Does the Constitution Still Matter?
Editor's Note
The Constitution is the briefest and most enduring framework of ordered liberty in human history. Its durability lies not merely in the parchment but in the will of a people to respect the boundaries it draws. The Framers understood that no words, however brilliant, could restrain the restless appetite for power unless sustained by a culture of self-government and law.
As Roger Kimball observes in this essay, that culture is now breaking down. The Constitution itself is being weaponized, its provisions twisted into instruments of partisan revenge. Such selective enforcement is not a neutral lapse but a central feature of our cold civil war — a struggle between those who seek to preserve the constitutional order and those who would replace it with raw power. Whether the Constitution remains a marvel of liberty or dissolves into mere parchment depends on which side prevails.
The planet’s oldest and shortest written constitution, still in force, was signed on Wednesday — 237 years ago. The U.S. Constitution, formally adopted in 1789, sits at about 4,400 words for its original seven articles. The 27 amendments to the original Constitution add only another 3,000 words. The English text of the EU Constitution, by contrast, is some 60,000 words: 265 pages of bureaucratese and regulatory gobbldeygook.
Our document, however, is a marvel of human wisdom — a framework at once restrained and enduring, balancing liberty with order in a way that has guided a vast and diverse nation for more than two centuries.
Of course, left-wing academics like Berkeley law professor Erwin Chemerinsky want us to get rid of it.
In his recent book No Democracy Lasts Forever: How the Constitution Threatens the United States, Chemerinsky argues that the Constitution, has outlived whatever dubious usefulness it once had.
As far as those who study the Constitution professionally go, Chemerinsky is in the minority. Most who have pondered the immense labor that went into its drafting are deeply impressed. The Framers were thorough, scouring the past for models and inspiration — both negative and positive.
There were examples aplenty of what not to do. Exactly how to articulate the rules of a republican government, in which the people were sovereign and individual liberty was paramount, turned out to be a tricky proposition.
More generally, the U.S. Constitution aimed to protect citizens from the arbitrary or meddlesome exercise of state power. The Framers, for instance, would have been astounded by Justice Ketanji Brown Jackson’s observation, in a case regarding social media companies being forced to censor speech, that “the First Amendment [was] hamstringing the government in significant ways.”
Indeed it was, Ms. Jackson. That was the very point of the First Amendment’s speech clause: to impede (“hamstring”) the government’s ability to suppress free speech. As the “supreme Law of the Land” (Article VI), the U.S. Constitution was a magnificent brief for liberty and the rule of law.
From the very beginning, however, it was recognized that the efficacy of the Constitution ultimately rested not upon its arguments, stipulations, and provisions but upon a background of shared — if largely unspoken — commitment to the form of government it articulated.
In “Federalist 48,” for example, James Madison, the principal author of the Constitution, wondered whether it would be “sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power.”
Madison appreciated the flimsiness of “parchment barriers” — fine words inscribed on hallowed tablets — when faced with “the encroaching spirit of power.” When he surveyed the various state constitutions that had been put forward, Madison noted, too, that such “parchment barriers” were the primary security upon which “the compilers of most of the American constitutions” relied.
This was dangerous, he noted, because “Experience assures us that the efficacy of the provision has been greatly overrated; and that some more adequate defense is indispensably necessary for the more feeble, against the more powerful members of the government.”
Human nature is addicted to the “perpetual and restless desire of power after power, that ceaseth only in death,” observed Hobbes. Madison put it in terms of the government’s insatiable appetite for power: “The legislative department,” he wrote, “is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.
“Drawing all power into its impetuous vortex.”
Noted.
So, for example, in Article 1, Section 9, we read that “No Bill of Attainder or ex post facto Law shall be passed.”
Congress hasn’t explicitly passed any Bills of Attainder, but that hasn’t stopped the Executive Branch, from effectively enacting one against Trump. While operating through the Department of Justice, Biden’s White House singled him out for prosecution in the years between his two terms.
Aided by a New York politician who turned a blind eye, the DOJ also subjected Trump to an ex post facto law in his battle against the fantasist E. Jean Carroll.
Then there is the “parchment barrier” of the Eighth Amendment, which, in addition to prohibiting “cruel and unusual punishments” says that “excessive fines” shall not be imposed.
President Trump faced fines and penalties of nearly a half a billion dollars (the bond for which was eventually reduced to $175 million) for supposedly inflating the value of his assets when applying for bank loans, loans that he paid back in full, on time, with interest — loans that, moreover, the issuing bank said it was happy to have made with President Trump.
So this was a “crime” with no victims, a “fraud” in which no one was defrauded, i.e., no harm was done, and yet a vindictive attorney general who campaigned for her job on the promise to “get Trump” and a rogue judge imposed an almost comical judgment against a man they despise.
Here’s my point: You can have as splendid a constitution on paper as it is possible for the ingenuity of man to devise. That won’t matter at all if the rule of law is not fed by the springs of public sentiment. The U.S. Constitution is a noble — indeed, a visionary — document.
So, as it happens, is the Constitution of the Russian Federation. It’s much younger than the U.S. Constitution, dating from the post-Soviet dispensation, but it echoes many of the fine sentiments of its American cousin.
Russia, you will be pleased to know, “is a democratic federal law-bound State with a republican form of government.” Moreover, “man, his rights and freedoms are the supreme value“ and ”the recognition, observance and protection of the rights and freedoms of man and citizen shall be the obligation of the State.”
Sounds good, doesn’t it? And you will be further pleased to know that “in the Russian Federation political diversity and multi-party system shall be recognized.”
Alexei Anatolyevich Navalny was unavailable for comment. But then, Ashli Babbitt is unavailable for comment, too. As are the several Jan. 6 hostages who have committed suicide.
Peter Navarro made the mistake of being a close aide to President Trump. So, unlike Eric “Mr. Wingman” Holder, when he brushed off a congressional subpoena, he was put in jail. The same thing happened to the commentator Steve Bannon.
The list of victims is long. And if former President Joe Biden’s administration did not get around to putting plutonium in the tea of its opponents, put that down as a local variation. The Biden administration’s favored tactics were dawn raids by the FBI and systematic censorship of opinions it deemed unhelpful.
It seems those in power are selective about their adherence to the rule of our law. But a constitution is a guarantor of the general welfare only so long as its provisions are publicly acknowledged and adhered to. They are only publicly acknowledged and adhered to when they are believed in. And they are only believed in when their provisions are, so far as humanly possible, impartially applied.
That has not been the case in the United States in recent years.
Everyone knows it, although not everyone will yet admit it. The resulting tension is what psychologists call “cognitive dissonance.” Political theorists have other, less emollient, words for the phenomenon.
Madison, in any event, was right: “A mere demarkation on parchment” of constitutional limits “is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.” It is one of Donald Trump’s greatest achievements to have recognized that a two-tier system of justice is a system of injustice.
“No one is above the law,” the Left used to chant as it weaponized the coercive power of the state against its political enemies. Trump has turned the tables on the weaponizers, forcing them to live by the same rules they deployed to harass their opponents.
Naturally, those who are being held accountable are shocked and appalled. For the rest of us, Trump’s bold actions are a vindication of his administration.
Happy Constitution Day.