Remarks by Christopher DeMuth at a Constitution Day seminar in honor of Walter Berns, hosted by the American Enterprise Institute, September 20, 2011.
In America today, the Constitution has come to mean constitutional law. Most Americans venerate their Constitution and realize that it is an important source of their liberties and of their nation’s success. But when they talk about it, or hear political leaders or the media talk about it, the subject is almost always what courts—especially the Supreme Court—have said in its name. We pay attention to our Constitution when the Court holds that one of its provisions forbids, or does not forbid, a particular practice–banning violent video games, regulating corporate political contributions, suing funeral hecklers, providing racial preferences in college admissions. Moreover, as Justice Scalia noted in his AEI Boyer Lecture in 1989, these holdings are often treated as if they were policy decisions rather than constitutional decisions—even when they are not, in fact, policy decisions. If the Court holds that Congress does not have the authority under the interstate commerce clause to forbid the possession of guns in school zones by means of a statute with such-and-such provisions, the media report gravely that the Court has said people can take guns into schools.