I am pleased to be at this Hillsdale College celebration of Constitution Day. Sadly, many colleges these days don’t even teach the Constitution, much less celebrate it. But at Hillsdale, you recognize that the principles of the Founding are as relevant today as ever—and vital to the success of our free society. I appreciate your observance of this important day and all you do for civic education in the United States.
When many people think about the virtues of our Constitution, they first mention the Bill of Rights. That makes sense. The great guarantees of the Bill of Rights—freedom of speech, freedom of religion, and the right to keep and bear arms, just to name the first few—are critical safeguards of liberty. But as President Reagan used to remind people, the Soviet Union had a constitution too, and it even included some lofty-sounding rights. Ultimately, however, those promises were just empty words, because there was no rule of law to enforce them.
The rule of law is the lynchpin of American freedom. And the critical guarantee of the rule of law comes from the Constitution’s structure of separated powers. The Framers recognized that by dividing the legislative, executive, and judicial powers— each significant, but each limited—they would minimize the risk of any form of tyranny. That is the real genius of the Constitution, and it is ultimately more important to securing liberty than the Bill of Rights. After all, the Bill of Rights is a set of amendments to the original Constitution, which the Framers did not think needed an express enumeration of rights.
I want to focus today on the power that the Constitution allocates to the Executive, particularly in the area of criminal justice. The Supreme Court has correctly held that, under Article II of the Constitution, the Executive has virtually unchecked discretion to decide whether to prosecute individuals for suspected federal crimes. The only significant limitation on that discretion comes from other provisions of the Constitution. Thus, for example, a United States Attorney could not decide to prosecute only people of a particular race or religion. But aside from that limitation — which thankfully has remained a true hypothetical at the Department of Justice — the Executive has broad discretion to decide whether to bring criminal prosecutions in particular cases…
Continue Reading