What Does The Constitution Constitute?

From Big Government:

What Does the Constitution Constitute?by Will Morrisey


As we celebrate Constitution Day this week, a simple question suggests itself: What exactly does the Constitution constitute? Or, with respect to the Framers: What were these men trying to do?



The Constitution cannot have constituted the American people. The Preamble begins, famously, “We the People…” The American people already existed. They didn’t need a constitution to call them into existence. On the contrary, they called it into existence.







Although clearly labeled “The Constitution of the United States,” the Constitution didn’t constitute the United States, either. Eleven years earlier, the Declaration of Independence had already described itself as “The Unanimous Declaration of the Thirteen United States of America”. We the People (the People tell us) ordain and establish “this Constitution for the United States of America.”



The Constitution constitutes not the people, not the states, and not the union of the states, but the federal government of these United States. With characteristic bluntness, the Framers identify their constitution as a framework for ruling. Each of the three sentences introducing what we call the “branches” of the new government forthrightly speak of “powers”: “all legislative powers herein granted shall be vested in a Congress of the United States”; “the executive Power shall be vested in a President of the United States”; “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress shall from time to time ordain and establish.” The American people “grant” their government some of their powers—amendable, even revocable at pleasure by a sizeable majority following lawful procedures, to be sure—but ruling powers nonetheless.





The people “vest” certain powers in each of the three ruling “branches.” To “vest” literally means to clothe; in a monarchy the king or queen puts on the robe and the crown of authority. In a republic the people vest their government with their own natural powers, arranging those powers in such a way as “shall [in the Declaration’s words] seem to them most likely to effect their Safety and Happiness.” The people so clothe the government in order to secure their unalienable rights—unalienable because natural, given by God and not by men, including the people themselves.



Modern states were invented in order to give governments the power really to secure territories, lives and property of the people who lived on those territories. Feudal societies had consisted of a variety of authorities, each with its own sources of military and economic power: Kings, aristocrats, churches, cities. At best, these authorities existed in a sort of equilibrium, each respecting the others’ spheres of rule, uniting on the occasion of any serious foreign threat.



Builders of the modern state designed differently. They centralized governmental powers, subordinating aristocrats, churches, and cities by establishing a network of bureaucrats who collected revenues, enforced law, defended and extended territories. Modern states crushed tribal and feudal societies in all but the most geographically inhospitable places—Afghanistan, for instance. Without a modern state, most peoples would soon have one, anyway: a state ruled by some foreign conqueror who exploited the decentralization of his victims’ feudal society.



But the same power that enables modern states to secure the rights of peoples, protecting their lives and property, can also ruin lives and take property from the very peoples who rightly `own’ that power. This seems to lead humanity into self-contradiction. To borrow an old joke on a slightly different topic, we can’t live with states and we can’t live without them.



With the government the Constitution constitutes the Framers solved the problem of the modern state. They gave the modern state a certain form, a certain regime, which retained the power of the centralized modern state while restricting its power to harm the people who authorized its existence. They founded a republic, with rulers elected by the citizens—the ultimate rulers—or appointed by those elected representatives. They founded a commercial republic, in which every citizen could acquire and keep the property earned by working. They founded a federal republic, whereby each constituent state shared equal power in the Senate and population-apportioned power in the House of Representatives. They founded a republic of laws, limiting the central government to expressly enumerated and logically implied powers over each citizen, leaving most governing to be done at the local, country, and state levels of the federation. With representation, commerce, rule by law and federalism in hand they could then frame an extended republic, big enough to defend itself against the geopolitical heavyweights of their day—and every day since then, so far.



Americans thus secured their status as a self-governing people, ready to resist any of their current or future regime enemies. Such controversial measures as the Patriot Act oblige us to think clearly about both of our self-governing needs: security of life and security of liberty. This coming Friday, Hillsdale College’s new Kirby Center will celebrate Constitution Day. One event will be a debate on the USA PATRIOT Act, legislation that raises again the perennial question of self-government in America—a question as relevant today as in 1787.