CONSTITUTIONAL MYTHS & REALITIES - Eight of 'em, so pay attention! - Part I

This is an eight part series adapted from a speech delivered on April 29, 2003, at a Hillsdale College National Leadership Seminar in Dearborn, Michigan. Reprinted by permission from Imprimis, the national speech digest of Hillsdale College.

Stephan Markman
Justice, Michigan Supreme Court
(See below for bio*)

[UPDATE: Thanks to Ed Darrell for pointing our that the author's name is actually Markman not Markham as I had originally posted; apologies to Judge Markman]

The United States has enjoyed unprecedented liberty, prosperity and stability, in large part because of its Constitution. I would like to discuss a number of myths or misconceptions concerning that inspired document.

Myth or Misconception 1: Public policies of which we approve are constitutional and public policies of which we disapprove are unconstitutional.

It might be nice if those policies that we favor were compelled by the Constitution and those policies that we disfavor were barred by the Constitution. But this is not, by and large, what the Constitution does. Rather, the Constitution creates an architecture of government that is designed to limit the abuse of governmental power. The delegates to the Constitutional Convention of 1787 sought to create a government that would be effective in carrying out its essential tasks, such as foreign policy and national defense, while not coming to resemble those European governments with which they were so familiar, where the exercise of governmental power was arbitrary and without limits. Therefore, while the Constitution constrains government, it does not generally seek to replace the representative processes of government.

Governments may, and often do, carry out unwise public policies without running afoul of the Constitution. As a Justice of the Michigan Supreme Court, I often uphold policies that have been enacted in the state legislature, or by cities and counties and townships, that I believe are unwise. But lack of wisdom is not the test for what is or is not constitutional, and lack of wisdom is not what allows me—a judge, not the adult supervisor of society—to exercise the enormous power of judicial review and strike down laws that have been enacted by "we the people" through their elected representatives. Redress for unwise public policies must generally come as the product of democratic debate and at the ballot box, not through judicial correction.

*STEPHEN MARKMAN, who teaches constitutional law at Hillsdale College, was appointed by Governor John Engler in 1999 as Justice of the Michigan Supreme Court and subsequently elected to that position. Prior to that he served as United States Attorney in Michigan (appointed by President George H. W. Bush); Assistant Attorney General of the United States (appointed by President Ronald Reagan), in which position he coordinated the federal judicial selection process; Chief Counsel of the U.S. Senate Subcommittee on the Constitution; and Deputy Chief Counsel of the U.S. Senate Judiciary Committee. Justice Markman has written for numerous legal journals, including the Stanford Law Review, the University of Chicago Law Review, the University of Michigan Journal of Law Reform and the Harvard Journal of Law & Public Policy.

Link Locations:

Part II, Part III, Part IV, Part V, Part VI, Part VII, Part VIII