The Norman Transcript


September 17, 2013

Constitution is about higher law, not policy



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.

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