In recent years we have grown used to describing every presidential election as the most important of our time, and this is certainly the case with the 2020 election. That description might have been right all along, as each succeeding election reveals deeper divisions between opposing parties and the constituencies they represent.
But the 2020 election seems in a class of its own. Here is why: in 2020 our divisions are manifesting themselves not just in deep differences over policy but increasingly over constitutional matters. In some cases, the issues are raised explicitly, as with Joe Biden affirming that he is in favor of reforming the judiciary and, perhaps, packing the Supreme Court. In other cases, the legitimacy of the Electoral College is being challenged, as is small-state power in the Senate. Even the First Amendment right to free speech is under threat, certainly in academia and perhaps before long in the broader society as well.
Since in this election cycle we seem to be facing a real test of our constitutional system, we should reflect on the two meanings of the term constitution itself.
There is, to start, the familiar – or really only semi-familiar – U.S. Constitution, which still guides how we make and execute laws. Congress is still bicameral and passes laws, the judiciary judges the constitutionality of our laws, and the executive branch enforces the law – and the three branches still check and balance each other in substantial ways.
It should go without saying that the Constitution is invaluable. Without it, it is hard to imagine how this country would establish its relatively just order, under which 330 million highly diverse people live in peace.
Yet, however precious, the U.S. Constitution depends on another constitution. This is the constitution of the American people themselves. Constitution in this sense is analogous to the constitution of a person; it is the integral makeup of society, its basic nature and its culture.
About the shared culture of his time, Founder John Adams wrote something interesting. He said that essential constitutional principles “are intimately known, they are sensibly felt” by the people, and “it is scarcely extravagant to say that they are drawn in and imbibed with the nurse’s milk and first air.”
We shouldn’t forget how diverse America really was during the Founding era. Adams’ Massachusetts, for example, differed sharply from Jefferson’s Virginia in culture and economy. Yet America in those years had enough of a shared culture and identity to form a coherent nation. It was to that shared culture that the Framers of the Constitution had to appeal not only in writing the document but, crucially, in ratifying it. In this process, the Constitution was submitted to each of the states and subject to concentrated public debate about its purposes, expected benefits, and potential dangers. To take effect, it had to be ratified by nine of the thirteen states, not just the majoritarian seven.
The point of the exercise was, in essence, to check the Framers’ work against the organic constitution of the people. If the United States government was to be grounded in their will, it was necessary to test it across the length and breadth of the land.
Something similar happens when amendments to the Constitution are proposed. When enough people think that the Constitution needs to be altered, an amendment is written and submitted to the people and a nationwide tussle begins, with representatives from every state weighing in. Only if the amendment is broadly acceptable to the nation – if it conforms to the nation’s small-c constitution – will it be passed and become part of the big-c Constitution.
As we navigate our current rough political seas, we should keep these meanings of the term constitution in mind. We are confronting substantial constitutional issues, whether or not specific amendments are proposed and debated. In confronting those issues, we will face difficult questions about the substance and integrity of the people themselves and their beliefs. Anyone who reads the news knows our current divisions are stark. But just how deep do they go? Is our society fragmenting, or is the appearance of division just a feature of our dysfunctional political, intellectual, and cultural leadership? And if we refer potential constitutional changes to the people, are we now a coherent enough society to give an authoritative response?
Ed Hagenstein is the author of The Language of Liberty: A Citizen’s Vocabulary (Rootstock, 2020), available now from Amazon, Alibris, and other providers.