Freedom & The Constitution

“For most Americans the Constitution had become a hazy document, cited like the Bible on ceremonial occasions but forgotten in the daily transactions of life.”
Arthur Schlesinger, 1973

Is the U.S. Constitution Better Than The Nazi’s Constitution?

Absurd question, right?  Think again. What makes our Constitution better? The totalitarian Soviets had a constitution through which the dictator Joseph Stalin ruled, starved and sent millions to slave labor camps and gulags. Presently the Communist Chinese have a constitution and their people are under the thumb of an authoritarian regime. So, if our Constitution is better, what makes it so?

Before you give that question more thought, consider that outside the Preamble nowhere in the text of the original Constitution will you find the words, “liberty” or “equality”.  (Look in the 5th and 14th amendments, added after the adoption of the original Constitution.) Nor will you find the word, “democracy,” anywhere in Constitution.

Two things make the U.S. Constitution a good charter of government: 1) It is structured to limit the powers of government, thereby maximizing the liberty individuals. 2) There is a long and deep history of political and economic freedom that has supported the mechanics of the document.  A spirit of freedom underpins the Constitution and the Constitution was designed for a free people.  One side supports the other; if one falters, so goes the other.

Why Care About The Constitution?

The constitutional limitations on governmental power allow for freedom among the citizens.  The desire for and jealous protection of freedom on the part of the citizens maintain those constitutional restrictions on power.  Free people will not put up with government infringement of freedom. Conversely, if the constitutional limitations are weakened, ignored, or broken down the freedom of the people is restricted. If the free spirit of the people weakens, ignores dangers to freedom, or lapses into apathy, the constitutional restrictions are nothing more than a “parchment barrier,” as James Madison, noted.

Not to come across glib, but it seems like we have not much more than a parchment barrier.

James Madison, widely regarded as the Father of the Constitution, warned that a list of rights in the Constitution would merely be a “parchment barrier” against attempts to destroy those rights. Without due diligence on the part of the people a constitutional guarantee of rights and liberty is just a scrap of paper.

Question: How could any level of liberty and equality be a political reality if the words, “liberty” and “equality” do not appear in the text of the original Constitution?

Nature abhors a vacuum. So, too, does the balance between power and freedom abhor a vacuum. If one side recedes, the other fills the vacuum. As the Declaration of Independence reminds us, with no government our liberties are at risk. Government is there to protect rights. So, too, will an intrusive overbearing government put our liberties are at risk. In both cases a political vacuum is created and the powers that fill it are not going to be friendly to freedom. It is up to a free people to maintain the proper balance between power and freedom and prevent that vacuum.

It Is We The People,” Not “We The Sheeple”

Should we govern ourselves through the Constitution, or should we be governed by a set of experts, bureaucrats, career politicians, and judges? Should we take constitutional responsibility as free citizens, or should we simply be good political sheep wandering about looking for political shepherds to herd us where they wish?

More silly questions, right? Not so fast. When we examine things like the size and scope of the federal government, its budget and federal deficit, how our money is spent, the tax code, and what we are told by our “leaders,” I feel a big shepherd’s crook closing around my neck.

Looking back to the Constitution, however, allows us the opportunity to see the law is on our side! (Where’s that lawyer commercial tune when you need it?) The Constitution is the supreme law of the land. All actions of the government are supposed to past constitutional muster, and ultimate sovereignty lies with the people—not sheeple. All this will remain academic theory unless the people own up to their responsibility as free citizens. To do this we must focus on the Constitution both in letter and in spirit, such as limited government, the rule of law, the separation of powers, and federalism.  And the last I checked (which was never, I grant you) defending freedom was not showcased on “America’s Got Talent”

Less Is More: Limited Government

If we could ask the Framers of the Constitution and the citizens that ratified it in 1789, Is the government provided by the Constitution limited in its power, or unlimited? they would undoubtedly tell us it is limited. In fact, they would probably scratch their heads, look at one another, then look at us incredulously and ask if we have ever even read the Constitution.

(If you sit down and read the Constitution—it is only 7 Articles and 27 Amendments—you will be overwhelmed with just how limited in power the government is supposed to be.)

If we were to ask ourselves, our legislators, and our neighbors the same question, we will get a wide array of answers. At that point we need ask each other if we have read the Constitution.

Thankfully for us we can ask ourselves and we can ask the Framers. They left a lot of writings behind. The first of which we should look at is, I hope you guessed it, the Constitution!

It Is A Written Constitution

Before reading the clear text of the Constitution, however, let’s ask ourselves an obvious question: Is our Constitution written or is it an oral legend? Of course it is written. What’s the point of this question? Other constitutions are not “written.”

The British constitution, for example, is a compilation of court decisions, acts of Parliament, local ordinances, and royal decrees stretching back to the early dawn of that country’s existence. It would fill many filing cabinets. It is not so much a written document as a conglomeration of ideas, lumped together to give an idea of what their government is and how it operates.  That is one reason whatever Parliament passes as a law instantly becomes the supreme law of the land; every piece of their legislation is like another amendment to their “constitution.”  Not so here.  Laws passed by Congress and signed into law by the president must be “constitutional.”

Our constitution is 7 Articles and 27 Amendments, has a discernable beginning and a clear end. It fits in your pocket. (Do you have a pocket Constitution? Visit www.heritage.com for one free of charge.)

What is the importance of a “written” constitution? The answer is as simple as it is important: Written = limited!  Otherwise why write anything down?  Think of it this way: a written constitution cannot, by nature of being written, be unlimited.  Everything is written down.  Nowhere is it written that government may do whatever it wishes to do. If a government with unlimited power was intended, what would be the point of writing a constitution? A written constitution, therefore and by definition, provides for a government with limited powers.

It takes a lot of work, ingenuity, and craftiness to “get around” the limitations on authority in the Constitution both in its letter and spirit. But with enough time, getting around constitutional limits on government power becomes routine; everyone just gets used to it.  True, arguments must be made and sold to the public.  But it takes no work at all if the public just does not care about the constitutionality of government actions.

As was said before, apathy is no friend of freedom. If the public gives enough of hoot, unconstitutional policies must be snuck through stealthily through court decisions, then politicians in Congress and the White House can wash their hands of constitutional responsibility by saying, The courts have decided. If that is not working adversaries of freedom hope and wait for the American people to fall asleep at the wheel, then the whole process is easier.

Constitutional? Do I care?

Another significant bulwark of freedom in the Constitution is the Rule of Law. A written constitution establishes the rule of law and forbids the rule of lawmakers.

Is there a difference?  Yes, a big difference.  Those holding power administer the necessary functions of government as those powers are prescribed in the Constitution. Understood properly, elected officials are stewards of the public’s rights, therefore public servants, restrained by the limits of the Constitution.

The Constitution being the charter of government, it is the list of It Thou Shalls and Thou Shall Nots. It is much, much more than a quaint list of structural niceties by which we set our calendars for elections and make trivia questions for civics class quizzes.  As such, we are governed by the rule law, not by the rule of lawmakers.

All these limitations on power and safeguards to the public’s rights beg a very important question concerning bills of Congress, acts of the president, and decisions in the courts: Is this “constitutional? Are we asking that question frequently enough? The importance of the question goes to the heart of freedom, because constitutional limits on the power of government protect our freedom. So we all need to care about what is and is not “constitutional”!

Why Can’t We Just All Get Along? The Separation of Powers

The powers of the federal government are clearly divided into distinct bodies.  Each body is independent of the others and, in some cases, has the constitutional authority to interfere with the workings of the other bodies. This is the doctrine of the Separation of Powers. For example, the president may veto bills of Congress, Congress establishes the lower courts, the courts interpret the laws of Congress, Congress is split into two houses, the states maintain their spheres of power, etc. Most people refer to this as the checks and balances system.

What is the point of dividing the government into distinct bodies and making it more difficult for the government to operate? Isn’t this inconvenient for the government to act? Exactly! The entire point of dividing the government is to protect your freedom and insure nothing rash, unwise, or harmful to the public interest is rammed through government and made public policy. The more difficult it is for the government to act, the slower it must make the case to the public that what it is up to is 1) constitutional, and 2) good for the country.

“Getting Things Done” Is Not A Good Thing

“Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasions of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
Justice Louis Brandeis in Olmstead v. United States, 1928

I often hear people bemoaning “our divided country.” There is too much political division, too much partisanship. We should all get along, the thinking goes.  This thinking translates into people’s attitude toward the federal government: Why can’t the political parties and Congress and the President stop bickering, get along, and get things done? 

That might be a legitimate concern if they and we all preferred freedom first. The truth (and problem) is, when government acts in a proactive way it does so by enlarging its power, scope, and presence in our lives.  To do so, government has to get around constitutional limits on their power and, likewise, do not have you individual freedom at the forefront of their concerns. When Congress and the President act in one accord, swiftly and with little time for the public to scrutinize their activities, the more jeopardized our freedoms become.

Let’s return to the main question: What is the point of a limited constitution?

Madison, writing under the pseudonym, Publius, wrote in Federalist #51:

“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In 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. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” (1788)

There it is: We are not angels and our legislators are not angels, so institutional arrangements to protect our freedoms are vitally important.  The partisanship and bickering between Congress and the White House that so many despise are actually, in the workings of the Constitution, how the system is suppose to “work.”  (Yes, I know, by not working the system works.)  Experience, as Madison reminds us, teaches us the necessity of throwing additional roadblocks to those in power.

With this in mind let’s look at the Framer’s number one concern when constructing the Constitution.

Why Pick On Congress?

“The legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.”
James Madison, 1788

The Constitution goes right at Congress, giving it full attention and its most attention in Article 1. The Framers of the Constitution were wary about the amount of power Congress should have, and how much authority Congress could pull into its sphere of influence. Let’s keep an eye on Congress, too.

Consider the first article of the Constitution: It deals with Congress. Even the first sentence of the First Amendment of the Constitution starts with limitations on Congress: “Congress shall make no law…”

The Framers went so far as to split Congress into two, the House of Representatives and the Senate. Only 1/3 of senators are up for reelection every two years, and they serve six year terms. Every House member is up for reelection every two years. Tax bills can only begin in the House, and any bill has to pass both the House and the Senate before it goes to the president to be signed into law.

Why all these constitutional hoops and hurdles to passing legislation? I hope you guessed it: to protect your freedom. No one momentous bill, outrageous idea, or disastrous policy can sweep through Congress and be signed into law at least without difficulty and some public scrutiny. And if crazy bills that are hostile to freedom are slowed, frustrated, and hopefully stopped in the constitutional process, freedom lives to breathe another day.

So let’s keep picking on Congress.

Federalism: Don’t Forget The States!

The role of state governments has long been pushed to the side or forgotten when it comes to national affairs and the workings of the federal government. By its very definition, a “federal government” recognizes the role of the states. That what makes a government “federal”: there is a central government and a set of state governments, all constituting one government.

Over the years and particularly since the New Deal, more and more laws and issues have been centralized into the control of the national government, decided in national courts, and controlled by national bureaucracies.

Need every issue be dealt with at the national level? What role should the states take?

Let’s revisit the 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The overall dispersion of power includes the role of the states. If every issue becomes federalized, if every aspect of our lives is detailed in federal laws, we lose one important check on the power of government: we can no longer “vote with out feet.”

Think about it on a local level. If you are highly displeased with your local school district, your threat of moving to the neighboring district gives your local government a good reason to act responsibly with your tax dollars. State governments are very sensitive to the amount of citizens migrating to other states in search of greater opportunity and lower taxes. If the federal government takes over the roles and duties of local and state government, our only way to vote with out feet is to move out of the country.

When the states maintain their spheres of power the result is a wider dispersion of power.  This decentralizes power and promotes freedom. When the central government takes on more and more control of state and local issues, when the federal court system federalizes more and more local laws, power is further consolidated into fewer and fewer hands.  More and more Americans have their fates and liberties falling into the hands of fewer and fewer people.  This process consolidates power and the growth of the power of the central government.  This, obviously, puts freedom at a greater risk.  As Ronald Reagan pithily put it, “The more that government grows, the more that freedom shrinks.”

Who Cares What’s In The Constitution?

You do. Convincing others to care what is and what is not constitutional is up to you. I never cease to be surprised and disheartened by the number of people that do not care if their federal government is acting constitutional or, worse, they want the government to act unconstitutionally if that amounts to some good action, by their judgment, by government.

If We the People do not hold our government to the Constitution, they will not by themselves be restrained by the limits of the Constitution. Can we expect politicians to hold themselves to the Constitution? Only if they believe doing so will get them reelected, and guess how that happens? Don’t let apathy create a vacuum into which government rushes and your freedom shrinks.

Where’s the Manual? Constitutional or unconstitutional?

How do we keep government constitutional? Simple: Ask! Ask your representative and your senators how much respect they have for the Constitution then weigh their voting record against their answer. (See The Freedom Index.) You’ll probably get nice lip service on the value of the Constitution. Yes, that is patronizing and frustrating but we must look upon it with optimism: It tells us public officials cannot openly disparage and reject the Constitution; they feel pressure to at least make public declarations on the virtue of the Constitution so whatever actions they take as public officials have to at least appear to be constitutional.

Therein lies the opportunity! This allows We the People the opportunity to actually hold their feet to the fire.  And don’t be shy to remind them that the moment they took office they held up their right hand and swore to uphold and protect the Constitution.  That’s a real bugger to get around if you are an elected representative.

Maintaining a strict adherence to “constitutional” restrictions is no easy task, as most important tasks are. There is no magic about the Constitution so it provides no automatic mechanism for good government and a free society. That is left to We the People, to be persnickety about that whole “constitutional” thing.  Remember that your representative is no angel.

A Short Quiz On The Constitution

The teacher in me has to get this out there. There are some basic misunderstandings and myths concerning the Constitution, so let’s get them on the table with a pop quiz. Feel free to peruse the text of the Constitution for help. It is an open book quiz:

Questions

1) According to the original Constitution of 1789, who was permitted to vote in federal elections?

2) How many times does the word, “slavery” appear in the original Constitution?

3) How many times does the word, “democracy” appear in the Constitution?  (Were you paying attention?)

4) What is the only form of government guaranteed to the states?

5) In which article do we find the Supreme Court’s power to overturn laws of Congress and action of the president?

6) According to the Constitution, what branch of government has final say as to the “constitutionality” of laws?

Answers

1) Everyone! No one was forbidden by the Constitution—What/ did you answer “land holding white males”? Article I, Section 2 leaves qualifications for voting for House members up to the respective states. The federal government had no say as to who could and could not vote for representatives in the House.

2) None. The Founders were careful not to include the word so not to allude to some sense of legitimacy in the institution of human slavery. Article 1, Section 9 allows for the federal prohibition of the importation of slaves by January 1, 1808. On that day, Congress banned the trade. The 3/5 clause of Article 1, Section 2 weakened the slave interest in the slave holding states; the slave interests wanted slaves counted for representation which would have given them more power in the Congress.  Much debate has ensued whether or not the original Constitution was pro or anti slavery. See the thoughts of one former slave, Frederick Douglass, for a good insight to that question.

3) None.

4) Republican, that is, representative. Given the very liberal allowance of the voting requirements (see #1), this in effect guaranteed more people, not less, would participate in federal elections of House members.

5) Trick question: nowhere is this power found in the Constitution. The Supreme Court built up this power for itself while Congress and the Executive allowed it to do so. “Judicial Review” was established in the 1803 Supreme Court case, Marbury v. Madison and has been used ever since with no interference from Congress or the president.

6) No branch is granted such authority.  The branches are “separate but equal.”  Here we see the virtue of the Separation of Powers, and the importance of all the federal government not playing nicely and getting along.

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