The Norman Transcript

September 17, 2013

Constitution is about higher law, not policy

By Kyle Harper
The Norman Transcript

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.

Democracy is a way of organizing power and a way of life because it requires a democratic citizenry. An aristocracy was another way of distributing power, and so on. From the ancients, the founders drew the idea that to devise a constitution is to divide power and simultaneously to create a way of life.

A second tradition was English constitutionalism. The colonists brought with them to the new world a sense of their traditional rights. The English lived under the rule of law but not under a codified constitution. The English constitution was a cluster of revered traditions, of hard-won limits and assurances, of “ancient rights and liberties,” embodied in a series of texts from Magna Carta to the 1689 Bill of Rights.

The experience of the colonies under the regime of benign neglect and subsequently the experience of constitution-drafting by the newly independent states gave them experience in building institutions that respected these traditions. From this tradition, the framers learned there could be fundamental procedures and parameters for making law.

What emerged in Philadelphia in the summer of ’87 was both a synthesis of these traditions and something new under the sun. The Constitution was a pragmatic compromise, of course, between big states and small states, states whose economic system was built on slavery and states where slavery was largely peripheral.

But it was a set of rules for making rules that organized power into three separate branches and established fundamental procedures and parameters for making law. The Bill of Rights amended the rules for making rules by placing certain possibilities — like restrictions on the free exercise of religion — so far above ordinary politics that, without a supermajority intervening to change the constitution itself, they were untouchable by the organs of national government.

On this Constitution Day, let us all remember that the Constitution is a higher order of law, above policy and above ordinary politics, yet framing our entire political way of life.

Kyle Harper is the director of the Institute for the American Constitutional Heritage and is senior vice provost at OU.