What Can the Constitution Do For You?

By Paul Engel

May 21, 2024

Does the Constitution still matter anymore?
Is the Constitution a magically document that will save the day?
Or is it the only tool that can restore our rights.

I meet a lot of people who think the Constitution is useless, while others wonder how people can get away with violating it. While these may appear to be opposing positions, I believe they stem from the same misconception: That the Constitution of the United States is some superhero that will come flying in to save the day. Rather, the Constitution is ink on parchment, a tool and nothing more. Like any other tool, the Constitution is absolutely useless unless it is picked up and wielded. And like any other tool, unless you learn how to use the Constitution, you’re much more likely to crush your own thumb than those who are infringing on your rights.

What is the Constitution

We need to start at the beginning. What is the Constitution? Yes, it’s ink on parchment, words on paper. If that’s all it is, then why do so many people revere it? In the Supreme Court case Marbury v. Madison, we find:

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation,

Marbury v. Madison Opinion

So if the Constitution is the fundamental and paramount law of the United States, why is it violated so often? Because the Constitution is just laws.

A rule, particularly an established or permanent rule, prescribed by the supreme power of a state to its subjects, for regulating their actions, particularly their social actions.

Law – Webster’s 1828 Dictionary

The Constitution is not some magical incantation, or spell that forces all who hear it to comply. Like any other law, it’s powerless without law enforcement.

That which gives energy or effect; sanction. The penalties of law are enforcements.

Enforcement – Webster’s 1828 Dictionary

In other words, the Constitution, like any other law, is merely a tool, a means of articulating the rules. It’s their enforcement that gives laws power. The Marbury court stated that the Constitution forms the fundamental and paramount law of a nation, or as Article VI, Clause 2 states, the supreme law of the land:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;

U.S. Constitution, Article VI, Clause 2

However, all this vaunted talk of supreme, fundamental, and paramount laws mean absolutely nothing unless and until they are enforced.

The Constitution as a “Power” Tool

Most people I talk to about the Constitution see it as something someone else should be using to protect their rights. While I agree, people like politicians, judges, and attorneys should be using the Constitution enforcing the rules of the Constitution, today they show little interest in fulfilling the oath they took to support it. Part of the reason, I believe, is the fact that most politicians and all judges and attorneys learn their craft in law schools. Sadly, it appears that these supposed schools of law completely ignore the supreme law of the land. For five years I have asked every judge, attorney, or anyone who attended law school a simple question. Did they study the actual Constitution in law school or did they study “constitutional law”? In those five years I have had exactly one person say he studied the Constitution in law school. “Constitutional law” is not law because it did not go through the lawmaking process. Rather, it’s the opinions of judges, passed down and manipulated over generations of attorneys, in order to to arrive at the outcome they sought. Many of the law school graduates I have met stated how they studied the Constitution in other ways, but the schools dedicated to teaching the law have failed to teach the students the supreme law of the land. To understand why this is so important, let’s take a look at how the Constitution functions.

What prevents Congress from making laws that control a person’s speech or what they can publish? Most people would say “The First Amendment!” The First Amendment may prohibit such actions, but can do nothing to prevent it. Only the enforcement of the First Amendment would render such a law null and void, and only the political backlash from such unconstitutional actions would prevent members of Congress from voting for such a law in the first place. It’s the same way a hammer cannot drive a nail until it’s picked up and swung properly. Yet in the United States today, Congress passes hundreds of unconstitutional laws and the executive agencies promulgate thousands of unconstitutional rules and regulations every year, yet no one seems concerned about it. Why? First, I believe that most politicians and bureaucrats have no clue what the Constitution actually says. I guess, in their case ignorance is bliss. Second, We the People rarely if ever actually provide the political backlash to dissuade government actors from their unconstitutional acts. Why do the American people do nothing when the supreme law of the land is violated? Again, I think there are two reasons. First, We the People know even less about the Constitution than those who went to law school. In this case ignorance is not bliss, but misery. Second, because we keep sitting around for “Captain Constitution” to fly in and save the day. Is this how the Constitution was meant to be wielded?

Who Wields The Constitution

When I was in high school, I was taught that the Constitution was only for politicians, judges, and lawyers, that it was to complicated for “average” people to understand. It wasn’t until decades later that I learned the truth about who the Constitution was written for.

The first clue to who the Constitution was written for comes from its own preamble.

We the People of the United States, … do ordain and establish this Constitution for the United States of America.

U.S. Constitution, Preamble

If We the People are the ones who ordained and established the Constitution for the United States, shouldn’t we not only know what it says, but be well educated on the subject? This is certainly what John Jay, our first Chief Justice of the United States, thought about it.

Every member of the State ought diligently to read and to study the constitution of his country, and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.

John Jay, First Chief Justice of the United States

Mr. Jay thought that everyone should not only read and study the Constitution, but to teach it to the rising generations. In the opinion of the very first Chief Justice, it was not the responsibility of government to teach our children to be free, it’s each and every one of ours. And look at what we get for diligently reading and studying the Constitution: Tools! Reading and studying the Constitution gives us the tools to recognize when our rights are being violated, and the tools to defend and assert them. However, just like the first toolkit many of us got when we were young, these tools won’t do us any good if we keep them locked up and refuse to use them.

Adding Power to the Tools

Now we know where to get the tools we need, we should start figuring out how to put them to good use. There’s an old saying, “To a hammer, everything looks like a nail.” It expresses the idea of tunnel vision. If all you have is a hammer, the only thing you can do is drive things in as if they were nails. Thankfully, the Constitution is not a single tool, but a toolkit. And like any toolkit, there are some tools we use more often than others. That’s not to say the other tools are less valuable, but I’ve found a couple of tools that are almost universal in their ability to help the other tools work.

The Supremacy Clause

U.S. Constitution, Article VI, Clause 2

I know we’ve already mentioned the Supremacy Clause, but there are a few things about this tool that may not be obvious at first. The Supremacy Clause clearly lists three things as the supreme law of the land. First, the Constitution. That seems pretty obvious. Second, the laws of the United States. but only those laws made pursuant to, or following, the Constitution. Lastly, treaties. Again, only those treaties made under the Authority of the United States. And where does the United States get its authority? Why from the Constitution, of course. This means that just because Congress passes a law, or the President signs a treaty with the advice and consent of the Senate, it does not make it the supreme law of the land. In fact, as Alexander Hamilton put it in Federalist Paper #78:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

Alexander Hamilton – Federalist Paper #78

Now, let’s look at what is not included as the supreme law of the land. Executive Orders are not the supreme law of the land, neither are rules and regulations made by the executive branch. Even the decisions of courts are not the supreme law of the land. In fact, the rest of the supremacy clause states:

and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Constitution, Article VI, Clause 2

In other words, the judges are bound to the Constitution, not the other way around. That sounds like a pretty beefy tool to me.

The Tenth Amendment

The next tool we need to have in our pocket is the Tenth Amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

U.S. Constitution, Amendment X

Simply put, if the Constitution doesn’t delegate a power to the United States, then it belongs to someone else. Though some people like to state that the Constitution implies powers it doesn’t specifically enumerate, that doesn’t match with what the Tenth Amendment says. Another important point, powers are delegated to the United States.

To entrust; to commit; to deliver to anothers care and exercise; as, to delegate authority or power to an envoy, representative or judge.

Delegate – Webster’s 1828 Dictionary

That means the powers not only had to exist before they were delegated to the United States, but they needed to be possessed by another entity. In this case, as the Tenth Amendment points our, the powers not delegated to the United States are reserved to the states or the people.

Kept for another or future use; retained.

Reserved – Webster’s 1828 Dictionary

That means that any power the Constitution does not delegate to the United States is yours, either directly or through your state.

These two clauses provide so much power to the other tools in the Constitution, it’s like going from a simple screwdriver to a power screwdriver. Sure, you have a right to not be deprived of life, liberty or property without due process of law (Amendments V & XIV), but the supremacy clause means no entity can legally place an exception to that law. It also means that when the federal government comes in to regulate something they have not been delegated the power to regulate, the Tenth Amendment is your legal authority to say no.

Conclusion

Hopefully now you have a better idea of the tools you have available, and are feeling encouraged to learn how to use them. I’m reasonably sure you feel like you’re standing there with your bag of tools, staring at a decrepit old apartment building and wondering what difference you can make. After all, the place is huge, it’s a mess, and the vast majority of the tenants either won’t do a thing or are actively trying to destroy the place. What can one person do in the face of such opposition?

Don’t miss the forest for the trees. Yes, the United States is a gigantic mess with hundreds of millions of people and fifty different states, all with their own agendas. You don’t have to fix the United States though; all you have to do is make your neighborhood better. That decrepit and messed up apartment building is made up of apartments, just as the United States is made up of individual states. Each of those apartments are made up of different rooms, just as the states are made up of counties, cities, and towns. So before you go trying to fix the United States, even before you try to fix your state, clean up your county, city, or town. Start by voting for representatives who understand the oath they will take to support the Constitution of your state and the United States. Many of them will not have studied these constitutions, so help them. Point out their oaths, what the Constitution actually says, and your expectation that they fulfill their oath. If they don’t, make sure the political backlash is both constitutionally sound and very, very public. To do that, you’ll also need to help your neighbors understand the Constitution and the consequences of ignoring it. That way, when your elected representatives screw up, and they will, it’s not just you pushing back, but a hopefully growing number of your neighbors. As those elected officials start looking at statewide offices, make sure they know you will hold them to their oaths just as firmly at the state level as you did at the local level. As more and more people across your state see the benefit of using the tools we have to keep our governments in check, they will start learning to use these tools as well, and your state will be not only be more constitutional, but freer as well. As this message spreads across the states, they will become more constitutionally sound and Washington, D.C. will become less important. After all, according to the supreme law of the land, there’s actually very little the federal government can legally do.

E-Mail Paul Engel: paul@constitutionstudy.com