By Ronald J. Pestritto Posted September 15, 2000

Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred Eighty seven and of the Independence of the United States of America the Twelfth.

With those words the framers of the American Constitution concluded the document that has served as the foundation of our governing institutions for over two hundred years. For this reason we continue to commemorate September 17th each year as "Constitution Day."

But who today talks about the Constitution any more? Sadly, neither of the candidates running for president finds much need to refer to it, even though the entire election turns on the question of who, on January 20, gets to recite this short oath: "I do solemnly swear that I will faithfully execute the office of the President of the United States, and will to the best of my ability preserve, protect and defend the Constitution of the United States."

In a few months, the nation will watch as either Bush or Gore take that oath. But how many citizens (or even the candidates) know what the constitution says, and what is needed to preserve and defend it? Today is an appropriate day to remind ourselves of the fundamentals.

First, constitutional government means that our governing institutions — legislatures, executives and executive agencies, and courts — are bound by a higher authority. These institutions can only exercise powers that are first granted to them by the Constitution. As Alexander Hamilton put it in The Federalist Papers, which were written to explain and defend the American Constitution by those who framed it, the Constitution is the "superior" authority and the government is the "inferior"; the Constitution is the "original" power and the government is the "derivative"; the Constitution is the "principal" and the government is the "deputy." This notion of limited, constitutional government means that any exercise of power not authorized by the Constitution is illegitimate.

Second, constitutional government is strictly limited because government itself is created by the people. Political power is legitimate only because the people have authorized and established it. This is why the words of the Constitution's preamble merit close attention: "We The People," the Constitution begins, "do ordain and establish this Constitution." Simple logic offers a clear explanation of these words from the preamble, and this meaning is confirmed by an examination of the writings of the founding fathers. All political power, by nature, belongs first to the people themselves. When the people see fit to create a political society, they freely give up some of this power in order to establish a government.

Third, legitimate constitutional government, therefore, exists only by the consent of those governed. As the Declaration of Independence explains in laying out the principles of the new nation, "Governments are instituted among Men, deriving their just powers from the consent of the governed." So America's government institutions derive their "just powers" from the Constitution, and the Constitution derives its authority from the consent of the people who have ordained and established it. Because consent is the only legitimate source of political power, government must rule according to the rule of law. In other words, government cannot simply exercise power as it wishes, but must instead exercise power according to rules and laws authorized by the consent of the people.

Finally, why is it that the people would freely choose to establish government and give it power? Government exists to secure the natural rights of the people. As the Declaration of Independence explains, government is grounded on the truths that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness," and "that to secure these rights, Governments are instituted among Men." It is for this purpose of securing rights that the people consent to the creation of government and authorize it to exercise power over them. When government, therefore, acts without the authority of the Constitution it fails to fulfill the purpose for which the people consented to it in the first place. This is why, after all, the Americans declared independence from Britain — the famous "no taxation without representation" theme from the Revolution is simply a different way of saying that legitimate government must act only upon the consent of the governed for the securing of their rights.

But does this understanding still inform the way our government works?

Consider how most of our critical political decisions are made today. The Constitution gives Congress the duty of passing laws. But very often, Congress simply delegates broad authority to administrative agencies staffed by un-elected bureaucrats, and allows the courts to work out conflicts. The alarming federalization of huge tracts of land and recent attempts to regulate tobacco, both in the absence of a law enacted by Congress, are just two examples of this trend. We might also consider that the Constitution carefully divided power between the states and the federal government, and strictly limited the powers of the federal government to those delegated to it by the people's consent through the Constitution. Yet the practice in most of the twentieth century has been to centralize all political power at the federal level. The consequence of this trend has been the general acceptance by our political culture of the idea that the federal government can essentially do whatever it pleases, as long as the action is perceived to satisfy some public desire.

Perhaps Constitution Day can provide an opportunity for a reconsideration of these trends in light of the true meaning of constitutional government.