Mark Franke: The treasure of our constitution


I don’t usually give Congress credit for passing helpful legislation. Bills that are a thousand pages or more simply cannot be beneficial, especially when our elected officials admit or even brag about not reading them. One exception to my cynical assessment of Congress’ misdeeds is that it designates each September 17 as Constitution Day.

No, it’s not a federal holiday that gives everyone a paid day off. Nor are there ubiquitous parades and ceremonies to mark the anniversary of the signing of the Constitution. About the only requirement is that colleges that receive federal funding, which is all but Hillsdale and one or two others, commemorate the day in an educational way. The sadly misguided hope is that our next generation of leaders will know and appreciate the powerful simplicity of the best guiding document ever written.

It does not work. Just listen to all requests for its reinterpretation, modification or outright rejection. Abolish the electoral college because the wrong candidate was elected. Ditto for the Supreme Court for its failure to rule as demanded by a vocal and politicized group.

Even the Bill of Rights is subject to an ideological guillotine. Freedom of expression and the free exercise of religion have been attacked when citizens choose to exercise their rights regardless of the wisdom received from their political superiors. And forget the Second Amendment.

After these two, can you list the other eight? Due process, trial by jury, and self-incrimination may come to mind, but what about quartering troops in peacetime or ordinary prosecution? They just don’t generate the level of heat as the first two. I think that’s a good thing in a perverse way.

What gets lost in this feverish speech are the two most important amendments: the ninth and the tenth.

The ninth states: “The enumeration in the Constitution of certain rights shall not be construed as denying or denigrating others held by the people.

Why do we need such an amendment? Does this imply that our rights are granted by the government rather than being inalienable and considered endowed by the Creator? If the government can guarantee them, then can it withdraw them? Thomas Jefferson may have taken this answer for granted, but many people think and act otherwise today, at least insofar as they argue that these rights can be limited or restricted for just cause.

But then who determines whether the cause is just? A currently favored majority political party? This is not Britain, where its constitution appears to be what the House of Commons says it is…today. The system of checks and balances enshrined in our Constitution is intended to protect against the tyranny of the majority. Give John Adams credit for preaching this sermon.

Perhaps the answer lies in the Tenth Amendment which states that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people respectively.”

This echoes the Anglo-Saxon heritage of our nation rather than the Latinized one ubiquitous in Europe. These are the people who hold the residual rights, voluntarily surrendered to the government for limited purposes. Note that it ends with the phrase “the people”. Now think of the first words of the preamble to the Constitution: “We the people”. Chance? Probably, but it makes you think.

The Roman legal heritage of our European brothers is the opposite. Citizens are granted the right to do certain things by their government. The premise behind this is obvious: government is the source of our freedom as defined by it. Read Dan Hannon’s “Inventing Freedom: How the English Speaking People Made the Modern World” for an insightful discussion of this significant difference between these two political philosophies.

So, if basic rights are natural and granted by God, what is the importance of a constitution designed to be protected from the current electoral majority? Quite important, if one reads the Founding Fathers. The dysfunctional Articles of Confederation and multiple flaws in state constitutions provided the impetus to construct a document for this generation and its “posterity,” as the preamble gives it.

The distinction was clear to them: there is the ordinary law as determined by the legislator from time to time, and there is a fundamental law which emanates from the people themselves and is not subject to legislative whim. For more on this critical distinction, read Gordon Wood’s “Power and Liberty: Constitutionalism in the American Revolution.”

I am an American Legion son based on my father’s service in WWII. The preamble to our constitution begins with the words: “Proud possessors of a priceless heritage. This legacy is enshrined in the timeless words of the American Constitution. May we never lose sight of that.

Indiana Policy Review adjunct scholar and book reviewer Mark Franke, MBA, is a former associate vice chancellor of Indiana University-Purdue University Fort Wayne. Send feedback to [email protected]


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