On Constitutions and Nature’s God

On this day in 1787, the Constitutional Convention finished its work, and those involved in the creation of the new charter to govern the recently liberated colonies gathered once more to sign the document in order to then take it to the people in the several states for consideration and ratification. Much has changed in the intervening 231 years, but the Constitution signed that day has, despite its original faults, withstood the test of time and still governs us today. This is no mean feat, especially when one considers how poorly the constitutions created in other contemporaneous revolutions fared over time.

It is important to remember, of course, that the Constitution is not so much the law that governs “we the people” as it is “the law that governs those who govern us.” It was created by “we the people” to be the supreme law of the land, that it might constrain those in power and prevent fleeting factions from radically altering the form, structure, and principles of government. As Chief Justice Marshall observed, “those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation,” overriding subordinate governmental acts to the contrary. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). And, as Justice Scalia observed more recently, the enshrinement of certain principles in a written Constitution means that certain policy choices are necessarily “off the table” in light of the document’s restraints on government power. District of Columbia v. Heller, 554 U.S. 570 (2008).

One incident of this bedrock constitutionalism is that we often speak in constitutional parlance when talking about government action and individual liberty. We debate whether or not certain pieces of legislation or certain executive actions are constitutional. We invoke by number certain rights specified in the text: pleading the Fifth, invoking the First, etc. To the extent this happens at all anymore, this is a good thing. What good is a written Constitution, after all, if it doesn’t mean what it says and if it isn’t enforced as written?

Regrettably, however, this linguistic quirk may, at times, obscure a critical fact. While the enumeration in the Constitution of certain specified rights helps confirm the fact that individuals possess these rights, the rights themselves do not derive from the Constitution. Thankfully, the Constitution itself reminds us of as much, insofar as, in several different instances, it speaks in terms of prohibiting the government from “abridging” or “infringing” certain rights–in other words, indicating that these rights exist thanks to realities beyond the Constitution.

Of course, this is what the Declaration of Independence itself pronounced roughly eleven years before the Constitution was signed: “all men . . . are endowed by their Creator with certain unalienable rights . . . .” There are certain fundamental things that the government does not bestow and has no power to take away. Obergefell v. Hodges, 576 U.S. ___ (2015) (Thomas, J., dissenting). Individual liberty is not a creature of the state or a privilege bestowed by it – rather, it has been ordained, and in large measure defined, by “the Laws of Nature and of Nature’s God.” All human government, then, to be a legitimate exercise of power, must respect the inherent restraints on that power, demarcated first and foremost by the “unalienable” rights of individuals that precede any constitutional commitments.

Certainly, on this Constitution Day, let us celebrate the remarkable achievement of the Framers in crafting and adopting the Constitution. Let us also, however, remember that many of the manifold liberties we enjoy do not find their origin in that document but instead derive from a much Higher Authority, to which all governments and constitutions are and must be subordinate.

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