Every twelve seconds, someone on the internet argues that the Constitution means exactly what it says, and that us lawyers muddle it up for the sake of protecting our turf and collecting ill-gotten gain off the backs of hard-working citizens. While we often can tell who these people are from their tin foil hats , there are some surprising voices joining the choir.
Orin Kerr at Volokh Conspiracy offered these words:
Joining in, Ilya Somin offers;
Our Constitution is not alone the working plan of a great Federation of States under representative government. There is embedded in it also the vital principles of the American system of liberty. That system is based upon certain inalienable freedoms and protections which not even the government may infringe and which we call the Bill of Rights. It does not require a lawyer to interpret those provisions.
—former President Herbert Hoover, 1935.
The momentum builds, but as Ilya explains,
Co-blogger Orin Kerr quotes Herbert Hoover’s statement that you don’t have to be a lawyer to understand the Constitution. Interestingly, the Supreme Court agrees. As Justice Owen Roberts put it in a unanimous 1931 decision, “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” This conclusion was reaffirmed by the Court in District of Columbia v. Heller (2008).
That’s a rather wild assertion. with some inexplicable internal contradictions. After all, why would “relatively simple parts” of the Constitution require “decades of accumulated legal precedent interpreting” them? Either they’re simple or not, and if the former, then no interpretation is needed. Or if it is, then it’s not so simple. You can’t have it both ways.
Many parts of the Constitution really are readily accessible to laypeople. You don’t have to be an expert to understand that the Constitution establishes a system of separation of powers rather than a unitary parliamentary system, that it protects freedom of political speech, that it forbids the establishment of an official religion, that it requires the government to compensate property owners when it condemns their land, and so forth. Even when dealing with relatively simple parts of the Constitution, it may be difficult for nonspecialists to go through decades of accumulated legal precedent interpreting these provisions. But the Constitution is not just what the judges say it is, and even the latter is often constrained by the text, especially when the text is relatively clear.
Let’s test this thesis, using one of the examples Ilya offers as “readily accessible to laypeople,” the Establishment Clause of the First Amendment. It says, in pertinent part:
Congress shall make no law respecting an establishment of religion…Ten words, no waiting. How hard could that be to understand? The first five words seem about as clear as they could be, that Congress shall make no law. We certainly know what Congress is, that domed place in Washington where 535 people spend their time trying to figure out how to make each other look foolish when they aren’t asking for campaign contributions. Those people “shall,” a mandatory word, leaving no wiggle room, “make no law.”
Obviously, this doesn’t stop a teacher from requiring students to offer a prayer to Buddha before the start of a hard day of education, or a fire department from putting a creche in front of its combination garage/bar, or a judge from sentencing a drunkard to give Catholic confession twice a day for ten years. Even if we blindly incorporate this clause under the Fourteenth Amendment, none of these actors can be construed under any stretch of language as “Congress,” or lawmakers. Easy, squeezy.
Then comes the second five words, “respecting an establishment of religion.” Not nearly as clear as the first five, but not all that hard to understand. If we all agree that “respecting” means “with regard to,” the final four becomes fairly clear, right? They can’t establish, or make official, religion.
Does this mean one religion? Does this mean they can’t make a law requiring us to believe in, say, one of the top three religions, and rid us of all the squabbling about a bunch of lesser religions? Does it mean they can’t pass a law requiring us to believe in something, putting an end to those commie atheists?
But establishing an official religion is a long cry from passing laws that encourage religion, or facilitate religious good works, or enabling religion to play a critical role in our lives. After all, Kentucky’s homeland security law makes it a crime not to acknowledge that our security depends on the will of Almighty God. And you can’t walk into the Alabama’s Supreme Court without noticing that Roy Moore, who refused to remove the 10 Commandments from the courtroom wall, is back on the bench.
And we still have those inexplicable anomalies, the “under God” thrown into the Pledge of Allegiance to differentiate us from the Ruskies, or “in God we trust” in the dollar bill. And they actually came at the hands of Congress. Figure that out.
There aren’t many Americans, lawyers included, who believe the Constitution should be anywhere near as complicated to understand as it is, as our Supremes have made it. While lawyers may have a leg up in tolerance for judicial tinkering, not because we like it but because we’ve grown inured to it, one would have to be awfully darn bold to think you can walk into court, point to the text, and walk out, secure in the knowledge that your job is done. And that’s just with a cocktail napkin assessment of the first ten words of the First Amendment, which (as should be obvious) reflects nothing remotely resembling the state of the Establishment Clause in our fine nation.
And there isn’t anyone foolish enough, myself included, to play this game with the Fourth Amendment.
It strikes me that the adoration of the plain language of the Constitution is in direct proportion to whose ox is being gored. It’s not that the plain words are too deep, complex and sophisticated for mere mortals, though experience informs us that simple is only simple until it’s not. Arguments like Ilya’s, and the Open Law crowd of academics who believe that you give nonlawyers access to the whole of the law and they will have no problem become overnight legal scholars, feed into a libertarian-ish, populist trend that invites facile, self-serving “understanding” of the law that is used to justify their reaction to whatever beef they have with government.
On the other hand, if you leave the Constitution up to the group of nine to tinker with long enough, who decide to empower themselves with the authority to ignore the words entirely to reach whatever result they prefer, you end up with the Constitution we have today. As a lawyer who makes arguments based on the Constitution, as interpreted by the Supremes, it’s not entirely clear that leaving it to judges to “interpret” the Constitution works any better than leaving it to the tin foil hat crowd. Neither has done much for my ox.