Fox News: The Constitution isn’t controversial. Hating it is.
On September 17 — 235 years to the day since the Constitution was signed — we celebrate Constitution Day. Or at least some of us will. The precursor to Constitution Day, called, “I am an American Day,” used to draw crowds who enthusiastically celebrated with speeches and songs. Nowadays, the holiday largely goes unnoticed. Others use it as an excuse to critique our governing document — the longest-surviving government charter in the world.
Whether it’s because the document “limits democracy” or thwarts popular attempts to insert racial politics into the law, hating the Constitution has become so mainstream that The New York Times recently suggested the document is “dangerous,” “broken,” and “should not be reclaimed.” Who knew that universal and timeless principles like equality before the law, due process, civil rights, and limited, enumerated powers could be so controversial?
Contrary to the critics, the worst injustices in our nation’s history have come when the government has strayed from the Constitution’s original meaning. Consider Plessy v. Ferguson, Korematsu v. United States and Buck v. Bell. Each case is a blight in our nation’s legal history, and each resulted because the Supreme Court deviated from the Constitution’s text.
Plessy hardly needs summarizing; it’s one of history’s most widely known and universally loathed cases. Homer Plessy’s lawsuit started after he was arrested for refusing to move from a Whites-only railway car. He challenged Louisiana’s Separate Car Act, which mandated segregated railway cars, arguing it violated the Equal Protection Clause of the Fourteenth Amendment.
But in an 8-1 opinion, the Supreme Court upheld Plessy’s conviction, endorsing the theory that separate is equal. “Laws permitting, and even requiring… separation,” wrote Justice Henry Brown, “do not necessarily imply the inferiority of either race to the other.” Only one justice dissented.
It took 58 years and the tireless efforts of civil rights heroes like Supreme Court Justice Thurgood Marshall to overturn Plessy in Brown v. Board of Education. There, the court unanimously recognized what the Constitution had required all along: “separate is inherently unequal” and requires desegregation.
Korematsu v. United States represents another glaring injustice. In the wake of Pearl Harbor, Democrat President Franklin D. Roosevelt issued an executive order that led to the internment of more than 120,000 people of Japanese descent, two-thirds of whom were U.S. citizens. After he was arrested and convicted of refusing to obey a removal order, Fred Korematsu challenged his conviction in court. But the Supreme Court upheld Roosevelt’s order because it was a “military necessity.”
Three justices dissented. In perhaps the most famous dissenting opinion, Justice Robert Jackson wrote that Korematsu had been convicted “of an act not commonly thought a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.”
In another dissent, Justice Frank Murphy called the deportation orders “the legalization of racism.” The Supreme Court did not officially correct its mistake until 2018, when Chief Justice Roberts wrote, “Korematsu was gravely wrong the day it was decided.”
Buck v. Bell, though less widely known, is no less egregious. In that case, Carrie Buck was committed to a mental institution and forcibly sterilized at the age of 18. She had the mental age of 9, but one of her physicians claimed she was a threat to society. In court, Buck’s lawyers argued that the law deprived her of due process and equal protection.
Buck lost in every court that heard her case, including the Supreme Court. Writing for the majority, Justice Oliver Wendell Holmes Jr. remarked that the “feeble minded” Buck was the daughter of a “feeble minded” woman and mother to a “feeble minded child.”
He rejected her constitutional arguments as contrary to the “public welfare.” According to Holmes, “Three generations of imbeciles is enough.” Unlike the prior two cases, Buck has never been officially overturned, though subsequent cases have weakened its force.
The critics are right — the Constitution is counter-majoritarian; it limits democracy even when a majority tries to sterilize people they’ve deemed feeble. And yes, the Constitution abhors race-conscious government action — even those deemed benign or vital to national security. But in hindsight, our country could’ve benefited from a heartier commitment to individual rights and skepticism of race-conscious lawmaking.
Constitution Day is a good time to recognize the document’s virtues. Those who complain that the Constitution “gave rise to President Trump” could consider all the ways in which it limitedhis authority while in office. Those who grumble about the Constitution’s protections for free speech can acknowledge America’s past disastrous attempts to restrict disfavored expression and the way the Constitution.
Even as the Constitution’s popularity waxes and wanes, its meaning and significance doesn’t. When the government tries to punish people for being born into the “wrong” skin color or deprive people of fair procedures or basic civil rights, the Constitution will be there whether we celebrate it or not.
This post was originally published in Fox News on September 17, 2024.
