The Constitution Matters
Progressives and conservatives need to remember that.
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What a remarkably frustrating few weeks it has been. I usually am able to stay in tune with the latest political news without getting too worked up over what people say or their sundry reactions; however, the last few weeks have tested my ability to ignore the noise.
On the one hand, the Supreme Court has released numerous rulings on gun rights, religious liberty, abortion, and separation of powers which have unleashed the fury of progressives. On the other hand, conservatives have sought to dismiss or undermine the January 6th hearings without even considering what is being presented. These reactions make me ask the same question: does the Constitution even matter?
The answer should be a resounding yes.
The Constitution
I want to start by making clear that I don’t think the Constitution is perfect. The men who wrote the Constitution were also not perfect. In fact, the knowledge of their imperfect nature and the imperfect nature of their creation led the framers of the Constitution to include one of its most important features: the ability to change it.
The amendment process is laid out in Article V of the Constitution, but even the amendment process itself can be changed. In fact, Antonin Scalia believed that it should be changed because the original process makes it too difficult. Putting aside that argument (one of the few things I disagree with Scalia on) though, the ability to change the Constitution at all is vastly important.
Frequently, people will critique the Constitution as being “too old” or “outdated.” They say it’s “crazy” that in 2022 we are still governed by a document written in 1787. If the Constitution, as written in 1787, was unchangeable then I would agree, but that simply is not the case.
Do you want to elect the president by the popular vote instead of the electoral college? Pass an amendment. Do you want abortion to be a constitutional right? Pass an amendment. Do you want healthcare to be a constitutional right? Pass an amendment. Do you want to take guns away from ordinary Americans? Repeal the 2nd Amendment.
Yes, this is easier said than done, but that’s the point! If an idea isn’t popular enough to get a vast swath of the country to agree with it, then it doesn’t need to be enacted across the country.
Which brings me to another wonderful aspect of the Constitution: it balances majority rule and individual rights. One of the most frequent but incorrect statements about the Constitution is that it established 3 “coequal” branches of government. The 3 branches of government may be “equal” in their legitimacy or authority to perform their specific roles, but they are by no means equal in power.
With a large enough consensus, the legislative branch has the ability to raise money, spend money, create laws, change the Constitution, and fire anyone in the other branches without involvement from any other branch. The executive branch only has the veto power (which can be overridden by the legislature) and the judicial branch can only declare something unconstitutional (which can be made constitutional by the legislature changing the constitution).
The framers were comfortable with the legislative branch having the most power because it had the most members and was “closest” to the people. In other words, it better reflects majority opinion. If the vast majority of Americans hold a particular position, then there is nothing standing in their way from enshrining it into law across the country.
Do you want to make abortion legal (or illegal) across the country? Congress can pass a law. Do you want the federal government to pay for every citizen to have healthcare? Congress can pass a law. Do you want the federal government to put tariffs on China to boost domestic production? Congress can pass a law. Similar to the amendment process, if there is widespread support for something, the government can make it happen.
Because widespread support is required, compromise is incentivized as it helps get as many people as possible to support. Intensely divisive issues can’t become law unless the most divisive elements are pared back, leading to a more moderate result. If moderation is impractical, then persuasion is the only other option. When persuasion and/or compromise fail, nothing happens and people are left to figure it out on their own without the power of the gun forcing anyone into anything.
But what if the majority opinion is to trample on the rights of a minority group? That is why the Constitution lays out specific rights that are “off limits” by the majority. No matter how many people are against my speech, they can’t stop me from speaking. No matter how many people are atheists, they can’t stop me from being Christian. No matter how many people want me to be thrown in jail, they can’t without due process and a trial by jury.
The Constitution even allows for rights not explicitly laid out in the Constitution to be protected called unenumerated rights. These rights are protected by the 9th Amendment which reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” If you can prove to a court that a certain right is implied by other rights listed and part of our nation’s “history and tradition”, then that right is protected by the Constitution and “off limits” from the majority. Hence, the balance of majority rule with individual rights.
Finally, the Constitution is largely process oriented not outcome driven. As individual rights demonstrate, the Constitution has some concern for the substance of a particular law or action, but the majority of the document is focused on the process of how the government will operate. In a sense, it is a blueprint that designs government without providing directions about exactly what to do.
The Constitution provides the framework for the three branches of government, what power they have, who is eligible to be in each branch, how they are chosen, how long they can be in a position, the limitations of each branch, and how the other branches will “check” a branch that goes too far. The Constitution didn’t lay out what laws the government should pass but how the government would pass laws. The Constitution didn’t say who should occupy a particular office but how people were chosen to occupy various offices.
The framework laid out by the Constitution is vitally important because it was designed by the framers in such a way that maximized the government’s ability to function without becoming tyrannical. It purposely places veto points or checks along the way to protect the liberty and prosperity of American citizens in perpetuity by preventing power accumulation by one person, branch, or majority to arbitrarily enact their will. The focus of the entire document is protecting the people, not empowering the government; hence, why it starts with the famous words “We the People.”
With all of that said, the Constitution is just a piece of parchment with no real power to be enforced. People have to enforce and abide by the words written on the page. It doesn’t matter what kind of safeguards or checks the Constitution has in it; if people don’t care about it, then it will be as good as worthless.
Supreme Court & Jan. 6th
Unfortunately, progressives and conservatives have demonstrated a remarkable disregard for the Constitution.
Progressives demonstrate their apathy for the Constitution in their reactions to the recent Supreme Court decisions. For progressives, the Supreme Court of the last 60 or so years has been a bastion of democracy. Whether its gay marriage, abortion, regulation, strong separation of church and state, death penalty, etc., the Supreme Court has handed down win after win after win for progressives. Agree or disagree with the policies, but it’s hard to dispute with the fact that the Supreme Court made those decisions largely by stretching the meaning of the Constitution beyond recognition or ignoring parts altogether.
The justices were willing to do this because they held a “living constitutionalist” view of the Constitution in which the meaning of the document changed as times, mores, and attitudes in society changed. The issue with this theory is that it leaves 9 justices, unelected and unrepresentative in almost every way, to determine what the prevailing moral attitude of the country at large is.
Considering the justices have no way of knowing everybody in the country, this unsurprisingly led to the justices making determinations based on what they personally believed. As a result, 9 (and sometimes as few as 5) unelected government officials imposed their own moral views on the entire country. This doesn’t sound like democracy to me.
As I discussed last week, the decisions of progressive Supreme Court justices began to energize conservatives to form and organize a legal movement to return the Court back to the Constitution. The legal theories of originalism and textualism dictate that justices make decisions based on the original public meaning of the Constitution’s (or subsequent statute passed by Congress) text when it was written.
Using these legal theories, the justices of this Supreme Court have ruled in ways that run contrary to the progressive, living-constitutionalist rulings of bygone eras. They have struck down laws that infringed clearly laid out constitutional rights (“free exercise” of religion and right “to keep and bear Arms”), overturned judge-created rights that are neither enumerated or unenumerated (abortion), and enforced separation of powers by forcing Congress to pass laws addressing climate change NOT an executive branch agency (EPA).
Progressives can disagree with the various justices’ interpretation or even legal theory used in these cases, as the progressive justices on the Court have, but to simply call them undemocratic because of the outcome is absurd. Instead, it’s paramount that progressives either argue from the Constitution why the rulings are wrong or set to work through the democratic process to pass their desired outcomes.
Unfortunately, conservatives haven’t proven themselves to hold the Constitution in much higher esteem as they continue to turn a blind eye to the constitutional damage done by Donald Trump.
Since the November 2020 Presidential Election, Donald Trump has claimed that the election was stolen in spite of 50 Trump campaign lawsuits being shot down by courts, including by Trump-appointed judges. He also pressured Mike Pence to reject electors sent by states and acknowledge “alternate” slates that would have declared Trump the winner. This was based on a legal memo sent by John Eastman that Eastman himself acknowledged would lose 9-0 at the Supreme Court. Then, January 6th came in which Trump publicly pressured Mike Pence to overthrow the election in his rally speech.
I’m not sure what else to call this other than an attempt to steal a constitutionally sound election.
Trump was also aware that many of his supporters had weapons on them that day and told them to to march to the Capitol where they would take back the country with strength and “fight like hell.” While Trump reminded the protesters to remain peaceful, many did not heed his warning. Aware that violence had broken out at the Capitol, Trump did not rush to condemn the violence but tweeted that Mike Pence did not have the courage to do what was necessary. All the while, Trump “placed no call to any element of the U.S. government to instruct that the Capitol be defended” according to Liz Cheney. This meant, as Noah Rothman writes, “Mike Pence… simply assumed for himself the constitutional powers vested in the president and took command of the situation.”
Trump’s inaction on the day of January 6th upended the constitutional order and led to the Vice President assuming, unconstitutionally, the position of Commander-in-Chief.
I can see eyes rolling as some read all of this. I know, I know… I need to “move on” from Trump. Well, someone should tell that to the Republicans who have proudly advertised as “pro-Trump” and won Republican primaries (such as Mike Collins, JD Vance, Lauren Boebert, Dr. Oz, Ted Budd, and more). “Have I seen inflation?” “What about those gas prices?” “Those are the issues that Americans really care about.” Those pale in comparison to living in a country where the Constitution is chucked aside for the sake of momentary political or policy victories.
We have to demand a respect for the Constitution from every government official regardless of political party or position. This isn’t optional or a naive, pie in the sky ideal that would be nice but impossible. Since the Constitution is “the Supreme law of the land,” the refusal to abide by the Constitution is to thwart the rule of law. It is to live in a country ruled according to the whims of individuals or groups. It’s a relapse into the kind of society that mankind has lived in for the vast majority of its history and it doesn’t resemble anything like liberty or prosperity.
God Bless,
Hunter Burnett