The spirited debate provoked by the Supreme Court’s rulings in the abortion, religion, EPA and gun regulation cases has become disturbingly toxic due to a failure to understand how and why the Constitution allocates governmental power to promote the “safety and happiness” of the American people.
This summer marks the 235th anniversary of the Philadelphia convention that produced the United States Constitution. Alexander Hamilton hit the proverbial nail on the head when he declared that “all mankind” would be the beneficiary if the American people established a republic that was true to the principles of the Constitution.
The decision to declare independence from Great Britain, and the reasoning behind that decision, initiated what George Washington called a “glorious cause” for the American people. At the heart of that cause was the decision to be a constitutional people, that is, the decision to constitutionalize the American way of life or the way in which Americans would govern themselves and live their lives.
The Constitution was designed to establish a specific kind of republic that would nurture a distinctive “way of life” for the American people (such as a love of liberty, a commitment to fair play and due process of law, creative ingenuity and moderating common sense, and a large dose of what Washington called “republican manners”). If things worked out as intended, then the Constitution was expected to give Americans a realistic shot at living in a decent and competent democracy.
In a republic where the people are the sovereign body, being a constitutional people requires more than a commitment to abide by the terms of the Constitution — although that is enormously important. In no other type of political community are civic education and specifically constitutional literacy so important as in a democratic republic.
Being a unique constitutional people requires general agreement about what the constitutional order (e.g., America) stands for or should stand for and what it means to be a member of that constitutional order (e.g., an American). To say that the American people in 2022 are deeply divided about such matters is an understatement, and the impact of this division on the health of the nation should be profoundly disturbing to liberals as well as conservatives.
Constitutionally literate citizens should understand the difference between deciphering Congress’ authority to regulate interstate commerce and the president’s commander-in-chief powers on the one hand and addressing the day-to-day challenges involved in reducing poverty, pollution, drug addiction and crime on the other.
When Americans look to appellate courts like the United States Supreme Court to make public policy, they are no longer thinking like the founders’ constitutional people. Constitutionally literate Americans should understand who decides what (how powers are allocated) and why (the reasoning or logic behind the allocation of powers). Understanding and addressing the complex causes of crime, poverty, health crises and pollution should be expected of legislative and executive officials, not judges — applying laws to specific cases should be the work of judges.
Americans expect a great deal from the government, and they are impatient when gratification is delayed. A Constitution that entrusts governing to a diverse group of legislative and executive officials is not designed for “jiffy lube” policy-making — but at its best, it will be good for deliberation, negotiation and coalition-building, and fair and sensible decision-making.
The alternative to constitutional politics is power politics or the advancement of political agendas by exercises of pure will and force. Power politics is more “sexy” and alluring than constitutional politics since it plays on the passions and promises something approximating quick gratification. A rights-oriented and commercial culture is fertile soil for power politics (give me what I want when I want it politics) that prioritizes outcomes over principled reasoning.
A failure to embrace the boundaries and necessary patience associated with constitutional politics opens the door to the machinations and divisiveness of persons of low and self-serving ambitions. For obvious reasons, the disposition to engage in constitutional politics must be carefully nurtured and protected since it is hard to cultivate and difficult to restore when lost.
The American people should be proud of what they have pulled off since the 1780s, thanks in no small part to the enduring genius of the Constitution, but worried about what the future holds. Public officials, educators and journalists, among other persons who shape public opinion, need to understand what George Washington appreciated about the fragility of constitutional politics.
If constitutional politics falls out of favor with the principal shapers of public opinion, and especially if the American people succumb to the deceptive promises of purveyors of power politics, then all bets are off when it comes to preserving competence and decency in the nation entrusted to our care by the delegates who labored to craft the Constitution in the hot Philadelphia summer of 1787.
• David Marion is Elliot Professor emeritus of government and a faculty fellow with the Wilson Center for Leadership in the Public Interest at Hampden-Sydney College.
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