Constitution Day: More Than Worthy of Reframing
By Robert H. Henry and Hugh Spitzer
Congress in 2004 merged two holidays and declared September 17 as both Constitution Day and Citizenship Day. In doing that, Congress also required educational institutions to mark the day with observances.
Celebrating Constitution Day is something that’s easy for a law school, but September 17 carries special meaning this year. This is the 239th anniversary of the Constitution, but it’s also the 250th anniversary of the signing of the Declaration of Independence.
Historian Jon Meacham has offered a wonderfully simple way to understand the relationship between the Declaration and the Constitution: The Declaration is our mission statement, and the Constitution is our user’s guide.
Congress has given us the class assignment of studying the Constitution each year — and they need to be carrying out that assignment alongside us. Members of Congress need to immerse themselves in both the Declaration and the Constitution, developing a deep understanding of the documents for daily application in their avocation.
Notably, our mission statement (the Declaration) has often been ahead of our constitutional user’s guide.
The Declaration proclaimed that “all men are created equal,” and that people possess fundamental rights, including “Life, Liberty and the pursuit of Happiness.” It also declared that government derives its legitimacy from the consent of the governed. Yet the Constitution as originally written did not establish equality where it was most important: in universal voting rights. Women, most Black Americans, and Native Americans were excluded from meaningful participation in American democracy.
Therefore, the expansion of American democracy did not end with the Constitution’s ratification. It required generations of struggle, constitutional amendments, legislation, and courageous citizens demanding that the nation live up to its declared principles.
We have made progress. The 15th Amendment in 1870 prohibited denying the vote on account of race or color. The 19th Amendment in 1920 prohibited denying the vote based on sex. In 1924, Congress passed the Indian Citizenship Act, extending full citizenship to Natie Americans born in the United States.
But even constitutional guarantees were not enough. African Americans continued to face poll taxes, literacy tests, intimidation, and other barriers to voting until the 1965 Voting Rights Act gave the federal government strong tools to enforce the 15th Amendment.
Although the current administration and the Supreme Court have eroded voting rights protections, Congressmembers should lean-in to the Constitution and its Amendments to understand the full scope of citizen and citizenship rights enshrined therein.
A more in-depth study of the Declaration of Independence is also warranted. Written 250 years ago when colonists confronted a far-off monarchy that ignored Americans’ rights, the Declaration listed 27 grievances against King George III and Parliament. These complaints reverberate today. Assertions include that the King had:
- Prevented lawful immigration into the colonies;
- Tried to control judges by withholding their salaries;
- Prevented Americans from freely trading around the world;
- Interfered with American legislatures;
- Imposed taxes and spent money without American consent.
These were violations of the “rights of Englishmen” that the British colonists in America believed they possessed and deserved.
Are elections governed by rules that apply fairly to everyone? Are citizens able to participate fully in choosing their representatives? Are courts independent from executive pressure? Does the executive respect constitutional limits on its authority? Today we are facing some of the same issues that our forebears encountered when they listed grievances against the English Monarch in the Declaration.
These are not questions only for conservatives or only for liberals to concern themselves with — in fact, this couldn’t be more non-partisan. The genius of the American constitutional system is not that it eliminates conflict or disagreement. Rather, it creates institutions and rules for managing disagreement without abandoning the principles of self-government, individual liberty, equality, and the rule of law.
That is why September 17, Constitution Day, should be more than an annual pro forma exercise. It is an opportunity to remember what our founding documents expect and require of us today. That’s why we — and everyone serving in Congress — needs to reread the Declaration and reread the Constitution to remind ourselves of what they established.
Today’s challenge is different from the 1770s and the 1780s. We do not need to overthrow a king. We need to make sure that the machinery of representative government works well enough so that citizens can exercise the rights that generations before us fought to establish and protect.
Former Judge Robert Henry served as Attorney General of Oklahoma and Chief Judge of the Tenth Circuit Court of Appeals. He is now Jurist in Residence at the University of Washington School of Law and a member of the Task Force.
Retired Professor Hugh Spitzer continues as an active member of the UW Law community.