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How Can We Make Good on the Promise of the Constitution?

September 17, 2021

September 17, 2021
By Timothy Sandefur

On September 17, 1787, George Washington and 38 others affixed their names to the U.S. Constitution—the document they’d spent four months writing—and began the process of persuading Americans to make it law, a process that that took another nine months of debate. And while it has been law for more than two centuries, it remains first and foremost a promise that we as Americans must live up to.

Since the Constitution’s signing, it’s been commonplace for Americans to celebrate their Constitution, sometimes even characterizing it—in Ronald Reagan’s words—as “nothing less than a miracle.” James Madison, the “Father of the Constitution,” told his friend Thomas Jefferson that this attitude was crucial to the survival and success of liberty. When Jefferson suggested that the Constitution be rewritten every twenty years, Madison objected that this would render it “too mutable to retain those prejudices in its favor which antiquity inspires, and which are perhaps a salutary aid to the most rational government in the most enlightened age.” Freedom depends less on legal formalities, he thought, than on the people’s reverence for the Constitution. On that point, he agreed with John Adams, who wrote that “a constitution is a standard, a pillar, and a bond when it is understood, approved, and beloved. But without this intelligence and attachment, it might as well be a kite or balloon, flying in the air.”

Reading today’s headlines, it’s hard not to wonder whether Americans have at last abandoned their reverence for the Constitution. Many of our culture’s most prominent voices are openly hostile to it, and many who profess to admire it show little actual understanding or concern for its meaning. It’s become chic to denounce the Constitution as irredeemably tainted by slavery and racism, as the authors of the 1619 Project claim, or to argue—as a constitutional law professor at one of our most prominent universities did not long ago, that the Constitution is “dysfunctional” or “downright evil.”

This trend is disturbing, of course, because the Constitution plays a critical role in our democratic system: It places needed legal boundaries on the power of government. The Constitution marks the difference between a republic that respects the rule of law, and a mere rule of the mob. Simply put, it’s a “law for laws”—meaning that it requires government itself to obey the law. That’s a precious gift in a world where governments still frequently consider themselves above the law. As the U.S. Supreme Court put it in the famous Barnette case, the Constitution was designed “to withdraw certain subjects from the vicissitudes of political controversy,” so that “one’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” Yet as the Constitution’s protections are undermined, these guarantees have less and less credibility, meaning that politics becomes more important in our lives. As a result, our ability to pursue our own happiness is increasingly compromised by our need to worry about what politicians or voters might take away from us or force us to do.

Political leaders today increasingly view the Constitution as an obstacle—and a relatively trivial one, at that—to the attainment of their vision of the “public good.” California Governor Gavin Newsom, for example, has asserted power under that state’s emergency management laws not only to order precautions against potential infection, but to write rules for how the state’s businesses can operate into the indefinite future—rules never approved by the people’s elected representatives. President Biden likewise announced an order compelling employers across the country to require employees to obtain vaccinations—under laws that do not even contemplate such broad authority.

Fortunately, most Americans still take the Constitution seriously, and they cherish the protections provided not only by it, but also by their state constitutions. Together, these documents create a government strong and flexible enough to respond to urgent needs while still preserving individual freedom—when, that is, the people and their public servants respect them. In Arizona, when courts were asked to change the rules of elections due to the pandemic, they refused, noting how often “emergency” exceptions to the political process have set dangerous precedents undermining freedom. In Wisconsin and Michigan, courts stood up to governors who tried to use their emergency powers to seize control of authority not given to them by those state constitutions. And the Supreme Court recently rejected the Biden administration’s effort to extend its illegal eviction moratorium—just as the President had said it would.

Is that enough to warrant faith in our Constitution? That’s ultimately the wrong question to ask, because the Constitution, like all laws, is only a promise, and a promise is only as good as our will to abide by it. If we fail to live up to the demands of our state and federal constitutions—their rules of fair and orderly process, their guarantees of individual rights, their implicit premise that Americans respect the rule of law—then that’s not the constitutions’ fault, but ours. “In the constitution of any people whatsoever,” wrote Alexis de Tocqueville in Democracy in America, “the lawgiver is bound to rely on the good sense and virtue of the citizens…. There is no country where the law can foresee everything or where institutions should take the place of reason and mores.”

In the end, any constitution is only words on paper—unless we step up to make good on their pledges. That is something we have every reason to do. In the broad scope of human history, our constitutional system really is something new under the sun. Other nations have elevated some “lawgiver”—Moses, Solon, Lycurgus—to tell them what rules to obey. But Americans have chosen instead what many once thought impossible: the people giving law to themselves. For that to work requires respect for the law, and a willingness to be bound by it, rather than a desire to undermine, ridicule, or overthrow it. If we are to secure the blessings of liberty for ourselves and our posterity—and ensure that its promises of protection are worthy of our respect—then we must always revere the principles of our nation’s fundamental law and public servants who will honor those promises.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.



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