• The Rule of Law: Two Views

    Laws, not men, rule a free society. The Constitution of the United States, with its division of powers, is the best arrangement yet devised for empowering government while preventing the concentration of power.

    But still we must ask: What is the Constitution for? What are the rights it is meant to protect, and why is the concentration of power to be prevented? These are the questions that Bruce Frohnen and Randy E. Barnett consider here.

    The views and opinions expressed in Debate content do not necessarily represent those of the Intercollegiate Studies Institute.

    September 20, 2010
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    • What Is the Constitution For?

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      All nations have constitutions—whether written down or not. Why? Because every nation must have rules determining who gets to govern and how. And you don’t need to be a nation to have a constitution. Clubs and corporations have rules of decision-making, and before Europe was made up of nation-states, the various realms (the Franks, the Saxons, and so on) had constitutions. Kings ruled, but they had to respect the power and authority of their nobles, of the Church, and often of the merchants who kept their economies going.

      The U.S. Constitution gives fewer powers to the rulers than do most constitutions, for two reasons: First, Americans sought less from government than do many peoples—they already had families, churches, local communities, and especially customs that helped them lead the kind of lives they wanted to lead. Second, Americans already had governments—in their states. The American Constitution is not the rules that order our society. It is not, itself, even the rules that order our government. It is the rules that govern our national (federal) government, and that are intended to keep that government within its proper bounds.

      A constitution establishes rules for governing a people. So before there can be a constitution there first must be a people. And Americans had been forming themselves into peoples before they even came to America. For many years religious dissenting Puritans in England had been entering into “church covenants” to govern their congregations in the face of intolerance from the established Church of England. In the Mayflower Compact, Puritans did the same in America, combining into a “Civil Body Politic” and agreeing to abide by such laws as they thereafter deemed best for the common good. Next came laws, including constitutional laws establishing the forms and powers of the legislature, courts, and so on. American colonists formed many peoples and lived under many colonial “charters” that served as rules for governance, as well as their own customary or common law.

      When war with Great Britain came, the colonists had to work together to win independence. They established Articles of Confederation to facilitate cooperation among the (sovereign but embattled) states. After independence was won, however, many Americans came to blame the weak confederal government for trade wars, tax revolts, and bad economic times at home, as well as an inability to command respect abroad. The Constitutional Convention was called to address these problems. Some at that convention (including James Madison) wanted a consolidated, national government to forge strong policies and protect individuals in particular from often small-minded states and localities. But Madison admitted defeat on this point when the convention rejected his idea of a national veto power over state legislation. Instead, the Constitution we got was clearly aimed at solving specific problems facing Americans, without destroying the essential role and powers of the states.

      So the Constitution is “for” preventing trade and tax wars between the states. It is “for” establishing a stable political and economic system, “for” a unified foreign policy, and “for” doing all this while keeping the national government within the bounds set in the Constitution.

      Ours is a limited and rather “negative” constitution, as concerned with controlling as enabling the national government because it sits atop and in a manner incorporates more local institutions and traditions. Indeed, one reason the drafters originally rejected any bill of rights at the national level (they were standard in state constitutions) was the fear that it might make people assume that the national government can do anything it wants unless specifically prohibited. In the end they accepted a bill of rights to ensure ratification, creating a list of important rights already protected in the states. The national government was forbidden to violate these rights. The Bill of Rights then restated the Constitution’s fundamentally limited nature, leaving most powers and rights with the states, local communities, and people.

      Our Constitution empowers a new, national government for specific purposes and limits its power through rules, separating the government into legislative, executive, and judicial branches with the ability to check and balance one another. It is no grand scheme for national empire, or for destroying our primary communities in the name of an individualism that would leave people at the mercy of national courts and politicians. It is important, and great, precisely because it recognizes that people and their rights are social by nature, and must remain rooted in their communities if we are to enjoy the benefits of ordered liberty under the rule of law.

      September 20, 2010

    • The Law That Governs Those Who Govern Us

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      The Constitution is the law that governs those who govern us. It is device to address the age-old problem: Who guards the people from their guardians?

      The Founders believed with John Locke and other liberal theorists of their day that “first comes rights; and then comes government.” Given the nature of human beings and the world in which we live, the pursuit of happiness requires persons to put their personal and local knowledge into action using scarce resources in the world. Natural rights define the space within which each person is free to choose how to pursue his or her own happiness while living in close proximity to others, where the actions of each person can potentially affect the welfare of others. Natural rights are a social concept defining the prerequisites for interpersonal cooperation and assistance necessary for individual survival and flourishing.

      So the challenge is to define a space within which individuals are free to choose their courses of actions while reducing to the extent possible any negative effects on the like pursuit of happiness by others. Societies that have successfully solved this problem have converged on respecting the right to acquire, possess, and use private property; the right of freedom of contract—both the “freedom to” enter into consensual agreements and the “freedom from” having obligations imposed without one’s consent; the right of self-defense; and the right to restitution from anyone who interferes with one’s other rights.

      The basic vulnerability of individuals also begets the need for the assistance of others in the protection of the individual’s rights from violation by individual predators or by groups. In the words of the Declaration of Independence, “to secure these rights, governments are instituted among men.” But this solution to the problem of human vulnerability gives rise to a new and different problem: how to create a government powerful enough to protect the rights of man without itself posing a grave threat to these rights?

      One potential solution is to impose a rule of law constraining the power of those who are empowered to protect rights. And one way to accomplish this is to express these constraints on government power in a written constitution. For this to work, however, the meaning of the writing cannot be revised by those who are to be bound by it, any more than individual citizens can unilaterally alter the meaning of statutes imposed on them. So the meaning of the constitution must remain the same until it is properly changed.

      Of course, a writing does not interpret or enforce itself and can be ignored by rulers, just as they ignore or deny the right retained by the people. For this reason, James Madison referred to written bills of rights as “parchment barriers.” So a lot depends on what a particular written constitution says and the mechanisms by which it is enforced.

      The written U.S. Constitution attempted to address the problem of constraining government power by dividing powers horizontally and vertically among a number of different groups. Horizontally, there are three branches of the federal government—legislative, executive, and judicial—with the legislative branch itself divided into a Senate and a House of Representatives. Vertically, power is divided between the national government and the governments of the several states, each of which contains its own internal division of power.

      Members of each of these bodies are selected in a variety of ways by a variety of constituencies. The Constitution does not adopt a model of direct or majoritarian democracy. Indeed, at the founding, the term democracy was considered a pejorative term like the term demagogue is today. As Madison explained, in every government the greatest danger lies in the body with the most power, and in a republican government that body is the majority of the people themselves. So the Constitution was not designed for the majority to rule directly; instead it attempts to select from among the people individuals who will serve as the faithful agents of the people in governing while at the same time providing the majority with ways to “check” the governance of their agents.

      In addition to this formal division of powers, the Constitution identifies the specific powers delegated to the Congress of the United States, leaving all remaining powers to the states or to the people. And on top of these structural constraints on powers, certain substantive guarantees of individual rights are defined by the original Constitution and its amendments, the first ten of which came to be called the Bill of Rights. To rebut any suggestion that the rights of the people were limited to those expressed in the writing, the Ninth Amendment was included to say, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

      The original Constitution was far from perfect and has been amended in many significant ways. Most importantly, slavery was formally abolished and, when Southern state governments resisted protecting the rights of the freedman and white Republicans after the Civil War, the Republicans in the Thirty-ninth Congress proposed the Fourteenth Amendment to protect the rights of individuals from abuse by their own state governments—a new check on governmental power, this time from above rather than below. Other significant changes included the expansion of the right to vote to blacks and women. In 1913 the Constitution was amended to provide for the direct election of senators, who previously had been selected by state legislatures, and the power of Congress to tax incomes.

      These last two changes to the text, combined with the post–New Deal reluctance of the Supreme Court to hold Congress to its textually enumerated powers, have resulted in the enormous growth of federal power. The Supreme Court has allowed Congress nearly unlimited power to regulate economic activity or to tax and spend. Consequently, since the New Deal, far more stress is placed on carving out exceptions to this discretionary power in the form of the rights expressly enumerated in the Bill of Rights and elsewhere in the text. To these express constraints have been added a handful of unenumerated fundamental rights, as well as special protections for state governments. In essence, rather than a government of limited and enumerated powers, we now have a national government of near unlimited power, subject only to special “carve-outs” for individual and states’ rights.

      Today, we are witnessing a renewed interest in the original meaning of the written Constitution, which necessarily includes those portions of the text that were supposed to constrain government power but that have been “lost” over the years by judicial construction. Some constitutional law professors are confident that, if the American people were made aware of what the Constitution actually says, they would greatly prefer the expansive government they now have to the original scheme. For this reason, these professors favor what they call a “living Constitution,” by which they mean the Constitution as interpreted by the post–New Deal Supreme Court.

      Given the renewed interest in the Constitution by millions of Americans, we shall see whether Americans prefer the government defined by the Supreme Court to the government defined in the actual written Constitution, as amended. Should they prefer the latter, restoring the lost part of the Constitution will not be easy. But the fact that these provisions were put in writing and have never been repealed gives those Americans who desire their restoration a fighting chance.

      September 20, 2010