Next time on a visit to Washington, DC, go to the National Archives and take a look at the US Constitution – which has held our nation in good stead since the time of the Founding. The Founding Fathers were worried that this document would be a mere “parchment barrier(s) against the encroaching spirit of power.” (Madison, Federalist Papers No. 48) Instead, this majestic Constitution of ours has been resilient, seeing our nation, from its inception through some of our greatest crises, often righting the ship of state when we as a nation were faced with what appeared to be insurmountable challenges.
The Framers created a practical document. Unlike some law codes with hundreds of pages of small details, the Constitution gives us a framework for the structure of government, with much left to interpretation. Whether one is a textualist like US Supreme Court Justice Antonin Scalia or an adherent of the idea of a living Constitution, like Justice Stephen Breyer, the fact is that our Constitution has been flexible enough to move along with changing times and address the most pressing crises.
Said Judge Don Willett of the Fifth Circuit Court of Appeals, “[t]he Framers were not tinkerers. They upended things. The Constitution inaugurated a revolutionary design. Madisonian architecture infused with Newtonian genius: three separate, coequal branches locked in synchronous orbit by competing interests. Ambition counteracting ambition.” (echoing Madison in Federalist Papers No. 51)
The Test of Power
The Founders were also realists. They realized that they were putting together a Constitution for people, not for angels (angels would not need a government since angels are perfect). Indeed, said Madison, “[i]n framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” (Federalist Papers, No. 51)
They understood the great enigma and paradox of government – that government needs power to govern, but the natural tendency of government is to seek to aggrandize power. (“Power tends to corrupt, and absolute power corrupts absolutely” – Lord Acton) How to deal with this involves creating a system wherein government is set up so its branches will be competitive and no one branch will ever become so ascendant as to overwhelm the others. This is what the Founding Fathers achieved with the US Constitution.
The Test of Time
The Founders also wanted to create a system that would survive the test of time. They were keenly concerned about how posterity would view their efforts. In the Declaration of Independence, for example, Jefferson made clear that “a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation” (the American colonists needed to explain themselves). So too the Constitution would have to be fashioned to last through generations to follow.
Indeed, Benjamin Franklin’s response to Mrs. Elizabeth Powel that what he and other delegates at the Constitutional Convention were doing was fashioning “a Republic if you can keep it” was prescient and has been the hallmark of our American system throughout our history. Franklin realized that keeping our system of government in place needed enormous effort and dedication.
Our longevity as a republic stems in large part from two basic principles: one is that government derives its power from the people (“We the People”), and the other is fealty to the rule of law.
Power from the People; Power to the People
The Founders, who for the most part were drawn from the elite in social class and wealth, were also candid about the difficulty of creating a democracy. Said George Mason, “[n]otwithstanding the oppression and injustice experienced among us from democracy, the genius of the people is in favor of it, and the genius of the people must be consulted.” Justice Louis Brandeis was on target when he said that “[t]he only title in our democracy superior to that of president is the title of citizen.” Simply stated by Richard Hofstadter, “…the Fathers commonly accepted, for if government did not proceed from the people, from what other source could it come?” The fact is that Americans have always believed in the people.
Rule of Law
As for respect for the rule of law, said Chief Justice John Marshall in Marbury v. Madison, a foundational case which established the principle of judicial review, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” The Framers weren’t so sure that the Judiciary was up to the job. Alexander Hamilton was of the view that the Judiciary was not very powerful (indeed, said it was “the least dangerous” branch) because it “has no influence over either the sword [the Executive] or the purse [the Legislature] … It may truly be said that to have neither FORCE nor WILL, but merely judgment; and must ultimately depend on the aid of the executive arm even for the efficacy of it judgments.” (Hamilton, Federalist Papers No. 78)
Over our history, however, the Judiciary, and in particular, the Supreme Court, have dealt with the most pressing issues facing American society.
Also, it is worth noting that while “We The People” do elect the members of Congress and select the President through the electoral college, under our Constitution, the people don’t have a direct say in the appointment of federal judges (who we even trust to serve for life – as the Constitution puts it, our federal judges “shall hold their Offices during good Behaviour”). While it is true that the President nominates federal judges and the Senate approves their appointments, there is a formidable leap of faith built into our system that our federal judges will follow the Constitution and the rule of law.
Andrew Jackson might have said (it is probably apocryphal) that “Justice [John] Marshall [chief justice of the Supreme Court at the time] has made his decision, now let him enforce it” relating to Worcester v. Georgia, He referred to Marshall’s order that the Native Americans could not be removed, but Jackson thought the Supreme Court decision was “stillborn.” This led to the forced relocation of Native American tribes and ultimately to the Trail of Tears. But for the most part during our history, there has been respect for the decisions of the US Supreme Court and the rule of law. This is the glue that keeps our republic together.
The arguments we have heard recently that Judges with whom political leaders disagree should be impeached, that “Judges aren’t allowed to control the executive’s legitimate power” or that government agencies should be fed to the wood chopper – will cause our political system to veer off its track and should be actively discouraged. Happily, these ideas and developments will likely prove to be outliers in our history.
The Bill of Rights
Our Bill of Rights is the envy of many – and perhaps deeply despised by authoritarian and despotic states. These dictatorships call themselves “People’s Republics” – but that is a sham. They even try to argue that their systems are democratic in some form.
Wang Yi, the Foreign Minister of the People’s Republic of China, was of the view that “democracy is not Coca-Cola, which with the syrup produced in the United States, tastes the same across the world…China’s socialist democracy is a whole-process, most representative democracy, It embodies the will of the people, fits our country’s realities, and is endorsed by the people. To label China as authoritarian or a dictatorship simply because China’s democracy takes a different form than that of the United States is in itself undemocratic.” (Council on Foreign Relations, April 23, 2021)
I would say that the American syrup will always taste the best since it has the flavor of real freedom.
So, when you have the chance, visit the National Archives and take a look at the US Constitution, our marvelous and resilient founding document which has carried us through times or war and peace, and helped to preserve our precious democracy. I think we would wholeheartedly agree with former President Calvin Coolidge who said that “[t]o live under the American Constitution is the greatest political privilege that was ever accorded to the human race.”
The Future
We have heard recently that America is in a “constitutional crisis.” I would beg to differ. What we are seeing is a democracy full of energy, in which our institutions of government are striving to do what is best for the nation (not an easy task). The process of coming to agreement will often require compromise (just as it did when the Founders formulated the original US Constitution), and with the institutions and branches of government functioning effectively as the Founders had envisioned. This will also require enormous fortitude.
Our resilient Constitution remains the cement that keeps our society together. So, as long as we persevere in our respect for the people and the rule of law, America, as President Ronald Reagan said, will truly be a “city on a hill” where “all eyes are on us” as a moral example to the world.
Mark Meirowitz, Ph.D., is a Professor at the State University of New York Maritime College.
