Unremarkable and Reliable: The Ideal Government in a Changing Society

Exploring the Balance Between Historical Injustices and Contemporary Governance

The operations of government in our lives can be intrusive or absent—each a distortion of government’s chief aim. The ideal role of government is best exercised when it is both unremarkable and reliable. Like the daily delivery by the postal service and the trust in clean water when turning on the tap, the powers of government are best exercised when they exist as a companion in our lives to buttress our better natures and restrain our worst inclinations.

For Americans, government has a complex history. It has blood on its hands from legislating the ethnic cleansing of native peoples and profiting from the auction block where enslaved people were commodities exchanged by landowners to build our economy. Government is only as good as its ability to confront its past and wrestle with a commitment to “We the people,” when the “people” implied were white, wealthy, land-owning men. Amidst this contradiction lies the commitment to life, liberty, and happiness.

A fundamental question is to consider the former tools of colonialism and oppression alongside the latter idealism of consent to be governed by the people and a commitment to the equality of all, which never meant equal and never meant all.

Are we the descriptive nation of enslavers or the normative nation of equality?

Choosing between the two offers a false dichotomy. To the enslavers, there were abolitionists; to the wealthy, land-owning whites, there have been generations of struggle for women’s suffrage and civil rights for nonwhite people. Add to this disability justice and social services, and America has long been in tension with its own founding. The founding that enshrined inequality and the slow progress to overcome our own blueprint.

The role of government is bifurcated along its aim and its understanding of to whom it owes its authority to pursue its aim. One aim of government is to provide for the security of its people. By what authority does the government ground such an aim? Is protection applicable only to the wealthy, white, land-owning class that inked the framing documents of America, or does the duty of protection extend to populations not originally circumscribed within the scope of Constitutional boundaries?

Imagine that an amendment to the Constitution is part and parcel of the Constitution itself. In the same way that the neshama (soul) of a Jewish convert stands alongside the neshama of born Jews—an important grounding myth for our people—are amendments to carry the same weight as the original document, or do amendments exist in a second-class status of not-quite-Constitutional?

I am inclined to say that following the methodology of amendment by vote and ratification, the articles and amendments of the Constitution participate in the same species of authority, regardless of original or amended. Thus, there is something sui generis about Constitutional authority that transcends its date of authorship. The 14th Amendment is no more or less binding than the first article.

If this is true, then “We the People” changes its reference each time it is uttered. In the 18th century, the utterance referred to white, wealthy, land-owning men. Today, “We the People” refers to the extension of Constitutional scope to include amendments and judicial review. Indeed, “We the People” tracks an extension of the franchise over time.

The objection to this view is that it risks misunderstanding what the founders intended. They certainly did not mean “all people” when they penned, “We the people.” Was there a sense in which an expansive definition of all people may be inferred from what the founders wrote? This is an interesting question likely taken up in centuries of law journals. That discussion rapidly advances beyond my understanding, knowledge, and competence.

The concern is not merely discerning who falls under Constitutional protections. The concern about who counts among the people also restricts the government’s authority. The Constitution is no mere rule book. The authority of our democratic republic rests on consent by the people to be governed, and our consent is codified in the Constitution. We consent to be governed by our ratification of the Constitution, and all government authorities are awarded their authority within the bounds of the Constitution. In other words, no government official is above the Constitution. To start at the top, the Constitution binds the President. Stated yet again, the Constitution confers authority onto the President, and without the people’s consent to be governed, enshrined in the adoption of the Constitution, not only does the President not enjoy authority, the office of president within the Executive Branch ceases to exist.

For a president to undermine the Constitution is for the President to undermine the very source of their authority. For the Executive to dismiss the Constitution places it in a self-defeating position. There is no authority for the Executive to unilaterally ignore the Constitution because, in doing so, the Executive delegitimizes their own source of authority.

This is why I opened this essay asserting that “the powers of government are best exercised when they exist as a companion in our lives to buttress our better natures and restrain our worst inclinations” because the government begins with our consent to be governed. It seems to me that the summum bonum of good governance is to buttress our better natures and restrain our worst inclinations. The government’s role is to secure our safety and security, even, or especially, to secure our safety from each other. This is why we return to the scope of the clause, “We the people.”

A restricted view of “the people” so restricts who consents to be governed and who falls under the scope of the government’s assurance of safety and security. The framers wanted to ensure their protection, but they had no such concerns for the native population they decimated or the enslaved population they commodified. This is why it is important to work out our interpretive framework: Are we stuck with a limited franchise, or do we reaffirm a commitment to the people each time we utter the phrase? The commitment is stable, but its reference is fluid.

My vision for government is one that is unremarkable and reliable and always moving toward a more inclusive view of the people.