The Constitution still has plenty to teach us -- if we bother to learn it

As students settle back into school—high school, college, and even law and graduate schools—this summer’s events have given them much to think about. They have observed chaotic scenes across the country in which groups of citizens have tried to infringe on each other’s constitutional rights to assemble, and arguments that the Constitution’s protections for freedom of speech should not protect every kind of speech. They have witnessed a movement to take down public monuments that some have advocated extending to the Founders on the ground that they, too, perpetuated or condoned slavery. And they watched a growing group of athletes refuse to say the national anthem, on the ground that our country and its principles still stand for the perpetuation of racial divisions.

There is a common thread running through these events, a thread that also underlies a much broader cultural conflict. It stems in part from the much observed want of civics education today. YouTube clips of high school and college students who fail to answer basic question about American history are legion, and most Americans can identify at most one of the specific freedoms guaranteed by the First Amendment. Why should we expect our youth to defend the First Amendment when they are rarely taught what it actually says, and even more rarely taught why it says what it does?

The civics problem gets worse. Although we usually lament the lack of civic knowledge among our youth and students, even when they are taught civics or about our form of government—including in college and in the law schools—they’re often taught the wrong things. More and more today, they’re taught not that our form of government is worthy of our admiration, but just the opposite. They’re taught that our Founders were white, male, and mostly slaveowners, which immediately disqualifies the Constitution they wrote from our admiration. Perhaps it ought to surprise no one that football players making millions of dollars in our free, democratic society take a knee rather than stand proud when our national anthem plays.

Many today can readily recite that the Founders were white, male, and slaveowners, but almost no one can readily explain what the Constitution they framed accomplished.

What we need is a reorientation of the way we teach about our past—or at least to stop the trend in the public discourse and institutions of higher education to denigrate our past because of its imperfections. Of course not all of American history was glorious; no history ever was, and indeed American society is imperfect today. What we need is a reminder that we study history not only to learn from the mistakes and imperfections of others, but to celebrate the achievements of the past against the conditions of these imperfections.

Our Founders are the prime example. Many today can readily recite that they were white, male, and slaveowners, but almost no one can readily explain what the Constitution they framed accomplished. As I have explained in my book A Debt Against the Living, the Founders’ accomplishment can be readily stated if only we took the time to consider it. The Constitution, to be worth of the name of a constitution, had to do two things: it had to create a regime of self-government on the one hand, and ensure sufficient protections for our natural liberties on the other.

These two competing ends of government are in tension with each other and very hard to balance, because it’s often popular majorities that infringe on the rights of minorities. Our Constitution—particularly as it has been perfected with subsequent amendments—balances these two ends remarkably well through ingenious mechanisms like the separation of powers, checks and balances, the representative mechanism, the division of federal and state power, the enumeration of power, and the bill of rights, which channel our exercise of self-government in ways that remedy the vices inherent in majority rule.

That is why we celebrate the Founders. We don’t celebrate the Founders for slavery, the exclusion of women, or the exclusion of the poor; they didn’t invent these things, and these conditions had been universal. The Founders’ achievement was quite different: Their achievement was creating a regime that successfully balanced the competing ends of government. It was framing a constitution that abolished property requirements for federal office, and that abolished hereditary privileges and titles of nobility. It was writing for the first time in a foundational national document that all men are created equal, as a result of which writing half the states abolished slavery between 1776 and 1789, the year the Constitution was adopted.

If the slaveowning of some of the Founders and their other flaws were sufficient reason to ignore their achievement, then almost all past acts—even those that continue to redound to our great benefit today—would be illegitimate. Was the Fifteenth Amendment guaranteeing African-Americans the right to vote illegitimate because women were still excluded from the democratic process? That would be absurd. This Amendment was legitimate whether or not women could then vote, because it accomplished good and just things in the world—it was an improvement upon the past, and that is why we celebrate it.

The exact same argument can be made about the Constitution. The Founders were not perfect. But that is not why we celebrate them. We celebrate them for their accomplishment in spite of their flaws. And that accomplishment—the creation of the first free government of the modern world, committed to the principle of equality under law—remains worthy of our great admiration today.

Ilan Wurman is the author of A Debt Against the Living: An Introduction to Originalism.