One of the conversations that criminal defense lawyers have with some regularity, falling far behind the “how can you represent those people” one and the “do you represent anyone famous” one, is the one where a thoughtful person with a single malt Scotch in hand inquires, “but if it’s not constitutional, how can they do it?”

Georgia Con Law Professor Sonja West posts at PrawfsBlawg about how she deals with this issue with her students.

Student after student tells me that they went to a public high school (usually in the South) and they had a minister lead a prayer at their graduation or they had a school-sponsored baccalaureate with sermons and prayers. Just as many of them had prayers before school football games. The students are confused. They want to know how their school could do this after the Supreme Court found such actions to be unconstitutional.

I can think of no other topic where my answers are so direct and unqualified. “That was very likely unconstitutional,” I tell them, and your school officials are simply waiting for someone to formally complain or even to sue before changing their ways.

The story of the power struggle between the states and the federal government during desegregation is riveting, and we’re all familiar with the incredible show of force that was ultimately necessary to maintain the integrity of the Court’s role as final interpreter of the Constitution. Today, however, there are repeated acts of defiance quietly going on in public schools all across the country when it comes to these school prayer cases.

Much of the conflict between those who believe that “democracy”, in the form of a legislative enactment or executive fiat, trumps the Constitution, stems from the reality that governments large and small make the active choice of ignoring the laws, courts and Constitution.  Don’t try this at home, as the government isn’t nearly as tolerant of you doing it as it is of itself.

This problem arose twice over the last month in the Simple Justice household, where my daughter got all twisted over California’s Prop 8, a referendum by the People (with a little help from the Mormon Church) to alter the Constitution to permit discrimination against gays and lesbians, while my son learned about Kentucky’s latest stroke of genius, a law requiring the state Homeland Security office to credit God with their safety.

The law that organized the Homeland Security office first lists Homeland Security’s duty to recognize that government itself can’t secure the state without God. 

It lists the office’s initial duty as “stressing the dependence on Almighty God as being vital to the security of the Commonwealth.”

I sometimes marvel at the ability of Kentucky legislators to provide teaching moments. 

So the refrain, how could this be, was echoed throughout the house.  Of course, schools around here continue to offer a prayer before official events, just as they do in deepest, darkest Kentucky, so who am I to point fingers? 

While Sonja’s explanation is both clear and accurate, it raises some troubling questions.  For all the lip service we pay to the Constitution, why does government get to simply ignore it at will until somebody, some regular person who put his pants on one leg at a time, forces change?  Isn’t there some entity out there in the mist that goes around from town to village making sure that they behave themselves in accordance with the Constitution?  And if the government gets to ignore the law at will, how can it put regular people into prison for doing the same?

Ah, kids and Scotch drinkers.  They are so naive, so beautifully unaffected by cognitive dissonance.  The problem of course is that the questions are awfully darned good, and the answers are generally cynical.  While some in the law prefer to hide their heads in platitudes designed to pacify the weak-minded, pretending that none of this really happens, or covering it up in a cloud of dignified denial, neither children, Scotch drinkers nor criminal defense lawyers have that pleasure. 

The plain fact is that the inconvenient aspects of  the Constitution are routinely ignored, and it’s so common and pervasive that most of us take it for granted.  Sure, we lawyers know the caselaw, and know that our schools shouldn’t be offering a prayer to their inchoate graduates, but who wants to throw a skunk onstage right before their kid gets the sheepskin?  It’s unbecoming. 

So the second part of Sonja’s explanation is that there is a perpetual tension between the forces that favor the Constitution and the forces that believe that this old piece of paper protects their right to enforce the will of the people, no matter how contrary the two might be.  

As Edmund Burke said,  “All that is required for evil to prevail is for good men to do nothing.”   Bravo to Sonja for breaking the silence, and to my two kids for caring.