Bashing the U.S. Constitution or advocating against certain Amendments has become a hobby of many in younger generations. They look across the globe and see policies they like and wonder, “Why we do not have the same ones?” But they’re missing one important step. Before looking at policy, we have to look at meta policy.
The Constitution is not a public policy document, like a healthcare bill or tax proposal. The Constitution is a framework that shows how to make that policy, without making the policy itself. Because it doesn’t generate policy, most attacks on the document are misplaced and rightly belong at the feet of legislators. The fact is, everything we know about our government comes from the Constitution. The three co-equal branches, the process for selecting our representatives, the duration of Congressional terms, even jury trials are all spelled out in the Constitution.
There is great structural significance to the document and the system of government it created. Chipping away at one part threatens the meaning of the whole document. If we suddenly stopped honoring the dress code at a school, then why would we continue to honor other rules about chewing gum or using cell phones in class? The Constitution isn’t just a student handbook though; it is the charter for the school, far more important to the system than the minute rules below. Without this document putting structures in place, none of the functions within could properly operate.
Today’s progressives judge policy and societal progress in terms of “social justice.” If we understand social justice as treating the poor as equal to the rich before the law, empowering the poor with the economic opportunity to improve their lives, then the U.S. Constitution was and remains the single greatest instrument for social justice in human history. It created a representative government and allowed the people of the nation to decide on policy, law, and the social future. Unlike previous governments, which were hereditary or dictatorial (or both), this government drew its power from the consent of the governed. The government it created allowed for regular citizens to participate as voters or as representatives. Socioeconomic, ethnic, religious, or other status does not limit social engagement. Obviously over time as society liberalized, categorical representation improved. But before thinking that the Constitution preserves or promotes institutional discrimination, there are a few facts to consider.
Amendments are updates or changes to the Constitution and are therefore an integral part of the document. They could just as easily be edits made within the Constitution rather than a list afterwards. Unlike any other government charter before, the U.S. Constitution includes explicit provisions stating limitations of government power so that it does not infringe upon the natural rights of its citizens. The Bill of Rights in particular outline activities not just that free citizens can do, but that the federal government cannot restrict. Without fear of imprisonment or retribution, any citizen can criticize the government and practice any religion. The government cannot seize property or invade a citizen’s home without a warrant. There are even prohibitions of the punishment the government can impose after due process of law. And with the Ninth Amendment, far exceeding life, liberty, and property, the natural rights not mentioned in the document are retained by the people and protected from government infringement. The founders understood that the nation would prosper if the government was limited, and these restrictions show that the government was designed to leave people alone to pursue their own happiness to as great a degree as possible.
When looking specifically at public policy, the Constitution is again an amazing document. It does not tell lawmakers what to do or how to do it. Instead it tells the world that we will have lawmakers and that they will be selected of the people, by the people, and for the people. It includes certain accountability measures and job descriptions for the lawmakers, but leaves to the people the task of legislating. Anyone who questions why we should be bound to a document written in the 18th Century misses the function of the Constitution. Beyond the eminently true explanation that the document was written not for the times but for the test of time, the Constitution is not an old document. It could be said to be only a day old. Written into the very document is an instruction on how to change it. We are not bound to an ancient text, simply because we can change it whenever our representatives are instructed to. Moreover, there is no need to amend the document to make policy. All the mechanisms for public policy are already freely available within the framework. You wouldn’t change the school charter if you wanted to loosen the dress code, you would ask the student counsel, principal, or teachers association. So why would you amend the Constitution to achieve a small policy goal?
Between the President, the Congress, and the Supreme Court, there are a number of ways to create and shape national public policy. We are guaranteed freedom and self-determination as a nation precisely because certain topics are not mentioned in the Constitution. Some may say the Constitution stood in the way of gay rights. In reality, popular opinion, social norms, and legislation were the barriers to this policy change. In many instances some perceived or real injustice exists due to abuse of the system, not abuse from the system. The law cannot harm unless it is warped to harm by men. But this is precisely why our government is fragmented and checked and balanced against itself. Laws must pass two chambers and receive executive approval, so malice is unlikely to prevail. When the legislature does violate the Constitution, or natural law, the Supreme Court intervenes. Citizens can vote to replace bad legislators, bring cases through the court system, or run for office themselves.
The final genius behind the U.S. Constitution is federalism. Power was not sufficiently fragmented to avoid abuse and injustice, so the drafters of the Constitution ensured that we would have a federal system of government made up of states. In this way, we are not one national body, but discrete units around the country. Stronger than a confederacy, but weaker than a unitary government, the United States is a clinic on power balance dynamics. Within these states, citizens are allowed to promote different policies. Instead of a national policy that would affect everyone and impose homogeneity, we are free to choose states with favorable policies on particular issues. Rule is not imposed from on high but selected from the base. These laboratories of democracy promote rich diversity and justice in accordance with the will of the people, closer to the people than a national government is capable.
With federalism, states can push back against a government that is hurting minorities or growing too powerful by usurping citizens’ rights. A document that creates a system of government of people, while providing safeguards for those people from the very government it creates is a treasure that should not be destroyed.
The U.S. Constitution is not outdated; it is not unjust; it is not shortsighted. It is the very mechanism that gives the downtrodden representation, recourse from injustice, and hope for the future. It provided for the freest and most prosperous nation in human history, and it will safeguard that nation as long as we safeguard it.
Benjamin R. Dierker – Legal Affairs Analyst | Lone Star Policy Institute
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