Our Constitution has withstood a lot of challenges over the course of more than 200 years. The events leading up to the Civil War and the war itself came close to its demise. During the Depression of the 1930s, when more than a quarter of the work force was unemployed, when there were no safety nets that today we take for granted, when people were desperate for help, our country could have tipped toward communism. At that time the world still didn’t know the horrors that Soviet communism inflicted, and many believed that it was the answer to the failures of capitalism.
But the United States survived these two events with profound changes that I think for the most part have been for the better---others will disagree---but because of our system those differences can still be debated peacefully. Republicans often talk about American Exceptionalism, which in my view is not because of our military might, but rather because of our Constitution that respects the most important freedom of all: freedom of conscience embodied in the First Amendment, the one freedom that allows Americans to be different and believe differently, and not be compelled to adhere to any one ideology or belief.
The Constitution, though, is a piece of paper with words written on it. Its strength, its power, its protection of individual rights depend on our social contract as Americans, that we will allow ourselves to be governed by the rule of law, that we trust our three branches of government to make laws, faithfully execute them, and judge their constitutionality and enforcement when necessary through the courts. This also includes trusting our elected and appointed officials unless they do something that undermines that faith, such as committing crimes, misfeasance, or malfeasance in office, in which case due process built into our system addresses the problem.
Our country witnessed the rending of the social contract when military officers and government officials who took sworn oaths to support, defend and preserve the Constitution, breeched that oath to join the band of Rebels who tried to forcefully leave the Union. I say this to illustrate how fragile the Constitution can be if enough people no longer commit to their oath, to the rule of law, to the institutions and offices that exist to support our government.
Since the creation of political parties going back to George Washington, there has been infighting, bickering, and arguments at all levels of intensity. But these differences are healthy when both sides work toward common goals, goals that reasonable people can see differently. Political disputes should condense the best ideas, and theoretically, when ideas clash, truth emerges.
Today we are living witnesses to watching, one thread at a time, the unraveling of the Constitution. Fewer Americans seem to accept laws, court decisions, elections, and presidential decisions, which bear the presumption of legitimacy unless and until overturned by a court. We are seeing more violent protests when things don’t go “my way.” Our longtime institutions of government are losing the support and trust of the people. Our country cannot survive if this becomes the norm. To use John Steinbeck’s metaphor in THE MOON IS DOWN, the flies are taking over the flypaper.
In 1973 I went to Washington to visit one of my lifetime and Navy friends, both of us being in law school at the time. We drove to the Capitol on a Saturday, parked on a side street, and walked in. No security guards, no metal detectors, no one stopping us. As we walked the halls we came up on the office of then House Speaker Carl Albert. We walked in, and a senior staffer, a very nice lady, greeted us, and spent time answering our questions.
Today the same building is surrounded by armed police, metal detectors, cameras from every angle. You need a photo ID to get in, and you may have to submit to any number of questions. Following the January 6, 2021 violence at the Capitol, there is talk of building a fence around it. Another example of our freedoms dissipating before our eyes, one thread at a time until there is nothing left of our constitutional garment.
I think one of the breakdowns in how we got to where we are today, a place where some congressmen and congresswomen are even advocating violence, who loosely throw out the word treason as applied to their political opponents, makes me wonder if they ever even studied civics. Recently the newly elected Senator Tommy Tuberville (R-AL), in an interview, identified the three branches of government as “the House, Senate, and the executive.”
Nothing about our Constitution is mathematical except certain provisions, among others, that include age and residency requirements to be eligible to be president, senator, or a member of congress. The Constitution doesn’t define the meaning of religious liberty, freedom of speech, due process, equal protection, right to counsel in criminal trials, cruel and unusual punishment, the limits of the commerce clause, etc.
But as part of our social contract, we accept the process in which our judges and justices are appointed and confirmed, and we accept their judicial decisions and interpretations of the law and Constitution, like them or not, as part of our respect for the rule of law. We also accept that there are processes for making peaceful changes when we don’t like certain laws or judicial decisions---or at least we were once more amenable to acceptance of those processes.
Our country is in trouble. We need clearer heads navigating, to steer us away from the rocks. There are solutions. A start would be to require the teaching of civics, the mechanics of government, how it works, and why acceptance and adherence to the rule of law is basic to our survival. But to arrive at solutions we need statesmen on both sides to sit down and reason together. I am not optimistic in the short term.