Written in 1787, the U.S. Constitution is the world’s oldest written charter of government in use today.
Most Americans are familiar with its first three words – “We the People.” Yet they “don’t understand” the venerable document, says Kimberly Wehle, a professor of law at the University of Baltimore.
To get readers interested in the charter, Wehle recently published “How to Read the Constitution — and Why,” a back-to-the-basics, accessible primer on the U.S. charter of government written for a time when many on the left and some on the right think the Constitution is under assault.
The book’s launch coincides with the end of a consequential term for the Supreme Court, during which President Donald Trump’s second court nominee, Brett Kavanaugh, joined the bench following a contentious confirmation hearing. It also coincides with the nation’s 243rd observance of Independence Day, July 4.
VOA spoke with Wehle about the Supreme Court and how and why to read the Constitution. The following excerpts have been edited for clarity and length.
The U.S. Constitution is the oldest surviving written constitution in use today. What makes it so enduring?
Kimberly Wehle: It’s enduring because of the structure of the first part of the Constitution. That is not the Bill of Rights. But the structure of the first part of the Constitution assumes that there is no person in elected office or appointed office that’s above the law. So each branch is checked by the other two branches and so far, that balance of power ensuring that the human desire to amass unlimited power is checked. I think that that is one of the most enduring elements.
The late Justice Antonin Scalia once said that the “real key to the distinctiveness of America” in the world, what makes America a free country, is not the rights guaranteed by the Constitution, such as freedom of speech and freedom of the press, but rather the structure of government enshrined in the Constitution. Do you agree?
Wehle: The framers, as Justice Scalia indicated, didn’t include express rights in the original Constitution, because they believed that the three-part structure would preserve rights. So there’s a direct connection between the checks and balances and the separation of powers (on the one hand) and individual rights (on the other), meaning the three-part system ensures that the government doesn’t arbitrarily bully individual people. If there’s bullying going on, one of the other two branches is situated to check that.
And yet every branch of government, it seems, over time has accumulated some degree of power at the expense of the other. For example, the Constitution gives the power to declare war to Congress, yet American presidents have waged war without clear congressional authorization. How did that happen?
Wehle: There’s a chicken and egg issue with the power to declare war and the commander-in-chief power. And scholars generally believe that Congress has to declare war. The president can use the military to respond to threats and attacks, as we saw during the George W. Bush administration, (when) Congress authorized the president to preemptively start a war. But when people in office and in the judiciary don’t enforce parts of the Constitution, they cease to really have meaning.
So how do you read the Constitution? Do you examine the text to decipher its original meaning, as the so-called “originalists” do, or do you approach it as a “living document” open to interpretation, as the so-called “judicial” activists do.
Wehle: I disagree with that distinction. In the book, I compare the Constitution to reading a poem, for example, where, you know, there’s ambiguous language, and there are various ways of reading that ambiguity and deciding what it means. The Constitution is the same way. People bring different points of view to it. But the idea that it’s clear, most of the time is just not accurate.
In your book, you make an urgent plea to Americans to read their own Constitution, a text many are taught in grade school. Why read it?
Wehle: Because we’re overloaded in our society with information, online social media, 24-hour cable news and information, various political points of view, people feeding bottom lines to us. And of course, as we saw in the 2016 presidential elections, some of what we get is actually planted — and it’s deliberately false — by Russians, in this instance, that aren’t really interested in promoting American democracy. So in order to cut through this polarized conversation, my suggestion as an educator, which I tell my students, is start with the text. If you want to know what (special counsel) Robert Mueller indicted someone for, read the indictment. If you want to know what your Constitution says, start with the language itself. That’s what the Supreme Court does.
What benefit would citizens of other countries derive from reading the American Constitution?
Wehle: There are a lot of eyes on America for lots of reasons, including this reputation for having, freedoms, which, I think, (are) being challenged and tarnished internationally. So it benefits, given that the United States is a place that a lot of other countries watch. It is beneficial for everyone to understand how our Constitution works, and the dangers if it stops working.
The Supreme Court is the nation’s top appellate court as well as its top constitutional court. What role does it play in American life?
Wehle: It really functions like a mini legislature, and I say that with great care. Meaning when a case gets to the Supreme Court on an important issue, and the court issues a decision under the Constitution, that can’t even be amended by a statute. The Constitution is the boss of all bosses.
So if the court decides that there’s a constitutional question lurking in a statute passed by Congress and then it rules one way or the other under the Constitution, the only way to change that outcome is to amend the Constitution, or amend the configuration of the court such that they will reverse precedent. Both of those are extremely, extremely hard to do.
The Supreme Court is deeply ideologically divided. Many critics see the justices on the court as politicians in robes. Help our international audience understand how the judiciary in this country became so politicized?
Wehle: I don’t think they’re politicians in robes, because politicians tend to make decisions in America based on getting more money to win elections. So they will set aside principle, they’ll set aside policy outcomes, just for that objective.
That’s not the case at the Supreme Court. That being said, it’s unfortunate what happened with Justice Kavanaugh. It’s the most glaring example of how the Senate has allowed the confirmation process to become politicized.
But once justices are on the court, their decision on how to construe vague language will depend on their judicial philosophy. Some justices might believe Congress should have a lot more power over executive branch agencies. Some justices might believe the president has unlimited power in certain circumstances, like when it comes to the use of the military.
Other justices, the liberal wing, are more interested in making sure individual people retain as many rights versus the government. These are philosophical differences over how the government should work.
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