Monday, September 17, is Constitution Day. It’s a good excuse to think about a few things. First of all, what’s the big deal about having a constitution? For the founders of the nation, the constitution was a way to create a new kind of government that outlawed the limitless power to dictate people’s lives that had been enjoyed by Europe’s royalty at the time. Through the constitution, our founders set up a republic, a representative democracy, that grew into a system in which everyone has the right to compete for all sorts of elected offices. It isn’t perfect, but the freedom to put our ideas out there and argue for them without fear is something that people in many other countries only wish they had. For everyone that followed, the constitution became a way to expand the definition of who is a citizen (those without property, former slaves and their descendants, women, American-Indians, anyone age 18 and up) and it became a way to eliminate discrimination. The struggle to fulfill that mandate has been long and very difficult, and it remains a work in progress. Even so, the United States offers solid proof that it is possible to become one of the richest and most powerful nations on earth—despite being, or perhaps because we are—a people of different religions, different cultures, different colors, different sexes, and different ideologies.
Much of the magic in the constitution comes from the ways that its authors set up incentives to trust in the system. By requiring fixed terms of office and a regular voting cycle, citizens could be assured that the people they elected would not be able to entrench themselves into power permanently. This assurance was reinforced by dividing power between the federal and state governments, and between the executive, legislative, and judicial branches of federal government. Regular elections also assured those who lost an election knew they could always have another chance to run again – there was no need to contemplate rebellion or political sabotage. Amending the constitution to include guaranteed political and civil liberties further reduced the need to consider rebellion.
Magic needs magicians if anyone is to see it. Our republic, our democracy, needs leaders willing to uphold and abide by constitutional law. Over the last many decades, many of our leaders have chosen to ignore or distort some aspects of the constitution. Three stand out as especially dangerous. One is the ongoing congressional abdication to the presidency on many matters in direct contravention of constitutional intent: Article I(8) assigns the power to declare war to the congress while Article II(2) assigns the power to wage duly authorized wars to the president as commander in chief; Article I(8) gives congress the power to levy tariffs (duties); and Article II(2) assigns the power to make international treaties to the president but only when two-thirds of the senate votes in favor. The second is presidential signing statements that are meant to justify decisions not to implement laws duly adopted by congress. The third is repeated resistance on the part of some to treat all people equally under the law, despite periodic new laws (such as the 1964 Civil Rights Act) meant to reassert the intent of section 1 of the 14th amendment. The first and second brings the risk of dictatorship while the third brings the risks of rebellion and undermining our sense of shared fundamental values.
For those leaders who try to bend constitutional law, there is the Supreme Court to decide what is acceptable. It is composed of nine justices who serve lifetime appointments. These are the people who decide what is and is not constitutional. These people need to be trusted by most Americans if their decisions are to be respected. The old rule, that all nominees shall be approved only with a two-thirds or better vote from the senate, used to guarantee that.
Beyond the Supreme Court, we all, each of us, have an important role to play in preserving the spirit of the constitution. Judge Learned Hand put it very well when he said in 1944 “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.” We hope that, on Constitution Day, as on every day, you will do what you can to respect, secure, and protect the liberty of every one living on American soil, regardless of who they are, where they live, or what they believe. United we stand, divided we fall.
Want to learn more?
You can read and search through the full text of the constitution and its amendments, kept by the National Archives here.
You can also go through our learning menu to find a wide selection of videos and podcasts on various aspects of the constitution and their implications.