Year in and year out, it seems like we’re hammered with one “constitutional crisis” or another. While most are serious issues, nearly all of them are really just symptoms of a much deeper constitutional crisis that we’ve been going through for a long time. And it’s a crisis that obliterates foundational principles of the American Revolution.
But in order to fully grasp this situation, it’s essential to understand what we mean by the Revolution. Writing to Thomas Jefferson, John Adams described it this way:
What do We mean by the Revolution? The War? That was no part of the Revolution. It was only an Effect and Consequence of it. The Revolution was in the Minds of the People, and this was effected, from 1760 to 1775, in the course of fifteen Years before a drop of blood was drawn at Lexington.
In other letters, Adams often pointed to James Otis, Jr’s thunderous 1761 speech against the Writs of Assistance as “the beginning of the controversy” between the colonies and Great Britain. Here, Otis asserted the view that “an act against the constitution is void.”
In the British system, the “King in Parliament” held sovereignty, or final authority. As Mike Maharrey notes, “every act of Parliament was, in essence, part of the constitution. It was an absurdity to argue an act of Parliament was “unconstitutional.” Since it was sovereign, anything Parliament did was, by definition, constitutional. In fact, parliamentary acts became part of the constitutional structure.”
So by taking the view that the meaning of even the unwritten British Constitution was above the views and laws of Parliament, Otis was espousing a radical view – one that would become a big part of the Revolution in the years to follow.
In 1765, on his 29th birthday, and just 11 days after taking his oath of office, Patrick Henry introduced a series of resolutions against the Stamp Act. Like Otis, he took the position that Parliament’s power had limits that it was not allowed to cross. He also answered the question of how a people should treat an act of government that’s beyond the constitution, and thus, void.
Henry said the people “are not bound to yield obedience to any law or ordinance whatsoever,” that attempt to usurp local authority over such internal policy and taxation.
His speech in support of the resolutions was, of course, met with intense opposition, “treason!,” they cried, but he didn’t back down.
These are two of many examples of how the American Revolutionaries began to think of a constitution as something that exists above the government. They increasingly rejected the idea that government held sovereignty and formed the constitution, and instead conceived of the constitution as something from the people to put limits on government.
Thomas Paine described it this way, “A constitution is not an act of a government, but of a people constituting a government.”
George Mason summed it up:
In all our associations; in all our agreements let us never lose sight of this fundamental maxim–that all power was originally lodged in, and consequently is derived from, the people. We should wear it as a breastplate, and buckle it on as our armour.
This radical change in the views of the people – the American Revolution – created a constitutional crisis with the British, who expressly claimed power over the colonies “in all cases whatsoever.”
In practice, writes Maharrey, “the 18th-century British system … rested on a living, breathing constitution. The government itself defined and enforced whatever limits it might have. Essentially, it was unlimited in power and authority.”
Sounds pretty familiar, doesn’t it?
Maharrey notes:
For all practical purposes, the federal government today operates without any limits at all. Everything the federal government does and approves is considered “constitutional.”
In practice, the people themselves treat federal power in much the same way the British wanted the colonies to treat British power. That is, the government pretty much does whatever it wants until the government determines that the government should stop.
The same situation applies whether the people “vote the bums out,” or sue in federal court, or march on Washington D.C. In all these situations, it’s about convincing the government to stop doing what the government shouldn’t have been doing in the first place.
That’s not how you describe a “land of the free,” it’s a population on its knees, begging for scraps.
And when it comes to the Constitution itself, things might be even worse.
The vast majority of the people believe the constitution means what the supreme court tells us it means – until it changes its mind. In other words, the federal government gets to determine the extent of its own power.
In practice, that’s giving the government final authority – which is not much different than the British view of sovereignty at the time of the Revolution.
Founders such as Thomas Jefferson and Richard Henry Lee said this kind of “elective despotism” was not what they fought for – and this represents our true “constitutional crisis” today.
The odds may seem stacked against us, but things can be turned around. We have the wisdom, the advice, the experience, and the strategy from the founders and old revolutionaries.
As John Dickinson told us, it’s ultimately up to the people to protect and defend their own constitution – whether the government likes it, or not.
“It is their duty to watch, and their right to take care, that the Constitution be preserved. Or, in the Roman phrase on perilous occasions, to provide that the republic receive no damage.”
It won’t be quick or easy, but as Samuel Adams put it, “All might be free if they valued freedom, and defended it as they ought.”
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