One of the common problems I often face when discussion constitutional issues with friends (especially those without a legal training) is an unwillingness to distinguish between what the law SHOULD or should not be and what the Constitution REQUIRES the law to be or not to be.
Simply put, our constitution is not meant to dictate or require the legislature to pass the most prudent or wisest laws. Especially on the state level, the constitution was meant to impose very limited checks on the elected officials. There is a reason that states are known as “laboratories for democracy” where different policies can be tried and tested. The Bill of Rights/Subsequent Amendments and the structural restrictions found in the main articles of the Constitution are meant to provide for specific restrictions on a limited range of clearly unconstitutional laws, rather than to be used to attempt to strike down merely unpopular laws.
Of course, if one disagrees with a law that is enacted by a state, or by congress one has several recourses. One can elect different officials, seek to pass subsequently laws to narrow or overrule the existing laws, or seek to amend the state or federal constitution. However, what happens with unfortunate frequently is that those that disagree with a law will try to prove that the law violates an existing amendment to the constitution. This often seems to me like attempting to put a square peg in a round hole and reeks of laziness and an unwillingness to go through the proper procedure to achieve a desired result.
The Supreme Court’s latest decision on legislative prayer in Town of Greece v. Galloway well illustrates the point for me. As the majority of the court correctly surmises, the Founding Fathers and the founding generation universally did not see legislative prayer as a violation of the Establishment Clause. In fact, just days before approving the language of the First Amendment, they paid for congressional chaplains. And the practice of having chaplains for congress has continued unabated since that time. As such, almost by definition legislative prayer cannot violate the Establishment Clause and any theory that suggests that it does must be changed rather than changing the meaning of the clause.
Now, many may find legislative prayer unwise. Indeed, as a former Atheist before joining my church, I completely understand the animosity to legislative prayer. As a member of a minority faith, I see the potential for majoritarian abuse. (interestingly, one of the original plaintiffs in the Santa Fe football game prayer case was Mormon). And I can see my Jewish relatives feeling excluded when legislative prayers invokes Jesus Christ. I totally get it. Indeed, praying to God before a legislative session seems a bit strange to me just as praying for ones favorite football team to win does. On the other hand, I also see those seeking divine guidance for the legislative session as being motivated out of a sense of stewardship and a desire to humbly seek help from a higher power. Truth is, I am pretty undecided about the merits of legislative prayer and probably lean against legislative prayer AS A MATTER OF POLICY. However, as a legal matter, I am decidedly in favor of legislative prayer.
The same can be true in the other direction in terms of laws that the constitution clearly forbids despite policy arguments to their favor. Gun Control is the prime example for me of this. Though I went shooting for the first time this past year, I am far from a gun lover. The idea of concealed carry permits makes me feel uncomfortable, as does the idea of individuals owning “semi-automatic” or “automatic” weapons. On a blank slate, I might support a far wider range of gun control measures than I currently do. However, we do not have a blank slate constitution. Instead, we have a constitution with a Second Amendment which clearly protects an individual’s right to bear arms. I find the historical arguments of D.C. v. Heller to be compelling as a matter of originalist interpretation, and so the Second Amendment clearly forbids something like the total handgun ban that was struck down in Washington D.C.
Of course, the outer limits of the Second Amendment’s protection remain ill-defined. The exact confines of this right will be determined by historical scholarship and legal analysis. Legislation that deals with matters outside of the clear scope of the Second Amendment should be treated as a policy question and left to the legislative process just as the question of legislative prayer should be.
The key point for me is that our Constitution does not dictate every matter of policy or constitutionalize ones preferred policy position. We have a vibrant “marketplace of ideas” precisely because most of those ideas are within the realm of what is constitutionally permitted. We may not always love the messy results of our constitutional democracy, but our response should be to petition or legislature rather than petition the Supreme Court for Certiorari.