This week marks the 238th anniversary of the signing of the U.S. Constitution in Philadelphia. September 17, 1787, represents a momentous milestone in the founding of 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 government comprised of three separate branches, each holding only those enumerated powers expressly granted by a sovereign people, a government designed to be powerful enough to protect our rights but not so powerful as to threaten our rights.
It was by the Constitution that we sought to apply the lessons of history and our own colonial experience to carefully construct a government based upon the consent of the governed that gives meaningful expression to the political will of the people through representative institutions designed to moderate the expression of that political will and avoid the two extremes that always threaten the people’s liberty: rule by the tyrant and rule by the mob.
It was by the Constitution, with its careful allocation of power, that we sought to unite the several states by constructing a federal system of government whose operation would adequately balance the widely divergent political and economic interests of all the states, large and small, commercial and agricultural, free and slave. We did not then resolve the existential issue of slavery but, by enacting a Constitution to secure principles and purposes in our Declaration of Independence that were entirely hostile to the existence of slavery, we set in motion events that brought down slavery in the years ahead.
In structuring the Constitution to create a system of checked and balanced government based on enumerated powers and separate branches, the Framers established the rule of law in our land, the foundational principle that laws enacted with the consent of the people governed by those laws should guide the affairs of a nation rather than the arbitrary administrative edicts of an authoritarian ruler and dominant class.
The constitutional rule of law defines the essence of American exceptionalism. It ensures that every person is subject equally and only to the law, that no one is placed above the law and exempt from its mandates, and that no one is placed below the law and excluded from its protections. It means that government action, and private action as well, will be bound and channeled by fixed rules that are clearly written, enacted by accountable representatives of the people, and publicly announced before their consistent application.
The constitutional rule of law makes it possible for individuals to foresee with reasonable certainty how government and private 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, productively manage their affairs, and pursue their happiness on the basis of this understanding. By establishing the constitutional rule of law, the Framers laid the foundation for the unparallelled freedom, prosperity, and progress that we have enjoyed as Americans.
There is, therefore, much cause for celebration on this Constitution Day. But there is also much cause for concern. We enacted the Constitution to establish the rule of law and limit the use of otherwise unrestrained power in the pursuit of public policy objectives or private gain. But our nation is now beset by deep political and social divisions, and it is gravely threatened by those who would use force to pursue their objectives. What can be done to check the violence before it consumes us?
In 1838, with the country deeply divided by the issue of slavery and opposing factions increasing their use of force, Abraham Lincoln warned the Young Men’s Lyceum of Springfield, Illinois, that the ultimate consequences of using lawless force to achieve political objectives are catastrophic: the collapse of popular support for the constitutional government, and then the collapse of the government itself.
If the American people wished to avoid this terrible fate, Lincoln explained they must reaffirm their allegiance to the principles and institutions of the founding and their steadfast commitment to the rule of law. In his words:
"As the patriots of seventy-six did to the support of the Declaration…so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor…Let reverence for the laws…become the political religion of the nation, and let…[all Americans]…sacrifice unceasingly upon its alters…[to establish a lasting]…reverence for the constitution and laws."
As today’s threat of lawless force is like that of Lincoln’s time, so is the solution, and so is our duty. All Americans must reaffirm our allegiance to the principles and institutions of our founding, and our unwavering commitment to the rule of law.
What better time to do so than this week?
J. Kennerly Davis is a former Deputy Attorney General for the Commonwealth of Virginia