This past Friday was Constitution Day, designated by Congress for the observance of the anniversary of the signing of the U.S. Constitution in Philadelphia on Sept. 17, 1787. (The celebration came a day early this year, since the actual anniversary was on Saturday.)
If you were busy with other things on Friday and failed to celebrate Constitution Day, you are not alone. For most Americans, September 17 is not a date that springs to mind, like July 4, as an important part of our national calendar. This is unfortunate.
September 17 is every bit as important as July 4. For, it was with the Constitution that we launched our grand experiment in republican self-government and sought to secure the inalienable natural rights that we had asserted in the Declaration of Independence, by establishing a federal government that possessed only certain carefully enumerated powers — each and all expressly granted by a sovereign people acting through their respective states.
And it was by the Constitution that we sought to establish the rule of law in our land. What does that mean, the rule of law? As its essential core, the rule of law involves the restraint of governmental power. It is the foundational principle that laws enacted with the consent of the governed should guide the affairs of a nation, not the arbitrary decisions of an unrestrained ruler.
The rule of law requires that every citizen be equally subject to the law and that none be placed above the law or made exempt from its mandates.
The rule of law means that government action will be bound and channeled by fixed rules that are clearly written and publicly announced before their consistent application. This makes it possible for individual citizens to foresee with reasonable certainty how government power will or will not be applied in given circumstances and, within the open spaces established by such rules, to freely lead their lives, manage their affairs and pursue their happiness on the basis of this understanding.
September 17 is a noteworthy day in American history, and world history, because it marks the day when our Founders dramatically distinguished themselves from the petty tyrants of ages past and convincingly demonstrated their ageless greatness, by humbly subjecting themselves and their successors to the rule of law by committing to a Constitution written to restrain the separated powers of the very government it created.
Our new nation’s commitment to the Constitution and the rule of law, though frequently challenged by war and rebellion and economic crises, remained basically in tact through the end of the 19th century.
However, at the turn of the 20th century, self-proclaimed “progressives,” Woodrow Wilson and Theodore Roosevelt prominent among them, began to question and then to attack the principles and institutions of our founding.
They dismissed the Declaration’s assertion of natural rights as a naïve relic of a simpler past. And they criticized the Constitution’s clearly stated limitations and separation of government power as an impediment to the efficient implementation of their transformative agenda for economic regulation, social engineering, and the establishment of a dominating bureaucracy.
Under the progressive approach to governance, the exercise of unrestrained government power has become more and more frequent over the years, accompanied by the steady decay of our constitutional structures and the rule of law.
The once separate functions of legislation, execution, and adjudication have been consolidated in an over-reaching and largely unaccountable executive branch. Presidential decrees have been used to enact new laws and to circumvent established laws. Regulations have been written and then applied to reward political supporters and to punish their competitors, distorting the economy and wrecking the lives and livelihoods of millions.
The outcome of investigations and litigation has often appeared to be driven by considerations of policy and politics rather than evidence in the record. The total mass of laws, regulations, executive decrees, and all the related documentation of government power has become unintelligible. No one can even determine the number of federal crimes that are now on the books.
Our national politics have grown increasingly polarized and intemperate. The decline of the rule of law has done much to inflame our political passions.
We often hear that “the stakes have never been higher” than in the present election cycle. Once you realize the extent to which law-limited governance has been replaced by the exercise of unchecked political power, you may well agree that the stakes are high.
Once you realize that the country is to be led by an imperial executive wielding a phone and pen for supporters, you may become desperately determined to get your man, or woman, behind the desk and on the line.
This spreading lawlessness and passionate factionalism can only end in tyranny, where lawless passions always lead. What can we do about the dangerous mess we find ourselves in?
First and foremost, we must take responsibility for the situation that confronts us. Political leaders reflect the people who elect them. As a people, we have grown too comfortable with a public life and discourse centered on policy, politics, and personality.
When confronted with some proposal we typically ask if it will help or harm our interests, and we respond accordingly. Too seldom do we ask if the proposal is permitted or not, lawful or not, constitutional or not.
If we are to improve the tone and tenor of our public life we must begin with our personal life. We must reacquaint ourselves with the Constitution and the natural rights it was constructed to protect. We must re-acquire an understanding of what the rule of law means and how essential the restraint of government power is to our freedom and future.
Personal commitment and study, as well as discussion and debate with others, will be essential. But we also need to encourage the public celebration of significant events associated with the principles and institutions we are working to restore.
With that in mind, next September we should all pause and rightly celebrate Constitution Day and everything for which it stands.
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J. Kennerly Davis is an attorney and a former deputy attorney general for Virginia who lives in Richmond. Contact him at firstname.lastname@example.org. This article originally appeared in the Richmond Times-Dispatch opinion section.