The US Constitution: A Look Back and A Look Ahead

By Jonathan Koenig, Appellate Division Chief in the U.S. Attorney's Office, Eastern District of Wisconsin and a BA Parent.
(The following is a condensed version of Brookfield Academy’s American Character Series Presentation on September 17, 2020.)

I am privileged to work for the United States Department of Justice, the views I express today are my own.

The story of our Constitution is—I hope—familiar. Delegates met in 1787 in Philadelphia with the mission of revising the Articles of Confederation, which had loosely bound the states together since the end of the American Revolution a few years earlier.

The delegates who convened in Philadelphia vastly exceeded their mission. Instead of tweaking the Articles of Confederation, they brought into being a novel, complex, and intricate form of government with a much stronger national component.

So what did the Founders regard as the purpose of the Constitution? It was, in the words of the preamble, to create a more perfect union while also securing the blessings of liberty “to ourselves and our Posterity.” These two objectives went together, because without a more perfect union the whole idea of an independent nation on American soil might fail. It was the purpose of the Constitution—and the government it created—to secure these rights of life, liberty, and property.

People sometimes think that our rights come from the government or from the Constitution, but nothing could be more contrary to the Framers’ thinking. The Declaration of Independence had stated, as a “self-evident truth,” the idea that men were endowed by their Creator with certain unalienable rights, among them life, liberty, and the pursuit of happiness. According to the Declaration, governments were instituted among men to secure these rights. The Framers remained committed to the principles of the Declaration, but they had to find a way to carry those principles forward that would actually work.

The Constitution, for all its brilliance, was imperfect. It did not secure any rights for enslaved Black Americans, nor specifically for women. But we should be careful about judging the document by today’s standards. The choice that confronted the Framers was existential: it was a choice between survival and failure, not a choice between the document they fashioned and the document we in 2020 would prefer they had created.

The Constitution is a brilliant document, and an enduring one, but the text of the document does not tell the whole story of American constitutionalism. The Framers believed that the success of American democracy would depend at least in part on a virtuous citizenry. Some academics have emphasized the idea of public-spiritedness: according to this view, the Framers believed that virtue consisted in seeking the public good above one’s individual self-interest. Other scholars, with a more libertarian bent, have emphasized that the Framers were very much grounded in natural rights philosophy and the idea that rights precede government. I would argue that both types of virtue – public spiritedness and love of individual liberty—are key to the success of our form of government.

This year’s theme at BA is to “Embrace Challenge.” So let me outline just a few of the challenges to the future of American constitutionalism.

One challenge is ignorance. In order to preserve the “spirit which prizes liberty,” we need to know our history, cherish our rights, and celebrate the ways in which the Constitution secures these rights by limiting government power. Brookfield Academy’s emphasis on heritage means that BA students will not venture out into the world ignorant of the founding principles. I challenge each of us to do some reading about the Constitution or the Founding Era during the remainder of 2020.

Another challenge is the deep and bitter divide in our politics, which destroys the spirit of liberty because it sours people on democracy and self-government. Changing our ways will require humility and compromise, but perhaps with effort we can return to the kind of political culture we had as recently as the late 1980s and early 1990s, when Democrats and Republicans, for all their differences, worked together to reform the tax code, preserve the future of Social Security, pass the ADA, and enact major revisions to the Clean Air Act.

Yet another challenge is apathy or should I say, disengagement. I am talking instead about civil society. America’s greatest strength has always been the vibrancy of her civil society, by which I mean the myriad private institutions that do many of the things which, in other countries, are done by the government. Churches, synagogues, temples, volunteer organizations, Kiwanis clubs, charities, arts organizations, girl scout troops.

So I challenge all of us, when the pandemic is over, to go offline and re-engage with our religious institutions, clubs, and volunteer associations, and thus connect with our fellow citizens. This kind of activity is part of being a virtuous citizen, every bit as much as paying taxes, serving on a jury, or voting.

In conclusion, we are the beneficiaries of a remarkable document, the Constitution, which celebrates its 233rd birthday this year. But the success of the republican form of government established by the Constitution was not guaranteed and is not guaranteed. The Constitution exists in a cultural context. Benjamin Franklin recognized this when he said that the delegates to the convention had created “a republic, if you can keep it.” Whether we can “keep it” is up to each one of us, in every generation. If we are to succeed, we must understand our heritage, cultivate both public-spiritedness and a love of individual liberty, restore civility to politics, and re-invigorate the institutions of civil society. In short, citizenship in a republic is not a passive endeavor—we must actively embrace the challenge of being virtuous citizens.

View this American Character Series presentation in its entirety, receive your link HERE.

Want to Learn More about the Constitution? Join us for an All-School Parent Book Discussion beginning on Wednesday, November 4. More information on our website or RSVP to Linda Pryor.

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