The Futility of Arguing Constitutionality

We all like to argue about the true meaning of the Constitution. Arguments regarding constitutionality fall into two camps generally referred to as left and right. The left usually argue that the language in the Constitution grants vast authority to the federal government or will bring up the idea that the Constitution is a “living document” whose interpretation can change over time (of course this idea is patently absurd as that would mean the Constitution is the only piece of legislation that can be interpreted differently over time). On the other side we have the right who generally argue that the Constitution grants very limited powers to the federal government. Both sides use the same text to argue in favor of their positions. Unfortunately arguments based on constitutionality are meaningless because the Constitution itself grants the power to arbitrate such disagreements to a branch of the federal government.

Article 3 of the United States Constitution reads:

Article III.

Section. 1.

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;– between a State and Citizens of another State,–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The part I’m mainly referring to is “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” In arguing against arguments based on constitutionality I’m going to make a constitutional argument (how messed up is that?). The reason for this is that I’m concerned with how the excerpt is used today in law, not my interpretation on how it should be used.

The power of the judiciary extends to all cases arising under the Constitution itself. Effectively this grants the Supreme Court the power to interpret the meaning of the Constitution by being the ultimate arbitrator in disagreements regarding the document. If one group says the Commerce Clause doesn’t allow the federal government to regulate goods manufactured and sold for exclusive use in one individual state while another groups says the opposite they may find their disagreement going to the Supreme Court. At that point the Supreme Court will rule in favor of one side. As the Supreme Court works on a majority vote and has nine judges the legal interpretation of constitutional language is decided by five individuals. No matter what you and I say, no matter what anybody outside of the Supreme Court says, those five guys are the only people who get to decide what the Constitution really means.

An example of this is the Commerce Clause. This seemingly minor entry in the list of Congressional powers has been used to justify numerous laws that were later challenged by upheld by the Supreme Court. One such case was Wickard v. Filburn where the Supreme Court decided the Commerce Clause granted the federal government the authority to prevent an individual from growing more than an the state allowed amount of wheat even though the wheat was intended for personal use. The Supreme Court’s logic basically revolved around the fact that a farmer who grew his own wheat wouldn’t buy wheat on the market and therefore would effect wheat prices. Many people would say that such a ruling was bullshit, that the Founding Fathers never meant for the Commerce Clause to mean that, but the Constitution grants the Supreme Court the ultimate authority in arbitrating such debates so, through their ruling, the Commerce Clause means the federal government can regulate wheat production for private use.

The catch-22 of arguing constitutionality is the fact that the Constitution itself makes such arguments pointless.