January 28, 2023
By: John Yoo
January 27, 2023
To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.
—Calvin Coolidge (1)
As our politics strain against the Constitution’s limits, popular leaders today demand change. A growing number of states have proposed to ignore the Electoral College system for choosing the president. Leading politicians want to transform Washington, DC, into a new state as part of an expansion of the Senate. Others suggest expanding the Supreme Court to dilute its power. Yet others want the federal government to exercise such broad powers over the economy and society to eliminate the written limits on its authorities. And some want the Constitution expanded to include their favored right, whether it involves abortion, guns, or religion.
Such proposals to upend our constitutional order draw on more-fundamental attacks on the founders’ work. At its very birth, say its critics, the Constitution accepted the evil of slavery. Abolitionists famously attacked our founding document as “a covenant with death” and an “agreement with Hell” for blessing slavery. (2) Even though 600,000 Americans died in the Civil War, all three branches of government would permit racial segregation for another century. Supreme Court Justice Thurgood Marshall marked the Constitution’s bicentennial by declaring it “defective from the start.” Only “several amendments, a civil war, and momentous social transformation” allowed the United States “to attain the system of constitutional government, and its respect for the individual freedoms and human rights.”(3)
Today’s scholars have updated this criticism through the lens of identity and with the goal of diversity in mind. They hold no love for a document that originally excluded racial minorities and women from the franchise, that vests great power in a Senate that ignores population size, and that creates a presidency they believe can verge on dictatorship. The New York Times’ 1619 Project put a capstone on this critique of the Constitution by claiming that “our democracy’s founding ideals were false when they were written.” It goes on to claim that, instead of 1776 or 1789, America’s true founding date was 1619, when the first African American slaves arrived, which launched a nation that has oppressed racial minorities for more than four centuries. (4)
These criticisms attack the idea of a fixed constitution and ignore the Constitution’s defense of liberty, its support for civil society, and its check on misguided government. If most Americans wish to eliminate the Electoral College and elect the president by simple majority, why not let them? If a majority would replace the House and state-based Senate with a single, popularly elected body to pass legislation—as our Western democratic peers do—why not do it? Why not allow today’s majority to take away the Supreme Court’s right to stop legislation, which only stands in the way of popular preferences? If racism and sexism so cloud our nation’s birth and its subsequent history, these critics argue, we should pay the founders’ work little heed. Instead, so this thinking goes, we should not allow our 18th-century Constitution to impede the progress of more-enlightened politics today.
While our Constitution may well have allowed historical discrimination against minorities and women, it also gave birth to a nation with the principles and mechanisms to overcome these grievous harms. The United States began with the Declaration of Independence, which announced that 13 British colonies would separate from the mother country to form their own nation. But unlike many European and Asian states, some of which have origins going back millennia, America did not form itself from a shared ethnicity.
Instead, Americans founded their nation on allegiance to a set of principles, announced in the declaration: “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Because all men are equal, no one has a right to rule another; instead, all government comes from consent. “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”(5)
While the declaration made the promise, the Constitution created the means for its fulfillment. Or, as Abraham Lincoln wrote (drawing from a passage in Proverbs), the declaration’s principle of liberty is the “apple of gold,” while the union and Constitution are “the picture of silver, subsequently framed around it.” Lincoln observed that “the picture was made, not to conceal, or destroy the apple; but to adorn and preserve it. The picture was made for the apple—not the apple for the picture.”(6) (Emphasis in original.)
The Constitution creates a mechanism of governance designed to protect and advance the principles of the Declaration of Independence. Beset by the original sin of slavery, tested by the terrible Civil War, the Constitution nevertheless provided the political tools for freedom’s rise. The national government used those powers to end slavery, guarantee individual rights, extend the vote to all adults, and expand civil rights in schools, the workplace, and the public square.
As the Constitution ages, it establishes government institutions and national traditions that foster political and social stability.
Of course, the founders understood the Constitution to protect liberty by placing certain rights beyond the reach of government. Although the original Constitution did not yet contain the Bill of Rights, the Federalists, who urged ratification, agreed to the demand of their opponents, the Anti-Federalists, that the new government devise one as its first order of business.
Proposed by the first Congress in 1789 and ratified by the states in 1791, the First Amendment safeguards the rights of religion, speech, press, and assembly from the federal government. The Second Amendment guarantees the right “to keep and bear Arms.” The Fifth Amendment protects the right to due process against government action and the right to property. Other amendments secure the rights of the people to their “persons, houses, papers, and effects” against searches and seizures and of criminal defendants to a fair trial. After the Civil War, the nation adopted the Reconstruction amendments, which ended slavery, extended the Constitution’s protections for individual rights against the states, and established the right to vote regardless of race. (7)
These guarantees continue to protect our rights today. By enshrining them in a written, governing document, the founders made these rights more than just hopes and promises—as is often the case with other nations’ constitutions. Instead, the Constitution obliges all government officials, through their oath of office, to protect these rights, and as written law, it allows courts to enforce them.
If the government prevents a protester from speaking, he or she can go to federal court for an order blocking official action. If an official seizes private property without just compensation, the owner can ask the courts to require just compensation. Courts will not allow prosecutors to arrest or try suspects without proper search warrants, access to legal counsel, confrontation of witnesses and the introduction of evidence, and the right to a jury. The Constitution probably appears most vividly in Americans’ everyday lives through its definition of individual rights, as respected by the government and enforced by the courts.
But the original Constitution did not exclusively devote the courts to the protection of liberty. Rather, the framers included structural limitations on government throughout the document to prevent tyranny. They wrote the Bill of Rights as a negative restriction on the federal government, for example, rather than a positive definition of individual liberty. Only on the ratification of the 14th Amendment, in the wake of the Civil War, did the rights enumerated in the Bill of Rights become individual liberties applicable to both the federal and state governments. The 14th Amendment’s protection for the privileges or immunities of citizens, the equal protection of the laws, and due process allowed the Supreme Court to apply the Bill of Rights to the states.
The original understanding of the Bill of Rights sought to preserve mediating institutions just as much as it protected individual rights. The First Amendment does not define a freedom of speech and religion but instead says that “Congress shall make no law respecting” speech and religion. (8) The free exercise and establishment clauses preserve religious groups, which themselves can check government. The rights to speech, press, and assembly prevent government from interfering with private groups, such as political parties, the media, and associations, which can further monitor and restrain public power.
The Second Amendment protects “the right of the people to keep and bear Arms,” not just the right of an individual to own a firearm. It protects the existence of the state militia, another institution of 18th-century self-governance. The Fourth Amendment again protects the “right of the people,” not of an individual, to be free from “unreasonable searches and seizures.” The Sixth and Seventh Amendments preserve juries, which could check overzealous law enforcement. (9)
The Constitution erects a second fundamental protection for liberty by creating institutions and processes that restrain public power while empowering self-government. While ever advancing toward “a more perfect Union,”(10) the Constitution fundamentally rejects a pure democracy based solely on majority rule. It bears a skeptical attitude toward the radical change that popular movements might bring. “Why has government been instituted at all?” Alexander Hamilton asked in Federalist 15. “Because the passions of men will not conform to the dictates of reason and justice, without constraint.” (11)
To help reason overcome passion, the Constitution hinders the exercise of public power. It creates a separation of powers, dividing the power to make law from the powers to enforce and adjudicate it. It requires a popular House to agree on the laws with a state-representing Senate while vesting the executive power in an independent president. A lifetime judiciary remains free of the control of either. The Constitution further inhibits government by passion by granting the federal government only limited, enumerated powers while reserving most authority over the matters of everyday life—property, family, education, and public safety—for the states.
The Constitution’s creation of multiple centers of power ensures that a people unbalanced by passion—or deceived by interest groups—cannot rush into disaster. In a parliamentary system, a single majority controls all levers of government and can make new laws at a whim. By contrast, the Constitution creates different levels and branches of government that have the incentive to compete and even conflict. In that collision, the founders assumed, only policy truly in the public interest would emerge. “In the compound republic of America,” James Madison explained in Federalist 51, “the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate departments.” From this combination of federalism and the separation of powers, “a double security arises to the rights of the people.” Madison explained, “The different governments will control each other; at the same time that each will be controlled by itself.” (12)
While it may slow change, the Constitution has endured while our Western and Asian peers have lived under monarchies, revolutionary regimes, socialism, fascism, and authoritarian dictatorships that have killed tens of millions in just the past century. While the Old World struggled through the worst of the two world wars, the Great Depression, and the socialist disasters that followed, the United States avoided the massive death and destruction of these crises and survived with its economic and political orders relatively intact.
Admittedly, the federal government greatly expanded its size and reach during the New Deal of the 1930s and the Great Society of the late 1960s. The United States, however, never experienced a competitive socialist political party (Eugene Debs set the high-water mark with 6 percent of the vote for president in 1912) or the widespread nationalization of an industry that occurred in parts of Europe and Asia. The size of the federal government by number of employees and as a percentage of the economy still pales in comparison to that of European governments. The United States still enjoys a significant decentralization among federal, state, and local governments, which are further cabined by the strong institutions of private civil society (such as schools, churches, charities, and civic groups), compared to our advanced industrial peers.
The Constitution does not divide power among the executive, legislature, and judiciary and between the federal government and the states solely to reap the benefits of slower, more deliberate policymaking. Decentralization also protects freedom by dispersing public power. Creating 50 sovereign governments and dividing federal authority with a separation of powers makes it more difficult for “factions,” as the framers called them, to subvert the government to their own selfish ends.
In Federalist 10, Madison responded to Montesquieu’s claim, repeated by the Anti-Federalists, that democracy could survive only in a small nation and that a large US government would eventually collapse into tyranny. Madison argued that the great threat to liberty came from factions. To Madison, “The most common and durable source of factions, has been the various and unequal distribution of property,” which itself was due to the “diversity in the faculties of men.” (13)
Madison’s solution did not reject a national government in favor of small, autonomous, sovereign states, which would only have repeated the failed Articles of Confederation. Instead, liberty would best flourish in a large republic, where clashing interests would cancel each other out. The larger the nation, the more factions would arise. The larger the nation, the more difficult for these many interests to combine and take over government. Because the states would retain jurisdiction over most areas of everyday life, any interest that wished to infringe on individual liberty would have to capture not just the federal government but many of the states. Liberty would come not just from the “parchment barriers” of written documents, in Madison’s words, but through the design of a government that would empower the people but also restrain them. (14)
While the Constitution places its protections for individual rights and its structuring of power beyond the reach of regular politics, it does not answer today’s radical challenge against constitutional governance altogether. If we live under a principle of majority rule, today’s critics suggest, then we are under no duty to respect the choices made at the founding. The dead hand of the past should not reach beyond the grave to control us, the living.
Thomas Jefferson leveled a similar charge at the Constitution during the ratification. Stationed in Paris as America’s ambassador to France, Jefferson could only send advice from abroad during the Philadelphia and state conventions. He found much to his liking in the new Constitution, such as its separation of powers, the government’s election by the people rather than the states, the presidential veto, and (ironically) the reach of the taxing power. He had several problems with the new frame of government, such as the lack of a bill of rights and the absence of term limits.
But Jefferson, here and elsewhere, more fundamentally objected to the idea that “one generation of men has the right to bind another.” As he wrote just after the outbreak of the French Revolution, “the earth belongs always to the living generation,” and “one generation is to another as one independent nation to another.” Because the dead hand of the past should not control the living, Jefferson believed, “no society can make a perpetual constitution or even a perpetual law.” Jefferson believed that “every constitution, then, and every law, naturally expires at the end of 19 years,” or else it is being enforced as “an act of force, and not of right.”(15) In his Notes on the State of Virginia, Jefferson recommended that the Constitution create a simple process to call for a new convention to create a new founding charter. (16)
In Federalist 49, Madison responded to Jefferson’s argument, conceding, as he must, that “the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived.” He also conceded that a constitution should have a means for change, though only “for certain great and extraordinary occasions.” (17)
In general, however, Madison argued that a fixed constitution bore important gifts—stability chief among them. Frequent changes to the Constitution, he worried, “deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.” Madison observed that “ancient as well as numerous” (emphasis in original) traditions and institutions would fortify “a reverence for the laws.” Without that respect for the past, Madison argued, “the public passions” might disorder “the constitutional equilibrium of the government” and vest vast authority in the wrong hands. “In a nation of philosophers,” Madison playfully suggested, “this consideration ought to be disregarded.” But because “a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato,” he observed, veneration for a fixed constitution could produce the political stability necessary for the reason of the public to control its passions. (18) Madison’s rejoinder to Jefferson provides a last and perhaps most important virtue of a permanent constitution. As the Constitution ages, it establishes government institutions and national traditions that foster political and social stability. It sets the rules of the political game, as it were, that allows Americans to pursue their political futures without suffering periodic disorder or even revolution. It gives the American people the means to rule themselves while always reminding them that they engage in self-government to advance, not regulate, their natural rights. And most importantly, the Constitution reminds Americans that their rights do not come from government but from “their Creator.” And in this, the American Constitution may be the most exceptional of all.
1. Calvin Coolidge Presidential Foundation, “Quotations—C,” https://coolidgefoundation.org/quote/quotations-c.
2. Paul Finkelman, “Garrison’s Constitution: The Covenant with Death and How It Was Made,” Prologue Magazine 32, no. 4 (Winter 2000), https://www.archives.gov/publications/prologue/2000/winter/garrisons-constitution-1.html#f1.
3. Thurgood Marshall, “The Constitution’s Bicentennial: Commemorating the Wrong Document?,” Vanderbilt Law Review 40, no. 6 (1987): 1337–42, https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=2686&context=vlr.
4. Nikole Hannah-Jones, “Our Democracy’s Founding Ideals Were False When They Were Written. Black Americans Have Fought to Make Them True.,” New York Times Magazine, August 14, 2019, https://www.nytimes.com/interactive/2019/08/14/magazine/black-history-american-democracy.html.
If you do not take an interest in the affairs of your government, then you are doomed to live under the rule of fools.
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