This past Tuesday, September 17th, was Constitution Day here in the U.S. While I am hesitant as an American to write about my country in the abstract, the idea of a written constitution providing for citizen sovereignty, checks and balances and rights for individuals against the state has universal ethical implications.
Today, we see great commotions over these issues around our world: a test of an unwritten constitution in the U.K., the evolution of a constitutional order in the European Union as a federation, the unconstitutional order in Venezuela and autocracy in Turkey, theological supervision of the state in Iran, protests against the state apparatus in Hong Kong and Moscow and progressive American presidential candidates such as Bernie Sanders and Elizabeth Warren suggesting that checks and balances are oppressive and should be abandoned or bypassed so that a majority can enjoy its will to power.
The points to contemplate, I suggest, are two: one is the purpose of a state as set forth in our Constitution. This is an ethical statement about the use of public power in trust. The preamble sets forth the legitimate business of government:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
(I am, I hope, not unduly immodest in these days of political discord in my country to acknowledge my pride that one of my mother’s forebearers, Gouverneur Morris, wrote these words.)
The legal form of the U.S. Constitution, I suggest, is a deed of trust. The sovereign people, acting through state conventions, entrust limited powers to a government for all of them. The powers are to be used in trust so the Constitution provided the text of an oath which qualifies a person to become president. That person must swear to rise above party, religion, self-interest and all personal prejudices in order that he or she may “faithfully execute the office” of president.
Constitutional government is one of office, not of will. Constitutional government rejects the will-to-power ethics of Herbert Spencer’s social Darwinism and of Nietzsche’s nihilism.
The reason for this constraint lies in keen and truthful conclusions about our human nature. In Federalist Paper No.55, written by James Madison, it holds that:
“As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.”