September 17th was Constitution day and the anniversary of the conclusion of the Constitutional Convention in Philadelphia in 1789. While members of the Church widely celebrate and honor the Constitution, bloggers offered a more tepid response. For instance, Chris Henrichson at Approaching Justice wrote “It is about how to make laws. Really, that is it. It is rules about how laws are made and who has the power to make what laws. Anyone that adds anything to that is selling you something. DO NOT BUY IT.” Henrichson suggests that the Constitution is little more than a document which establishes a system of governance no more inspired or unique than any other. In this post, I hope to push back on this notion by pointing to some things that made the Constitution unique and praiseworthy.
Joseph Smith in his dedicatory prayer for Kirtland temple declared:
“Have mercy, O Lord, upon all the nations of the earth; have mercy upon the rulers of our land; may those principles, which were so honorably and nobly defended, namely, the constitution of our land, by our fathers, be established forever.” (D&C 109:54)
It is not so much the written document itself that the Prophet invokes, as the principles that our Nation’s Founders “so honorably and nobly defended.”
It is not so much the written structure of rules, but the underlying principles and beliefs that make the Constitution and this nation special. Another nation could copy the provisions of the Constitution and utterly fail without respect for these underlying principles.
Elder Oaks pointed to five fundamental and inspired principles of the constitution :1) Separation of Powers 2) A written bill of rights 3) Division of Powers (Federalism) 4) Popular Sovereignty 5) Rule of Law.
I want to touch on a couple of additional factors that I think truly set the Constitution apart from any government of the time, and even from many today.
1) Rights Derived from God rather than from Government
One under appreciated revolutionary doctrine that underlay the American Revolution and the Constitution is that the Founders understood individuals as being “endowed by their creator certain unalienable Rights.” Government is created by man to protect these inalienable rights to “life, liberty, and the pursuit of happiness.” Government does not create rights or give us liberty. Instead, government is legitimate only when it protects the rights of the people. While this theory was deeply rooted in the philosophy of contemporary thinkers such as John Locke, America was perhaps the first nation to truly embrace this notion with fervor. In pre-revolutionary America and in Britain, the sovereign was able to grants privileges and immunities, but was not limited in his power except for through express restrictions such as the Magna Carta. In the post-revolutionary period, many states wrote new constitutions instead rooted on the notion that there were certain core rights that could not legitimately be abridged by the sovereign.
Even today, this distinction is something that sets America apart from many European nations. It is one reason for instance why America has consistently seen hate speech laws as inconsistent with our notion of free speech. Government can abridge rights only for extremely limited a compelling reasons. In contrast, in European nations free speech can be limited if it conflicts with an alleged right not to be offended. Such a “right” is completely inconsistent with the principle of rights that forms the basis for the constitution. No man has the right to limit another’s speech in order to avoid offense, and therefore government can likewise not abridge speech for such dubious reasons.
2) Government of Limited Powers
Related to the first point, one of the incredible things about the Constitution is that it was based on a government of limited and defined powers. Anything not permitted to the Federal Government by the Constitution was forbidden. This turned on its head the typical notions of sovereignty, especially those found in continental Europe at the time. While some of the delegates at the constitutional convention such as Alexander Hamilton favored broad federal power, the overwhelming majority of those assembled feared too intense of a concentration of power in the Federal Government (and some such as future Presidents James Madison and James Monroe feared excessive concentrations of state power as well). Unfortunately, we have effectively reversed this presumption by allowing the “necessary and proper” clause to dramatically expand the scope of governmental power. Today, we expect the Federal Government to be involved in every aspect of policy such as Education, Health Care etc. Yet, such a notion would have been anathema to those assembled in Philadelphia. Power must expressly be given rather than assumed.
(Note, the Founders limited governmental power, but created a system of amendments to give the Federal government greater power if such was deemed necessary. There would be nothing morally wrong with a federal government given authority by the people to set up a health care program (as long as such did not conflict with natural . However, the bigger problem is that the government has expanded without going through the proper process of amendment).
3) Consent of the Governed
Elder Oaks touched upon this in his point on Popular Sovereignty. However, I recent read an account of the ratification of the Constitution that dramatically expanded my appreciation for this principle. Akhil Amar in his book America’s Constitution: A Biography argues vigorously that the ratification process was a truly democratic moment where the people were able to choose whether to embrace the Constitution. Of course, some were excluded from voting. However, Amar notes that the states lowered or eliminated their property qualifications to allow the broadest swath of people to vote and elect delegates. (Indeed, it is possible that in some states even Women were able to vote). Moreover, each state had to vote before it could be bound by the Constitution. This was truly a revolutionary moment where the people were able to assent to be governed under the Constitution.
This gives new meaning to the point made by Elder Oaks.
Popular sovereignty necessarily implies popular responsibility. Instead of blaming their troubles on a king or other sovereign, all citizens must share the burdens and responsibilities of governing. As the Book of Mormon teaches, “The burden should come upon all the people, that every man might bear his part.” (Mosiah 29:34.)
4) Enforcement of the rule of law
Elder Oaks touched upon the rule of law as his fifth point. However, I think what made America revolutionary was not just that written rules existed, but that those in charge of government actually followed those rules.
This is the reason that the Election of 1800 is viewed as a second revolutionary moment. A President of one party voluntarily relinquished power to a President of another party. There was no violence or bloodshed. The partisan rancor was very real, and yet talk of succession was only a fringe movement. Likewise, Presidential appointments or treatise have routinely been rejected by congress without revolt.
Indeed, the few moments when this system of respect for the rule of law has fallen apart are illustrative because of how relatively rare they are. The most striking of course was the Civil War which began in part because Southern States refused to recognized the legitimacy of a President that was appropriately elected.
Today, when the Supreme Court strikes down a very popular law such as a flag burning law, or the contraception mandate, people may get angry. They may urge voting for a President who will make sympathetic appointments. They may even propose Constitutional Amendments. What one never hears is the suggestion that the President or Congress can simply ignore the Court’s decision. This deep respect for the rule of law is something revolutionary that we simply take for granted today.
Yet, this respect for the rule of Law is what sets apart the United States from Soviet Russia. In theory, Soviet Russia had a constitution which protected the rights of the people. In theory, there were many procedural and substantive protections. Yet, in practice these rights were routinely ignored.
I am grateful for a Constitution rooted in principles maximally designed to guarantee and preserve divinely inspired rights and agency. Even as we fall short of these principles, they continue to guide us and push us toward greater heights.