228 years ago today, the 1787 Constitutional Convention finished its work and formally sent its proposed Constitution of the United States of America to the states for ratification. It was a pivotal day (and then some) for the United States, but also for the world.
Granted, the Founders each brought large, vigorous bundles of competing interests to the convention. Granted, they were imperfect on many levels, as mortals tend to be. Granted, some of them owned slaves, and the rest of them were (just barely) willing to defer that problem as the price of having a functioning government at all. Granted — and inevitably — their work was imperfect, incomplete. That’s why they established a mechanism for amending it. But their compromise of compromises was the best they could do under the circumstances. It was the best we have ever done. They gave us a flawed, tempestuous republic which survives to this day.
Let’s pause on that word, “republic.” It’s not nearly as narrow a concept as many modern right-wingers suppose. It’s not the opposite of democracy; some republics have been democratic, and some have not. It’s not always constitutional — in theory or especially in practice. A republic can be just or tyrannical in varying degrees. And it doesn’t necessarily imply representation or even voting.
Historically — as the Founders well knew — the republic’s chief defining characteristic is that it is not a monarchy, especially not a hereditary monarchy. So we’re part of the way to an important idea here, and the constitutional, democratic republic they gave us — “if you can keep it” — gets us the rest of the way, at least in principle. (For more on the nature and history of the republic, see my longer discussion, What Is a Republic?.)
What they gave us was the rule of law, in place of the rule of men. In this happy case the law includes protection for minority views, limits on the scope and activities of the national government, and provisions for democratically electing most of our rulers. Thus they secured our freedom and gave us the mechanisms to protect and expand it — if we can keep them.
Even our rulers — especially our rulers — are to be bound by the law. This is a difficult proposition in simple times, if we have ever had such, and an uncommonly challenging one at present, when our chief executive (among others) seems to think he can make sweeping laws without Congress, which has the legislative power.
All together now: It’s a constitutional crisis.
But before we get all caught up in hand-wringing and grim predictions of national doom, let us note that this is not our first constitutional crisis or our worst.
The Convention itself was to some degree an extralegal response to an existential threat to the new nation. We learned. We survived. We thrived. We changed the world.
Here are a few other constitutional crises, none of them small.
Two decades had not passed before a crisis led to a Supreme Court decision called Marbury v. Madison, which established — controversially then, quite reasonably in retrospect — the Court’s authority to strike down legislative and executive acts if it finds them unconstitutional. Everyone I know who cares about such things has thought from time to time that the Court got something wrong, but imagine the dysfunction if we tried to govern ourselves without judicial review.
Our battle with ourselves over slavery was a constitutional crisis too, not just a civil war. We survived. We wrestled with the implications of it from well before the Constitutional Convention to long after the Thirteenth, Fourteenth, and Fifteenth Amendments, which followed the Civil War. We still wrestle with its aftermath. But does anyone really want slavery back, or think that our present constitutional crisis is greater?
When President Franklin D. Roosevelt found the Court and its practice of judicial review to be an intolerable obstacle to his designs for government expansion (among other things), he tried to expand the size of the Court, so he could pack it with his own nominees and outnumber his opponents. It was a constitutional crisis. We survived.
When I was a child, Vice President Spiro Agnew resigned in the face of criminal indictments. President Richard Nixon appointed Gerald Ford to replace him. Then President Nixon resigned in disgrace, having abused the powers of his office in the Watergate cover-up. Gerald Ford succeeded him, then pardoned President Nixon, putting an expiration date on his own political career but wisely helping the nation past another constitutional crisis.
Then there was the 2000 election. Some folks think the Supreme Court colluded with George W. Bush to elect him president. Other folks think the Supreme Court stepped in to force Florida to obey its own election laws, thus preventing Al Gore from stealing the election. I have my own opinion. But this fact is undisputed: This constitutional crisis ended in the timely, peaceful transfer of power from President Clinton to President Bush. It did not spark a civil war, a military coup, an assassination, or an anarchic bloodbath.
This is just a small sampling of large crises.
Let’s look at our time for a moment. The rule of law is disdained by those in power as much or more as it has ever been in our nation’s short history. If that strikes you as a partisan view, it is, and the crisis is larger for it. In a recent case which got a lot less attention than another ruling the same week — the latter about same-sex marriage — the US Supreme Court itself ruled that the words of a law do not mean what they say.
Meanwhile, there are people who seem content to allow constitutional freedom of religion to everyone except the subset of Christians who insist that marriage is the union of one man and one woman. On the other hand, there are people who insist that their religious freedom includes the right to continue to be paid for work they refuse to do, citing religious scruples. And there are people who think that their religious freedom is infringed if they must tolerate the presence in the workplace and the apartment complex of people whose religious or lifestyle choices are legal but offend them.
As if that weren’t enough to worry about, there is a large faction which designs to rule speech (in various forms) with its own yardstick of fairness, at the expense of freedom of speech. Hint: The faction in power gets to decide what fairness is.
And I haven’t even mentioned (yet) the widespread selling of bits of freedom for assorted government handouts.
So we have constitutional crises in the plural.
But let’s not pretend that this is a new thing. Let’s dispense with the hand-wringing and remember that these are just a few more in a continuing series of constitutional crises — yet we’re still here. Let’s ingest an extra dose of civility, polish up our vigilance, and get back to the work of free citizens.
I already said this, but happy Constitution Day!