Today is Constitution Day, marking the drafting and signing of the U.S. Constitution on this date in 1787. It is fitting that this day falls just ahead of this year’s November elections. Americans have an obligation to give thought to the words and meaning of our Constitution before exercising their privilege to vote for those who will serve in their governments at the local, state and federal levels.
Recently, the Constitution has come into particular focus because many anticipate that our presidential election will be close and the results could be uncertain for days, or even longer, as states count mail-in ballots. As such, Americans have an even greater obligation to dust off a copy of the Constitution and familiarize themselves with the workings of the Electoral College — and even the process in place should the race go to the House of Representatives to determine the outcome. Fortunately, the Framers of the document anticipated many of these possible scenarios and deserve praise for giving us a document that has worked well over the centuries.
Former House Speaker Newt Gingrich noted recently that the great achievement of the founding generation was turning a revolution into a Constitution. The world has witnessed many revolutions that go the opposite direction, descending into chaos that is resolved only after a decade or more of violence when someone arrives to impose order. The French Revolution ended with Napoleon, and the Russian Revolution with Stalin.
So what kind of Constitution did James Madison, Alexander Hamilton, Benjamin Franklin and others in Philadelphia give us? Franklin is famous for stating that the Framers gave us “a republic, if you can keep it.” This is true, but they also set up a structure of government that divided powers in an effort to preserve liberty for generations to come.
Georgetown Law Center professor Randy Barnett suggests quite correctly that the Constitution is first and foremost a document that “governs those who govern us.” It is members of Congress, judges, the president, and members of the armed services who swear an oath to uphold the Constitution. We, the people, do not swear an oath to uphold the Constitution. That is the duty of those in government who pledge to abide by its restrictions on their powers. It is those in government, not American citizens, who have their powers constrained by the Constitution.
The key to the longevity of this document is the separation of powers. While several amendments to the Constitution have eroded that separation, including the 16th (allowing a national income tax) and 17th (changing the procedure for electing U.S. senators), there are still important functions that remain exclusively, or primarily, with local and state governments. In recent months, we have witnessed this with controversies involving police powers, pandemic lockdowns and education. It is state and local governments who have the authority to oversee policies in these areas.
By separating power between the three federal branches and at the federal, state and local levels of government, the Constitution creates rivalries for power and offers some checks on power when it is exercised inappropriately. Ultimately, the liberty of the people rests on the separation of powers. American citizens must guard against the concentration of power, which can be the enemy of the people’s freedom.
Constitutional scholar Walter Berns once shared a story of being invited to give lectures in Brazil on constitutional law. He recounted that the first question he got following a lecture was from someone who asked rather pointedly why he was lecturing Brazilians on constitutions since the U.S. had only one and Brazil had seven. Actually, we had two — the Articles of Confederation being our first — but the story Berns told is a credit to the Framers of our Constitution and the manner in which they separated powers between branches and levels of government.
So this Constitution Day, remember that the Constitution is a document that limits the concentration of power by creating a republican structure with separated powers, checks and balances, and enumerated powers assigned to each branch. This structure has given our Constitution its staying power through wars, depressions and conflicts. We have a process for handling polarization and conflict in our society, thanks to the Framers of our Constitution.
When Americans cast their votes on Election Day for candidates for office at all levels of government, they should consider who is most likely to abide by the oath he or she will take upon election to uphold the Constitution that has kept us mostly free for the past 233 years.
Roger Ream is the president of The Fund for American Studies, a nonprofit educational organization that promotes the principles of limited government, free-market economics and honorable leadership. Follow him on Twitter @rogerrream.