When the Constitution Works

What’s a constitution for, anyway? What good does one do? What use is it?

Several countries, including Britain, Israel, and New Zealand, seem to get along fine without any constitution at all. So, why bother to have one? After all, we’ve been writing for years about the troubles ours causes!

Still, there must be reasons, given that almost all countries have adopted constitutions since the late eighteenth century. An historian named Linda Colley believes they arose because rulers wanted to tax their subjects to pay for ever-more-expensive armies and navies. In fact, two of the most important features of the US Constitution gave Congress the power to “tax and spend” and to establish a permanent, “standing” army.

A more fundamental reason to create a constitution is that they generally convey the basic values of a political system. In November 2019, we shared a blog post called “Thankful for the Preamble” about the values and goals conveyed in the Preamble to our Constitution. To recap, these are to:

• Form a more perfect Union
• Establish Justice
• Insure domestic Tranquility
• Provide for the common defence
• Promote the general Welfare, and
• Secure the Blessings of Liberty to ourselves and our Posterity

At this point, with so much controversy within our own political system, it seems important to recall how a functioning constitution can help a country (or state) accomplish its purposes, whatever they happen to be. There are at least three fundamental ways.

1. Government

Above all, such a document lays out the structure for the government. That is, it specifies how leaders are chosen, how they relate to each other (who has power over whom), and what they’re responsible for. It might do so well or problematically: after all, constitutional dictatorships, such as in North Korea, exist as well as constitutional democracies, such as the United States. But most constitutions today set out the ways ordinary people can select leaders who can help them improve their lives and livelihoods.

In America, the selection of leaders happens—or it’s supposed to happen—through free and open elections of our president (the executive branch) and members of Congress (the legislative branch). In addition, the president nominates and the Senate approves justices of the Supreme Court (the judicial branch). When everything ticks along as it’s meant to, our three branches of government work together like clockwork on behalf of the public good. (We wrote about what this might mean in a post called “What Is ‘General Welfare?’”.)

2. Resolving Disputes

But what happens if there’s disagreement about what is good for the public? The Framers hoped the nation would not develop factions. Probably inevitably, they were unrealistically hopeful. Within a decade of the ratification of the Constitution, two candidates for the presidency—Thomas Jefferson and John Adams—ran against each other as representatives of different political parties. (We wrote about this issue in “‘Let’s Party!’ ‘No, Let’s Not.’”) Nevertheless, the second fundamental function of a constitution is to provide ways to resolve disputes, which the Framers did foresee.

According to the Constitution, no branch of government can adopt legislation on its own. Both houses of Congress have to reach an agreement to pass bills, which the president must sign before they can become law, unless they’re passed by a wide enough margin. So, one thing the US Constitution does is to make it difficult to pass laws. Ideally, this helps assure that any laws that do pass have wide support of the general public. Furthermore, these decisions at the federal level take precedence over decisions made at the state level. (However, we wrote about some states that are taking issue with this basic premise in “States vs. the Federal Government: Is Supremacy a New Fault Line?”)

In addition, in case of further disagreements, federal judges have the power to overturn laws passed by Congress that they consider unconstitutional. In many countries around the world, only the judges on a special “constitutional court” have such power, but the United States grants it to almost every single judge (who can then be overruled by “superior” courts). Interestingly, that ability was not set out in the Constitution, but it has become generally accepted.

3. Leadership

One of the most critical contributions that a constitution can make to a democratic society is to provide a way for power to move peacefully from one elected official, when their term is up or they’ve been voted out of office, to the incoming official. Our Constitution also conveys methods for transition in leadership through our process of holding elections and inaugurations. While these also have their flaws (about which we’ve written about in several posts, including “Can’t We Just Get Rid of the Electoral College?” and “The King Is Dead”), they have generally been abided by, at least until recently.

At this time of year, when we focus on remembrance and gratitude, we believe it is worthwhile to recall the value of a constitution if, despite its fault lines, it is upheld with commitment to its basic principles.