SPQR and the Constitution
Some reflections for Constitution Day: September 17th, 2021
Yesterday, September 17th, was Constitution Day, established to commemorate September 17th, 1787, the day on which the delegates to the Constitutional Convention, held at Independence Hall in Philadelphia, signed the Constitution (a Constitution "for" the United States, not "of" a monolithic entity). Though it would still require ratification by nine of the then 13 States to go into effect, it was an epic undertaking, and an epic accomplishment.
Indeed, as written, it is probably the best blueprint for the conduct of a representative Republic, a system of governance based on the sovereignty of the people as expressed through their representatives, but also on the rule of law and a carefully balanced and nuanced system of checks and balances between Federal and State authority, and between the various branches of government, that is humanly possible to create.
And it is something which, I think, we can sometimes be a bit complacent about, take somewhat for granted. We have a written Constitution, we think. It will protect us from totalitarianism, from dictatorship. But it won’t. Not in, and of, and by itself, it won’t. The Constitution is not magic; it contains no inherent enforcement powers. It is true, it is an objective document that, in the words of the late Chief Justice of the Supreme Court, Antonin Scalia, “says what it says, and doesn’t say what it doesn’t say.”
But adherence to the Constitution still requires us to do what it says, and to not do what it says we are not to do… or, its Framers would add, it still requires us to refrain from doing what it does not specifically instruct or delegate us to do, if we happen to be in one of the branches of national government. In order for it to work, we have to follow it; we have to adhere to it, we have to respect it, and work with it and not against it.
If we twist its meaning, what it says and what it doesn’t say, if we do things that are not specifically enumerated for us to do, or fail to do things we are instructed to do – not by the document itself, but by those who wrote and enacted it for our benefit – or if we simply ignore it, set it aside, and do what we want to (or think we “should” do) in its despite, the Constitution has no power to prevent that. In the words of John Adams,
“We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge or gallantry would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution is designed only for a moral and religious people. It is wholly inadequate for any other.”
But we will, nonetheless, reap the consequences if we fail to abide by its provisions. Our Founders, and the Framers of the Constitution, were very acutely aware – being students of history, as well as of political philosophy – of the hazards, the dangers, that lurked beyond the carefully-woven fabric of our Constitution. They sought to save us from them.
Benjamin Franklin, fresh from the Constitutional Convention, was famously asked by a woman in the crowd, “Doctor Franklin, what kind of government have you given us? A Monarchy or a Republic?” To which he replied, “A Republic, madam – if you can keep it!” The “American Experiment,” ever since has been the quest to answer that question.
Rome was a Republic, before it was an Empire. And in Imperial Rome, they were very careful to give lip service to the Republican traditions they had inherited. On the Eagle Standard of every Imperial Roman legion were the letters “SPQR,” standing of “Senātus Populusque Rōmānus”: “The Senate and People of Rome.” The legend appeared in many other places, as well.
The old Senate, vestige of the days of the Roman Republic, continued to convene during the Empire. And every one of the laws and decrees it passed was written in gold ink, on finest vellum, dyed purple with costly Tyrian dye, and deposited with great ceremonial in an archive dedicated to that purpose… and then promptly ignored, if the Emperor didn’t like it, or it failed to suit his purposes.
Now, in late-republican America, we have recent Presidents falling all over themselves to see who can do more to govern via “executive order.” True, the Constitution received what may have been a mortal wound all the way back in the 1860s; but the decline has accelerated dramatically in recent administrations.
Those who complained about President Trump using too many executive orders have forgotten about Obama’s (in)famous “I've got a pen, and I've got a phone” comment. And now Biden is making them both look like pikers: if he maintains his current pace (projected average of 95/year), he’ll surpass the average of both Trump (55) and Obama (35), combined.
It is true that executive orders may by law only be directed to officials or entities within the Executive Branch of government. But because of the vast amount of regulatory authority which Congress has delegated to the Executive Branch (see also here), the consequences of these orders can be far-reaching, indeed.
On this Constitution Day, 2021, the fate of the “Senātus Populusque Rōmānus” might be a piece of history worth remembering.
("Let the reader beware.")