Understanding the Constitution #25: The Text Is Not Enough to Save Democracy

In March, President Trump invoked the Alien Enemies Act of 1798 to order the deportation of over 200 Venezuelans alleged to be members of the Tren de Aragua gang.  U.S. District Judge James Boasberg, learning flights were in the air to take the men to El Salvador, ordered the Administration to turn the planes around.  He insisted they be returned so he could ensure their due process rights under the Constitution, which protect all persons not just citizens. The Administration refused.  As explained by Department of Homeland Security “Border Czar” Tom Holman: “We’re not stopping. I don’t care what the judges think.”  President Trump then demanded that Judge Boasberg be impeached.  This led U.S. Supreme Court Chief Justice John Roberts to state: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.” 

This incident, added to many lawsuits questioning the legality of Trump Administration actions, has created a Constitutional crisis. The text of the Constitution alone, we’re seeing, cannot protect our republic.  As James Madison explained in Federalist #48:

“A mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”

At present Congress, controlled by Republicans, has not moved to curtail the concentration of powers in the executive branch.  The judiciary has blocked some Administration actions, but as Judge Marjorie Rendell of the U.S. Court of Appeals for the Third District recently observed, it depends on the other two branches to enforce its decisions:

“We don’t have the power of the sword, or the purse.  We depend on respect.  And the minute you are undermining that respect? Who knows where that might lead.”

Respect is a moral virtue, an element of character.  It is one among many virtues essential for fidelity to the Constitution but never mentioned in the text. Others arguably include at least honesty, humility, the rule of law, responsibility, self-discipline, benevolence and justice.  The Constitution’s provisions depend on these, but it can’t create them.  As William J. Bennett, former Secretary of Education, put it in his essay “The Constitution and the Moral Order”:

“The Constitution of the United States can no more forge among citizens the moral relations upon which rest its principles of equity and fair play than it can create ‘contentment in every face, plenty on every board.’”

He also noted that:

“The Constitution was certainly intended to have moral force, but that force was to be drawn from fundamental sources, which the framers perceived in the moral environment of the new nation rather than in the document itself.”

Bennett calls our attention to what the framers called private and public virtue.  As Madison put it in the 1788 Virginia ratifying convention: “To suggest any form of government will secure liberty or happiness without virtue in the people, is a chimerical idea.”  In his 1776 letter to Mercy Otis Warren he earlier said: “Public Virtue cannot exist in a Nation without private, and public Virtue is the only Foundation of Republics.”

We need virtue in leaders and in the citizens who select them.  The Constitution depends upon but can supply neither.  John Adams, in his Discourses on Davila, noted that:

“A constitution is a standard, a pillar, and a bond when it is understood, approved, and beloved.  But without this intelligence and attachment, it might as well be a kite or balloon flying in the air.”

A glaring danger to our republican form of self-government is that this standard, bond and pillar is weakening – and has been for some time.  One cause is that the Constitution is not clearly understood.  Our educational system leaves Americans without an accurate and detailed knowledge of their own history and the private and public virtues essential for protecting liberty.  Only forty percent of adults, for example, can pass the citizenship test required of immigrants for naturalization.  As Thomas Jefferson remarked: “if a nation expects to be ignorant & free, in a state of civilisation, it expects what never was & never will be.”

A corollary to poor understanding is weak emotional attachment to preserving the separation of powers built into the Constitution.   Americans assume that the actions that have kept the concentration of power in the executive in check for nearly 250 years will continue, enabling them to focus on realizing the “American dream” without worrying about the American nightmare now facing us.

In his 1838 address to the Young Men’s Lyceum in Springfield, Illinois, Abraham Lincoln warned about the lack of fidelity to the core value of respect for the rule of law.  Unbridled passion, he believed was in danger of running rampant over “sober reason” and could undo the American experiment in self-government.  We need not fear invasion by a foreign power, he concluded, but “[A]s a nation of freemen, we must live through all time, or die by suicide.”