At some time in our education experience, we were all required to read the Constitution, and probably tested on our understanding of it as well. As time passed and our memories faded into history, we forgot much of what we had learned; to be replaced with myths and beliefs about the Constitution that have crept into our political mythology over the years. Three of these myths in particular, have proven to be destructive to the republican principles on which our nation was founded.
Myth Number 1: The Constitution gives the Supreme Court the power to interpret the Constitution.
This is one of the oldest myths concerning the Constitution and the Courts, going all the way back to the administration of George Washington. It is the “default” position made necessary by the fact that our human nature has a tendency to look for a different meaning in laws that interfere with what we want to do.
Article III, Section 2 of the Constitution gives the courts judicial power over “all cases, in Law and Equity, arising under this Constitution”. Exercising judicial power does not involve an interpretation of he law but rather its application. Any interpretation is to be applied to the facts of the case, not the law. Or, to put it another way, it is the duty of the court determine the facts of a case and then apply the law to those facts, not the other way around. It is the facts that often require interpretation, not the law.
In applying the law, the courts are supposed to consider the accepted meaning of the words used in the historical context of the time in which they were written, not in the context of the times in which the facts under consideration are being judged.
Article VI of the Constitution says, “This Constitution…shall be the supreme law of the land.” The Constitution is its own interpreter. It says what it says in words easily understood by anyone with an average degree of literacy. It was written in the literary style of 1787 and was intended to be read and understood by average citizens who were to be the ultimate determiners of its acceptance or rejection.
The Constitution “trumps” the opinions of the judiciary. Any citizen of the United States has the ability and the duty to read the Constitution and make his or her own determination as to its meaning. The problem is power. The courts have all the power of the U.S. Justice Department and all law enforcement agencies in the country to enforce their decisions. However, citizens have the ultimate power—the power of the vote.
In a free republic, all citizens have the responsibility to obey the law. They also have an equal responsibility to work to change bad laws, especially those that are unconstitutional. While federal judges enjoy lifetime appointment, they are also subject to impeachment by Congress. As citizens, we can require our representatives to hold judges accountable for ignoring or attempting to change our Constitution, and we can vote out of office those who refuse to do so. We also have the amendment process which allows Congress and the people together, to override the decisions of the court by amending the Constitution to clarify its meaning.
Myth Number 2. The Constitution grants “rights” to citizens
The body of the Constitution contains the word “right” only once. That is in Article I, Section 8 giving the Congress power to grant exclusive “rights” to authors and inventors to their writings and inventions. Two other rights are “given” in the amendments, voting rights and rights in criminal proceedings. All other references to rights prohibit Congress from making laws effecting them, or from “infringing”, “abridging”, or “violating” rights already possessed by the people.
The Declaration of Independence speaks of certain unalienable rights “granted by their creator”. These are known as “natural rights” common to all by nature of their personhood. Included in these are the right of thought and expression, the right to live in liberty and seek prosperity in our own way, and the right to self-defense, to name a few. The “right” to operate a motor vehicle on public roads, and the right to the benefits of a civil marriage, for example, are privileges granted by the state and not constitutionally protected rights.
The test of a legitimate natural right protected by the Constitution is: Would it still exist if there were no government? Can it be exercised without the aid of government or other people? Attempts to make the word “privilege” synonymous with the word “right” has always been, and is still a source of conflict and confusion concerning what is or is not a constitutional right.
Myth Number 3: The Constitution is “open ended” to allow for progress and change
This is perhaps one of the most pernicious and most common myths involving the Constitution. It is shared by all those who espouse a “living Constitution”, including our current President-Elect. As we pointed out in our previous post, “Interpreting the Constitution, nothing could be further from the truth.
The Constitution is a completed document. To insure its completeness and prevent the federal government from extending its powers beyond those granted to it, while at the same time, allowing for progress and change, the founders included Article V and Amendment X. This fact is probably summed up best by Thomas Jefferson, who wrote in 1791,
“I consider the foundation of the Constitution as lain on this ground, that “all powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States or to the people.” (Amendment 10) To take a single step beyond the boundaries specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.” (emphasis added)