Franke: The Treasure of Our Constitution

September 14, 2022

by Mark Franke

I don’t usually give Congress credit for passing useful legislation. Bills that run to a thousand pages or more just can’t prove beneficial, especially when our elected representatives admit to or even brag about not reading them.

An exception to my cynical appraisal of congressional mischief is its designating every September 17 as Constitution Day. No, it is not a federal holiday which gives everyone a paid day off work. Nor are there ubiquitous parades and ceremonies to mark the anniversary of the Constitution’s signing. About the only requirement is for colleges that receive federal funding, which is all of them except Hillsdale and one or two others, to commemorate the day in some educational manner. The hope, unfortunately misguided, is that our next generation of leaders will know and appreciate the powerful simplicity of the best governing document ever written.

It isn’t working. One need only listen to all the demands for its reinterpretation, modification or outright rejection. Abolish the Electoral College because the wrong candidate was elected. Ditto for the Supreme Court for its failure to rule the way some vocal and politicized group demanded.

Even the Bill of Rights is subject to an ideological guillotine. Free speech and the free exercise of religion have come under attack when citizens choose to exercise their rights independently of the received wisdom coming from their political betters. And forget about the Second Amendment.

After these two can you list the other eight? Due process, trial by jury and self-incrimination may come to mind, but what about quartering troops in peacetime or common law suits? They just don’t generate the level of heat as the first two. I think that’s a good thing in a perverse sort of way.

What gets lost in this fevered discourse are the two most important amendments: the Ninth and the Tenth.

The Ninth states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Why do we need such an amendment? Does it imply that our rights are granted by the government rather than being inalienable and held to be Creator endowed? If the government can guarantee them, then can it take them away? Thomas Jefferson may have thought this answer to be self-evident but many people today believe and act otherwise, at least to the extent that they argue these rights can be limited or curtailed for cause.

But then who determines if the cause is righteous? A currently favored majority political party? This isn’t Great Britain, where its constitution appears to be whatever the House of Commons declares it to be…today. The checks and balance system written into our Constitution is meant to protect against a tyranny of the majority. Give John Adams credit for preaching that sermon.

Perhaps the answer lies with the Tenth Amendment which declares that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This echoes our nation’s Anglo-Saxon heritage rather than the Latinized one pervasive in Europe. It is the people who hold residual rights, voluntarily surrendered to government for limited purposes. Note that it concludes with the phrase “the people.” Now think about the opening words of the Preamble to the Constitution: “We the People.” Coincidence? Probably, but then it gives pause for thought.

The Roman legal heritage of our European fellow nations takes the opposite view of this. Citizens are granted the right to do certain things by their government. The premise behind this is obvious: Government is the source of our freedom as defined by it. Read Dan Hannon’s “Inventing Freedom: How the English Speaking People Made the Modern World” for an insightful discussion of this significant difference in these two political philosophies.

So if basic rights are natural and endowed by God, how important is a constitution designed to be protected from the current electoral majority? Quite important, if one reads the Founding Fathers. The dysfunctional Articles of Confederation and the multiple defects of the state constitutions provided the impetus to construct a document meant for that generation and their “posterity” as the Preamble gives it.

The distinction was clear to them: there is ordinary law as determined by the legislature from time to time, and there is fundamental law that arose from the people themselves and not subject to legislative whim. For more on this critical distinction, read Gordon Wood’s “Power and Liberty: Constitutionalism in the American Revolution.”

I am a Son of the American Legion based on my father’s service in World War II. The preamble to our constitution begins with the words: “Proud possessors of a priceless heritage.” That heritage is inscribed in the timeless words of America’s constitution. May we never lose sight of that.

Mark Franke, M.B.A., an adjunct scholar of the Indiana Policy Review and its book reviewer, is formerly an associate vice-chancellor at Indiana University-Purdue University Fort Wayne.


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