United States Constitution

A written constitution of government such as the U.S. Constitution presents a characteristic set of problems for leadership: meeting the demands of the people for the functions government can provide while protecting the rights of the people, not only from private, natural, or external threats, but also from government itself and from tyrannical majorities.

A written constitution, unlike an unwritten parliamentary system of government, is a supreme law that supersedes later laws that conflict with it unless they are adopted as amendments according to the procedures prescribed in the original constitution. It derives its primary legitimacy not from current assent but rather from an original historical constituent act of ratification, and no official act, however popular, can be considered legitimate unless it is logically derived from an authorization contained in the written constitution as amended and as originally understood.

The political theory on which the U.S. Constitution is based is that a society is created by a social contract or compact. The main proponent of this theory was the English philosopher John Locke, who developed it in his Second Treatise on Government, published in 1690. Although a new society can be created by adults coming together and explicitly agreeing to form a new society, people are initially inducted into an existing society by their parents or guardians, beginning with a filial contract between parent and child, which is gradually transformed into a social contract between the child and the other members of the society through a process of socialization, through which the child makes the transition from being a good child to being a good citizen. The essential terms of the social contract are that its members will mutually defend the exercise of one another's rights, from whatever might impair such exercise.

Every constitutional right is a claim against an affirmative action of government and is complementary to the exercise of a delegation of power to that government. A constitutional provision that protects a right restricts powers, and a delegation of a power restricts rights. A challenge for leadership is to define the line separating the two spheres of action and to separate and confine the actions of civilians and officials within their proper spheres.

The written constitution ratified in 1789, and the subsequent Bill of Rights, the first ten amendments, declared various rights, with the Ninth Amendment providing for unenumerated rights that complement delegated powers, but the Founders did not have confidence in the effectiveness of such declaratory provisions, which might be easily subverted by interpretation. Rather, they relied on structural and procedural provisions that divided the powers of government, allowed the divisions to check the [Page 1600]actions of one another, and defined procedures by which departures from constitutional compliance might be corrected. Some procedures were permissive, allowing for the exercise of discretion, and others were mandatory, constrained by defined duties.

In the U.S. model, there are actually two separate constitutions: an unwritten constitution of the society and a written constitution of the government. The terms of the social constitution are that decisions be made by conventions, or deliberative assemblies, called by proper notice, and conducted by established rules of procedure that comprise due process. A convention may consist of such elements as a general election or referendum, in which the voting members of the society function as a convention of the whole; a constitutional convention, which may draft or ratify a written constitution of government; a legislature called under the terms of a written constitution; a town hall meeting; a judicial court; a grand jury to conduct an investigation and make a report of its findings; a trial jury to render a verdict; or a militia called to conduct defensive operations.

...