© 2013 The Heritage Foundation
Building an America where freedom, opportunity, prosperity, and civil society flourish.
Before the American Revolution, subjects were required to swear loyalty to the reigning monarch. Many colonial documents included oaths of allegiance to the British king. The United States Constitution, however, contains a simple requirement in Article VI, Clause 3 that “the Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”
Not to king or ruler, or even to President or to Congress or the Supreme Court, but to the United States Constitution. For as we learn in the preceding clause, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”
Under current law, any individual elected or appointed to an office of honor or profit in the civil service or uniformed services (except the President, who takes the specific oath prescribed in Article II, Section 3) takes the following oath:
I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter [33 USC 3331).
Elected officials must look to the Constitution not as a historical curiosity, but AS a matter of solemn obligation and a source of guidance for regrounding our confused politics and reorienting public policy to a fixed point of common reference. Today’s problems are not going to be solved by formulaic appeals to first principles but through a strong commitment and clear understanding of those principles that will bring the kind of thinking and decision-making that we need to address the great policy questions of our time.
The key to distinguishing between reasonable compromise that advances toward the goal and illusory, short-term gains at the expense of larger objectives is a deep understanding of and commitment to core principles. Such a commitment can transform prudence from mere moderation into bold and courageous action when the times call for it. Serious, thoughtful leaders cannot doubt that we are living in just such a time, calling for prudence at its very boldest.
Constitutional government requires those who make, adjudicate, and enforce the law to be guided by the Constitution above ordinary legislation and beyond the political winds of the times. Judges, Congressmen, and Presidents all take an oath to the Constitution, which means that upholding the Constitution is a responsibility of each branch of government. After all, it is the Constitution—and not the legislature, the executive, or the courts—that is the supreme law of the land.
Just as the Supreme Court must take the side of the Constitution in interpreting the laws in cases before it (judicial review), so Congress in making laws and the President in signing and then executing laws are required—by the very nature of delegated powers in a written constitution—to do the same in the exercise of their functions. For Members of Congress, this means determining proper constitutional authority in passing legislation and overseeing the operations of the government. For the executive, it means considering the constitutionality of legislation presented for approval and withholding approval of unconstitutional legislation, as well as executing the law in a constitutional manner.
Just as important, each branch of government must also be responsible (and held responsible) for its actions according to the structure and distribution of government powers set out in the Constitution. Government must be limited but also energetic in fulfilling its legitimate constitutional functions. Each branch of government should actively defend its own constitutional powers and challenge the constitutional claims of the other branches. Neither the legislative nor the executive can check and balance the other branches of government—and neither can stand up to the judiciary—unless they take seriously their responsibility to act according to their interpretation of the Constitution. For the elected branches of government to turn their authority over to the courts—or for Congress to give its legislative powers to bureaucrats—is an abdication of both constitutional responsibility and popular consent.
While judges are in a unique position to spell out the meaning and consequences of the Constitution, it is imperative to understand—and for them to recognize—that they are not above, outside, or immune to the constraints of that document. The Constitution limits judicial power just as it limits the powers of the executive and legislative branches, and all are bound by its strictures. Indeed, judges are more constrained in that they have a special obligation to uphold the Constitution impartially in cases before them, despite political pressures and changing times. This enables the lawmaking branches of government to address current challenges in the stable context of the constitutional rule of law.
Under normal circumstances, constitutional maintenance is sufficient to support the Constitution, but the federal government operates well outside of its proper relationship with the Constitution, demanding the restoration of constitutional government. Lawmakers in particular must act strategically in order to relimit government, defining and pursuing a realistic path that focuses government on its primary obligations, restores its responsibility and democratic accountability, and corrects its worst excesses. Stemming the tide of unlimited government requires several general objectives on the part of the legislative branch.
First, we must get control of government. For far too long, the federal government has been on a binge of spending, taxing, and borrowing; its unsustainable promises now feed escalating debts that will cripple our economy, undermine our prosperity, and lead to fiscal insolvency. In assuming more and more tasks outside of its responsibilities, the federal government continually centralizes and regulates America’s economy, politics, and society, increasingly wrapping citizens, businesses, and local and state government in an intricate web of federal policies, procedures, and programs.
Vested with the legislative power, Congress makes the laws that direct the general operations, programs, and policies of the federal government. In particular, Congress holds the power of the purse, which means it has principal responsibility for the taxing, spending, and budgeting of the federal government. It also has the primary duty of reestablishing legislative accountability, checking administrative overreach, and beginning to make the federal government constitutionally accountable once again.
Second, we must begin to dismantle the administrative state. Too much of government today occurs outside of the confines of the Constitution in unaccountable administrative agencies or obscure bureaucracies. Rather than spending its time micromanaging the bureaucracy, Congress should reassert its authority as the nation’s legislature, avoid delegating its power, and take responsibility for all of the laws that govern us. Too many programs, once started, are automatically reauthorized and become permanent vestiges of government. A good way to correct this would be for Congress periodically to review and authorize anew every major program, creating an ongoing mechanism that would work against the steady, automatic expansion of government. Rather than assuming their permanence, Congress should subject government programs to regular reevaluation of their authority, purpose, and effectiveness.
Third, we must pursue a decided reversal of government centralization in the United States. This does not mean merely shifting bureaucratic authority to states that are themselves bureaucratic and increasingly dependent on the federal largess, but rather a significant decentralization of power and of vast areas of policymaking from the federal government to states, local communities, neighborhoods, families, and individual citizens. Constitutional self-government cannot mean that every question, problem, and aspect of our lives demands a new federal program.
In the Declaration of Independence, the right of the people to institute government means “laying its foundations on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.” Happiness is the objective, but safety is the initial requirement of the pursuit. A chief purpose of the Constitution—and the particular obligation of the federal government—is “to provide for the common defence.” Congress is given significant powers to provide for that defense (six of the 17 powers granted Congress in Article I, Section 8 deal with national defense), and the President, also commander in chief of the military forces, is constitutionally and morally obligated to “preserve, protect, and defend the Constitution of the United States.”
As a result, it is the constitutional duty of the federal government to secure the country’s international borders and preserve and protect its territorial integrity, to strengthen and preserve its constitutional government, and to promote the long-term prosperity and well-being of its people. This means that the United States must be able, willing, and prepared at all times to defend itself, its people, and its institutions from conventional and unconventional threats to its vital interests, both at home and from abroad. Yet, despite unmatched rates of spending and government activity, the federal government increasingly neglects the one function that is its exclusive responsibility.
American policy must not be driven by the naïve notion that we can rid the world of tyranny and remake other nations in our image or by foolish claims that we can somehow withdraw from the world and isolate ourselves from threats to our sovereignty and independence. The better course—consistent with constitutional government, under which elected leaders have an obligation to act in the best interests of the people they represent and on whose behalf they exercise power—is to focus on America’s national interests in light of its principles, maintaining the United States’ independence and freedom of action while prudently advancing liberty in the world.
Our national allegiance stems not from deference to political leaders, ethnic categories, or an abstract state, but from a profound attachment to the country that protects and secures individual freedom, fundamental equal rights, and the constitutional rule of law. Because we hold that governments are instituted among men, deriving their just powers from the consent of the governed, a profound commitment to the concept of sovereignty must be at the center of our nation’s policies toward other countries and the world. Sovereignty requires, just as constitutional government necessitates, that we reject outright the claims of any international groups, organizations, or courts (as in the case of international criminal courts that assert jurisdiction over our legal system) that violate the Constitution of the United States.
America is exceptional because it is dedicated to the universal principles of human liberty that all are fundamentally equal by nature and equally endowed with unalienable rights to life, liberty, and the pursuit of happiness. Government exists to secure these core rights, deriving its just powers from the consent of the governed. A carefully written constitution limiting government under the rule of law expresses that consent and creates the framework for establishing religious liberty, providing for economic opportunity, protecting national independence, and securing the blessings of liberty—all this so that we may govern ourselves.
Those seeking and holding public office have a profound responsibility to understand the history and principles of American liberty, the ideas contained in the Declaration of Independence, and the framework of the Constitution. They should be well versed in the primary concepts and documents of the Founding—not because they are historical relics, but because they have enduring meaning for public life today. A basic understanding of our history, with its many achievements and triumphs as well as its flaws and failures, is a key aspect of the knowledge required for public office.
One of the most important tasks of public officials is to articulate how the principles and limits of their constitutional responsibilities inform and guide their actions and the public-policy choices they make. Congressmen should do this in committee deliberation and floor debates on proposed legislation; judges, in their written opinions interpreting the real meaning of the Constitution in the cases before them; and Presidents, in executive orders, legislative signing statements, and especially official addresses. Public officials, acting on behalf of the consent of the governed, have an obligation to make their meaning, and to make policies and laws, clear and understandable to those governed—without any reservation or purpose of evasion.
Political leaders should speak more about the meaning of America’s principles and institutions in speeches, statements, and official communications, making commonsense, principled arguments even when not making specific proposals, decisions, or policy pronouncements. Public statements should be an occasion for informing and educating American citizens about their obligations as well as their natural and constitutional rights. The modern abandonment of this practice has much to do with the widespread cynicism and scorn in which our political leaders of left and right are held today—an attitude which does not bode well for the future of democratic government.
Despite constant criticism and scorn by academic elites, political leaders, and the popular media, most Americans still believe in the uniqueness of this country and respect the noble ideas put forth by the American Founders. Political leaders need to engage the public debate in new ways by making a clear and forthright defense of core principles, applying them creatively to the questions of the day, supporting positions consistent with those principles, and generally reframing the national debate about the most serious issues before us. The aim must be a clear expression and forthright defense of America’s principles in the public square so that they become, once again, an expression of the American mind.
Too often, the Constitution is seen as merely a legal document, leaving judges to have the final say concerning every constitutional question. The path of reconstructing limited government requires a popular constitutionalism that fosters and builds a new public consensus favoring limited constitutional government, taking us from where we are to where we want to be, reshaping public policy to reflect a constitutional framework of limited government. The opportunity and the challenge we have now is to turn the healthy public sentiment of the moment, which stands against a partisan agenda to revive an activist state, into a settled and enduring political opinion about the nature and purpose of constitutional government.
© 2013 The Heritage Foundation