Independence Day Musings: On the Constitution

Happy late Independence Day, everyone.

As I spool up for my own grill (set in the Mad Max apocalyptic future, as a nod to the growing American political dysfunction), I've been thinking about how well we do or don't tie back to our roots. Generally, I think of this as the Constitution (not that Independence Day happens to celebrate it): culture changes, values change, but the Constitution is written down, and the law of the land.

What I find odd is the amount of fighting over the Constitution. You've got some folks saying that it's being trampled on, and they come from the right and the left: ardent advocates both for the 2nd and 4th Amendments point to action or proposed action that they believe violates the right to bear arms or the right to due process.

And it does seem like there are those who think that the Constitution is too anachronistic: "guns were different back then" is one I've heard. Another: "people's lives are more important than the 2nd/4th amendments." Or, "the terror threats we face today couldn't have been anticipated by the Founding Fathers." Of course, not everyone fits into any of these views.

The tension seems to exist between pragmatism and adherence: some call the former tyranny, some call the latter blind zealotry. One thing about the Constitution is certain: it can be mighty inconvenient at times. As a nation we want to do stuff, and it gets struck down: FDR frequently had his economic plans foiled by the Supreme Court for various Constitutional violations. The DC handgun ban, though very popular locally, was struck down for violating the 2nd amendment. States that really didn't want gay marriage got it anyway when SCOTUS ruled that denying gay marriage violated constitutionally-protected rights to not be legally discriminated against.

But I am not sure our feelings about these issues are always all that rooted in a careful understanding of the Constitution. 92% of Americans happen to have an opinion on whether Roe v. Wade should be overturned, though I doubt most have read the fairly complex argument that linked the right to an abortion to the First Amendment. I doubt many have read enough of the Federalist Papers to understand what was the intent behind the right to bear arms, or the separation of church and state.

For most of us, I think it's worth asking: when we cite the Constitution, are we doing so out of a respect for the rule of law, or out of convenience? How often do we bristle at it restricting the will of the people and hope, in that instance, that it step aside for a bit? How often are we tempted to be practical? When considering which Supreme Court Justices we'd prefer, how much do we pay attention to their track record of interpreting case law, versus what policy positions they happen to have on issues we get emotionally excited about?

And if we, as a people, want our Congresspeople, President, and Justices to bend the Constitution to our wills when we really want something to happen, how much power do we give them to ignore the constraints and rights afforded to the stuff we really care about?


Erik Fogg

We do politics, but we don't do the thinking for you.