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April 2006



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Constitutional Myths and Realities: Part I
by Justice Stephen Markman

The following is adapted from a speech delivered on April 29, 2003, at Hillsdale College National Leadership Seminar in Dearborn, Michigan.

The United States has enjoyed unprecedented liberty, prosperity and stability, in large part because of its Constitution. I would like to discuss a number of myths or misconceptions concerning that inspired document.

Myth or Misconception 1: Public policies of which we approve are constitutional and public policies of which we disapprove are unconstitutional.

It might be nice if those policies that we disfavor were barred by the Constitution. But this is not, by and large, what the Constitution does. Rather, the Constitution creates an architecture of government that is designed to limit the abuse of governmental power. The delegates to the Constitutional Convention of 1787 sought to create a government that would be effective in carrying out its essential tasks, such as foreign policy and national defense, while not coming to resemble those European governments with which they were so familiar, where the exercise of governmental power was arbitrary and without limits. Therefore, while the Constitution constrains government, it does not generally seek to replace the representative process of government.

Governments may, and often do, carry out unwise public policies without running afoul of the Constitution. As a Justice of the Michigan Supreme Court, I often uphold policies that have been enacted in the state legislature, or by cities and counties and townships that I believe are unwise. But lack of wisdom is not the test for what is or is not constitutional, and lack of wisdom is not what allows me -- a judge, not the adult supervisor of society -- to exercise the enormous power of judicial review and strike down laws that have been enacted by “we the people” through their elected representatives. Redress for unwise public policies must generally come as the product of democratic debate and at the ballot box, not through judicial correction.

Myth or Misconception 2: The Constitution principally upholds individual rights and liberties through the guarantees of the Bill of Rights.

It is not to denigrate the importance of the Bill of Rights to suggest that the Founders intended that individual rights and liberties would principally be protected by the architecture of the Constitution -- the structure of government set forth in its original seven articles. The great animating principals of our Constitution are in evidence everywhere within this architecture. First, there is federalism, in which the powers of government are divided between the national government and the states. To the former belong such powers as those relating to foreign policy and national defence, to the latter such powers as those relating to the criminal justice system and the protection of the family. Second, there is the separation of powers, in which each branch of the national government -- the legislative, the executive, and the judicial branch -- has distinct responsibilities, yet is subject to the checks and balances of the other branches. Third, there is the principle of limited government of a particular sort in which the national government is constrained to exercise only those powers set forth by the Constitution, for example, issuing currency, administering immigration laws, running the post office and waging war. Together, these principles make it more difficult for government to exercise power and to abuse minority rights, and they limit the impact of governmental abuses of power.
Many of the Founders, including James Madison, believed that a Bill of Rights was unnecessary because the Constitution’s architecture itself was sufficient to ensure that national power would not be abused. As Alexander Hamilton remarked in Federalist 84, “the Constitution is itself, in every rational sense, and to every useful purpose, a Bill of Rights.” And practically speaking, until 1925, the Bill of Rights was not even thought to apply to the states, only to Congress; yet the individual rights of our citizens remained generally well protected.

Myth or Misconception 3: The national government and the state governments are regulated similarly by the Constitution.

As the 10th Amendment makes clear, the starting point for any constitutional analysis is that the national, i.e., the federal government can do nothing under the Constitution unless it is affirmatively authorized by some provision of the Constitution. The states, on the other hand, can do anything under the Constitution unless they are prohibited by some provision of the Constitution. Why then, one might ask, throughout the 19th century and well into the 20th century -- before the Bill of Rights was thought to apply to the states -- did Michigan and other states not generally infringe upon such indispensable freedoms as the freedom of speech or religion? How were individual rights protected? Well, in two ways principally: First and most obviously, there was simply not majority sentiment on the part of the people of Michigan or other states to encroach upon such freedoms. Second, Michigan and all other states had their own Constitution that protected such freedoms.

Today the Bill of Rights has been construed by the U.S. Supreme Court to apply to the states, creating more uniform and more centralized constitutional policy. It remains true, however, that the impact of the Constitution upon the national and state governments varies substantially.

Myth or Misconception 4: Federalism is the same thing as state’s rights.

“States rights” in the constitutional sense refers to all of the rights of sovereignty retained by the states under the Constitution. But in this sense, state’s rights refers to only half of what federalism is, the other half consisting of those powers either reserved for the national government or affirmatively prohibited to the states.

In popular use, “state’s rights” has had a checkered history. Before the Civil War, it was the rallying cry of southern opponents of proposals to abolish or restrict slavery. By the 20th century, it had become the watchword of many of those who supported segregation in the public schools, as well as those who criticized generally the growing power of the central government.

While I share the view that federal power has come to supplant “state’s rights” in far too many areas of governmental responsibility, “state’s rights” are truly rights only where an examination of the Constitution reveals both that the national government lacks the authority to act and that there is nothing that prohibits the state governments from acting. There is no “state’s right,” for example, for one state to impose barriers on trade coming from another or to establish a separate foreign policy. These responsibilities are reserved to the national government by the Constitution.

Myth or Misconception 5: The Constitution is a document for lawyers and judges.

The Constitution was written for those in whose name it was cast, “we the people.” It is a relatively short document, and it is generally straightforward and clear-cut. With only a few exceptions, there is an absence of legalese or technical terms. While the contemporary constitutional debate has focused overwhelmingly on a few broad phrases of the ward and clear-cut. With only a few ex such as “due process” and “equal protection,” the overwhelming part of this document specifies, for example, that a member of the House of Representatives must be 25 years of age, seven years a citizen, and an inhabitant of the state from which he is chosen; that a bill becomes a law when approved by both Houses and signed by the president, etc. One willing to invest just a bit more time in understanding the Constitution need only peruse The Federalist Papers to see what Madison, Hamilton or Jay had to say about its provisions to a popular audience of the late-18th century.

One reason I believe that the Constitution, as well as our laws generally, should be interpreted according to the straightforward meaning of their language, is to maintain the law as an institution that belongs to all of the people, and not merely to judges and lawyers. Let me give you an illustration: One creative constitutional scholar has said that the requirement that the president shall be at least 35 years of age really means that a president must have the maturity of a person who was 35 back in 1789 when the Constitution was written. That age today, opines this scholar, might be 30 or 32 or 40 or 42. The problem is that whenever a word of phrase of the Constitution is interpreted in such a “creative” fashion, the Constitution -- and the law in general -- becomes less accessible and less comprehensible to ordinary citizens, and more the exclusive province of attorneys who are trained in knowing such things as that “35” does not always mean “35.”

One thing, by the way, that is unusual in the constitutional law course that I teach at Hillsdale College is that we actually read the language of the Constitution and discuss its provisions as we do so. What passes for constitutional law study at many colleges and universities is exclusively the study of Supreme Court decisions. While such decisions are obviously important, it is also important to compare what the Supreme Court has said to what the Constitution says. What is also unusual at Hillsdale is that, by the time students take my course, they have been required to study such informing documents as the Declaration of Independence, The Federalist Papers, Washington’s First Inaugural Address -- and, indeed, the Constitution itself.

Stephen Markman, who teaches constitutional law at Hillsdale College, was appointed by Governor John Engler in 1999 as Justice of the Michigan Supreme Court and subsequently elected to that position. Prior to that, he served as United States Attorney in Michigan (appointed by President George H. W. Bush); Assistant Attorney General of the United States (appointed by President Ronald Reagan), in which position he coordinated the federal judicial selection process; Chief Counsel of the U.S. Senate Subcommittee on the Constitution; and Deputy Chief Counsel of the U.S. Senate Judiciary Committee. Justice Markman has written for numerous legal journals, including the Stanford Law Review, the University of Chicago Law Review, the University of Michigan Journal of Law Reform and the Harvard Journal of Law & Public Policy.

Reprinted by permission from Imprimis, the national speech digest of Hillsdale College,

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