We hear a lot these days about “restoring the Constitution”. The implication seems to be that people, most particularly the President, are doing things that are asserted to be unconstitutional. I wonder if the folks who want to “restore” the Constitution really know what they are talking about. Mere disagreement with a governmental policy or the action of a president is not enough to make that policy or action unconstitutional.
Oft times, the argument is that the exact words of a new law or policy cannot be found in the Constitution; therefore the policy or law must be unconstitutional. This argument is silly. The Constitution is a statement of broad principles, not a cookbook. Concepts such as “due process” or “reasonable search and seizure” must be interpreted in light of some current law, policy or action.
The courts, ultimately the Supreme Court of the United States, interpret the Constitution as applying, or not applying, to a particular set of facts. Over our 200 plus years the courts have interpreted the Constitution many times as the nation has grown from an insignificant agricultural country to an urban world power. Such interpretation has come after extensive argument by well-trained minds and settled by the courts after considering the applicable principles of the Constitution (and often two or more are in conflict), precedent from previous similar cases and the societal context of the issue in dispute, among other things. For each case, or dispute, that reaches the Supreme Court there is a good argument on both sides. That Court, if it is to fulfill its proper role in our system, must choose the better of two good arguments or come up with a sensible legal compromise. We should not want judges who “follow the Constitution” literally, but judges who apply reason, thought and an understanding of our history and our society to the constitutional principles involved in any case. If the Constitution is to continue to be a flexible statement of our fundamental values, judges must be creative, sophisticated and intelligent, not simple-minded literalists.
John M. Spurgeon
Cedaredge, CO
