Does the Constitution Matter?

A copy of the U.S. Constitution in Washington on Dec. 17, 2019. Andrew Harnik/Pool/Getty Images

Commentary

The U.S. Constitution, formally adopted in 1789, is one of the oldest written constitutions in the world still in place.

At about 4,400 words for its original seven articles, it is also the shortest. (The 27 amendments to the original Constitution add only another 3,000 words.)

The English text EU Constitution, by contrast, is some 60,000 words: 265 pages of bureaucratese and regulatory gobbledegook.

Anyone who has spent time with the U.S. Constitution and pondered the immense labor that went into its drafting has to be impressed.

The Framers scoured the past for models and inspiration, negative as well as 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.

As an aside, I note that the Framers would have been astounded by Justice Ketanji Brown Jackson’s recent observation (in a case about the government’s forcing social media companies to censor speech) that “the First Amendment [was] hamstringing the government in significant ways.”

Indeed. That was the very point of the First Amendment’s speech clause: to impede (“hamstring”) the government’s ability to suppress free speech.

More generally, the U.S. Constitution aimed to protect citizens from the arbitrary or meddlesome exercise of state power.

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 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.”

Catherine the Great demonstrated her understanding of this point when she told Diderot that human skin is more ticklish than paper.

Madison, surveying the various state constitutions that had been put forward, noted that such “parchment barriers” were the primary security that “the compilers of most of the American constitutions” relied upon.

“Experience assures us,” he wrote, “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.”

Why? Because human nature was (as Hobbes observed) addicted to the “perpetual and restless desire of power after power, that ceaseth only in death.”

Madison put it in terms of governmental acquisitiveness.

“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.”

But ask former President Donald Trump about that.

Congress hasn’t explicitly passed any Bills of Attainder. But the Executive Branch, operating through the Department of Justice, has in effect enacted one against the former president.

It has also, with the connivance of a New York pol, subjected him to an ex post facto law in his battle against 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 has been fined more than half a billion dollars (the bond for which was just reduced as I write 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.

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 with 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, right? 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 list of victims is long. And if President Joe Biden’s administration has not yet gotten around to putting plutonium in the tea of its opponents, put that down as a local variation.

For the moment, it is finding that lawfare, dawn raids by the FBI, and systematic censorship of opinions it deems unhelpful are sufficient unto the day.

My point is this: You can have as splendid a constitution on paper as it is possible for the ingenuity of man to devise.

That will matter not at all if the rule of law is not fed by the springs of public sentiment.

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 is not the case in the United States circa 2024.

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.”

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.