U.S. Constitution Shows Importance of Writing Rules Down

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Detail of Scene at the Signing of the Constitution of the United States by Howard Chandler Christy, 1940 (Wikimedia)

As Yuval Levin notes (here and here), today marks the 233d anniversary of the signing of the Constitution, concluding the secret sessions of the Constitutional Convention at Philadelphia and commencing the process of convincing the American electorate of the day to ratify it in place of the Articles of Confederation (which themselves had only been ratified five and a half years earlier). One might reasonably argue that it is more proper to celebrate June 21, when New Hampshire became the ninth state to ratify the Constitution, making it effective; until then, the opening line was merely aspirational. The Constitution begins by promising: “We the People of the United States . . . do ordain and establish this Constitution for the United States of America.” But at Philadelphia, the people had not yet agreed to that.

“We the People” remains one of the most important and powerful parts of the Constitution, and in particular a departure from the Articles of Confederation. The Articles were issued on behalf of “we, the undersigned Delegates of the States,” and was therefore capable of being renegotiated or dissolved by the states — notwithstanding that it, unlike the Constitution, explicitly promised: “we do further solemnly plight and engage the faith of our respective constituents, that . . . the articles . . . shall be inviolably observed by the states we respectively represent, and that the union shall be perpetual.” At least in my faith, a marriage is solemnized with the pronouncement, “What God has joined, no man may separate”; as was settled by blood and arms in 1865 and confirmed by the Supreme Court in 1869, what the people have joined, no state may separate, because the Constitution is a compact among the people and not among the states.

All that being said, the long tenure of our Constitution — the oldest one in continuous use, just as America’s exceptional system is the oldest continuous system of republican and democratic government — owes much of its importance and durability to another crucial fact: The Framers did not merely agree on a system of governmental powers and individual rights, they wrote the rules down. This was a key departure from British practice. Britain in 1787 had a Parliament, and the Magna Carta of 1215, and the Bill of Rights of 1689, but it nowhere had a single rulebook ratified by the people that could not be changed without their consent. The British “Constitution” to this day is a concept rather than a written document, and Parliament has very little constraint in changing it. The British system has evolved so much since 1787 that it is far less recognizable today than the American system of the day: The King controlled many appointments and much national policy, the House of Lords had significant governing powers, and the Commons was not elected in anything even vaguely resembling representative terms or proportions. The system has endured in large part due to the British habit of unspoken agreement, pragmatism, and tradition, but what was truly novel in America was the insistence of the Founding generation that the rules must be written down, and that they must constrain everyone. The entire American concept of constitutionalism can be summarized in four words: “You can’t do that!”

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The endurance of written rules in America is ironic. Americans are not, in general, much of a rule-following people. The rebellious streak in American culture runs through 1775, 1836, and 1861, all the way down to 2020 and people not wanting to wear masks and stay in their homes. But then, with one exception, the Constitution’s rules don’t tell citizens what they can’t do; they limit how the government can tell us what to do. And that one exception — the 13th Amendment’s ban on slavery — tells citizens they can’t control what other people can do.

This is why, when I talk about the rule of law in this country, I so often emphasize that it is a rule of written law. “Rule of law” does not mean norms, institutions, formalities, or the involvement of learned professionals; these things may be crucial to protecting the rule of law, but they are not the rule of law itself. This is precisely why I continue to see theories of living constitutionalism, legal realism, and the like — which de-emphasize the paramount role of text in the legitimacy of law, and which constantly evoke the notion that progressive outcomes simply must be constitutional — as the greatest of all threats to the rule of law. If the text itself does not mean “you can’t do that!” — if the text does not continue to mean the same thing until the voters change it — then we do not have the rule of written law at all. We merely have a suggested list of best practices.

Of course, the erosion of the norms, institutions, formalities, and the profession of law are all dangers, too, and raising alarms about them is important and necessary. But if we lose the bedrock idea that the written rules are a stop sign, we lose the whole thing. Writing it down was the point.


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