The Frustrated Constitution

by Kevin J. Jones - March 16, 2008

Reprinted with permission.

An original copy of the United States Constitution is on display in the rotunda of the National Archives Building in Washington, D.C. Alongside the Declaration of Independence and the Bill of Rights, it rests in a preservative display case filled with argon. When the building closes for the night, the case moves onto a conveyance system that whisks the Constitution away into a high-security vault.

Those who question the effectiveness of the Constitution in political life will notice the symbolism. Put on display for reverent admirers, bound in inert gases, that founding document is only the press-of-a-button away from becoming ensconced in an inaccessible and inescapable safe. The Constitution's function seems almost ceremonial.

Self-styled constitutionalists – the most prominent among them being Republican presidential candidate Ron Paul – decry the lack of respect for constitutional provisions. Some doubt the constitutionality of the war on drugs; others question the wartime powers of the presidency. One can even find cranky fulminations against the New Deal or the income tax or the unionism of Abraham Lincoln.

Warnings of a broken Constitution come from originalists and reformers alike, though the former seem the most plaintive.

In 1845 the political and religious thinker Orestes Brownson epitomized this hopelessness: "But, practically, the government framed by our fathers no longer exists, save in name. Its original character has disappeared, or is rapidly disappearing. The Constitution is a dead letter… ." For Brownson, the 1828 election of Andrew Jackson was a watershed event that had transformed a laudable "aristocratic republic" into a demagogic and unconstitutional, though popular, government.

The problem is that there's a fundamental ambiguity in constitutional rule, based in the paradox of erecting an impersonal authority to govern living men. The Constitution does not interpret itself. At times of controversy, to whose ultimate understanding of the Constitution does one swear allegiance? One's own? The president's? The Supreme Court's? Harvard Law School's?

While the Supreme Court has the legal authority, its rulings are only useful if they obviously apply to the case at hand. The Court's jurisprudence is tangled, to say the least, and predicting future decisions is no sure thing. The McCain-Feingold Campaign Finance Reform Act passed only when some of its skeptics, conscious of their oaths, were reassured that the law's constitutionally dubious provisions would certainly be struck down by the Supreme Court. The high court failed to perform as desired.

Furthermore, when bad law is enshrined in constitutional jurisprudence, a just politician's oath to the Constitution is made difficult to honor. Think of the unenviable position of a scrupulous pro-lifer trying to swear to uphold the Roe v. Wade status quo without mental reservation. Could she swear to defend the Constitution by adding the qualifier "as correctly interpreted"? Probably not.

So there is a bright side to the diminishing place of the Constitution in public life. It doesn't necessarily mean the government is lawless or, in practice, unlimited; rather, it might only mean that the tumultuous foundational arguments have taken a backseat to ordinary politics. (If that sounds unappealing, remember America's greatest constitutional debate: the Civil War.)

Indeed, ordinary politics rarely involves itself in constitutional controversies. City council debates about the placement of stop signs require few legal scholars. And it is not an entirely bad thing when politicians are more concerned with responding to their constituents than with following the law to the letter.

Even unconstitutional politics can work for the good when tempered by the virtues of prudence, justice, and love of liberty. Inconsistency in method can be tolerable, so long as the aim is kept clear. Let us remember that the Constitution itself was motivated by the desire for good government.

That desire, at least, cannot be locked away in a vault.

Kevin J. Jones lives in Arvada, Colorado. He blogs at Philokalia Republic.