Our Constitutional Order: Freedom, Responsibility, and Power

The school looks different than when I was in school here. I know that I look different, as well. I haven’t minded getting older, but my body isn’t taking it very well. Sometimes I long for those simpler times, when bread was good for you and no one had heard of kale.

Today, we address the Constitution. Truthfully, I didn’t give much thought to the Constitution when I was here. And even in law school, I thought of my constitutional law class as just one more subject to pass.

Studying history more thoughtfully, reading the works of the Founders, and traveling to dozens of other countries changed that.

Our Constitution was a far more dramatic departure from history than I had appreciated.

From the beginning of humanity, history was characterized by strong men assembling the muscle from collaborators to dominate, rule, and generally oppress others. They were the feudal lord, Tzar, Caesar, Pharaoh, warlord, Chief, Emperor, or king. All authoritarians, most of them tyrants.

I have a chart in my office that traces the military and economic might of civilizations from 2,000 BC until today. In the over 4,000 years of human history, dominating civilizations have come and gone: the Egyptians, Greeks, Assyrians, Babylonians, Persians, Mongolians, Romans, Chinese, and even the British. Only a few short-lived sparks of democracy intrude on a virtually uninterrupted flow of authoritarian domination.

Why am I telling you this? Because authoritarianism is the default setting of human history.

Knowing history as they did, some of our Founders may have wondered whether to include some form or aspects of authoritarianism in our governmental structure in order to improve the likelihood of national survival. After all, America’s geographic isolation and the potential to someday build a robust military could have made that a credible option. But the Founders wanted something more than national survival: they wanted the people of America to enjoy “life, liberty and the pursuit of happiness.” They earnestly believed that God had endowed every person with “unalienable rights.” They believed that all persons were equal in His sight.

Throughout history, autocracies had oppressed people, and had denied people these fundamental rights. So, the Founders worked assiduously to escape the perilous attraction of authoritarianism. But authoritarianism, as you know, was not the only peril they feared. They also feared pure democracy.

James Madison described such pure or unfettered democracies as “spectacles of turbulence and contention…incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”

I think John Adams expressed the peril of pure democracy best:

“Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide. It is in vain to say that democracy is less vain, less proud, less selfish, less ambitious, or less avaricious than aristocracy or monarchy. It is not true…and nowhere appears in history. Those passions are the same in all men… and when unchecked, produce the same effects of fraud, violence, and cruelty….Individuals have conquered themselves. Nations and large bodies of men, never.”

The Founders’ task…and brilliance…was crafting a system of government that would thread the needle between the two perils that had doomed every human civilization for 4,000 years: autocracy on one side and pure democracy on the other.

This they accomplished in the ways in which we are all familiar: three separate and equal branches of government, an electoral college to elect the president, two senators from each state regardless of state population, lifetime appointments for members of the judiciary, and the primacy of state powers except for specific narrow, enumerated federal powers. I acknowledge that some of the constitutional provisions to safeguard against pure democracy have eroded since the founding, but most do in fact endure.

What the Founders crafted was not just elegant in design: it was a radical departure from history. Note the uncertainty for the nation’s future in Benjamin Franklin’s purported response to a questioner: “A Republic, if you can keep it” was shared by his colleagues and his countrymen. A nation ‘by, for and of the people’ had never long survived.

It is important to note that the Founders did not craft a perfect union. They, instead, crafted a way for the American people to build a “more perfect union.” Institutions and norms were in fact built over the ensuing decades. The sin of slavery was eventually eradicated. The first president voluntarily transferred power to his successor. The Supreme Court established the power of judicial review. The departments of the executive branch were created. Rules and procedures were adopted by each of the three branches of government. Through our Constitution and the institutions and norms that have followed, the nation has avoided the shoals of authoritarianism and pure democracy that the Founders feared. We have threaded the needle.

During my adolescence, the world was divided between two competing systems: Russian-led authoritarianism and American-led liberal democracy. True to historic precedent, the authoritarian competitor sought to conquer its competition through the use of force rather than through persuasion.

Growing up in the 50’s and 60’s, we experienced a shadow of fear. We actually had drills in school where we got under our desks for protection from possible Soviet bomb blasts. In my science class, there was a scale model of the Soviet satellite, Sputnik. It hung on the ceiling above our heads, reminding us that Russians would be able to watch us and attack us from space. There was a little ditty we sang back then: “button up your overcoat, put you goggles on, close your eyes when you realize it’s an atom bomb.” I tried to convince my dad to build a bomb shelter in our back yard. We scoped it out together on afternoon, but in the end, he demurred.

Many of you cannot imagine the relief, the lifting of an oppressing cloud, when the Soviet Union fell. History was over. Liberal democracy had won. Russia was going to emulate the West. China began to open up its economy. We even began to dismantle parts of our military.

Unfortunately, history has reasserted itself, with vengeance. I say “with vengeance” for two reasons: first, because the authoritarians of today are a good deal stronger relative to us than was the Soviet Union of the last century. And second, because America’s resolve to hew to the constitutional bulwarks against authoritarianism and pure democracy is less certain.

I’m sure you recognize that authoritarianism is in ascendency. Freedom House reports that liberal democracy is in a decade-long decline. This is quite a reversal from what we had expected. Not many years ago, we thought that China would ultimately become democratic as it adopted capitalism and joined the G-20. We cheered as Russia held elections. Then, the only poster boys of authoritarianism were the little chubby guy with a bad haircut in North Korea and the septuagenarian revolutionary in Cuba.

Today, China censors its media, shreds its promise of self-rule for people of Hong Kong, and oppresses minorities and even people of faith. Chinese leaders insist that crosses be removed from churches and be replaced with the Chinese flag, that the national anthem be sung in all church services, that church officials are approved by the government, and that the only legal Bible that may be purchased is one that the government has re-written.

China is carrying out genocide against its largest minority. Nearly one million Uyghurs have been imprisoned in concentration camps, complete with brainwashing and forced labor. Children are separated from their parents. And when fathers are taken, Han Chinese men are sent into their home to “monitor” their wives. Sexual assault and forced sterilizations are common occurrences. What the Chinese Communist Party is perpetrating on the Uyghur people is atrocity not seen or imagined coming from a nation in our era.

Russia’s Putin actually murders his political opponents. Opposition leader Alexei Navalny—after an unsuccessful assassination attempt—was arrested, subjected to a sham trial, and subsequently jailed. Dissenters Boris Nemtsov and Sergei Magnitsky were both assassinated.

Venezuela’s Maduro brutalizes what citizens have not already fled. Assad has killed hundreds of thousands of his Syrian countrymen. And sadly, the Taliban flag flies atop the presidential palace in Afghanistan.

What is even more surprising than the appalling brutality of the authoritarian regimes is their relative economic and military strength. Russia has expanded and modernized its nuclear arsenal. Today, it is not only larger than ours, it is more advanced. China’s navy is also larger than our own and it has been specifically designed to defeat us. It’s space weapon, missile, and nuclear weapon programs are in high gear.

Military might is limited by a nation’s economic might. The communism of the old Soviet Union was simply unable to keep pace with the robust strength of capitalism in the West. But China jettisoned Marxism and much of socialism and has adopted a form of capitalism, combined with Leninism. China’s economy will surpass ours within the next ten years—measured by purchase power parity, it is already larger. And given China’s population, its economy will eventually be much larger than ours. GDP is the product of two things: the size of a nation’s workforce and the output per worker. More Chinese workers will mean a larger GDP. China has made it clear that it intends to be the economic, military, and geopolitical leader of the world.

Yes, today’s autocracies, led by China, are becoming stronger. But at the same time, our resolve to follow the Constitution’s path, avoiding the perils of authoritarianism on one hand and pure democracy on the other, is wavering.

No more stunning evidence of this was the attempt to prevent the lawful and constitutional transfer of power on January 6th. It followed from the President of the United States claiming that the election had been stolen from him. His purported evidence spun from pillar to post, from counterfeit ballots imported from China, to stuffed ballot boxes, to dead voters, to voting machines manipulated from afar.

Even more recently, a prominent TV pundit traveled to Hungary to extol Victor Orbán as a model for us to emulate. Orbán censors the media in his country, ignores the will of the people in elections, and amasses wealth and power for himself and his cronies. Hungary is ranked as one of the least free, least democratic countries in the developed world. Hungary, a model for America?

As I was running for the Senate, I held quite a number of town hall meetings. In one, a woman asked me if I would vote to remove NBC, CBS, and ABC from the air. I said no, of course. I presumed that she had a point she was going to make about something I had said. But no, her point was simply that they should not be allowed on TV. She said that networks like that said things that were wrong and that they should be shut down. I have since learned that her perspective is not as singular as I had imagined.

Constitutional and institutional guardrails are under less obvious but just as real challenges elsewhere. Politicians clamor to eliminate the electoral college. Many of my Democrat colleagues want to pack the Supreme Court, the logic apparently being that whoever has the majority in Congress should be able to conform the Court to its political philosophy. The Court would cease to be a separate and equal branch and become instead a subsidiary, partisan branch.

The same sentiment applies to the effort to eliminate the filibuster. Despite its name, this is not really a rule about senators giving interminable speeches; it is a rule that requires 60 votes for most major legislation to pass. Accordingly, compromise between the two parties is required for a bill to pass and this, in turn, gives the minority a voice and a certain measure of power. And it therefore slows things down. Madison explained that the Senate would serve as a “necessary fence” against the “fickleness and passion” that often influenced the public and the House of Representatives. George Washington is said to have described the Senate as a “saucer” that cooled legislation passed out of the House, like a saucer catches hot tea that overflows from a cup.

Since its early history, Senate rules have therefore allowed unlimited debate. The filibuster rule has been a cornerstone of the institution for nearly two centuries. Eliminating it would forever change one of the key institutions of our Republic, one that checks the power of the majority and preserves the influence of the minority. Doing so would draw us closer to the shoal of pure democracy.

With the economic and military power of autocratic China and Russia increasing and American resolve to avoid authoritarianism and pure democracy declining, freedom itself—the right of every person to enjoy life liberty and the pursuit of happiness—is in the balance.

What is required of us who love freedom, the Constitution, and America?

First, our leaders in Washington must take action to prevent China from continuing to build its economic might through predatory means, through practices that violate the rules of international trade and order. China must not be allowed to continue to steal intellectual property. It must not be allowed to massively subsidize industries that then bankrupt the companies that abide by international rules. It must not be allowed to monopolize key raw materials. The United States alone is not able to enforce these restrictions—our economy is simply not large enough to discipline their malevolent behavior. It is imperative that we join forces with the other nations that abide by the rules of international order to clearly establish accepted practices and deny access to our markets to China if it flaunts them.

But there is work to do here at home as well. Among many other things, we must modernize our military. We must endeavor to make our businesses more successful and competitive. We should invest a great deal more in emerging technologies. One commentator has truthfully said that every bill before Congress should be evaluated by whether or not it strengthens America vs. China. Every bill.

One more thing for all of us here. Please excuse me for a personal reference. The founder of my religion is reported to have said that the Constitution of the United States would someday “hang, as it were, by a thread.” Further that “the Elders of the Church would save it.” Now they didn’t have tape recorders or smart phones back then and I’m not at all sure he actually said that. But if you’ll allow me some literary license, I’d suggest that this sentiment may apply to all of us—not just to a few Latter-day Saints and Elders. We can help “thread the needle” between authoritarianism and pure democracy by exercising what the Founders called “public virtues:” listening respectfully to the opinions of others, expanding our sources of information beyond those we agree with, defending the entire Constitution rather than just the parts we like, voting for men and women of character and probity, and acknowledging that there is a great deal that we just don’t know.