Yesterday morning I heard someone say, in the context of the battle over the Supreme Court, “No one cares about process.” I can’t get that statement out of my head. I am convinced it’s true and that it is incredibly dangerous.
If we want the Constitution meaning anything, we must care about process. Yes, the Constitution protects some rights – such as property, life, worship, publishing, assembly – but its most important task is to provide a process of government. It doesn’t simply say, “We the people have the right to worship freely.” It says, “Congress shall pass no law….”
In fact, one of the central guarantees in the Bill of Rights is procedural: the 5th Amendment guarantees the “due process of law.” The 14th Amendment made that same guarantee binding on the states. That phrase in the 14th Amendment is the reason states aren’t permitted to restrict religious worship, a free press, or other Constitutional rights today.
The drafters of the Constitution recognized something: that the process by which the nation drafted and enforced laws was critical. They recognized this not because they all agreed, but because they did not agree. They recognized that for a divided country – one which didn’t even agree on who qualified as a person – to have a future, we needed a process to resolve these differences. We needed some way to legitimize the rule of law, a way for people to express themselves and then accept the result, even if it wasn’t exactly what they wanted.
So, we have a Constitution that is not a list of specific protections. We have a Constitution that lays out a process by which the nation will figure out what those protections are, how to implement them, and how they interact.
It guarantees a process to select representatives (by election). It guarantees a process by which laws are made (by Congress). It guarantees a mechanism for enforcement (by the executive). It guarantees a place to resolve disputes (the courts).
It is light on details in places. The drafters made some mistakes that we have corrected. They’ve made others that we have yet to correct. We’ve filled in some of the details to help the process work a little better.
And right now, because everyone is so caught up in achieving their substantive ends, we are undermining the process that keeps our government functioning.
However much current political leaders may have exacerbated the problem, we can’t lay all the blame at their feet. Our society seems to have decided that achieving partisan ends is more important than the unity of the nation. It will take a commitment by each one of us, and the organizations we are a part of, to get us out of the crisis we are now in. That will mean compromising on things that are important to us. But, as the Founding Fathers did, through compromise we will build a stable foundation that will enable future generations to do better than we have.