Much Ado About Nothing (if "Nothing" was shorthand for the United States Constitution)
Jay
February 5, 2010, 8:36 pm

The US Constitution is the charter for the entire Federal government. It is the source behind the authority of the United States government. So if it had an immodest personality and strolled into a bar, it'd probably say, "I'm kind of a big deal."

And it is a kind of a big deal. It's a big deal because, collectively, the people say it's a big deal. The people. It is often said that people see what they want to see. That implies that our entire life is one big Rorschach test. And the interpretation of the Constitution is one of the most legalistically significant Rorschach tests in American history.

Countless lawyers have spent millions of manhours poring over 4543 words written chiefly by a wealthy Virginia slaveholder. Currently, 7 old men and 2 homely (generous, to be perfectly honest) women are the ultimate authority on "the supreme Law of the Land" that governs the most powerful country on Earth.

Like I said. Kind of a big deal. So what's my beef? The people.

I suspect that all good lawyers know, in their heart of hearts, that laws are simply legal convenience. That is to say, laws really aren't about fairness or justice or even about doing good. They're simply an expedient that is acceptable to the community under the law's jurisdiction.

And the supreme Law of the Land is, perhaps, the ultimate example of a legal expedient. The Constitution was nothing if not a document of compromise. Compromises between the big states and small states. Slave states and free states. New England merchants and the Virginia planters.

The history of our country is riddled with landmark decisions in the highest court of law. Marbury vs Madison. McCullough vs Maryland. Dred Scott vs Sandford. Plessy vs Ferguson. Brown vs Board of Education. Gideon vs Wainwright. Roe vs Wade. Boumediene vs Bush. DC vs Heller. And each landmark decision would shape public policy for decades to come.

And out of all these Supreme Court decisions, very few of them have to do with the interpretation of the Constitution. For the most part, it is simply the last appeals court. And therein lies the rub.

Whenever a pundit or a populist cries "that's unconstitutional!", they're simply revealing their own prejudice. As I've said before, the Constitution is just another Rorschach test, revealing the political and sociological inclinations of whoever interprets the text.

The Constitution really protects a core set of rights. The right to (mostly) free speech, public assembly, (mostly) free press, petition the government (though this often requires lots of money), to bear arms, and to not be a slave.

Anything else is pretty much fair game whether you cite the necessary and proper clause or the commerce clause. Any law, so long as it does not completely subvert the enumerated rights within the Constitution, is Constitutional.

There was this popular television series called "The West Wing", which was a dramatization of the goings-on of the White House staff and the various issues it had to deal with. During one episode, the President had to replace a Supreme Court Justice and his staff began vetting potential candidates.

It came down to two people. One was a strict constructionist who Aaron Sorkin (the show's creator) obviously wanted to portray in a negative light. During his interview with the White House vetters, his last line (set to the tune of ominous music) went along the lines of "there is nothing in the Constitution that says there can't be a law outlawing coffee on Tuesdays". The writers of the episode wanted to show how "ridiculous" the judge was being.

He didn't get the Presidential nod. It went to a "fair minded" judge of Latino origin. And yet, when you analyze that last line, it isn't ridiculous at all. Congress already passes laws regulating the use of certain substances (drugs). And many counties within the United States pass "dry laws" that prohibit the sale of liquor in Sundays. Are we to say that those laws are unreasonable and unconstitutional?

The rampant judicial activism under the Warren Court was regrettable. Judges should not legislate from the bench, they should merely interpret existing law to settle legal controversy. But that is an aside.

When the Warren Court ruled on Brown vs Board of Education on Constitutional grounds, specifically citing the equal protection clause of the 14th Amendment, it might have been the morally correct judgment, but not the legally correct one.

Don't get me wrong. All persons should enjoy equal protection under the law. Justice is (supposedly) blind, after all. However, that does not mean all laws must affect everyone equally.

There is nothing in the Constitution that would prohibit giving all black people an annual cash payment of 1000 dollars. It would be grossly unfair, but if the law existed, it should be enforced. Even if white people were excluded from the law, they still enjoy equal protection of that law. But if the law said all people are entitled to an annual cash payment of 1000 dollars and the government only gave it to white people, that would be a violation of the equal protection clause.

Going back to Brown v Board, if the state and local laws in the South were written to say "all minors are entitled to a state provided education" and they provided white children with a better education than the black children, it would still be legal because the law does not state that all minors should be provided with equal education, just an education. You could not argue the laws unconstitutional via the equal protection clause.

Now, I'm not arguing for segregation. But what the Warren Court did was essentially legal vigilantism even as it proved to be the correct moral call.

What I am arguing for, however, is a more flexible legislative process. The old adage goes that lawmaking is similar to sausage making. But the fact is once a sausage is consumed, it's gone. Laws stay on the books forever. Some are so absurd (google "stupid state laws") that they are never enforced. But they are still on the books? Why? A reasonable individual would suggest that the massive inertia within government makes the repealing of laws too difficult, and they are right.

And yet.....this is exactly why people harp on the constitutionality of certain laws. One can legitimately argue that the judicial activism of the Warren Court was necessary to combat the intransigent laws of a racist South. This is why Constitutional law is such a Rorschach test. Whenever opposing sides argue on the constitutionality of certain laws, they are revealing their bias. They interpret the Constitution in a manner that satisfies their own ideology and prejudice.

And that, ladies and gents, is why arguing about the Constitution is much ado about nothing.