Is our 226-year-old Constitution in crisis?

This week, specifically September 17, marks the 226th anniversary of the United States Constitution. While our Declaration of Independence is the heart and soul of this nation, the Constitution is our business model, and every business model lives or dies on our ability to properly and effectively execute the plan. So, how are we doing?

One key element of the Constitution is its separation of powers – meaning how we provide for a system of checks and balances inherent in three branches of government. The Executive branch was not empowered to do what was left to Congress and the courts. Each branch of government has its proper role and function. But that is always easier said than done. Think of the division of labor in your own homes.

While that analogy isn’t exact, it is guiding as we reflect on the separation of powers. When one branch of government abdicates its role or functions, we shouldn’t be surprised when another branch assumes jurisdiction. War powers come to mind. Of course, the assumption of power outside of proper jurisdictions can be simply political – recent Supreme Court rulings also come to mind.

But, all in all, the separation of powers in our Constitution still has legs. But what about federalism? Our Constitution clearly outlines the enumerated powers of the federal government and goes on to state that powers not enumerated are left to the states and the people. Here we’re not doing so well.

Many legal scholars pin much of the blame over the denigration of federalism on the Supreme Court’s application of the Bill of Rights to the states. This occurred primarily because of the “slave amendments,” especially the 14th Amendment. Justice Antonin Scalia gets apoplectic on this topic, but his equally conservative colleague, Justice Clarence Thomas, understands as well as anyone why standards such as equal protection and due process should apply to the states.

In both of these important constitutional controversies, the document is not to blame. People are to blame. Liberals believe in a “living Constitution,” which, for them, means that our Founding Fathers couldn’t have envisioned the Internet or even two men wanting to marry and that these modern complications mean that our Constitution must adjust to popular will. In that way of thinking the Constitution can mean whatever anyone wants it to mean. In other words, it’s no longer a constitution.

A central doctrine of American conservatism is that freedom requires both liberty and virtue. Freedom requires not only individual liberty but also the reasonable exercise of individual liberty to make good choices and to avoid consistently bad behavior.

What keeps the president of the United States from assuming power not granted to him by our Constitution? He does – only by virtue does he operate within the boundaries set by the Constitution. Nobody holds a gun to his head forcing him to violate war powers, for instance. What keeps a judge from overstepping her bounds in legislating from the bench? She does – only by virtue does she mind her own business. What keeps Congressmen from intervening in matters set aside by our Constitution to the states and the people? Only they do by exercising personal and principled restraint.

Folks, on this 226th anniversary of the Constitution, if we have a constitutional crisis, it’s only because we have a personal crisis of virtue.

For Sutherland Institute, I’m Paul Mero. Thanks for listening.

The above post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

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