I recently read Power and Liberty: Constitutionalism in the American Revolution by Gordon S. Wood. If you suffer from insomnia, I recommend you give it a try. Nevertheless, I found it contained interesting takes on the history of constitutions.
It seems that formal written constitutions were a novel idea in the 18th century. So much of our governmental system had its roots in English experience, but England had no written difficult-to-alter constitution. True, much of English legal structure included documents like the Magna Carta, but the rulings of government were ever changing, and once Parliament passed a law it essentially became a part of the country’s “constitution.” If a new law invalidated a previous law, the old one was gone. If a new law violated what we think of as a basic right, so be it. It was the law.
As the American colonies were struggling with forming a legal basis for governance, they recognized a problem with this type of system. There was nothing that limited what could pass, and hence protections that were important to the people could be wiped out with a legislative vote.
The colonists began to realize there were two distinct kinds of laws. The everyday and ever-changing ones dealing with commerce, taxes, criminal activities, and other areas involved with communal living was one kind. But also there was a more fundamental one that ensured a stable government and guaranteed fundamental rights that could not be eliminated by the whim of any legislative body.
They believed any constitution should recognize this.
Such an idea was new, but it was important to the colonists because of their fear of being ruled by some high-level executive such as a king or having their individual rights eliminated as the result of legislative action. Thus, the colonists, first in each colony separately and later in a meeting of all colonies, attempted to cement these different levels into governing documents. The experiences and learning curves from such efforts in the individual colonies influenced the framers of our national Constitution.
A major part of their solution was the creation of state and national supreme courts as independent judiciaries not beholden to either the legislative or executive branches, as had been the case in the past. This “higher” level of governance cannot, at least in theory, be changed by the caprice of legislative action or executive mandate.
And it has served us well.
But I fear it now is failing us. There is a man who wants to be king. There are legislators who want to be in the royal court. And there are judges appointed for political beliefs who are willing to act on those beliefs rather than on an impartial interpretation of the law and the Constitution.
How did this happen?
Why isn’t our Constitution saving us from this, as it was designed to do?
I think it’s because the colonists were wrong. Putting protections in writing can help. It has for over 200 years. It hasn’t been perfect. We enslaved human beings and then treated them abominably once they were “freed.” We incarcerated Japanese-Americans during World War II. We for so long denied rights to women.
But through it all the Constitution endured and remained our nation’s guiding light.
So why isn’t it working now?
Because written words cannot protect us unless…
Unless there is a will to abide by them by the general populace and the country’s leaders. For over two centuries most of the country believed in the Constitution, as did the leaders of the government. Over the years there were those who would tear down our government, but they were always unsuccessful. A major reason was the belief by most that we did not want to destroy the basic tenets of our nation.
That is no longer true.
And I fear we are on the verge of losing the country.
Because it takes more than words on a piece of paper to save us from ourselves.