The Constitution is down but not out

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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Title 36, Chapter 1, Section 106 of the United States Code declares that September 17 is Constitution Day and Citizenship Day. It’s right in there with Carl Garner Federal Lands Cleanup Day (§104 — just a week ago Saturday, in case you missed it this year), Leif Erickson Day (§114 — October 9), and Stephen Foster Memorial Day (§140 — January 13). Americans are called upon to observe the latter date “with appropriate ceremonies, pilgrimages to [Foster’s] shrines, and musical programs featuring [Foster’s] compositions” (but be careful which songs you feature).

From 1952 to 2005, September 17 was designated by Congress as Citizenship Day. Thanks to an amendment to the omnibus appropriations bill of 2004 (a less than ominous beginning), the date in 1787 on which the proposed Constitution of the United States was signed in Philadelphia was declared by Congress to be Constitution Day, as well as Citizenship Day. Educational institutions receiving federal dollars were henceforth required to provide educational programming about the Constitution on that day.

It is fair to suggest that Congress came late to declaring a constitution day because for much of American history the Constitution was routinely celebrated on public occasions, most notably on Independence Day, when great orators like Daniel Webster and Charles Francis Adams spoke with reverence of our nation’s founding document. The Constitution, usually along with the Declaration of Independence and a portrait of George Washington, hung on most schoolroom walls. Future voters who passed through those classrooms may not have learned the intricacies of constitutional law, but they did enter upon their lives as citizens knowing that the Constitution is important.

But the passage of time and the remarkable success of our great experiment in government led to complacency and a casual assumption that mere citizens could trust government to respect and nurture a constitution designed originally to protect their liberties against inevitable violations by that self-same government. To be sure, the Bill of Rights (though not part of the original constitution) was not forgotten by mid- and late-twentieth-century activists, but the framers’ great structural design of divided government was largely abandoned to expediency and growing dependency on government.

In that regard, 2012 was not a very good year. The challenge to Obamacare presented the Supreme Court with its greatest opportunity in decades to begin restoring the vertical separation of powers that is true federalism. But the chief justice blinked. Though wishful advocates for liberty and limited government found solace in the majority’s conclusion that the Commerce Clause has limits, the reality is that the power to tax is now an unlimited power to regulate. The powers the Supreme Court has now constituted will permit Congress to do whatever it has the political will to enact. The emperor has no clothes. The Supreme Court has no robes.

But we should not allow Constitution Day 2012 to be a day of mourning. The Constitution is not yet a dead letter. The ingenious framework of horizontally and vertically divided authority; the careful and narrow enumeration of congressional powers; the Tenth Amendment declaration that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”; the Bill of Rights, including the Ninth Amendment’s confirmation that (in the words of the Declaration of Independence) “all men are created equal, that they are endowed by their Creator with certain unalienable Rights”; and the proposition that (again in the words of the Declaration) “governments are instituted among Men” “to secure these rights” — all of that remains.

What is missing is the resolve to put principle ahead of politics, to put liberty and responsibility ahead of dependency and entitlement. In a government that derives its “just powers from the consent of the governed,” that resolve must finally rest with the governed. Constitution Day 2012 is a good time not only for Americans to celebrate a remarkable achievement in government, but for voters to resolve to take seriously, come November 6, their responsibilities as defenders of the Constitution.

Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.