Power politics is eroding America’s constitutional soul – Richmond Times-Dispatch

The most devastating critique of King George by colonial Americans was that he had rendered himself a tyrant by violating the rights and privileges that Americans argued were protected by the English “constitution.” While England does not have a written constitution similar to the U.S., England has an informal constitution made up of various legal and political principles, regulations and procedures, or ways of doing things that “constitute” the English as a distinctive people.

For colonial Americans, the protections for rights set out in the Magna Carta, the Habeas Corpus Act, and the English Bill of Rights of 1689, among others, were “constitutional” protections that King George could not arbitrarily disregard without rendering his rule illegitimate and the American Revolution legitimate.

During the decades leading up to the Revolution, the American people both consciously and intuitively considered themselves to be a constitutional people. They understood what Americans today forget at their peril: that the alternative to engaging in constitutional politics is to play power politics where political legitimacy is reduced to domination or successful exercises of power — the type of politics associated by the colonists with the state of nature (a state of continuous conflict).

Admittedly, constitutional politics is tougher and less attractive than power politics. Engaging in constitutional politics requires a sound understanding of the Constitution as well as a disposition to put up with the tough and often disappointing work associated with constitutional politics. Consider, for example, all the checks and balances within and between multiple levels of government that are built into the American political system.

Where power politics feeds on divisive impulses and uncompromising demands, constitutional politics encourages moderation and self-restraint since conciliation and compromise are generally required to negotiate the procedural and structural hurdles characteristic of democratic or majoritarian constitutionalism.

The prerequisite for constitutional politics is a national culture that encourages citizens to assign a high value to self-discipline and reasoned argumentation — the kind of argumentation found in the Declaration of Independence, and that should be expected from public officials. The legitimacy of the American Revolution was rooted not in the raw will of the American colonists, but in the Declaration’s detailed account of King George’s repeated violations of their rights.

Fast forwarding to the present, if we are engaging in constitutional politics then our attention should be focused on the reasoning in the recent Supreme Court rulings in the Harvard affirmative action and student loan cancellation cases. This is not the same as saying that outcomes are unimportant, but that they are defensible only if the reasoning is sound. The fact that conversations about Supreme Court rulings typically depreciate jurisprudential reasoning while accentuating outcomes — even in the case of public officials and journalists who should know better — is a sign that power politics is eroding constitutional politics.

We are thinking like a constitutional people when we insist that the government only act when it has a constitutional leg to stand on and when we acknowledge that there is not a government solution to every perceived problem. We are playing power politics when we insist on the government throwing its authority around to give us what we want when we want it irrespective of constitutional limitations. The rights-oriented Americans of the Founding generation chose limited over unlimited government for good prudential reasons.

Protecting constitutional politics against corrosive cultural forces will not be easy — Washington and Lincoln spoke directly to this challenge in their lifetimes. Sound civic education in elementary and high schools, and even in colleges, should be at the top of every to-do list in this regard, and increasing the cost (severe public disapproval, among other penalties) of not engaging in constitutional politics would be enormously beneficial as well.

What does all this tell us about what it means to be an American and what America should stand for? The colonists understood the benefits and challenges of being a constitutional people and consciously decided to establish a republic with a constitutional soul. They were willing to risk their “lives, fortunes and sacred honor” to advance the cause of constitutional politics because they connected this cause to the advancement of human flourishing.

When it comes to defining what it means to be an American and what this nation should stand for, the central themes of civic education, there is no better place to look than into the very heart of America’s constitutional soul and the Founding-era reasoning that inspirits the soul of the nation.