The People’s Constitution: The Secret Sauce

By Ben Lenhart      

America is an exceptional country. While we still have important problems to overcome, America remains the leader of the free world, and immigrants continue to risk everything for a chance to create a new life in America. Why? What is the “secret sauce” of America’s stunning success over the centuries? While there are many factors, the Constitution plays a central role in America’s well-being. Throughout our history three key features of the Constitution, working together, have served as guardrails on the road to prosperity: democracy, individual rights and the rule of law.

 

Democracy. The Constitution oozes democracy. Article I mandates election of Senators and Representatives. Article II requires that the President be elected. Article IV guarantees a “Republican Form of Government.” Of the 17 Amendments to the Constitution since the Bill of Rights, a large number—seven— involve voting or elections. These Amendments generally expand the right to vote, but none alter the fundamental Constitutional embrace of democracy.

Those holding high office in America do not gain their positions by force or corruption (as often happens around the world). They are not installed by a dictator. Rather, they are chosen by ordinary Americans in free elections, and they can be voted out of office if they fail to serve the people. While no election is perfect, American elections—unlike those in many countries— are not “fake” or “rigged,” but instead reflect the will of the people (at least those who vote).

How does our Constitutional democracy contribute to American’s success? First, it serves as a core check and balance on those in power. While any democracy has its flaws, no other system devised by humans has proven better at selecting leaders. American governments are marked by their amazing stability: America has had no coup d’états, and no American President has evolved into a dictator. Scores of Presidents and Senators—having lost the trust of the people—were denied a second term by the voters, and left office peacefully. Dictators don’t depart so easily.

Second, democracy empowers people and instills in them a sense that they have a stake in America. While one person’s vote for President can seem insignificant, one need only look to the Trump 2016 election or the Bush 2000 election to see just how powerful a few votes can be.

Third, democracy gives legitimacy to the American government that is lacking in nations whose leaders gain power by violence or corruption. A nation with legitimately elected leaders has a solid foundation to build a prosperous society. In contrast, when people believe their government lacks legitimacy, they are less willing to sacrifice for the good of the nation or work to build a stronger society (witness the low morale of many citizens of the USSR before the fall of that regime).

Individual Rights. Democracy is necessary but not sufficient to ensure a country’s success. Democracies can produce evil leaders that crush all opposition and imprison their enemies. Many nations today claim to be democracies, but flagrantly disregard the basic rights of their citizens and imprison those who speak out against the government. The American Constitution helps protect against this by both declaring individual rights and creating the mechanisms to enforce them: the right to free speech and free press, the right to freely exercise your religion, the right to be free from unreasonable searches and seizures, the right to a jury and to counsel in criminal trials, the right to remain silent, the right to bear arms, and the right not to have your “life, liberty, or property” taken away except under the strict requirements of “due process of law” (and many others). These rights are the “Blessings of Liberty” promised by the Constitution, and they form a core part of what it means to be an American. They are bulwarks against tyranny and dictatorship, and these rights—fiercely protected by the Constitution—have undoubtedly helped America achieve its exceptional role in the world.

 

Rule of law. But even democracy and strong individual rights together are not sufficient to ensure America’s success. Many countries today have fine laws and elaborate voting procedures, but they lack one thing—rule of law. They don’t enforce the laws on the books. A piece of paper giving elaborate legal protections is cold comfort to someone rotting in a dark jail cell, thrown there with no trial or “due process” by a corrupt government on trumped-up charges. In America, backed up by our potent Constitution, individual rights and democratic voting rules are (most of the time) strongly protected because we have rule of law through an extensive system of law enforcement. And the Constitution is the bedrock for that rule of law.

First, as announced by Chief Justice Marshall in 1803 in Marbury v. Madison, the Constitution is the supreme law of the land, and the Supreme Court—not the President—has final say in its interpretation. This famous ruling helped establish rule of law in America. In one fell swoop, Marshall ruled that the Constitution gives the Court the power to (A) order President Jefferson to obey the law (i.e., give Marbury his job), and (B) invalidate a law passed by Congress because that law contradicted the Constitution. The clear message of Marbury: No one was above the law. With Marbury as a guide, the Court has gone on to strike down many actions by Congress and the President because they ran afoul of our most fundamental law—the Constitution. Over time, this sends a message and sets a tone for America: everyone from our highest leaders on down is subject to the rule of law. As John Adams put it: “We are nation of laws, not of men.” Rudyard Kipling put this idea to poetry: “Leave to live by no man’s leave, underneath the Law.”

Second, the most important sentence in Article II of the Constitution is the very first, which vests the President with the power to enforce the law. From FBI agents to TSA officers and the Secret Service, the federal government has broad powers to keep the peace and prosecute law violators. Article III creates our federal court system—another core component of “rule of law.” State and local governments have their own law enforcement and courts. All of these “rule of law” components work together to protect Americans and their fundamental rights. Yet, rule of law is often taken for granted. Imagine a world without it: widespread crime, “might makes right,” no protection for individual rights, no free and fair elections—in short, anarchy. Life would return to being “nasty, brutish and short.”

That is why we all owe a debt of gratitude to our law enforcement personnel, and why rule of law is so critically important. Without it, the best “paper” laws in the world are worthless. But with it—coupled with democracy and strong individual rights—we find a core part of the secret sauce to America’s success. All three are necessary; leave out any one of these and the people are in peril. The Constitution deeply engrains these three ingredients into the very fabric of America, and because of it American has prospered. But it takes the hard work and vigilance of the American people, day in day out, to ensure that we don’t lose all that we as a nation have achieved.

 

Ben Lenhart is a graduate of Harvard Law School and has taught Constitutional Law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.

One thought on “The People’s Constitution: The Secret Sauce

  • 2017-08-06 at 9:12 am
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    Mr. Lenhart,
    Wasn’t it the idea of rule of law that the founding fathers had in mind when writing the Constitution? They knew that a Republic form of government was best because it would ensure that the majority could not oppress the minority and that our sovereignty comes not as a collective whole, but rather as individuals?

    If this is true, as I do believe it to be, why do we have so many people, most younger people, wanting and willing to give this all up? While, just as with most everything created by man, our government is not without flaw, but where are so many young people getting the idea that other forms of government are better than what we have been given to us by our country’s founders?

    Even before learning I am a decendant of a Lexington Minuteman, who was briefly held captive along side Paul Revere by British soldiers I was not only proud of our country’s past, but humbled, and understood the sacrifices made by those who came before me are what have paved the way to what progress we have made. My fear is seeing our country regress in the name of progress, which appears to be happening a little more with each passing year.

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