While it is not a holiday which many of us pay much attention to – perhaps in part because it is a newer holiday and not one on which we get the day off – this country just marked Constitution Day, commemorating the signing of the United States Constitution on September 17, 1787. The fact that we continue to care about what men like George Washington, James Madison, and others did on that date, and what they thought about how the rule of law should operate in this country, is something quite unusual. Perhaps we do not stop to think about that fact as often as we should, for it is a great strength of our legal system.
Tonight at the Tocqueville Forum at Georgetown, two scholars will be revisiting the enactment debate that went on in Congress between the Federalists and the Anti-Federalists in implementing the Constitution as the truly foundational legal document of the Republic. Yes, there are other documents of tremendous importance in the shaping of this country, but the Constitution is the one which allows us to function, rather than merely exist in the abstract. So I, for one, am looking forward to seeing the virtual wig powder fly across Copley Formal Lounge this evening, with tankards of ale to follow at some local hostelry.
If you have any interest in the law, you know that very often in Constitutional Law cases decided by the U.S. Supreme Court, one of the key considerations taken into account by the Justices is the intent of the Framers of the Constitution. From there things get a bit muddled, with respect to interpretation, into what can often seem very confusing, umbrella terms – strict constructionists, originalists, judicial activists, textualists, etc. That being said, any Supreme Court Justice must at the very least consider the Framers, even if only to ultimately reject their positions, when they act.
While our common law system is, in part, descended from that of the cousins on the other side of the pond, for some time now we have been moving in different legal directions, as the UK increasingly abandons British precedent in favor of European novelty. After all, it is not as though the English continue to look back to the Magna Carta and debate about the intent of the barons at the fields of Runnymede. Admittedly, this is an over-simplification, but sadly not much of one. In this country, fortunately, for the present we have in the main resisted giving in en masse to international committees drafting our laws for us, at least at the highest level of judicial inquiry.
When we ask the larger questions that crop up in our courts, we do not find it strange – indeed, we find it important – to take into consideration what men who have been dead for hundreds of years might have to say about the matter. Perhaps only in the Catholic Church do we find a contemporary parallel with respect to the high degree of deference paid not just to precedent, but to the debates, discussions, and writings of long-gone figures. It is ironic that the signers of the U.S. Constitution, nearly all of whom were Protestants who presumably would have rejected the embodiment of Church tradition in the Magisterium, created a system of laws whereby both text and tradition would be considered in weighty matters.
This is not to say that the Framers of the Constitution ought to be viewed as secular saints. One need only look at the 3/5 compromise put into the Constitution in 1787, which allowed the South to count slaves as part of their population for the purpose of proportional representation in Congress, to realize that this is the case. No human document is flawless, any more than are those who composed said document, because humans are, themselves, flawed beings, capable of independently or collectively tolerating, sanctioning, or participating in evil actions.
Even with that being the case, we are fortunate in this country not only to respect the rule of law, but also to respect those who originally composed our laws, even when they are no longer available for us to consult in person on important questions which arise in our democracy. It is no accident that many elements of the U.S. Constitution have been copied by countries around the world, for it has proven to be a wonderfully resilient document over the past two centuries. Yet the opinions and writings of those thoughtful men who set themselves to the original composition of our Constitution continue to be an important wellspring of thought about that document, down to the present day, and our country is all the better for making a point of looking to such sources when questions involving our foundational document arise.