Some Thoughts on Our Constitution

Justin J. Wert
Department of Political Science

As we celebrate our second Constitution Day at the University of Oklahoma, we as a country are saddled in debate concerning some of the most fundamental aspects of American constitutionalism: the extent of presidential authority to prosecute war, including the executive’s ability to conduct warrantless wiretaps, detain and classify individuals as enemy combatants and render or send suspected terrorists to other countries to elicit critical information.  Congress is also poised to give its stamp of approval to most, if not all, of these actions as a result of the Supreme Court’s rulings during the 2004 term.  Whether or not we as citizens (and legitimate Constitutional interpreters) agree with these decisions, at the very least we should take some comfort in the fact that, since September 11, 2001, ALL three branches are getting their hands dirty.   

But as we are bombarded with the extraordinary politics of constitutionalism during war and crisis, I would assert that we have the unique opportunity today to step back and ponder a seemingly quaint, but extremely important, proposition: Just what is this “Constitution” that the “court” is interpreting?  And is it really “ours”?  As the initial paragraph of this piece indicates, the process of prosecuting war involves three distinct branches of government: the President who executes, Congress that declares war or, in this case, authorizes presidential action, and, at times, the Supreme Court which offers its interpretation of the constitutionality of the actions of the other two branches.  This is sometimes an onerous, long, and contentious process (remember Clarence Thomas and Anita Hill?).  The rules laid down for the process are enumerated in this document called the “Constitution” and they direct the government’s actions in this process (appointments to the Court) and in other processes too. But let us today think a little more seriously about the true nature of “Our Constitution.”

To “constitute” something means to create something.  That “something” for us, at least, is the written document created in Philadelphia two hundred and twenty-eight years ago, as well as its subsequent amendments.  What is “constituted” is the written form of the people’s collective desire to create a government in writing that, in Alexander Hamilton’s words, is the product of “reflection and choice,” not “accident and force.”  History had shown, the Founders argued, that governments were never actually created, but rather appeared by “accident” (over time some authority just became legitimate) or by appeals to religion, most notably in theories of the Divine Right of Kings, which were obviously attempts to locate authority somewhere other than in those who were bound by it.  Creating and writing government, then, required something more.  The procedures and interpretations President Bush follows, for example, in prosecuting the “War on Terror,” are written down to a large extent (though his interpretation of the written text is debatable) and must be followed.  If they are not, then his actions are un-constitutional: his actions did not follow the “rules” as written.  The written Constitution, then, both empowers and creates our government and simultaneously limits it as well.  This “double” notion of constitutionalism is the foundation of the entire project itself: granting power and limiting power over our political (and sometimes private) lives.  For the founders, written rules that were beyond the temporal and even momentarily popular desires of the very people who created government, would prevent government by “force” (tyranny).

While this might initially curl the toes of ardent proponents of so-called American “democracy,” the realization that our form of government is only partly democratic is an important one.  In fact, the most contentious issues in American constitutional law turn on this very distinction.  From abortion to sexual relations to affirmative action to religious freedom and expression, the crux of these debates centers around the extent to which our “democratic” desires (legislation, for example) do or do not conform to the words (the written constitutional text) that we have committed ourselves as constitutional citizens to be bound.  While we may interpret written provisions to legitimize certain constitutional decisions in certain times, this tension of sorts always remains.  But can courts completely interpret away these problems and reconcile them?  Or is something else needed?

Parts of the written document are so easily interpretable that they are almost self-executing: The Third Amendment’s prohibition of the quartering of soldiers or Article I’s requirements of the minimum ages of congressmen and senators, for example.  Other parts, though, are not so easy to interpret (though some will always say they are).  The “privileges and immunities” clause of the Fourteenth Amendment, for example, has been interpreted in vastly different ways by courts and legislatures since its adoption during Reconstruction.  Other parts, too, are not initially straightforward.  The Ninth Amendment proclaims that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  While clear in some ways, it is not in others.  What “rights” is the Amendment referring to?  Does it mean only those “rights” enumerated in the original document and the Bill of Rights (the first ten amendments) but not other “rights” added via amendment subsequently?  Lest you think this is an unimportant point, consider that the Ninth Amendment was hardly ever litigated until the 1960’s when it was used by the court in Griswold v. Connecticut to assert a constitutional “right of privacy” that formed the basis of Roe v. Wade, a case whose subject matter has seemed to motivate every political debate (whether consciously or not) in this country for the past thirty-two years. 

The fact that “our constitution” is partly democratic, though, might actually be the most powerful aspect of the document itself.  While courts seem to loom large in the interpretation of our constitution, their role, like democracy itself, is sometimes misunderstood.  While we look to the court for constitutional answers, we must realize that all three branches of government interpret the document and its lofty ambitions (and, of course, are also bound by its limitations).  President Bush, for example, interpreted the Constitution when he issued the Executive Order authorizing military tribunals for terrorists.  Congress interpreted the Constitution when it passed the Uniformed Authorization for Military Force after September 11 and will interpret again when it most likely will create legislation authorizing military tribunals for suspected terrorists.  And the Court interpreted the Constitution when it ruled in 2004 that non-citizens held at Guantanomo Bay had access to United States courts to hear their cases.  Thus the court’s decisions, while binding in many ways, are not the only decisions.  If only one branch acts, for example, and the other two remain silent, then the “correct” interpretation is what remains.  According to the Tenth Amendment, then, if a power is not granted to the government or the states, it remains “ours.”  In this sense, then, the Constitution is “ours” as much, if not more, than any one branch of government or the states themselves.  

— Justin J. Wert accepted a position with the OU Department of Political Science after recently completing his Ph.D. at the University of Pennsylvania.
Wert teaches American Constitutionalism; Civil Rights and Civil Liberties; Law and Courts; and Introduction to American Politics.