Indirectly, the Constitution Shows Us What It Protects Us From

This piece appeared in newspapers in mid-December, 2015

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Especially in the Bill of Rights, the American Constitution is like a photographic negative – making bright what was dark — of the nightmarish world our Founders sought to spare us. (History had shown them that world.)

The Constitution simply declares, “This is how it shall be.” But we should understand that their vision was fixed on the grim record of past societies, and were telling us, “This is how it shall not be.”

· When they guaranteed “freedom of religion,” they knew about the persecutions of religious minorities, and the “infidels” burned at the stake. And they were cognizant of the religious wars that had wracked the continent from which their own ancestors had come. They gave us a way to escape such nightmares.

· When we read that no one will be “compelled …to be a witness against himself,” we should understand that the image in the minds of the Framers of that Fifth Amendment was of terrible torture chambers to compel people to confess even to things they had not done.

· When the Bill of Rights assures that anyone accused of crime will have a right of counsel, and that will have the protections of “due process,” they were saying that Americans would not suffer from the injustices of kangaroo courts that pit defenseless citizens against the coercive, pseudo-legal power of unjust rulers.

· When they wrote the Fourth Amendment protecting us Americans from “unreasonable searches and seizures,” and setting forth the process by which the governing powers would be allowed to intrude upon the homes of the people, they were looking back at the history of European nations were no one could be secure from arbitrary invasions of property.

And so on, through those first ten amendments to the Constitution.

That Bill of Rights has been a blessing to generations of Americans. The horrors from which it has protected us are not mentioned in the document, but they are implied in the structure of the limitations it places on the power of the state to protect the rights of the people.

The same fundamental point applies to the main body of the Constitution, whose paramount points are these:

· Power ultimately derives from the people, so that the government is an instrument of the people to achieve their purposes. (That points to the long history in civilization of the people being the instruments of the ruling power. The Framers looked at the history where people were subjects – i.e. subject to the unchecked power of kings – and set up a system in which the people would be citizens with a say in their government.

· Power can only be used in accordance with a set of rules (as laid down in the Constitution, with its branches of government, its checks and balances, etc.). The Rule of Law means the taming of the coercive power of the state, which had historically so often been employed in cruel and terrible ways.

The Constitution, in other words, establishes a system that – by controlling power – protects the people from the nightmares that our Founders knew had pervaded so much of civilized history.

(The Constitution’s centrality to the blessings we Americans have enjoyed is shown also in our Framers insistence that it is the Constitution – not the nation, or anything else – that people must swear a solemn oath to protect and defend in order to exercise the powers of any office –from members of the Armed Forces to civil servants to the President of the United States.)

Nonetheless, the evidence of history (and the present) shows that some are attracted to a more tyrannical kind of power structure—one where the ruling power is not constrained by Law, but rather the law is wielded by the ruler to serve the tyrant.

When people find that system of unchecked power appealing, they often are assuming that it is not they who will suffer the injuries of such power. They imagine it will not be they who are broken on the rack, nor they who languish in dungeons, nor their religion that will be oppressed, not what they believe that will be dangerous to express.

Rather, they assume the nightmares will be visited only on those they oppose, those they hate, those with whom they disagree.

History suggests such assumptions often prove disastrously wrong. Those who cheer the tumblers taking others to the guillotine might later find themselves climbing the stairs to be beheaded.

The spirit of tyranny is not loyal to its supporters but uses people, until they are no longer of use.

A famous poem – “First They Came,” by Martin Niemoeller – written at the time of the Nazis, goes through a litany of “first they came for” this or that class of people, “And I did not speak out, because I was not” one of them. And it ends with “Then they came for me/and there was no one left/to speak out for me.”

When we look at the Constitution, in our minds we should develop that photographic negative to perceive the horrors from which the Constitution protects us. And we should realize how profoundly it behooves us to protect something that gives us such vital protections.

Americans should understand that the main issue in the election of 2024 is whether or not our constitutional order will be preserved.