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September 17, 2013

Constitution is about higher law, not policy

NORMAN — As we celebrate Constitution Day this Sept. 17, it is worth reflecting on what the framers drafted in the summer of 1787 and the people subsequently ratified in a series of state conventions.

I don’t mean the substance of the seven articles or the Bill of Rights that was added in the First Congress. Instead, I mean the very idea of a constitution. So successful has the American experiment in constitutional governance been that we easily forget how radical the idea of a written, republican constitution truly was. But preserving that achievement for future generations requires us to understand that we are heirs to a unique tradition of constitutionalism.

A constitution is a higher order of law, a set of rules for making rules. The Constitution is not a set of policy proscriptions; it is a framework within which we, the people, in a republican system of government muddle our way towards policies in the common interest.

When the founders of our country gathered behind closed doors to debate whether and how to replace the ineffective Articles of Confederation, they drew on multiple traditions of constitutionalism. The Constitution they created and submitted to the judgment of the people was a unique synthesis of those elements.

One tradition was the legacy of classical antiquity. Many of the founders were classically educated, able to read Latin and Greek texts in the original; those who couldn’t were able to rely on translations and the widely read interpretations of people like John Adams, whose constitutional thought was enriched by his deep knowledge of the classics.

“The Federalist,” the series of essays written to defend the Constitution during the ratification debates in New York, were published, like so many pamphlets and essays, under a classical pseudonym. What the founders and other Enlightenment thinkers learned from ancient constitutional thought was that a constitution is a way of life founded on a division of power.

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