What Does ‘Constitutional’ Really Mean?

Washington, DC (TFC) – “We need to go back to the Constitution!” These days it is common to hear people accuse various groups of ‘shredding’ our nation’s founding documents. This month’s suspects: Supreme Court judges. While civil rights activists celebrate the Court’s decision to protect gay marriage, critics cry out that the Court has overstepped their power. They argue that these unelected judges cannot create law and must abide by the original Constitution; that the Constitution says so. They are mistaken.

Statements like this come from an understanding (or misunderstanding) of the Constitution as an infallible document which, if followed correctly in its original 1787 form, will bring about a peaceful and happy society. Never mind that this happy society nearly always happens to coincide with the speaker’s personal opinion on how society should run, and conflicts with the views of the person next to them shouting the same thing. A return to the Founding Father’s original document is often the battle cry of those opposing government action.

It’s understandable why the Constitution’s infallibility is a common idea in American society. All throughout grade school we are taught about the wonder and uniqueness of the American Constitution and how it ushered in a new era of democratic societies. There is no doubt that our Constitution has had a major impact on human history. It was a victory for Liberal ideals from the Enlightenment: power comes from the people, not from Divine Right or family blood lines.

Because of these positive impacts we learn in school, most people forget that the Constitution is still just a legal document. And like any other legal document, it is subject to interpretation, reinterpretation, amending, and overturning. In the 228 years since its ratification, there have been some changes to what Constitutional means. As a former professor of mine told his class “You barely look at the Constitution if you study Constitutional law.”

Constitutional law – along with most law in America for that matter – is actually made up of thousands of court decisions. When a case is brought forward, the court’s ruling can often change or add something new to already existing law.

For example, imagine a law saying vehicles are not allowed in a particular park; a law passed by the city and deemed to be in the interest of public safety. Someone gets ticketed for driving a remote control car in the park and takes it to court. The judge may decide the law was not broken, as it was intended to prevent damage to the park; damage that a remote control car can’t inflict. Now the law is different, although the change may seem insignificant: vehicles are not allowed, and a defining trait of a vehicle is that it can cause damage.

Later, someone rides a motorized scooter in the park, is ticketed, and takes it to court arguing his scooter is not a vehicle because it doesn’t damage the park. This judge rules that although the scooter didn’t damage the park, it can exceed speeds of 30 mph so it poses a danger to people at the park. This violates what the judge believes to be the intention of the law, so he rules against the man with the scooter. Now the law says, vehicles being something that causes damage and/or can exceed 30 mph.

Next, a child is driving a mini-motorized car through park and hits someone, who then sues the parents on the grounds that the little car isn’t allowed in the park. This judge rules that although the park is not damaged and the little car can’t exceed 30 mph, anything with wheels has the potential to get away and injure someone, and therefore harms the interest of public safety and violates what this judge believes to be the intention of the law. The law now says no vehicles in the park, vehicles being anything that has wheels, damages the park, and/or can exceed 30 mph.

Now, the law is very different from the original bill that was passed by the city. First, it was just “vehicles” which most people would take to mean cars. Under the new changes to the law, skateboards, wagons, regular scooters, and bicycles are all examples of things that are now prohibited by law despite no bills being passed and no votes being taken. Of course, if this vehicle law can be appealed all the way to the Supreme Court it may be overturned; but if it is not, or the Court rules in favor of it, this law is technically sanctioned by the Constitution.

The original form of the vehicle law, while still on the books, no longer operates on its own in the legal world. As every addition to the law was based on a judicial interpretation of it, these changes are considered a natural extension of the original law; a clarification. A second, third, fourth story added to the original house, built on top of the clarification that came before it. Each of these clarifications is based merely on a judge’s interpretation of the law.

What many people fail to realize is today’s government and laws are in fact the product of following the Constitution. Over two hundred years of deliberation and reinterpretation of its meaning has resulted in many clarifications, each one building off of the last. These additions to the law are merely natural extensions if the judge can base her ruling on interpretation of existing law (and they always can). Those natural extensions have gotten us to where we are today, even in regards to our loss of privacy.

In the Supreme Court’s recent decision on gay marriage, the ruling majority argued that the Due Process and Equal Protection Clauses of the 14th amendment extend to protect marriage for everyone, regardless of their gender. The criticisms claiming judicial overreach are familiar: the same critiques were made by opponents of desegregation when these clauses were invoked. The Court’s opinion at the time helped lay the foundation for this month’s ruling, extending equal protection under the law to include marriage regardless of sexual orientation.

Opponents of this decision – as well as anyone who cries out for a return to the Constitution – need to realize: The Supreme Court’s decision, no matter the issue in question, is in fact Constitutional; the Constitution says so.