Our Constitution is under attack, or so we constantly hear from both sides of the aisle. Of course, this rare instance of bipartisanship is quite shallow, since the different sides don’t see a common source or content to the threat they perceive; they simply view the other side itself as the threat.
Threats to the Constitution do exist. But the biggest one is deeper and more subtle than the weakening of free speech, the separation of powers, or religious liberty. It concerns the idea upon which these precious principles depend: the rule of law.
Ultimately, some person or set of persons must be in charge in a political community. Our polity vests that control not in a king or an aristocracy, but in “We the People.” And we the People do not exercise political power in a direct, unfettered manner. We rule through and within a fundamental set of written rules. We have directed and limited our own political power in ordaining and establishing a written Constitution. As such, the Constitution is a manifestation of the rule of law.
Acting through a written constitution protects and enhances the principles of justice we hold so dearly. It protects our liberty by establishing the bounds of legal government action and the protections the state must afford us, thus allowing us to hold the government accountable to those bounds and for the provision of those protections. It guards equality by making the government treat persons and groups according to established rules, not personal affections or grudges. It creates institutions such as Congress, the presidency, and the courts. Separation of powers and the institutions created to serve it neither inhibit nor coddle popular rule; instead, the Constitution’s rule of law facilitates a political decision-making that is more moderate and rational, and thereby more just.
Yet our current partisanship threatens to undermine all of these principles.
It does so first by normalizing crisis. Every issue we encounter is an emergency, with little perspective on what truly matters. Such emergencies, when actually existing, are extraordinary, and thus demand extraordinary action. When we frame or mistake the ordinary for the extraordinary, however, we risk eroding and finally destroying the constitutional structures and protections we cherish. We weaken our trust in the Constitution’s adequacy, always seeing the need to make exceptions to the separation of powers, the consent of the governed, or equality before the law until such exceptions become the de facto rule. Worse yet, we now often make such exceptions in the name of the rule of law that they undermine.
Then there are our present divisions and the identity politics and ideological tribalism they feed off of. These perspectives tend to reduce politics to membership in one group or another and loyalty to that group’s representative personalities. In such an environment, every political issue becomes a binary loyalty test, rather than a question of justice and prudent action. Every issue must neatly conform to the desires of one side or the other, with virtue-signaling a bipartisan strategy. For a policy or political decision to be “correct,” it must help one’s own group and/or hurt the other side.
Worst of all is the fact that the two threats — ideological tribalism and the normalization of crisis — fuel each other. Not only do we always face an emergency; the other side’s holding power — or the possibility that it could hold power in the near future — is always that emergency, and the entire fate of the republic always hangs in the balance.
When we view the world through this lens, we’re liable to start seeing the rule of law as a quaint luxury at best and as treason to our fellow tribe-members at worst. And when that happens, the Constitution loses its power to restrain and form us in the direction of justice as its Framers intended. Instead, the rule of law, including the Constitution, become tools to be manipulated in service to the rule of groups.
Americans revere their Constitution — and rightly so. But they must understand why it is good and how it is noble if they are to truly sustain it. They must confront the threats to it in accordance with its own principles. So this Constitution Day, let’s reject identity politics and tribalism and make an alternative commitment — to the rule of law, not of men.