An Essay: What is “Constitutional”? Who decides?

by Tim Condon

Yesterday I cited an 1886 Supreme Court decision that ruled that unconstitutional actions or statutes are…inoperative, and of no effect (see it HERE). My long-time buddy and fellow lawyer—I’ll call him Larry—sent me a friendly warning about that post, as follows:

“I think you might want to be a little circumspect in posting stuff like this, Tim. Those not as well schooled in the law as we are might take it to mean that Mr. Condon the lawyer says that they don’t have to obey any laws which in their opinion are unconstitutional. Remember the tax protesters of the 1970s and 1980s and what happened to them? The Supreme Court, not the individual, determines what laws are or are not constitutional; and legislation passed by Congress is presumed to be constitutional until it is struck down as unconstitutional by a majority of the Supreme Court. I’m just saying ….”

Larry is exactly right. He is referring to the historic legal principle of “judicial review” which was enshrined in American law by Chief Justice John Marshall in the famous 1803 case of Marbury v. Madison.  The Constitution doesn’t say that the Supreme Court is the “last word” on interpretation of that document, but the principle has been enshrined and accepted in American jurisprudence since the Marbury decision was handed down. It’s a very strong cultural artifact in American political culture. It is why the Supreme Court was able to get away with Roe v. Wade in 1973 (by a 7 to 2 vote), which created a new Constitutional right in America, that of abortion, at a time when abortion was partially or wholly illegal in all 50 states. The principle of judicial review is also how the Supreme Court was able to get away with the infamous 2005 decision in Kelo v. City of New London, where in a 5-to-4 decision the Court ruled that politically connected private interests can get local political authorities to seize property from one set of private owners, and turn it over to other, more politically-favored, private owners for their use and profit.

Larry is correct to point out that citations from early anti-statist Supreme Court cases could mislead people into thinking that they have an absolute right to “read” the U.S. Constitution in any way they want. This can and has gotten people into Big Trouble in the past, such as the tax protesters from the 1970′s and 1980′s that Larry mentions (they all got burned, with many of them going to government prisons, even though their arguments were based upon various readings of the U.S. Constitution that appeared accurate and reasonable). So I hasten now to proclaim that individual citizens are not empowered under the law in America as it stands to interpret the Constitution (and act accordingly) all by themselves. That power resides only in the Supreme Court.

But.

There is always a “but.” I wrote back to Larry, saying….

But what happens if the Supreme Court declares that all assault rifles can be confiscated as “reasonable” regulation? Ditto for restricting “hate speech”? And what if they say that private property can be seized by local political cabals, to be handed over to their business friends to use? Oh wait… Ditto for discrimination based on race (aka “affirmative action”), the right of the federal government to take over 1/6 of the economy (Obamacare), and the absolute right to have an abortion as found in the “penumbras and emanations” of the Constitution? At what point, if ever, would people be justified in saying “We read the Constitution a different way than you do, and you’re wrong”? Ever?

These are serious and unsettling questions, and they are being discussed from the above perspective by those mostly on the anti-statist (freedom-oriented) side of the political spectrum. In the meantime, however, equally serious and unsettling notions are being bandied about by those on the statist side of the political spectrum. One member of the Supreme Court, Justice Ruth Ginzburg, gained some notoriety in early-2012 when she openly stated that those who were then writing a new constitution for Egypt should steer clear of emulating our Constitution (this from a person who swore an oath to uphold and defend the Constitution when she was seated on the Supreme Court). And the newspaper of record for statism in America, the New York Times, reported around the same time that the U.S. Constitution’s “influence is waning” in the world. More recently, we have been treated to arguments—published in the New York Times of course—that the Constitution should in many cases just be ignored. That comes from a law school professor of constitutional law at Georgetown University, Louis Seidman. In a recent article entitled “Let’s Give Up on the Constitution,” Seidman argues that “Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.”

“Dysfunctional.”

What a word to apply to a “political system” that produced the United States of America, without doubt one of the most extraordinary polities in the history of the world (whether it’s about to collapse and/or be destroyed today is irrelevant to its relatively short but phenomenal 237-year history). Yet that is what is coming from one side of the political spectrum. What’s the problem? That’s easy to see: The Constitution was designed by all those “dead white males” over 200 years ago to restrain the political classes, to prevent the institution of government from growing—as it always has throughout history—into tyranny. The political classes are in a strong ascendancy in America now. (How could it be otherwise when we have a President—elected twice!—who has never held a private sector job?) As a result, there will be increasing and ongoing assaults on the meaning and even the legitimacy of the Constitution from the statist side of the political spectrum—including in all probability from some members of the Supreme Court itself.

Thus, the question of “who gets to decide” what the Constitution means—or even if we should be concerned about what it says at all—is heating up. This is what my friend Larry was talking about. It is also why, for instance, 90 county sheriffs around the country have recently publicly pledged that they will not enforce laws that they deem to be unconstitutional with regard to anti-gun measures. Those public statements came after Barack Obama signed 23 executive orders ostensibly designed to “address gun violence.” The result? At the very same time statists are arguing  that certain inconvenient parts of the Constitution can and should be ignored by our wise government leaders, other government leaders (aka the sheriffs) are arguing that the Constitution should and must be obeyed, including by the President. This has caused some on the statist side to worry that such developments are “ill-conceived” and “troubling.” The Constitution can only be interpreted by the Supreme Court!

Interesting, is it not? Simultaneous arguments from the statist side of the political spectrum that (1) the Constitution isn’t important, and should be ignored when necessary to get things done, but (2) “the Constitution must be obeyed,” and the only people allowed to say what it means are the nine Men in Black on the Supreme Court.

Yikes. As the old Chinese curse says, we live in interesting times.

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  • KenEyring

    Awesome, Tim. Very insightful, very appropriate. It is my understanding that Sheriffs have enormous power that most of us are not aware of. They have super hero powers that can be enforced to protect and defend our Constitutional rights — if they have the balls to step up and use them.

  • C. dog e. doG

    Interesting times; uplift by separation.
    – C. dog

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