“Since the adoption of the Constitution, courts have eliminated clause after clause that interfered with the exercise of government power. This started early with the Necessary and Proper Clause, continued through Reconstruction with the destruction of the Privileges and Immunities Clause, and culminated in the post-New Deal Court that gutted the Commerce Clause and the scheme of enumerated powers affirmed in the Tenth Amendment, while greatly expanding the unwritten “police power” of the states. All along with sporadic exceptions, judges have ignored the Ninth Amendment. As a result of judicial decisions, these provisions of the Constitution are largely gone and, in their absence, the enacted Constitution has been lost and even forgotten…Though that Constitution is now lost, it has not been repealed, so it could be found again.”
Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty
The American Constitution is unique both for what it does and for what it doesn’t do. Its preamble states, among its principal goals, to “…secure the Blessings of Liberty to ourselves and our Posterity…” In seven Articles and the original ten Amendments we know as the Bill of Rights, it creates a system of government that is designed to protect the rights of every citizen not only from the aggression of foreign powers but – as equally important – from the invasion of personal freedom by the very government it creates.
Our Constitution’s history can be traced back to the conceptual format in which the medieval English legal system had developed. King John was required to recognize the feudal rights of the clergy and the barons of the realm when he was forced to sign the Magna Carta in 1215 at Runnymede. The English common law and the Magna Carta anticipated much of the reasoning that was used both in the Declaration of Independence and the Constitution five centuries later.
What is the Constitution? The Founding Fathers in writing a constitution were well aware that the new country had to be protected from the big-government theories so prevalent in the modern era. The idea was to avoid falling into the trap of unfettered power devoid of constitutional boundaries as exemplified in the “general will” of the popular French novelist and writer Jean Jacques Rousseau.
Contrary to the basic ideas of the French philosophers, the basic sources of the American Declaration of Independence and the Constitution were undoubtedly religious. Many of the Founding Fathers were of puritan extraction, a far cry from the atheistic trends of the majority of the French revolutionaries. It can safely be said that their ideas were theistic in character. John Adams, a deeply religious man, often used the phrases “an overruling providence” and “devotion to God almighty.” John Dickinson, another American patriot, did not hesitate to claim that the source of American freedoms came from the King of Kings. These freedoms, he stresses, were “created in us by the decrees of Providence, which establishes the laws of our nature…they are founded in the immutable maxims of reason and justice.” Even Thomas Jefferson, probably the most sympathetic to the ideas of the French “philosophes,” believed in the creative, sovereignty of God.
Former British Prime Minister Margaret Thatcher in her book Statecraft reiterated the significant role of natural law in the Founding of America, when she wrote, “Even when the founders of this great Republic came to believe that the course of human events had made it necessary for them to dissolve the political bands that connected them to Britain, and to assume among the powers of the earth the separate and equal station to which the laws of nature and of nature’s God entitled them, it was from our Locke and Sidney, our Harrington and Coke, that your Henry and your Jefferson, your Madison and Hamilton took their bearings.”
The Founding Fathers were well acquainted, as well, with the classics and the philosophical writings of Plato, Aristotle and Cicero. They accepted the role of natural law as man’s ultimate authority; a law that is the embodiment of God’s will. Basically they recognized, as Cicero did, in his work Res Publica that God has provided a rule for men which obliges them to do good and avoid evil; to practice the moral virtues which is nothing else than to follow the dictates of right reason founded in the heart of man. Cicero’s understanding of natural law is not too different from Saint Paul’s statement that natural law is written in the hearts of men.
The Constitution is the supreme law of our land, superseding all that had gone before. Its intention was to devise a system of authority controlled and limited whose function was to protect freedom and the dignity of the human person. Courts may interpret it and Congress can propose amendments to it, but nothing the President or Congress can otherwise do can change it. Therefore, the biggest threats to it, and to Americans’ personal freedoms, come from willful avoidance of its limits on the powers of the judiciary and the presidency. All too often, the courts and the president have violated that principle.
That threat was recognized by the Founders. As James Madison explained in the Federalist Papers, No. 48, “the accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.” To guard against that accumulation of power, the Constitution has built-in protections. It establishes separate branches of government so that each can be a check on the others and prevent the accumulation of power that Madison correctly saw as tyranny. And amending the Constitution is deliberately made a difficult process requiring action by Congress and ratification by three-fourths of the states (U.S. Const., Article 5).
Since the Constitution was adopted in 1787, there has been a constant debate between those who believe the Constitution should be interpreted only in its original terms as intended by the Framers and those who believe that it should become a “living document” perpetually bent to the wishes of the majority. Alexis de Tocqueville had already warned the American people in his classic work, Democracy in America, (published in two volumes 1835 and 1840) about what he called the tyranny of the majority.
The originalist argument is proven correct by two historical facts.
First, it comports entirely with the Constitution itself. The Constitution does not create a constitutional democracy – which can, by popular vote, change the most basic foundations of government. It creates a republic, which can change the Constitution only by the method set forth in the Constitution itself. That method is laborious, reserving to the states the power to ratify amendments individually or by a constitutional convention.
Second, the originalist position confirms the Founders’ own contemporaneous statements, such as the one from Madison quoted above. If the meaning of the Constitution’s provisions were susceptible to change to meet popular sentiment, they could quickly be used to concentrate power in Madison’s “one, few, or many.” Our country would no longer be a nation of laws, but one of men, eager to aggrandize the power of a few over the rest. As Cicero correctly stated “natural law applies not only to Rome but also to Athens.”
Of less scholarly concern – but nevertheless important – is the growing sentiment in the nation that government has grown too powerful, too big and too expensive. Millions of Americans believe that the growth of government should be reversed, not just slowed. And in that belief they find comfort in the constitutional principle that the government should execute the powers enumerated in the Constitution and no others (U.S. Const., Amend. 10).
Foreign Law and Foreign Courts
Some judicial activists have gone even farther than those who argue for the “living Constitution.” They seek to include the rulings of foreign courts in American jurisprudence. It is an abuse of power as severe as any other. (The only exception to this is when, in obscure cases, courts refer to English common law upon which our American legal tradition was founded. This happens very rarely, in cases which have to reach back to the law of the 18th or 19th centuries.)
When an American judge refers to foreign law, or the decision of a foreign court, he is exercising extra-Constitutional power. Chief Justice John Roberts explained the reason why in his September 2005 confirmation hearings. Roberts explained, “If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he’s playing a role in shaping the law that binds the people in this country.”
Moreover, except by specific law or treaty no foreign court can – or should – be able to adjudge cases against American citizens. We do not recognize the legitimacy of so-called “universal jurisdiction” laws under which foreign courts claim the right to bring U.S. citizens before them. In recent cases, this “universal jurisdiction” claim has enabled Spanish judges to claim jurisdiction over U.S. officials for alleged war crimes. In Britain, their libel laws have led to judgments against U.S. authors who have not published their work in the UK. Recently, Congress acted to protect U.S. authors against libel tourism. The Constitution must – as this new law does – extend those protections against incursion by other nations’ laws, wherever they are needed.
In his memoir, former British Prime Minister Tony Blair writes of the changing world and America’s place in it: “There is always one, more prosaic, test of a nation’s position: Are people trying to get into it; or to get out of it? I think we know the answer to that in America’s case; and[the American ideal] is the reason.” Throughout our history, people have been trying to get into America, not trying to escape it. And that is because our society – crafted on the social contract that is the Constitution – offers more freedom and opportunity than any other in history.
The concept is simple: “American Exceptionalism” is the providential idea that asserts the United States is the one nation all others look to and depend upon as an example of liberty, prosperity and morality; where, we as Americans are unique and qualitatively different, even from other Western democratic nations.
Because our society is freer than any other, our people are more able than any other to pursue their dreams to the limits of their ability. While others have equated it with that of other nations, most American presidents and politicians have celebrated our exceptionalism. They recognize that it is the result of our constitutional system of government, our confidence in our abilities and because of that our society is superior to others. If only we can preserve it as the Founders intended.
On the other side are the multiculturalists. Their belief takes the statement in the Declaration of Independence that all men are created equal and extends it anti-historically to conclude that all nations, all societies are equal as well. “I believe in American exceptionalism, just as I suspect that the Brits believe in British exceptionalism and the Greeks believe in Greek exceptionalism,” President Obama proclaimed in response to a question asked during the 2009 G-20 Summit in Europe.
Liberals embrace multiculturalism uniformly. They deride the idea that America’s social contract is better than that of any other nation, which leads them to an ineluctable conclusion. They reason that because America – its culture, its values and its freedoms – are no better than any other nation’s, it and its freedoms aren’t worth defending. In that, as in so much else, the liberals are comprehensively wrong.
Americans have many rights, not just those preserved by the Constitution. But since World War II, we seem to have lost sight of the fact that rights do not exist in a vacuum: rights are inextricably attached to the responsibility to help maintain them not only for ourselves but for those who come after: in the words of the Founders, for “our Posterity.” Edmund Burke, the Irish-born British philosopher whose writings influenced the Founders greatly, wrote: “It is necessary only for the good man to do nothing for evil to triumph.” Thus, each of us has the burden of the responsibilities that come with our freedoms.
Every American soldier takes an oath that provides, in part, “I, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same…” We believe that every American should feel bound to that part of the soldier’s oath.
To do so, we must embrace the originalist position on the Constitution and argue forcefully that American exceptionalism is a fact that history has proven true. Alexis de Tocqueville was the first to write of this in his work, Democracy in America: “The position of the Americans is therefore quite exceptional, and it may be believed that no democratic people will ever be placed in a similar one.”
Forged in the fire of revolution, seeking individual liberty and declaring our independence, we Americans believe we are a unique people and the United States an exceptional nation – and so we shall remain, through our spiritual strength and dedication to our Constitution, as intended by the Founding Fathers.
To preserve, protect and defend the Constitution requires more from each American.
Americans must elect only those people whose understanding of the Constitution is well-founded and accompanied by a commitment to govern only within its limitations. Too often, especially in recent years, Congress has enacted laws which clearly infringe on our personal freedoms and do so in blatant disregard of the Constitution. Those who disregard the Constitution and seek to grow government beyond the powers enumerated in it should be voted out of office.
Americans must pursue the nomination and confirmation of originalist judges at all levels of the federal and state judiciary. Activist judges are the biggest threat to constitutional government.
- As Americans, we must seek the repeal of unconstitutional legislation and not only in regard to social issues. Free market economics is a key part of our basic freedoms. Those who are free economically can prosper; those who aren’t cannot.
ON THE WEB
- The Federalist Society
- The Declaration of Independence
- The Constitution
- The American Constitution – A Documentary Record