Wednesday, August 4

Chief Justice John Marshall’s Brick Wall

skepticThis election year, I've been remembering a business trip I took to the Maryland suburbs of Washington, DC, several years ago. Whenever I travel to that part of the country, I always make time to visit friends in the area and places in the District that hold special meaning for me. One of those places is the National Archives, on the NW corner of 7th & Constitution, diagonally opposite the West Wing of the National Gallery. The Declaration of Independence, the Constitution, and the Bill of Rights are always impressive, and on this years-ago occasion, no less so than usual. But on this visit, what impressed me the most was not the Founding Documents, but a little 3x5 note card affixed to the wall above the display case immediately flanking the Bill of Rights. The display case contained a copy of the 1821 Supreme Court decision Cohens v. Virginia. On the little card, someone -- presumably some anonymous member of the Archives staff -- had typed the following quotation by Chief Justice John Marshall from Cohens. Even more so than the texts of the Founding Documents, those words quite literally stopped me in my tracks, so much so that an Archives security guard had to gently whisper in my ear that I must move along so as not to monopolize the display. In the Cohens decision, the Chief Justice said:

National Archives Building

The People made the Constitution and the people can unmake it. It is a creature of their own will and lives only by their will.

Chief Justice John Marshall
Chief Justice John Marshall

 To this day, several years later, those words haunt me. In fact, and in a certain sense I explain below, those words terrify me.  I even include that quote in the signature block of e-mails I send from my iPhone. They have a certain naked, uncompromising, in-your-face power that never fails to penetrate even my hard shell of cynicism, which is otherwise such as to make Kevlar look like a warm marshmallow by comparison.

 The brick wall Chief Justice Marshall's words bang our heads against -- thank you, sir, we needed that! -- is simply this: the real Constitution is not housed in the National Archives building, in history books, or any such place. Rather, the Constitution -- the Constitution that really matters, the real Constitution -- is in the hearts and minds and spirits of the American people, and in their commitment to follow wherever they may lead the principles laid down in the Declaration of Independence and given legal specificity of expression in the Constitution and the Amendments. Far more often than we would like to think, we, both as individuals and as communities, decide whether, on any given day and in regard to any given issue, we will make or "unmake" the Constitution.

 + We "unmake" the Constitution when we create -- or through inaction allow to be created -- voter registration procedures and requirements of such expense and of such Byzantine complexity as to effectively disenfranchise whole voting blocs according to race and socioeconomic status.

 + We "unmake" the Constitution when we characterize almost half the population as people unwilling to assume personal responsibility for their lives for no other reason than that they take advantage of government entitlements earned from decades of hard and faithful work.

 + We "unmake" the Constitution when we empower police to detain and question people for no other reason than the superficial appearance of other-than-Caucasian ancestry.

Fourteenth Amendment
The Bill of Rights

 + We "unmake" the Constitution when we demean the high office of President of the United States by repeatedly clamoring for documentation authenticating aspects of his / her life & background not required by Article II of the very Constitution we profess to love so much, rejecting the documentation provided -- and then pandering to those who slobber and howl for yet more.

 + We "unmake" the Constitution when we seek to subvert the mandate of the "establishment" clause of the First Amendment for a religion-neutral government, and seek to put in its place a de facto theocracy that would favor the moral and theological precepts, not even of one religion, but even of one sect of that religion and one specific and narrow range of theological thought within that sect.

 + We "unmake" the Constitution when we seek to subvert Article VI, para. 3 by requiring any de facto religious test as a prerequisite for the holding of office by attempting to pillage the consciences of office holders and candidates to satisfy some religious litmus test of our own idiosyncratic and usually ill-informed devising.

 + We "unmake" the Constitution when we use for toilet paper the "due process" clauses of the 5th and 14th Amendments, the "equal protection" clause of the latter, and the "privileges or immunities" clause of the 14th in order to deny marriage equality to sexual-orientation minorities.

If we count from the ratification of the Bill of Rights, the Constitution has endured for some 225 years. But its continuance in the future is not a given. Its continuance to future generations is never -- absolutely never -- to be taken for granted. Referring to the Founding of the American republic, Thomas Paine said in Common Sense:  "We have it in our power to begin the world over again". A somewhat more sobering corollary is that we therefore also have the power to end it by choosing, most likely a little at a time, to "unmake" the foundation on which it rests. Every day, with every issue, with every election, with every referendum, with every public act and with a myriad private ones -- we choose. We always choose.

James R. Cowles

Image credits
National Archives Bldg ... National Archives ... Public domain
US Constitution ... National Archives ... Public domain
Portrait of Chief Justice Marshall ... Henry Inman (1801-1846) ... Public domain
14th Amendment ... National Archives ... Public domain
Bill of Rights ... National Archives ... Public domain


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