It’s not what you don’t know, it’s what you know that just ain’t so that gets you into real trouble. Based on that, I thought I’d go over some of the myths about the Constitution most everyone I meet thinks is so, but just isn’t true.
Like most myths, each of these come with a little bit of truth
The “Living, Breathing Document” myth
I hear this one all the time, especially from supreme Court justices and lawyers telling us our understanding of the Constitution has to “evolve” with the times. The only problem is there is no other legal document where the meaning of it changes without changing the language.
You see, the Constitution is a contract. OK, technically, it’s a compact which is a contract between sovereign entities. Remember, when we declared independence, it was thirteen independent states that were created. These states contracted together to create the federal government and established the rules by which it would work. All of the thirteen states signed onto this contract, and every state that joined the union afterward signed on as well.
Like any other contract, the Constitution should only be interpreted by the words on the page. When the definition of those words are in question, we look to the people who signed the contract. Think of all the contracts we deal with every day: Contracts for cell phones, repair work on your home, or to buy a car. Now imagine if those you contract with can reinterpret the meaning not based on the words on the page, but on what someone thinks should be there. Worse, imagine the law doesn’t mean what’s on the page, but what the prosecutor thinks it should say. How could you know how to follow the law if you can’t be sure what it actually says?
So when the Constitution says “All legislative powers herein granted shall be vested in a Congress of the United States”, it means laws can only be created in Congress, only by the process established in the contract, and only for the powers granted in the contract. It doesn’t mean the supreme Court can make laws. It doesn’t mean the President can make laws. And it certainly doesn’t mean federal agencies can effectively make laws through regulation. Instead, it means exactly what it says: Only Congress can make laws. Because if the Constitution doesn’t mean what it says or if it means whatever people in power say it means, then it doesn’t really mean anything at all. Good luck following a law that doesn’t mean what it says.
Oh, and that little bit of truth? The Constitution can be changed. Article V describes how to amend the Constitution, so in a way it is a living document, but only when it is changed legally.
The “Three Co-Equal Branches” myth
Another oft stated myth is that we have “three co-equal branches of government” when talking about the feds. We do have three branches of government, but a quick read of the first three articles of the Constitution shows they are anything but equal.
Congress is given the most enumerated powers at twenty-seven, the Executive branch has five, and the Judicial branch (sort of) has two. Congress determines what money the Executive branch can spend, how many federal courts there will be and, with only a few exceptions, what cases those courts, including the supreme Court, can take. If that isn’t enough for you to think the branches aren’t equal, think about this: Only Congress can remove a member of the Executive or Judicial branch of government, but neither of those branches can remove a member of Congress. Only the people, through their vote, or Congress itself, through Article I, Section 5, Paragraph 2, may punish a member of Congress.
The “Lifetime Appointment of Judges” myth
Usually brought up during supreme Court nominations or Presidential campaigns, this is another myth about the Constitution. We’re told it’s extremely important who the President chooses for supreme Court justice because they will serve for life. The problem is, that’s not what the Constitution says.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
After stating that the judicial powers shall be vested in the supreme and inferior courts, the Constitution states that judges shall hold their office during good behavior. So how is good behavior defined?
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
U.S. Constitution, Article I, Section 2, Paragraph 5
The Senate shall have the sole Power to try all Impeachments.
U.S. Constitution, Article I, Section 3, Paragraph 6
The House of Representatives has the sole power of impeachment, and the Senate has the sole power to try impeachments. That means that Congress determines what good behavior is for a judge. The problem is that Congress has been derelict in their duty to ensure the good behavior of our judiciary.
The “Popular Vote for President” myth
Every four years Americans are bombarded with polls and statistics about the Presidential election. And every four years on election night we see reports about the “popular vote”. There’s just one problem with this: There is no such thing as a popular vote for President!
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress
U.S. Constitution, Article II, Section 1, Paragraph 2
Yes, we all vote, but if you look closely at your ballot you’ll see you’re not voting for President and Vice-President, but for electors that have promised to vote for one or the other candidate.
What really gets my ire up is “The Agreement Among the States to Elect the President by National Popular Vote”. This is a compact between the states (ten states as I’m writing this), to give their electors to the winner of this mythical “popular vote”. Basically, these states are going to ignore the will of their citizens in favor of the citizens of the other states. While the states are allowed to choose electors in any way their Legislature chooses, those who join this compact are doing so in pursuit of a democracy this nation was never designed to be.
REPUBLIC, A commonwealth; a state in which the exercise of the sovereign power is lodged in representatives elected by the people. In modern usage, it differs from a democracy or democratic state, in which the people exercise the powers of sovereignty in person. Yet the democracies of Greece are often called republics.
Webster’s 1828 Dictionary
The “Supremacy of Federal Law” myth
Yes, there is a Supremacy Clause in the Constitution, so let’s read it:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Constitution, Article VI, Paragraph 2
So the Constitution IS the supreme law of the land, but only laws made in pursuance of that Constitution are included in the Supremacy Clause. That does not mean that any law passed by Congress and signed by the President is automatically the supreme law of the land. Instead, it must be made in pursuance to the Constitution. Since the 10th Amendment gives any power not specifically delegated to the United States (the federal government) to the States and the people, then any federal law that does not conform to said delegated powers is not only not supreme, but as Thomas Jefferson said, null and void.
whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force:
Thomas Jefferson,
Resolutions Relative to the Alien and Sedition Acts
“The Constitution Doesn’t Matter” myth
This is the most pernicious myth of all, mostly because it is the closest to becoming the truth. I hear this all the time, usually spoken in desperation by those disgusted with how Washington works. They see the Constitution blatantly ignored by those in power and figure it just doesn’t matter any more. But that’s not true yet.
The fact that those in Washington routinely ignore the Constitution isn’t the problem; the fact that we routinely ignore it, is. If we held our elected officials to their oaths to defend the Constitution, if we knew how to assert and defend our rights, and if we knew what the Constitution says and were willing to defend it, then once again it would matter in our society. Sure, there are those who do not like the restrictions the Constitution puts on governments, and those who think it’s only an old and outdated document. And there are those who think we’d be better off without knowing what this dusty document says. But since it was We the People who ordained and established this Constitution, then it should be We the People who determine when it stops mattering. If we want the Constitution to matter again, then we must learn it for ourselves, for few in government want us to know that “We the People” hold the power in this nation.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
U.S. Constitution, Preamble
