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CONSTITUTIONAL CONVERSATIONS
SCENE AT THE SIGNING OF THE CONSTITUTION OF THE UNITED STATES – HOWARD CHANDLER CHRISTY, PUBLIC DOMAIN
First Principles of American Constitutionalism
BY DAVID GRAY ADLER
Freedom of Speech. Equal Protection. Impeachment. Insurrection.
“Tis funny about th’ constitution,” said Mr. Dooley, the legendary, philosophical Irish bartender created by Finley Peter Dunne. “It reads plain, but no wan can undherstant it without an interpreter.”
Since the dawn of the republic, Americans have engaged in spirited, often heated debates about the meaning of the U.S. Constitution. This is not surprising for a nation whose very origins lay in fundamental disputes with England about the nature and purpose of constitutions. Arguments about the Constitution, it may be fairly said, are in our DNA. They raise questions of great moment for a nation committed to the rule of law, equal protection, and democratic values. Do women possess a right to govern their own reproductive organs? Is the president immune from criminal prosecution? Is the president subordinate to the law and amenable to judicial process?
Constitutional conversations are vital to the health, maintenance, and integrity of the republic. Informed citizens engaged in public debate, the framers of the Constitution believed, can scrutinize and improve governmental programs, policies and laws with valuable criticisms, insights and recommendations.
Concerned citizens—“Madisonian Monitors,” in honor of James Madison, Father of the Constitution—can insist on the employment of facts, evidence, and truth in public discourse.
Constitutional conversations, moreover, are integral to the fulfillment of the premises, promises, and principles of American Constitutionalism: Government based on the consent of the governed and governmental accountability both to the rule of law and the citizenry. For that matter, constitutional conversations that reflect a working grasp of those principles serve the founders’ historic dream, as expressed by Alexander Hamilton in No. 1 of the Federalist Papers, of a nation governed by reasoned discussion and debate, rather than one ruled by force and oppression.
Americans regularly declare their affection, admiration, and even reverence for the Constitution, but too few can claim knowledge of it. Civic literacy—a functional knowledge of the ideals of the Declaration of Independence, the content and purposes of the Constitution, a familiarity with the powers of the three branches of the federal government, and a working grasp of the implications of defining moments in our history—is alarmingly low. The deficit in civic literacy threatens the future of the republic.
Many citizens cannot name half the rights and liberties protected by the Bill of Rights or a third of the justices on the U.S. Supreme Court or explain the constitutional amendment process or the mechanisms of the Electoral College and the clerk-like role of the vice president in counting electoral votes. Civic literacy in a republic should be brought center stage.
It is never too late to start, never too late to become a Madisonian Monitor, a student of the Constitution and an effective citizen. Where to begin? John Adams, second President of the United States, a man of letters, statesman, diplomat, and drafter of the world’s oldest written constitution—the Massachusetts Constitution of 1780—enshrined in his state’s governing document words of wisdom for our time: “A frequent recurrence to the fundamental principles of the Constitution,” he wrote, “is absolutely necessary to preserve the advantages of liberty and to maintain a free government.”
The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.
Among those “fundamental” principles is the first principle of American Constitutionalism: Government has only those powers—enumerated and implied—granted to it by the Constitution. As Justice Hugo Black observed in 1957, in Reid v. Covert, “ the United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.” That foundational principle, set forth by the brilliant Revolutionary War attorney, James Otis Jr., in the landmark Writs of Assistance Case in 1761, chartered a distinctly American conception of what constitutes a constitution. In contrast to the English idea of a constitution, which reflected governing practices and a loose assemblage of all the laws that had been enacted across the centuries, Otis asserted the revolutionary idea that a constitution grants and limits all governmental power.
John Adams, a spectator in court that day, because he wanted to observe the young rebrand lawyer at work, said of Otis’s argument that “then and there the child independence was born.” Otis had supplied the colonists with a powerful constitutional tool with which to challenge English laws and practices that they perceived to be oppressive.
Otis’s life was cut short and he didn’t live long enough to see the triumph and implementation of his idea by the framers of the Constitution, but his influence was unmistakable. Titans of the founding period—Washington, Madison, and Hamilton—walked across the bridge that he built. As president, Washington was at pains to explain in letters to friends that he sought, more than anything else while in office, to avoid being characterized as a “usurper”—a president who exceeded the limits of his authority and violated the Constitution and the laws of the land.
Our first step in becoming Madisonian Monitors is to embrace Adams’s reminder that the way to preserve the Constitution is to make frequent recurrences to fundamental principles.
