Happy Constitution Day! As we celebrate one of America’s founding documents, it’s worth asking: what made America so great?
When we declared our independence in 1776, America was just a fledgling experiment in self-government which the rest of the world expected to fail miserably. All of the wealth and power was in the Old World, with its palaces, empires, and powdered wig-wearing aristocrats. America was considered the boondocks, full of log cabins and fur cap-wearing farmers, trappers, and frontiersmen.
A few years later, America had fielded a Continental Army that defeated the largest military power in world history, and had become the freest and most prosperous country in the world.
America became great because the Constitution limited the power of government and empowered individuals to lead their lives as they saw fit. The framers of the Constitution did not know what America would look like 230 years in the future. But they knew they were tired of being subject to the whims of a king. They carefully constructed a government that had just enough power to impose civil order, protect citizens from foreign invaders, and secure individual rights to life, liberty, and the pursuit of happiness, but not enough power to violate those rights itself. To achieve this, the framers confined the powers of the federal government to those specifically listed in the Constitution and divided that power among three branches of government.
The framers also took a belt-and-suspenders approach to protecting the rights of the people. They added a Bill of Rights to the Constitution to ensure that certain important rights were never violated, even though the framers themselves said that the Constitution had not granted the federal government the power to violate those rights to begin with. Additional amendments were later added to the Constitution to extend its protection of rights to all people, regardless of race or gender, and to keep state and local governments from violating the people’s rights.
If you don’t recognize this strictly limited government, you would be forgiven. Today, politicians say they can do just about anything they want, except what is explicitly forbidden by the Bill of Rights, and even that is up for debate. When asked where the Constitution authorized a proposed law, one congressman admitted, “I don’t worry about the Constitution on this to be honest.”
The rest of Congress appears to feel the same way. Every detail of our lives is subjected to government rules. The Federal Register, which contains all proposed and final regulations issued by federal agencies, has published over 3.2 million pages. If it were printed and stacked, it would be taller than the Washington Monument. This does not take into account all the laws passed by Congress, or by state and local governments.
Because of all these rules, the cost of doing business in America is staggering, and startups and small businesses are at a competitive disadvantage to big businesses that can easily afford it. Those large companies can also afford to pay lobbyists to convince lawmakers to pass even more laws that keep new competitors at bay. All the while, countless Americans are prevented from pursuing their version of the American Dream.
Where did we go wrong? The framers envisioned the judiciary as the guardians of individual rights. But over time, the courts have become more interested in picking and choosing which rights to protect or neglect. In the process, they have invented government powers that do not exist. The result is that our government is far more powerful than the founders ever intended. You may have heard the term “activist judges.” We certainly don’t need those. But we do need an engaged judiciary that takes seriously its role in the system of checks and balances so carefully designed by the framers.
The good news is that we can all play a part in restoring the American vision. Courts will only take our constitutional rights seriously if we do. We need citizens who are willing to stand up for their rights, and attorneys who are willing to advocate for those people, simply because it is the right thing to do. At the Mississippi Justice Institute, we have made that our mission.