A Thought For Constitution Day 2022

We celebrate the Fourth of July because it marks the day that America conceived itself as a nation, in the Declaration of Independence announced on that date.

Few Americans know September 17 as Constitution Day, though many will cite the Constitution as the essence of the nation.  We don’t, in general discourse, know the Constitution very well.  A number of people attempted to disrupt a Constitutional process on January 6, 2021, and a number of elected representatives condone that action, and most do not acknowledge the Constitutional impact.  

The Constitution actually implements the Declaration’s tenets.  The Declaration affirms that the people have the right to “alter or abolish” government.  They should then “institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.”  The Constitution replaced the Articles of Confederation as the new nation’s basis for government.  It also licensed its own alteration in the Amendment process, which itself has transformed the American state, most dramatically after the Civil War.  

 Change is not to be undertaken lightly.  Ultimately, government must meet the function defined by our self-evident truths – to secure people’s unalienable rights, “deriving their just powers from the Consent of the Governed.”  But if a significant population transgresses the Constitution’s vital workings, and, further, if those of the opposing political bent perceive a “long train of abuses” at the hands of our society and state, does the Constitution need to be abolished or significantly altered?

The January 6 insurrection is often called an attack on democracy.  It was unambiguously a transgression against the Constitution.  But the word “democracy” does not appear either in either the Declaration or the Constitution.  The Declaration says government legitimacy requires the consent of the governed.  The Constitution mandated an electoral system, and we habitually treat success in that process as proving consent of the governed.  But does our current government truly enjoy the consent of the governed?

Certainly we prohibit disenfranchisement of voters and elections as of today remain free and fair.  We have due process of law and prohibitions on arbitrary use of power.  

But our elections are taken by many as choices between bad and worse.  The consent to govern is given grudgingly, yet so often exercised with no constraint except by the narrowness or unreliability of majorities of legislators.  Governing authority is exercised to a great extent by bureaucracies that do not answer directly to the citizenry.  Consent to their power comes via delegation from the elected government.  Regulation, taxing and spending, and legal force are exercised in the name of an unenthusiastic consent passed through a sloppy filter.

Complaints of arbitrary power were at first voiced against taxation and business regulation, most stridently by “Tea Party” candidates, culminating in the Trump vote.  But the effect has been bolstered by new complaints.  One is of systemic racism, bolstered by the history of racism and tolerance of it, in habitual but also institutional practices.  The other is of a breakdown of technical agencies’ effectiveness, most recently the CDC’s inability to give consistent guidance on Covid prevention measures.  Other doubts now arise over Federal Reserve policy, with both political camps complaining one way or another.  As polarized politics alienate citizens from each other, mistrust becomes more and more pervasive.   Governing authority operates under weakening consent of the governed.  

Do the governed feel sufficiently abused, ignored, or pawned off to challenge the legitimacy of our governing state?  Do we need to replace the Constitution, or make major amendments?

There is a question of measurement.  So many gradations of feeling, so many aspects on which people’s answers will vary, will muddy any answer.  Even a clear measurement requires a judgment call – how positive must a result be to prove consent, or how negative to prove rejection?  And it is easy to imagine a majority of “non-consenting” citizens split between two sets of reasons for non-consent, with a minority of “consenting” citizens as the largest bloc.  And yet again, that consenting plurality may be lukewarm in its consent.  A consensus to generate a generally accepted new state is almost impossible to imagine.

In a monarchy, sovereignty resides in the person – monarchies are literally nations of persons, not laws.  The justice of government power derives from the proper ascendancy of the monarch.  It was, indeed, to preclude any abuses of bad personal sovereigns that America conceived itself on principles.  That was also the reason that monarchies adopted elaborate political constraints.  A monarch’s popularity still matters to some degree.  British monarchs, in an ethos passed from George VI to Elizabeth II and, in his initial pledges, King Charles III, pointedly devote themselves to duty, propriety and apolitical sensitivity.  Their conduct has a real effect on the legitimacy of the state, albeit in intangible psychological effect.  

It is precisely in that intangible psychology that American government’s legitimacy comes into question.  Every agency that excuses its failings in bureaucratese, every official slanting their policy rationales to partisan tropes, every politician who “flip flops” for votes, weakens our reasons to consent to governing power.  Every partisan who answers charges of his sides’ malfeasance with “what about” charges at the other side, every voter who merely echoes partisan slogans, adds to the problem.  Our government is in fact of, by, and for the people.  All the people who do these things are just citizens – we have no ordained leaders, no royals.  If we do not consent to government today, only we can repair the breach.  We can start by judging politicians by our common purpose, rather than letting them shade our founding creed for partisan goals.  The nation conceived itself on the principle of individual rights.  However poorly the living society and state observed it at founding, we gave ourselves an orienting beacon for its development, in a principle that no one disputes.  The more sincerely each of us holds to our common founding, the more we will be able to trust each other, and the governments we elect.

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