I’m often a bit irked at how often people–the news, politicians, and other people in the United States–discuss whether something is or is not in the Constitution of the United States, whether something is Constitutional or not.
Have these people actually read the Constitution? The Constitution is almost exclusively merely a basic instructional manual for the initial construction of a new government and its everyday maintenance. (Job descriptions have greatly evolved over time for the POTUS and others because they had to be created on the fly.) As stated by people of the time and by scholars since, the actual, initial Constitution is actually pretty anti-democratic, anti-republican. It was specifically designed as a “counter revolution” to essentially recapture Pandora: The so-called Founding Fathers saw democracy and possible true freedom for all as a most dangerous prospect.
In effect, what is “in” or “not in” support of the Constitution is a metaphor, totally subjective, imagined, just as our nation (and cities, states, etc) are imagined communities. Constitutional is a metaphor relative to any given person’s hopes and fears. The subjectivity (and elasticity) of whether something is “Constitutional” or not is manifest in many simple examples, such as the dichotomy between mores embodied in Plessy (SCOTUS, 1896) and Brown (SCOTUS, 1954). Additionally, popular culture has essentially adopted (or “ratified”) the Declaration of Independence as being synonymous with whatever is perceived to be the Constitution. (Not to get too off topic but “all men are created equal” – meant exactly that to Jefferson with the addition “rich White men.”)
As much as our human brains generally prefer something to be simple and straightforward, almost any position, any mores can be supported by the body of cultural currency, laws, hopes and fears society calls “the Constitution.”
And things don’t change that much when we consider the Bill of Rights. For all practical purposes, these only actually applied in gradually stages in the decades after the Civil War with the adoption of the 14th Amendment.
And too our notions of “Constitutional” or not do not often consider gaps between law(s) and reality. And seldom embody any meaningful implementation of the Golden Rule. Consider debates over equal rights for women, Blacks, immigrants, and many others. Problems that should be simple and not even exists given what “is Constitutional” when we consider “the spirit” of equality supposedly embodied in the Constitution.
More than being a metaphor or imagined, per se, then, the Constitution is a term for our imagined utopian society where “I” get my way and can achieve the equally imagined “American Dream.” And there are as many Constitutions and as many imagined societies governed by said Constitution as there are people.
Given how little is (or could even be) in the United States Constitution anything could be and is considered Constitutional by many and un-Consitutional by many.
When you hear politicians and judges insist on “original intents,” please keep the above in mind. And read the actual Constitution. And be very scared. Even more than the theoretical backdrops associated with “Constitution” as described here, this allows him or her to essentially do whatever they wish and even with full support of the Constitution–written by and for very rich White Men–create very real conditions where We the People have fewer and fewer rights. And, of course, too, for all kinds of reasons I don’t need to rehash here, knowing and following “original intents” in full is impossible.
Andrew Joseph Pegoda