- - Wednesday, July 1, 2015

Oddly, a smidgen of a statement by the President back in 2009, made on the occasion of an international conference that he “believe[d] in American exceptionalism, just as I suspect that the Brits believe in British exceptionalism and the Greeks believe in Greek exceptionalism” — has helped make the idea of American exceptionalism a matter of controversy in this country. More’s the pity, especially on the occasion of Liberty Month, when it would be especially helpful to understand our undeniable uniqueness so as to assure that our liberties remain intact.

Ours is the only nation on earth to define itself and the rights of its citizens based not on blood or land, but rather on adherence to a document: the Constitution. Moreover, that document was architected in large measure to protect those rights. Here I emphatically do not refer to the Bill of Rights the first ten amendments but rather to the structure of the government defined in the body of the Constitution, with powers of governance divided among the three branches, and, as to legislative powers, between the two Houses of Congress, so as to assure that interests would always be pitted against competing interests. That structure was put in place with explicit awareness, as Madison famously wrote in Federalist 51, that neither men outside government nor those inside it are angels, and thus governments are necessary to govern the former, and limits on government are necessary to control the latter; but as between the two, government is bottom up, not top down.

Again, our Constitution is not unique for its Bill of Rights. Indeed, the constitution of the former Soviet Union had a far more impressive recitation of rights, having set forth not only political rights but also economic ones. However, the Soviet version was quite worthless because it also lodged all political power in the Communist Party, a top-down institution that made the only rules that mattered. In our own time, terrorists convicted under exquisitely refined justice systems in Europe may haul their captors before the European Court of Human Rights, another top-down institution, to argue that this or that European right has been compromised. What protects our rights as Americans is not their recitation in the first ten amendments to the Constitution, but rather the structure put in place in the body of the Constitution — with specifically enumerated legislative powers lest the legislature overreach; and a president given “the executive power” all of it but compelled to swear allegiance to the Constitution and to “take Care that the Laws be faithfully executed” lest he overreach.

Is our Constitution, then, as James Russell Lowell described it in 1888, “a machine that would run itself”? Not at all. Take, for example, what has developed as the odd symbiosis between the legislative and judicial branches of government. In the 1965 case of Griswold v. Connecticut, the Supreme Court decided that even though the word “privacy” appears nowhere in the Constitution or any of its amendments, such a right could be discerned in “penumbras” resulting from “radiations” emanating from rights that were enumerated. Therefore, Connecticut’s law barring the sale of birth control devices a law that was not then being enforced had to be struck down as unconstitutional. At least from that time, federal courts populated by judges with life tenure generally have been willing to resolve hot issues that might in another day have been resolved politically, and legislators who have no such job security have been willing to let them do it.

What began as symbiosis in the birth control device case notably continued in the abortion decisions such that even a Justice who supports the outcome of those cases, Ruth Bader Ginsburg, has suggested that the Court’s interruption of the political process may not have worked to the advantage of those who wish to see abortions generally available. Within the last few days, what started as symbiosis in Griswold may have curdled into something closer to parasitism in Obergfell as the Supreme Court short-circuited a public discussion that had seen the gradual acceptance of same-sex unions with a ruling that they are constitutionally mandated.

Neither judicial-legislative symbiosis, nor judicial parasitism, was foreseen by the Founders. In Federalist No. 78, Hamilton portrayed the judiciary as “the least dangerous to the political rights of the Constitution,” and possessed of a “natural feebleness” that left it in constant jeopardy from the other branches, at least so long as it remained separated from legislative and executive powers.

No rules, even those contained in the splendidly crafted Constitution, can determine their own application. The Constitution, even though it is responsible for so much of our exceptionalism, and for keeping our rights safe from infringement, is virtually never itself the subject of serious study in schools. It appears, at least to me, that more people are familiar with cases decided under the Constitution than with the Constitution itself. If what so defines us and sets us apart is to continue to do so, that is going to have to change. Failing such change, we may wake up to find that, like those who reside in the countries of the European Union, we are governed not from the bottom up, but from the top down.

• Michael B. Mukasey is a former Attorney General of the United States from 2007-2009 and a district judge from 1988-2006.

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