoln, and those buried at Gettysburg, remind us that we should pursue our own absolute truths only if we acknowledge that there may be a terrible price to pay.

SUCH LATE-NIGHT meditations proved unnecessary in my immediate decision about George W. Bush’s nominees to the federal court of appeals. In the end, the crisis in the Senate was averted, or at least postponed: Seven Democratic senators agreed not to filibuster three of Bush’s five controversial nominees, and pledged that in the future they would reserve the filibuster for more “extraordinary circumstances.” In exchange, seven Republicans agreed to vote against a “nuclear option” that would permanently eliminate the filibuster—again, with the caveat that they could change their minds in the event of “extraordinary circumstances.” What constituted “extraordinary circumstances” no one could say, and both Democratic and Republican activists, itching for a fight, complained bitterly at what they perceived to be their side’s capitulation.

I declined to be a part of what would be called the Gang of Fourteen; given the profiles of some of the judges involved, it was hard to see what judicial nominee might be so much worse as to constitute an “extraordinary circumstance” worthy of filibuster. Still, I could not fault my colleagues for their efforts. The Democrats involved had made a practical decision—without the deal, the “nuclear option” would have likely gone through.

No one was more ecstatic with this turn of events than Senator Byrd. The day the deal was announced, he walked triumphantly down the halls of the Capitol with Republican John Warner of Virginia, the younger members of the Gang trailing behind the old lions. “We have kept the Republic!” Senator Byrd announced to a pack of reporters, and I smiled to myself, thinking back to the visit that the two of us had finally been able to arrange a few months earlier.

It was in Senator Byrd’s hideaway on the first floor of the Capitol, tucked alongside a series of small, beautifully painted rooms where Senate committees once regularly met. His secretary had led me into his private office, which was filled with books and what looked to be aging manuscripts, the walls lined with old photographs and campaign memorabilia. Senator Byrd asked me if it would be all right if we took a few photographs together, and we shook hands and smiled for the photographer who was present. After the secretary and the photographer had left, we sat down in a pair of well-worn chairs. I inquired after his wife, who I had heard had taken a turn for the worse, and asked about some of the figures in the photos. Eventually I asked him what advice he would give me as a new member of the Senate.

“Learn the rules,” he said. “Not just the rules, but the precedents as well.” He pointed to a series of thick binders behind him, each one affixed with a handwritten label. “Not many people bother to learn them these days. Everything is so rushed, so many demands on a senator’s time. But these rules unlock the power of the Senate. They’re the keys to the kingdom.”

We spoke about the Senate’s past, the presidents he had known, the bills he had managed. He told me I would do well in the Senate but that I shouldn’t be in too much of a rush—so many senators today became fixated on the White House, not understanding that in the constitutional design it was the Senate that was supreme, the heart and soul of the Republic.

“So few people read the Constitution today,” Senator Byrd said, pulling out his copy from his breast pocket. “I’ve always said, this document and the Holy Bible, they’ve been all the guidance I need.”

Before I left, he insisted that his secretary bring in a set of his Senate histories for me to have. As he slowly set the beautifully bound books on the table and searched for a pen, I told him how remarkable it was that he had found the time to write.

“Oh, I have been very fortunate,” he said, nodding to himself. “Much to be thankful for. There’s not much I wouldn’t do over.” Suddenly he paused and looked squarely into my eyes. “I only have one regret, you know. The foolishness of youth…”

We sat there for a moment, considering the gap of years and experience between us.

“We all have regrets, Senator,” I said finally. “We just ask that in the end, God’s grace shines upon us.”

He studied my face for a moment, then nodded with the slightest of smiles and flipped open the cover of one of the books. “God’s grace. Yes indeed. Let me sign these for you then,” he said, and taking one hand to steady the other, he slowly scratched his name on the gift.