Yes, the Constitution Does Matter—a Lot

An honor guard stands next to the original copies of the Declaration of Independence, the Constitution, and the Bill of Rights at the National Archives in Washington on July 4, 2001. (Alex Wong/Getty Images)

Commentary

Most of my columns for this newspaper relate to the Constitution. A common reaction among some readers—both in the online “comments” section and in direct correspondence—is that I’m wasting my time because the Constitution doesn’t matter anymore. It’s irrelevant.

I have spent most of the past 30 years working in constitutional law. I think I know something about the subject. And I can report to you that the Constitution, although wounded in a few places, is mostly alive and well. This column will explain why the Constitution still matters—and matters very much.

Confusing Exceptions for the Rule

Let’s begin with a stock market analogy:

Over time, the price of a publicly traded company tends to follow (among other factors) the company’s earnings and projected earnings. Similarly, the valuation of the market as a whole tends to follow corporate earnings and projected earnings.

If earnings and projected earnings drop in a way unlikely to be remedied soon, then the price of stock generally falls. If they rise in a way that does not appear to be a fluke, the price of stock generally rises.

But this is not always so; sometimes, there are exceptions. In other words, sometimes, stock prices rise or fall without regard for earnings or projected earnings.

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When deviations persist for any amount of time, self-promoting pundits claim that “the rules have changed” and “earnings don’t matter anymore.” People who believe them irrationally buy stock (causing a bubble) or irrationally dump it (panic selling). And when the market corrects—as it always does—those people get nailed.

Their mistake is in thinking that an exception to the rule (a one-time bump or slump) is the rule itself.

Most of us get our image of constitutional law from mainstream media reports of rare and controversial cases decided by the U.S. Supreme Court.

But as in the stock market analogy, reliance on these reports leads people to mistake (purported) exceptions for the rule.

The media reports about the highly publicized cases are often wrong or distorted.

More importantly, the highly publicized cases represent only a small fraction of the controversies the Supreme Court resolves (often unanimously) upon accepted constitutional principles ... and all of the Supreme Court’s cases together are only a small fraction of the disputes resolved by lower appeals courts—also upon accepted constitutional principles ... and the cases resolved by lower appeals courts represent only a small fraction of those decided by the trial courts ... and the cases decided by the trial courts are only a small fraction of those settled by the parties out of court ... and the settled disputes are only a small fraction of the questions answered daily by constitutional lawyers in the normal course of business.

So the public’s perception of the Constitution and constitutional law is being formed by (1) often-erroneous media reports on (2) a small fraction of (3) a small fraction of (4) a small fraction of (5) a small fraction of (6) a small fraction of constitutional decisions!

You simply cannot reach conclusions about the Constitution’s viability based on such a tiny and misreported sample.

Another Reason Some Think the Constitution Doesn’t Matter

Another common mistake is expecting the Constitution to do too much. People angry that the Supreme Court overruled Roe v. Wade, for example, seem to believe that because they favor legal abortion, the Constitution must require it. There is an opposing group who believe that because abortion is evil, the Constitution must prohibit it. In fact, as the late great Justice Antonin Scalia remarked, the Constitution says nothing at all about abortion. It is an issue left to be resolved by other means.

The Constitution was not designed to solve all human problems, nor could any man-made document ever do so. Even if every clause in the instrument were enforced quickly and perfectly, life still would be marred by foolish laws, unfair conditions, political and economic mistakes, and other human failings.

Mistakes in Interpretation

Sometimes, an official mistake in applying the Constitution leads people to think the document doesn’t matter. But this also is wrong.

For one thing, misinterpretations can be corrected over time. During the mid-20th century, the Supreme Court misinterpreted the religion clauses of the First Amendment by giving insufficient protection to freedom of religion. Since the 1980s, however, the court has been correcting its mistakes, and its freedom-of-religion law is now much closer to that envisioned by the founders.

Additionally, some mistakes cause the Constitution to matter even more than originally intended. One of my recent columns discussed the Supreme Court’s latest case on the Fifth Amendment “takings clause.” I wrote that the justices probably erred in applying the takings clause against a local government.

But does that mean the Constitution is irrelevant? Of course not. Without the Constitution, there would be no takings clause at all. It is far better that the clause be too broad than nonexistent.

Here’s a more controversial illustration: When Sen. Barack Obama campaigned for the presidency, many people claimed that he was not constitutionally qualified because he is not a natural-born citizen.

My own view, after examining the factual and legal evidence, is that President Obama is natural-born. But whether or not that is true, think of why we had that discussion. We had that discussion because the Constitution requires the president to be natural-born. If the Constitution didn’t matter, there would be no reason to debate the issue.

And there would have been no reason for President Obama to produce a birth certificate (however disputed) showing that he was born in Hawaii.

What If the Constitution Really Didn’t Matter?

Let’s look at it another way. Suppose it were true that the Constitution didn’t matter—that the only important thing were what our masters in the “woke” establishment decided. In that event:

• The Supreme Court would not be enforcing the First Amendment, so religious people would be under severe constraints and this newspaper would not exist.
• If the government took your land, you would be paid nothing.
• You could not own a gun.
• The presidential term could be any length set by whoever was in power. Same for congressional terms.
• President Obama could have run for a third term in 2016. And a fourth in 2020. And a fifth in 2024. (Assuming he remains influential in the Biden administration, that’s not the same as being president.)
• Donald Trump would not have been elected president in 2016. But because the Constitution features an institution known as the Electoral College—and because the Constitution matters—he became president.
• In fact, he probably would be in jail. But because the Constitution requires due process and because the Constitution matters, he is free and running for president again.
• Greta Thunberg, environmental enfant terrible, could be president even though (1) she is not a native-born American (she is Swedish), and (2) she is only 21 years old.
• And if the Constitution didn’t matter, we probably would not have elections at all—even imperfect ones. Yet we continue to do so, year after year, because the Constitution requires it. And in an overwhelming majority of cases, the certified results reflect the election’s actual results.

I could go on. Suffice it to say that without the Constitution, the United States would be an entirely different place.

Why the Inaccuracy Is Dangerous

The inaccurate view that the Constitution doesn’t matter can have dangerous consequences. If we accept that view, then no one is bound to anything in the document. We have no legal basis for protest when an election has been corrupted or even canceled.

If we believe “the Constitution doesn’t matter,” then we have no positive law basis for complaining about loss of rights to freedom of religion, freedom of speech, keeping and bearing arms, property, or any of the other hundreds of rights and rules we take for granted in daily life.

Ideally, we should not take those rights and rules for granted. But on a day-to-day basis, we are able to do so precisely because the Constitution matters so much.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.