This Saturday marks the 235th anniversary of the signing of the U.S. Constitution in Philadelphia. September 17, 1787, represents a momentous milestone in the founding of our nation. It was by the Constitution that we launched our grand experiment in republican self-government and sought to secure our unalienable rights by establishing a federal government that possesses only certain specifically enumerated powers, each and all of them expressly granted by a sovereign people and carefully allocated to one of the government’s separate branches.

It was by the Constitution that the Framers established the rule of law that defines the essence of American exceptionalism. It was by the Constitution that the Framers dramatically distinguished themselves from the tyrants of ages past, and those to come, by humbly subjecting themselves and their successors to a fundamental law written to restrain the powers of the very government it created. 

Indeed, it was by the Constitution that the Framers, with the acknowledged assistance of Divine Providence, brought forth what Catherine Drinker Bowen has so aptly called the “miracle at Philadelphia.”

September 17 ought, therefore, to occasion thankful remembrance and joyful celebration across the nation. The fact it does not is the direct result of 100 years of escalating attacks by progressives on our founding, and on the principles and institutions of our constitutional system. 

Over the years, progressive judges have obscured the unconstitutional nature of the administrative state by repeatedly reinterpreting and misinterpreting the text of the Constitution. Progressives throughout the government and academia and the media have worked tirelessly to normalize the use of unconstitutional power to achieve their favored policy outcomes.

With the dominance of progressive orthodoxies, the general public discussion of actions taken by the government now focuses almost exclusively on policy outcomes, the winners and losers, who benefits and who is hurt by the government action being discussed. Far too little attention is paid to the vitally important question of whether or not the government action is lawful, whether or not it is authorized under the Constitution and relevant statutes. 

As a result of this steady focus by the general public on policy outcomes and the continued lack of attention to questions of lawfulness, the American people are in danger of losing sight of how important it is to pursue policy objectives in a lawful manner, through the institutions and in accordance with the procedures that the law has established for the purpose. 

We enacted the Constitution to establish the rule of law and limit the use of otherwise unrestrained power in the pursuit of policy objectives. For the American people to care only about outcomes and cease to care about the legality of the means used to achieve the outcomes would be suicidal. Without the rule of law, we are at the mercy of those who would use force to achieve their objectives. 

In 1838, with the country deeply divided by the issue of slavery and opposing factions increasing their use of force, Lincoln warned the Young Men’s Lyceum that the ultimate consequences of using lawless force to achieve political objectives are catastrophic: the collapse of popular support for the constitutional government, and then the collapse of the government itself. 

If the American people wished to avoid this terrible fate, Lincoln explained they must reaffirm their allegiance to the principles and institutions of the founding and their steadfast commitment to the rule of law. In his words:

As the patriots of seventy-six did to the support of the Declaration . . . so to the support of the Constitution and Laws let every American pledge his life, his property, his sacred honor . . . Let reverence for the laws . . . become the political religion of the nation, and let . . . [all Americans] . . . sacrifice unceasingly upon its alters . . . [to establish a lasting] . . . reverence for the constitution and laws.

As today’s threat of lawless force is like that of Lincoln’s time, so is the solution, and so is our duty. All Americans must reaffirm our allegiance to the principles and institutions of the Revolution and our unwavering commitment to the rule of law.

What better time to do so than September 17, Constitution Day.

 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.