Some thoughts on Constitution Day

As I drove into work today, it occurred to me: we so often take for granted the extraordinary power that the automobile gives us. Once you figure out how to drive it, it can take you where you need to go. Spend enough time behind the wheel and you won’t even notice the roar of the engine. Most of us don’t even think about how its machinery works – unless and until that machinery stops working.

This is also true for the Constitution: by and large, we take it for granted. In most times and most places, most people have been without access either to a car or to a Constitution. For the vast majority of human history, most societies were simply without the kind of protections that the Constitution gives the people.

Indeed, in everyday life, most Americans rarely have to think about how the Constitution safeguards our lives. But you can observe something interesting when you see people become American citizens or members of the armed forces or public employees: they are required to promise to support and defend the Constitution.

Imagine that! In other countries, those who take such oaths have been required to pledge their loyalty to the King, or to the Ayatollah, or to the Fuhrer. Here, we pledge loyalty to a couple of pieces of paper.

Of course, that pledge is not really made to pieces of paper – it is to what those pieces of paper represent. It is really a pledge made to the rule of law that the Constitution protects. Here is an example.

Earlier this year, I walked into a federal courtroom to ask a judge to overturn an unconstitutional law. The lawyers at CEI discovered a powerful argument that the federal law that criminalizes the distilling of beverage alcohol at home is unconstitutional, so we asked a federal judge to hear us out on that question. Eventually, after the judge heard us out, he decided that we were right and halted the enforcement of the law against our clients.

It is worth repeating how historically unusual this sort of thing is. For most of human history, if you didn’t like what your government was doing, you didn’t have the opportunity to go to the king and say, “Look, I don’t like what you’re doing. In fact, what you’re doing is illegal. Here’s the rulebook: it says you can’t do this.” For most of human history, if you went to the king and complained that he was breaking the rules, the royal response was regularly “How sad to be you. Because of the disrespect you have demonstrated by complaining to me, I will now take your property and throw you in jail.”

The Constitution is supposed to stop this kind of government misbehavior. It’s supposed to prevent the government from shutting you up, from unjustly taking your property, and from putting you in jail without trial. And it often does a pretty good job: the protections for the people that the Constitution contains – that protect the people against their own government – often work very well.

Of course, as the lawyers say, the Constitution is aspirational. Again, it is a bit like a car: it requires regular attention and maintenance to ensure that it accomplishes what is needed. Over the last year or so, the United States Supreme Court has identified several ways that the federal government has not been following its own rules.

• Federal bureaucracies have created their own interpretations of law that are at variance with the language that Congress has written;
• The government has put people in criminal jeopardy without ever allowing them the option of trial by jury; and
• When people have challenged the government’s enforcement of laws and regulations in court, they have been prevented from using applicable statutes of limitations to defend themselves.
  

In three recent decisions, the Court moved to end these abuses. Next week, CEI will publish a new paper about these matters and about the Supreme Court’s protection of our constitutional rights over the last year entitled “The Supreme Court’s New New Deal.” The Supreme Court pays a great deal of attention to constitutional rights: I wish that the people whose rights it safeguards did so as well. Aspiration – the work of making sure that the law continues to protect the rights of the people – isn’t just the job of judges, it is also the job of other public officials and the job of the people themselves.

The American people have received an extraordinary cultural inheritance that includes the rule of law, the protection of rights, and the preservation of constitutional norms. At the very least, Constitution Day should encourage us all to think a bit about the immense cultural fortune – the possibility and the frequent realization of good government – that has been handed down to each of us.

It’s probably true that the Constitution will survive a while longer even if most Americans know little or nothing about it. But it’s also true that widespread ignorance about the blessings of the Constitution will shorten its lifespan and its extraordinarily beneficial consequences.

What will you do for Constitution Day? Will you, at the very least, take a few minutes to learn a bit more about the Constitution? Or will you assume that somebody else will do that job for you?