America’s two constitutions

Every year America celebrates Constitution Day on Sept. 17, commemorating the drafting of the Constitution on that date in 1787. This year marks the 235th anniversary of this remarkable document, which remains the world’s oldest active written constitution. A great deal has changed in America over the last two centuries, some of it for the better and much of it for the worse. What hasn’t changed, however, is the fundamental dynamic between law and morality at the basis of any human society.

America’s written Constitution is vitally important. It remains the basis for all positive law in the land. It is what all sworn public servants, military service members, and political officials swear to uphold and protect. Writing in defense of the Constitution ahead of its ratification, Alexander Hamilton put the options in stark terms. The new United States must, he said, face “the alternative of an adoption of the new Constitution or a dismemberment of the Union.” Every coherent nation needs something that serves as an ultimate authority, and written, codified, and ratified laws are the best option for promoting public justice that have been yet discovered in human history.

Just as every polity needs a legal foundation, the American constitution has served this purpose ably through the years. It has been enhanced and altered by numerous amendments, notably the Bill of Rights, which were ratified in 1791. The first of the freedoms outlined in the Bill of Rights is that of religious liberty, framed in terms of restrictions on what the federal government can and cannot legitimately do: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The priority given to respecting religious liberty in the founding generation of the Constitution points toward a more fundamental relationship at the heart of any functioning democracy–-indeed, of any political order. As important as the enacted and explicit laws of any nation are, they ultimately depend upon and in turn influence the broader moral culture and character of the people. Along with America’s written and ratified Constitution, we must consider the larger and more expansive moral and spiritual constitution of the American people.

We might understand this relationship as a necessary consequence of the inherent limits of what can be accomplished by political means and through positive law. Laws passed by politicians can only accomplish so much. They can punish evildoers and provide broad guidance for what is and is not acceptable in a society. But they cannot on their own address every individual social interaction. They cannot be so detailed as to address any possible contingency. Laws cannot through their own power create a moral people, although they can encourage virtue and can certainly corrupt character.

Good laws are of utmost importance for a just political order. But laws and politics more generally do not govern everything that is of significance in our lives. As Augustine put it, the relationship between civil law and morality is mirrored in the distinction between crimes that are punishable by civil authority and sins, which are violations of God’s law. Thus, observed Augustine, “Although every crime is a sin, not every sin is a crime.”

And the efficacy of laws—even the Constitution of the United States—depend on the moral and spiritual commitments of the people they are meant to regulate. This dynamic between law and morality is unavoidable in a fallen world. This is true for any political order, but it is especially salient in democratic regimes in which the citizens themselves have significant political authority.

The framers of the Constitution and the founders of the American experiment in ordered liberty had precisely this relationship in mind as they formulated the basic law of the land. Thus John Adams contended that “our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.” As the character of a people changes, so too must their laws.

Like any dynamic relationship in the world there are highs and lows. Sometimes the laws lag behind the moral character of the people. And sometimes the people’s moral state needs significant correction from positive law. But as we consider the importance of America’s written Constitution, we should always keep in mind the significance of its invisible—and more fundamental–moral constitution, which depends upon the virtue of the American people.