The Constitution is not a set of rules and laws. The Constitution is a set of instructions about how to make rules and laws. For example, the Constitution doesn’t care whether a community makes recreational marijuana legal or not. It doesn’t care whether the speed limit on the roads is 50 MPH or 80 MPH.
But the Constitution cares about how that decision gets made.
For example, the Constitution delegates the power to each state’s legislature to decide whether or not to legalize recreational marijuna. The point is not whether it’s legal or illegal: the point is who makes that decision. It would be a violation of the Constitutional process if the U.S. Congress made that decision.
There are some decisions which should be made by the state legislatures, and other decisions which should be made by the Congress. The important question isn’t which decisions get made, but rather, who should make them.
In the same way, there are some responsibilities to be carried out by the president and his executive branch, and other responsibilities which belong to the Supreme Court and its judicial branch.
In the long run, it doesn’t matter which decision gets made — whether marijuana is legal or not — but it matters who made that decision, and which process was used to make that decision.
The Constitution is a neutral document in this way. The Constitution can be, and should be, used by both sides — the people who are “for” and the people who are “against” any particular idea.
Without a Constitution, and without people acting according to the Constitutional process, chaos results, and after the chaos, some individual or group can seize power, and then the people’s freedom disappears. True freedom and true justice exist only where a neutral procedure is followed.
Because the Constitution is neutral, it is also timeless. Changes in society, technology, culture, or economics don’t affect the Constitution, and the process can apply equally to today or to a hundred years into the future. Constitutional procedures work for Muslims, Jews, Christians, Buddhists, or Hindus. Constitutional processes work for old and young, rich and poor, men and women. They work for any ethnicity, race, or culture.
The ideas in the Constitution last because they are built on human nature. Every human being has certain features in common with every other human being — anywhere, anytime. Concerning the universal principles of human beings, and how they are factored in to the Constitution, Ben Shapiro writes:
The founders constructed the Constitution on the basis of three main realizations about human beings. First, they realized that human beings are imperfect, selfish, driven by self-interest. They will go to war with each other to assure the victory of that self-interest. The founders agreed with the central theory of Thomas Hobbes, that without government, man reverted to constant warfare: “No arts; no letters; no society; and which is worst of all, continual fear and danger of violent death; and the life of man solitary, poor, nasty, brutish and short.”
Given that human beings are imperfect, how can they build a peaceful society? How can they live and work together in justice, peace, prosperity, and freedom?
Back in the late 1600s, Thomas Hobbes wrote that only with a powerful absolute government — a dictatorship — could human society function decently. He felt that if people had freedom, they’d use it to attack each other. Today, there are still people like Hobbes: they believe that a powerful government should control the lives of people and make decisions for them.
But the people who wrote the U.S. Constitution didn’t agree with Hobbes. They thought that humans can have both a decent society and freedom at the same time. They got some of those ideas from the books written by John Locke, who lived a few years after Hobbes, but before the foundation of the United States.
Ben Shapiro explains how Locke articulated the idea of “limited government” — the idea that the government’s power shouldn’t be infinite, but rather that by limited the government’s power, the people protect their own freedom:
But they disagreed with Hobbes that the only way to solve this conundrum was a great and powerful ruler. They believed that such rulers were similarly capable of brutality in their own self-interest. They adopted this philosophy from John Locke, who wrote, “The end of government is the good of mankind; and which is best for mankind, that the people should be always exposed to the boundless will of tyranny, or that the rulers should be sometimes liable to be opposed, when they grow exorbitant in the use of their power, and employ it for the destruction, and not the preservation of the properties of their people?” In other words, if rulers invaded the rights of others, they ought to be curbed.
If the government has more power, then the people have less freedom; if the government has less power, then the people have more freedom.
How, then, can people structure a government to ensure that it doesn’t become too powerful?
The Constitutional system with its separation of powers is designed to make sure that no one part of the government gets too much control. If power divided between the three branches — legislative, judicial, executive — then each branch will have roughly one-third of the power, which is less than half, and therefore can be curbed by the other two branches.
The power is further divided between federal, state, and local governments. When the power is chopped up into small pieces, and different parts of government each have a piece, it prevents any one part of government from having too much power. Freedom is achieved and preserved when the government is relatively weak and limited: a strong and expansive government is the type of government which can take people’s liberties and properties.
Ben Shapiro explains how the Constitution carefully divides and balances power between different parts of the government:
So, how could society survive without an all-powerful ruler checking men? By a series of mutual checks and balances. As James Madison famously stated in Federalist #51: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
It might seem odd to say that people want a weak and limited government. Wouldn’t everyone hope for a strong and expansive government? But it’s better to have a strong nation with a weak government than to have a weak nation with a strong government. Either the government will have control, or people will have control. In order to be free, the people must have a limited government. The greatest danger to liberty is the government. This is ironic, because the purpose of the government is to protect the people’s freedom, but it is also true that when people lose their liberty, it’s because the government took it.
The best thing that can happen is gridlock. The word ‘gridlock’ might seem like something undesirable, but when the government is all bogged down in its own procedures, and when the government is doing little or nothing, that is when the people have the most freedom. When there’s a problem in society, or a problem, rather than having the government “do something,” it’s best if the government does nothing, so that the people can figure out how to fix it. The people will do a better job than the government.
The Constitution is filled with various mechanisms designed to slow down the government’s processes, a Ben Shapiro explains:
Checks and balances were designed to prevent government from overreaching its boundaries; only widespread agreement could overrule such checks and balances. The judiciary was therefore designed not to lord over the executive and legislative branches, but to interpret the law “under the Constitution;” it was checked by its requirement of funding from Congress and execution from the executive branch. The legislative branch was designed to pass laws in concurrence with the Constitution; the president was given the power to veto laws. Congress itself was checked by distribution of power between the House, chosen by population, and the Senate, chosen by state. The executive branch was checked by the legislature; the executive couldn’t create laws or self-fund, and the legislature could always impeach an incipient tyrant. The federal government as a whole was checked by state governments, all of which had their own checks and balances.
Although people often speak idealistically about the Constitution, it is, for the most part, not an idealistic document. The preamble, to be sure, does mention some ideals: justice, tranquility, the “blessings of liberty,” etc.
But the majority of the Constitution is a procedural document. Is the mechanics of running a government. The grand ideals are more found in the Declaration of Independence. The two documents complement each other. The Bill of Rights, a third essential document, is a part of the Constitution, an extension of the Constitution. “The structural Constitution,” as Ben Shapiro writes, “is the essence of American government.”
The design principles behind the Constitution factored in two realities: first, that the concrete details of societies change, and second, that human nature never changes. A system of government built on an understanding of human nature is designed to work in different situations. The Constitution applies, like the laws of algebra, in all contexts:
And it has nothing to do with technological progress. It relies on the same vision of human nature held by the founders, and the same vision of human rights: that because you are a human being, you have inviolable rights that cannot be removed from you by majority vote.
One universal aspect of human nature is that people desire freedom. Another aspect of human nature is that, given large amounts of power, people will sometimes take freedom away from others. The Constitution was formulated around these two factors. It is a system designed to maximize liberty and to protect liberty.
