September 17 marks the 237th anniversary of the signing of the U.S. Constitution in Philadelphia. The event represents a momentous milestone in the history our nation.
It was by the Constitution that we launched our grand experiment in republican self-government. It was by the Constitution that we sought to secure our God-given rights by establishing a federal government holding only enumerated powers expressly granted by a sovereign people, a government strong enough to protect our rights but not so powerful that it threatens our rights.
And it was by the Constitution that we established the rule of law in our land, the foundational principle that laws enacted with the consent of the governed should guide the affairs of a nation rather than the arbitrary decisions of unrestrained rulers.
The constitutional rule of law defines the essence of American exceptionalism. It requires that every citizen be subject equally to the law and that none be placed above the law or made exempt from its mandates. It means that government action will be bound and channeled by fixed rules that are clearly written and publicly announced before their consistent application.
The constitutional rule of law 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 broad open spaces established by such rules, to freely lead their lives, manage their affairs, and pursue their happiness on the basis of this understanding.
By establishing the constitutional rule of law, the Framers dramatically distinguished themselves from tyrants of ages past, and those to come, by humbly subjecting themselves and their successors to a fundamental law written to restrain the powers of the very government they created.
September 17 ought, therefore, to be a red-letter day on the calendar, one that gives rise to thankful remembrance and widespread joyful celebration across the nation. The fact that it does not is the direct result of 100 years or relentless attacks by self-proclaimed “progressives” on our founding and on the principles and institutions of our constitutional system of government.
Beginning with Woodrow Wilson, progressives have repeatedly disparaged the concept of God-given unalienable rights and dismissed the Declaration of Independence as a naive relic of a simpler past. And they have repeatedly criticized the Constitution’s clearly stated limitations on government power as an unreasonable impediment to the efficient implementation of their transformative agenda for economic redistribution, social engineering, and the establishment of a dominating administrative bureaucracy populated by unaccountable credentialed technocrats.
Over the years, progressive judges have obscured the unconstitutional nature of the progressive enterprise and administrative state by repeatedly reinterpreting and misinterpreting the text of the Constitution. Progressives throughout the government and academia and the media have worked tirelessly to normalize the use of unconstitutional power to achieve their favored policy outcomes, and to discredit any individuals and institutions standing in the way of their relentless quest for unchecked power.
With the dominance of progressive orthodoxies, the general public discussion of actions taken by the government now focuses almost exclusively on policy outcomes and political personalities, the winners and losers, who benefits and who is hurt by the government action being discussed. Far too little attention is paid to the vitally important question of whether or not the government action is lawful, whether or not it is authorized under the Constitution and relevant statutes.
As a result of this steady focus on policy outcomes and the continued lack of attention to questions of lawfulness, the American people are in danger of losing sight of how important it is to pursue policy objectives in a lawful manner, through the institutions and in accordance with the procedures that the law has established for the purpose.
We enacted the Constitution to establish the rule of law and limit the use of otherwise unrestrained power in the pursuit of policy objectives. For the American people to care only about outcomes and cease to care about the legality of the means used to achieve the outcomes would be suicidal. Without the rule of law, we are at the mercy of those who would use force to achieve their objectives. Without the rule of law, we are at the mercy of the tyrant and the mob.
In 1838, with the country deeply divided over the issue of slavery and opposing factions increasing their use of force, Abraham Lincoln warned an audience in Springfield, Illinois that the ultimate consequences of using lawless force to achieve political objectives are catastrophic: the collapse of popular support for constitutional government, and then the collapse of the government itself.
If the American people wished to avoid this terrible fate, Lincoln explained that they must reaffirm their allegiance to the principles and institutions of our founding and their steadfast commitment to the rule of law. He urged his fellow citizens to support the Constitution as the Founders had supported the Declaration of Independence when they pledged all they had and all they could do. He urged them to work tirelessly to establish and maintain an enduring reverence for the Constitution and the rule of law.
As today’s threat to the rule of law is like that of Lincoln’s time, so is the solution, and so is our duty. To counter the lawlessness that always leads to tyranny, we must reaffirm our allegiance to the principles and institutions of our founding and our unwavering commitment to the Constitution and the rule of law.
What better time to do so than September 17, Constitution Day.
J. Kennelly Davis, Jr. is a former Deputy Attorney General for the Commonwealth of Virginia. He can be contacted by email.j.kendavis@verizon.net