by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The politics of 21st-century America has overflowed with constitutional controversies. From debates about war and emergency powers to litigation over health care, marriage, religious liberty, immigration, and financial regulation to the impeachment of a president, we have frequently fought over how to put into effect the 230-year-old blueprint for our government.
These have been important and necessary arguments. But to consider them together is to see that our understanding of constitutionalism, across the political spectrum, has become too narrow. And that narrowness is not only a symptom but also a cause of the dysfunction of our politics.
Simply put, we now tend to treat the Constitution as exclusively the business of lawyers and judges, and to think that what’s at stake in our constitutional disputes is ultimately policy — what our government can do about various public problems. This is at best a badly inadequate understanding, and it leaves us with a blinkered constitutionalism that will not serve us well. …
… What is the Constitution? It’s a difficult question to answer not because the Constitution is irrelevant or unknown to us, but because we identify our society with it to an unusual degree. As the historian Hans Kohn put it in his 1957 classic American Nationalism, “the American Constitution is unlike any other: it represents the lifeblood of the American nation, its supreme symbol and manifestation. It is so intimately welded with the national existence itself that the two have become inseparable.”
This is not much less true in our time, though we have emphasized different facets of the Constitution as our conception of American life has changed. We may think of our society now less in terms of the constrained enumerated powers of Article I and more in terms of an ever-broadening set of claims about the Bill of Rights or the 14th Amendment.