On America's 250th, protecting core constitutional principles

As we celebrate our nation's quarter millennium, we are reminded by events swirling around us that vigilance is the eternal price of liberty. The rule of law and our precious constitutional liberties face omnipresent threats.

From both sides of the political divide. Whichever party controls the White House at any given moment seeks to expand power through executive orders, emergency powers, and increased centralized control.

The current administration has openly discussed suspending the writ of habeas corpus. The opposition responds by threatening to pack the U.S. Supreme Court. Opinion surveys find plummeting support for freedom of speech, especially among young people. We face an existential threat from China and other countries in possession of nuclear and technological weapons. The list could go on and on.

Meanwhile, many Americans are dividing into impervious silos of red and blue, with little discourse or trust between the two, and agreement only upon the dangerous principle that the ends justify the means.

In light of such challenges, how do we keep the American freedom experiment alive? That was the question our nation's founders agonized over, and largely solved, through the Constitution. It falls to those of us who place devotion to our constitutional republic and the rule of law above politics to protect their handiwork.

That means civic institutions that can only flourish in a free society. It means the vanishing breed of elected officials who place statesmanship above partisanship. It means our men and women in military and police uniforms whose first command is to the Constitution. It means states, which are tasked by their own constitutions to protect their citizens' freedom. It means lawyers, who alone among private professions are required to take an oath to the Constitution and to protect the rule of law.

That does not require us to set aside our differing politics, values, or priorities—but rather to agree on a set of core constitutional principles that we will defend against all who violate them, political friends and foes alike. Indeed, these core constitutional principles are what protect our ability to disagree.

Most countries have constitutions. What sets ours apart from authoritarian regimes is that it is not merely a paper promise but, in most instances, a tangible reality. We resolve our differences not through violence but in the political arena and the courts of law. Our system is not perfect, but time and again our history has proved that the most diminutive David can beat the most powerful Goliath.

Among the many provisions of our national constitution, I believe there are four that are most crucially important in preserving our constitutional republic and individual freedoms it guarantees. Two are structural—separation of powers and federalism. Two are substantive—due process and freedom of speech. Other provisions are extremely important, but in my view these "core four" are the essential constitutional firewalls against tyranny.

I believe they are equally important so will describe them in alphabetical order.

Due process. This is the most fundamental civil liberty tracing back more than eight centuries to Magna Carta. As we understand it in American jurisprudence, it is the right to be heard at a meaningful time in a meaningful way any time government (at any level) seeks to diminish our rights or privileges. Many other specific Bill of Rights guarantees—such as the right to jury trial, the right against cruel and unusual punishment, the right to habeas corpus, and even the immunity against improper taking of property—derive from this essential right.

How much process is required in any particular instance depends on the circumstances, but it follows from any attempted deprivation of life, liberty, or property. And by its terms in both the Fifth and Fourteenth Amendments, it pertains to all persons, not only citizens.

Like all fundamental rights, due process is either neutral and universal or it ceases to exist—it applies not just to those we like but those we don't. Our commitment to due process sets us apart from authoritarian regimes on both left and right.

Federalism. The final provision of the Bill of Rights provides that all powers not specifically delegated to the national government are retained by the states or the people. During the New Deal, federalism was sacrificed on the altar of expanding national power.

Especially as we divide in red states and blue, we all—left and right—have a stake in preserving the ability to reflect our respective values through our local polities. Federalism not only allows policy experimentation and competition among the states in areas as diverse as taxes, education, crime, welfare, healthcare, and abortion, but it provides a release valve allowing people to live in states that reflect their priorities.

Many of the policy choices that most intimately affect the lives of Americans were intended to be left largely to the states. One can predict with certainty that whichever party controls the national levers of power will seek to expand national power and shrink state autonomy. Those of us who believe as did the framers that most governmental decisionmaking should be devolved to the states should defend federalism even when we disagree how it is exercised.

Two aspects of federalism are especially pertinent. Even though the national government has extensive powers to enact legislation, it cannot "commandeer" states to effectuate or pay for them. And state courts may provide greater protection for rights under state constitutions than federal courts do under the national constitution.

Freedom of speech. From the earliest days of our republic in the Alien and Sedition Acts, the government has attempted to suppress speech. But vigorous debate, and the unfettered ability to criticize the government, are hallmarks of a flourishing democracy.

During COVID, the national government sought to coerce social media platforms to censor critical and dissenting speech. More recently, the Trump administration has taken steps against critics in the media and elsewhere. Given the central role of free speech in a constitutional republic, those who are dedicated to its survival should vigorously oppose censorship no matter whose speech is curtailed.

Separation of powers. One of the founders' greatest insights was that government's power could be successfully constrained only by separating and balancing the powers of each branch. Through sweeping delegations of power to the president and executive agencies, Congress has ceded much of its legislative authority. It falls largely, for better or worse, to the judiciary to enforce those constitutional boundaries—precisely as the framers envisioned.

In a recent opinion curbing the excessive powers of administrative agencies, West Virginia v. EPA, the Supreme Court held that authority to make major legislative policy decisions lies exclusively in the hands of Congress; and that when it properly delegates authority to the executive branch, it must do so with precision. Although many on the right cheered only the first and not the second—and vice versa on the left—defenders of our constitutional republic should support both.

We do not have to agree on these core constitutional principles in all particulars—but on the essentials, we cannot afford to not agree, because too many who hold or aspire to the reins of power would sacrifice them for political gain. The building at which I am proud to work bears the inscription "Where Law Ends, Tyranny Begins." Our moral claim as a nation is staked in individual rights and equal justice. That is too rich an inheritance to squander.