If it weren't such a serious problem, it would be laughable about what some people think is and is not Constitutional these days. A misunderstanding of constitutionality will lead to legal disaster.
- Of or relating to one's physical makeup.
- Of or proceeding from the basic structure or nature of a person or thing; inherent.
- What the judges say it is
But there are many who say these days "That's not constitutional!" when they really mean "I don't like that!". Constitutionality is not based on emotion, but on the Constitution. If the Constitution says it, it's Constitutional, if it doesn't it's not. Constitutionality cannot possibly mean simply what the judges say it is, or all legality and lawfulness will eventually break down into a complete disrespect for law.
Perhaps the most absurd claim to unconstitutionality that I have seen is one with regard to the Electoral College. In point of fact, Article II Section 1 of the Constitution discusses the office of President, including how he or she is to be elected. The several states are to determine how presidential electors are appointed. The electors are to choose the president. So it's very clear, isn't it? "That's unconstitutional!" A reply to the above-mentioned article on unconstitutionality states:
One could argue that the Electoral College is no longer necessary or is ineffective in the electing of the President, but it is ridiculous to argue that it is unconstitutional when it is clearly in the constitution...Robert H. Bork should be a Justice on the US Supreme Court, because he clearly understands that the Constitution is what the Constitution says, not what the judges say it is. However, those who interpret life emotionally--Liberal Democrats--clearly understood that he would respect the Constitution in his decisions, so they hounded him until he withdrew his nomination. Mr Bork explains succinctly, in his book The Tempting of America what happens when judges let their opinions run wild.
When powers are shared...the Constitution is usually explicit on the subject. There is no faintest hint...that the judiciary shares any of the legislative power. (p 4)
...when a judge realizes that in the case before him his strongly held view of justice...is not embodied in...any provision of the Constitution...[h]e must then choose between his version of justice and abiding by the American form of government. (p 1)
The democratic integrity of law...depends entirely upon the degree to which its processes are legitimate.
Either the Constitution and statutes are law, ...or they are malleable texts that judges may rewrite to see that particular groups or political causes win. (p 2)
It is common today for demonstrators to demonstrate in front of the Supreme Court instead of Congress, believing that legality has little to do with their demands.
Politics has nearly everything to do with everything these days, unfortunately. But we cannot afford to let politics drive everything we do. We must let truth rule the day. The rule of law is truth. Rule by judges is destructive politics.
It is important for us to know what really is and is not constitutional and expect it to be interpreted and enforced correctly and equally--not expect a small coterie to change it for us just because "I don't like that!"