Celebrating Our Constitution's Birth, and What Makes it Work | Opinion

It was a remarkable day in the U.S. Senate back in 2011, as two Supreme Court justices addressed the chamber's Judiciary Committee. They were not there to be grilled for confirmation hearings, but to give remarks about the Constitution, which delegates to the Constitutional Convention had signed on September 17, 1787. They forever changed America—and the world.

One of those judges was the late Antonin Scalia, who did what he did best: explain what makes our Constitution the most important political document in world history.

Scalia, when not firing off some of the most interesting legal opinions in Supreme Court history, loved to travel the country teaching students—law school, college and high school students alike—about our nation's Founding document.

That's precisely what he was doing back in October 2011 in Washington, D.C. with a bunch of very grown-up senators. He started by talking about two simple questions he likes to ask students about the Constitution.

"I ask them, what do you think is the reason that America is such a free country? What is it in our Constitution that makes us what we are?" Scalia began. "And I guarantee you that the answer will be 'freedom of speech, freedom of the press, no unreasonable searches and seizures, no quartering of troops in homes.'"

Scalia continued. "Those are marvelous provisions of the Bill of Rights. But then I tell them, if you think a bill of rights is what sets us apart, you're crazy. Every banana republic in the world has a bill of rights. Every president-for-life has a bill of rights," Scalia noted. "The bill of rights of the former Evil Empire, the Union of Soviet Socialist Republics, was much more than ours. They guaranteed freedom of speech, of the press, of street demonstrations and protests and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!"

Scalia went on to explain the difference between America's Constitution and others around the world that protect the rights of its people in words only.

"When you think of the word 'constitution,' it means structure. Say a person has a sound constitution, he has a sound structure," Scalia explained. "Which is what our Framers debated that whole summer in Philadelphia in 1787. They didn't talk about the Bill of Rights. That was an afterthought, wasn't it?"

Scalia was just getting started. The audience was mesmerized. Great teachers have that effect on young and old alike.

"That constitution of the Soviet Union did not prevent the centralization of power in one person or party, and when that happens the game is over," Scalia noted. "The Bill of Rights is what our Framers would call a parchment guarantee."

So what makes our Constitution work?

"The real distinctiveness of America is the structure of our government. One part of it is the independence of the judiciary. But there's a lot more," Scalia explained. "There are very few countries in the world, for example, that have a bicameral legislature. England has a House of Lords, but the House of Lords has no substantial power. They can just make the Commons pass a bill a second time. France has a Senate—it's honorific. Italy has a Senate—it's honorific. Very few countries have two separate bodies in the legislature equally powerful. That's a lot of trouble, as you gentlemen doubtless know, to get the same language through two different bodies elected in a different fashion."

Justice Antonin Scalia in 2010
Justice Antonin Scalia in 2010 Chip Somodevilla/Getty Images

The audience laughed as the master teacher continued his brief lesson before a room of mostly lawyers responsible for nominating judges to the federal courts.

Having dispensed with the unique structure of our legislative branch, Scalia addressed the uniqueness of our executive branch.

"Very few countries have a separately elected chief executive," Scalia said. "Sometimes I go to Europe to talk about separation of powers, and when I get there, all I'm talking about is independence of the judiciary because the Europeans don't even try to divide the two political powers—the two political branches, the legislature and the chief executive. In all of the parliamentary countries, the chief executive is the creature of the legislature. When there's a disagreement, they just kick him out. They have a no confidence vote, a new election and they get a prime minister who agrees with the legislature."

Scalia then explained how Europeans view the checks and balances built into our Constitution.

"[They] look at this system and they say, well, it passes one house, it doesn't pass the other house, sometimes the other house is in control of a different party, it passes both and then this president who has a veto power vetoes it—and they look at this and they say, 'Ah, it is gridlock!'" Scalia explained as the audience laughed. "And I hear Americans saying this nowadays. They talk about a dysfunctional government because there's disagreement, and the Framers would have said, 'Yes, that's exactly the way we set it up. We wanted this to be power contradicting power' because the main ill that beset us, as Hamilton said in The Federalist when he talked about a separate Senate—he said, 'Yes, it seems inconvenient, but inasmuch as the main ill that besets us is an excess of legislation, it won't be so bad.' This is 1787. He didn't know what an excess of legislation was."

There was even more laughter as Scalia then moved to the closing portion of his testimony/history lesson.

"So unless Americans can appreciate that and learn to love the separation of powers, which means learning to love the gridlock which the Framers believed would be the main protection of minorities," Scalia explained. "If a bill is about to pass that really comes down hard on some minority, they think it's horribly unfair, it doesn't take much to throw a monkey wrench into this complex system. So Americans should appreciate that and learn to love the gridlock. It's there for a reason."

Most Americans aren't taught these truths about our Founders and the nation's governing document. We may not have the oldest country in the world, but we have the world's oldest written constitution. Given the status of individual rights around the world in the 18th century, what our Founders created was nothing short of revolutionary.

Few people understand the nature of the Founders' accomplishments better than historian David McCullough, who had this to say in a 2005 Hillsdale College speech about the importance of the American people knowing the story of our Constitution, the men who created it and the historical context in which they created it.

"We have to know who we were if we're to know who we are and where we're headed," he said. "How can we not want to know about the people who've made it possible for us to live as we live, have the freedoms we have, be citizens of this greatest of countries in all time? It's not just a birthright, it is something that others struggled for, strived for, often suffered for, often were defeated for and died for—for us, for the next generation."

Great questions to ask—and have answered—on Constitution Day, and the celebration of the document's 233rd birthday.

Lee Habeeb is vice president of content for Salem Radio Network and host of Our American Stories. He lives in Oxford, Mississippi, with his wife, Valerie, and his daughter, Reagan.

The views expressed in this article are the writer's own.

Celebrating Our Constitution's Birth, and What Makes it Work | Opinion | Opinion