The Constitution of the United States is the foundation of American government. As a written document, it is powerless. As a document whose principles live within Americans’ hearts and minds, it is a bulwark of freedom and a durable framework for American government. We live in an age when many are questioning the very political foundations of American society and, more broadly, Western society. In such a time, it is imperative that we as a nation return to our roots and reinvigorate respect for the Constitution.
What is a Constitution?
Perhaps before exploring any further, we must explore the question of what a constitution is. For our purposes, we are concerned only with political constitutions, not with descriptions of all aspects of society. In short, a country’s constitution is a description of its main institutions and how they operate.
A constitution can take many forms. It may be a single document. A constitution may be a collection of traditions about how government operates. It may also be a collection of written documents that capture major agreements at various points in time about how government works.
The United States Constitution is a single document that defines the structure and powers of the American national government. While the national constitution defines the national government, it only provides broad guidance, generally in the form of restrictions, about state governments. Each American state, in turn, has its own constitution, defining the structure and powers of the state government. The state constitutions don’t define the national government, but rather focus on the state and then the local governments, such as cities and counties, within the state.
English Constitution and the American Revolution
In the period leading up to the American Revolution, many colonists claimed that the King and Parliament were violating their rights under the English Constitution. As an example, Thomas Jefferson wrote the following in his Summary View of the Rights of British America.
Since the establishment, however, of the British constitution, at the glorious revolution, on its free and ancient principles, neither his majesty, nor his ancestors, have exercised such a power of dissolution [of parliament] in the island of Great Britain; and when his majesty was petitioned, by the united voice of his people there, to dissolve the present parliament, who had become obnoxious to them, his ministers were heard to declare, in open parliament, that his majesty possessed no such power by the constitution.
This is a claim that the King had no authority to dissolve parliament, yet he dissolved the colonial legislatures (in essence, miniature parliaments). Notice, though, that Jefferson does not say that the King was violating a specific provision of the English Constitution. That is because the United Kingdom did not and does not have a unified, written constitution.
United Kingdom Today
Instead, according to a discussion of the UK Constitution and proposals for reform from the House of Commons in March 2015.
The United Kingdom constitution is composed of the laws and rules that create the institutions of the state, regulate the relationships between those institutions, or regulate the relationship between the state and the individual.
These laws and rules are not codified in a single, written document.
Constitutional laws and rules have no special legal status.
The collection of royal decrees and parliamentary acts over time that have defined the government act together as the UK Constitution. Because those acts defining the constitution “have no special legal status” and “Constitutional laws and rules may be enacted, amended or repealed by Parliament using its ordinary legislative procedures,” a court can never find an act of Parliament unconstitutional. Parliament may change the constitution at any time by simply passing a law. For UK courts, “[t]here is no power to strike down laws enacted by Parliament.”
In the UK system, then, there are no limits on the legislative power. The 2015 House of Commons report notes that “The United Kingdom Parliament may pass laws on any matter, without restriction in law.” The UK Constitution, then, in no way limits governmental power and therefore cannot in any way protect rights of UK citizens.
Parts of the UK Constitution
While there are many acts that form the UK Constitution, we note a few key ones.
In June 1215, Kign John issued the Magna Carta in which he agreed to respect certain rights of the barons and other nobility. The Magna Carta likewise established the principle that the monarch is subject to the law.
The Declaration of Rights of 1689 and the Scottish Claim of Rights Act of 1689 were the outcome of the Glorious Revolution. Influenced heavily by English physician and political philosopher John Locke, the Declaration of Rights established rights for English citizens, established rules for succession to the throne, and proclaimed the principle of parliamentary sovereignty (making parliament instead of the crown the ultimate political authority).
Though the Glorious Revolution promoted parliamentary supremacy, institutional struggles between the Crown and Parliament continued up through the period of the American Revolution a century later. John Locke’s writings would go on to be the primary influence on Thomas Jefferson in writing the Declaration of Independence.
Other constitutional acts include the Treaty of Union of 1706, the Acts of Union of 1707 and 1800, the Equal Franchise Act of 1928, the Human Rights Act of 1998 and various common law rulings from the UK courts.
The Constitution of the United States
Let’s compare the UK Constitution to the American one. In contrast to the assortment of historical documents making up the constitutional quilt of the United Kingdom, the US Constitution is one document.
Accessibility
The original document spanned only five pages and contained 4,543 words (including the signatures of the delegates to the Constitutional Convention). In addition to the original document, there are 27 amendments to the Constitution. The total length of the constitution, including amendments is 7,591 words, or only a few pages.
You can read the US Constitution, including the amendments, in about half an hour. This sets it apart from many state constitutions. Most state constitutions are much longer and more detailed, and for good reason. The national constitution gives the national government only limited powers, most of which are in Congress’ powers in Article I, Section 8. Any power not given to the national government and not prohibited to the states is reserved to the states or the people by the Ninth and Tenth Amendments. Since states have broader constitutional powers covering many more areas than the national government, their constitutions need much more detail.
Is it important that the Constitution is relatively short and can be read in a half hour or so? It is. Because it is short, every citizen can read it. Every citizen can reflect upon what is says. As previously noted, it is important for the document to live in the hearts of American citizens. That is made possible by making it accessible and short enough to read and ponder. Since it is widely accessible, it can truly be a foundation of national unity.
Imagine having to read all of the documents forming the UK Constitution as a citizen of the United Kingdom. It really is not feasible, even if we ignore the challenges of thirteenth century English in the Magna Carta.
Supreme Law
The US Constitution has a special place in American law. It is the “supreme law of the land” (see Article VI, Section 2). While the acts making up the UK Constitution have “no special legal status,” the US Constitution sits atop a hierarchy of laws. This hierarchy of laws, from top to bottom, includes the US Constitution, national laws that comply with the US Constitution, treaties, state constitutions, state laws, local laws and ordinances, and private contracts. If any law violates anything above it on the hierarchy, it is null and void. For instance, a national law that violates the Constitution is null and void. Similarly, a state constitutional provision that conflicts with a treaty the United States has entered into is null and void.
As we have seen, because the Constitution is the supreme law of the land, courts may find acts of Congress, the President, national agencies, or state government officials unconstitutional. It is a critical feature of the US Constitution that it is given special legal status.
Amendment Process Allows Change But Safeguards Limits on Government
The Constitutional limits on national power would be of no use if Congress could simply modify the Constitution like Parliament can theoretically modify the UK Constitution. For this reason, changing the US Constitution has special processes (see Article V of the Constitution). While the Constitution provides for a Convention of the States to make changes to the Constitution, that particular process has never been used. Instead, the process which has been used is for Congress to pass a Constitutional amendment by a two-thirds vote in both houses of Congress and send it to the states for ratification. Three-fourths of the states must then ratify the amendment through their legislatures or a special state ratifying convention. Once the states have ratified the amendment, it becomes part of the Constitution.
Modifying the Constitution is deliberately difficult. Only 27 amendments have cleared the hurdles to become part of the Constitution. The Constitution is a broad framework of government and division of powers to different national and state institutions. Imagine the chaos if the general structure of American government were subject to the whims of a single election. Imagine the whipsaw effect as different parties gained political power and the fundamental structures of government were changed in ways to be advantageous to the party in power.
Guardian of Rights
The Constitution is a guardian of rights and liberties of the people. We can see the desire of some to use instruments of government to silence political opponents. Some groups seek to infringe upon religious freedom by using the government to dictate a purely secular world view upon the people. We can see abuses of fair play in criminal proceedings in the justice system. Any number of personal rights or liberties can be seen to be threatened from those.
The bill of rights guarantees certain individual rights, however. What are some of these rights? Here is just a sampling:
- free speech
- free exercise of religion
- peaceable assembly
- freedom of the press
- right to keep and bear arms
- protection against unreasonable searches and seizures
- right to not incriminate yourself in a criminal case
- right to a jury trial in a criminal case
- right to criminal defense counsel
- right to a speedy trial
- prohibition of cruel and unusual punishment
Institutions and Culture
These rights are only protected in as much as the body politic supports the Constitution. For any nation’s political institutions to function, the political culture of the nation must support those institutions. An authoritarian political culture, for instance, will undermine and destroy republican government. A clear example is the Wiemar Republic. Following World War I, the allies effectively demanded that Germany adopt a representative government, the Wiemar Republic. Germany had no experience with that sort of government, and Germans were not receptive to having a republican form of government forced upon them by the victorious Allies. Predictably, the Wiemar Republic collapsed.
After the Constitutional Convention, Benjamin told a bystander who asked that the convention had provided, “A republic, if you can keep it.” To keep it, we must continue to cultivate a republican political culture. Ongoing radicalization of American politics will take us to authoritarian rule if it is not reversed.
For the sake of the nation, we must cultivate respect for the Constitution and our distinct form of government. There may be factions who want to change this or that in the Constitution. The Constitution provides a way to do that.
Too often we may think that the Constitution requires a policy that we prefer or prohibits a policy we oppose. While the Constitution assigns different policy areas to different levels of government or different institutions, the Constitution provides a very broad range of potential policy outcomes. We must respect the system and its core structural values such as separation of powers and federalism in as cross cutting divisions of power to guard against authoritarian rule.
National Unity
The Unites States is not a natural nation. Americans are a blend of many nationalities. People of a nationality typically share things such as language, ancestral origin, religion or core values, general way of life, and the like. These unifying factors pull a nation together. The United States does not have all of those binding factors to the degree other nations do like France or Germany, for instance. Instead, we have an American “idea” that people of all nationalities are welcomed to adopt. That American idea is embodied in our founding documents, in particular the Declaration of Independence and the UD Constitution.
We challenge all Americans to read and seriously consider the content of the Constitution. We further invite all Americans to support the Constitution, not to achieve particular policy outcomes, but rather to help unify the nation.