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Myths 5 and 6

by Stephen Markman

Justice, Michigan Supreme Court


Note: This is a continuation of excerpts from a dissertation on the Constitution "reprinted by permission from Imprimis, the national speech digest of Hillsdale College,"  Professor Markman has written an excellent article about some of the things folks have been told about our Constitution.  I think you will enjoy his insights which you could use to help neutralize the arguments of those who are trying to destroy it.  The previous excerpt  in the series is Constitutional Myths and Realities Myth 2, 3 & 4.


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....  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 or 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.  


Myth or Misconception 6: The role of the judge in interpreting the Constitution is to do justice.


The role of a judge is to do justice under law, a very different concept.  Each of us has his or her own innate sense of right and wrong.  This is true of every judge I have ever met. But judges are not elected or appointed to impose their personal views of right and wrong upon the legal system.  Rather, as Justice Felix Frankfurter once remarked, "The highest example of judicial duty is to subordinate one's personal will and one's private views to the law.  The responsible judge must subordinate his personal sense of justice to the public justice of our Constitution and its representative and legal institutions.


I recall one judicial confirmation hearing a number of years ago when I was working for the Senate Judiciary Committee.  The nominee was asked, "If a decision in a particular case was required by law or statute and yet that offended your conscience, what would you do?"  The nominee answered, "Senator, I have to be honest with you.  If I was faced with a situation like that and it ran against my conscience, I would follow my conscience."  He went on to explain: "I was born and raised in this country, and I believe that I am steeped in its traditions, its mores, its beliefs and its philosophies, and if I felt strongly in a situation like that, I feel that it would be the product of my very being and upbringing.  I would follow my conscience."


To my mind, for a judge to render decisions according to his or her personal conscience rather than the law is itself unconscionable.  (Editor's note: It is a known fact that ones conscience is not always reliable!)


The next installment is Constitutional Myths and Realities Myths 7 & 8


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