The mythology of the US Constitution is not new. Milton M. Klein describes how the constitution, like the flag or the national anthem, is a symbol of freedom, nationalism, and patriotism: “to state that the United States Constitution is and has been a political symbol is to assert a commonplace.” Ask the laymen, and many of them will offer sentiments reflecting that the US Constitution is the greatest document ever written, some pinnacle of ultimate freedom and democracy to which we must always hold ourselves and which will never be usurped. A quick google search turns up titles like “Why I Love the Constitution of the United States,” “Eight Reasons to Love the Constitution,” and a few pages later, “Why do Americans care so much about their constitution?” The setup of the US government too buys into it too – an entire branch of the federal government whose only job it is to interpret the words and meaning of this eternal document. There is a culture of mythology around the constitution as if it is nearly omniscient, otherworldly, or godly in its own right. But how does this mythology change the purpose of the document itself?

While the mythology alone may be dangerous in its own right, the situation becomes more convoluted when views of constitutional interpretation are brought in. From originalism and textualism to structuralism and the conception of a living document, there are near infinite ways to interpret each passage of this brief document when well trained and educated lawyers and academics are put in the picture. Regardless of which view a particular court or justice ascribes to, however, there is one common thread: the constitution is the ultimate source of what should and should not be. Of course, issues arise when different courts subscribe to different interpretations – abortion rights were constitutionally protected 60 years ago, but not today? Nothing has changed except the interpretations of the justices. Justice Samuel Alito, the author of the leaked Roe v. Wade draft, is a vocal originalist. Harry Blackmun, the author of the original Roe v. Wade decision, was decidedly liberal (read: not an originalist) (https://www.mtsu.edu/first-amendment/article/1312/harry-blackmun).

According to Amartya Sen, development is freedom. The ultimate goal of any and all attempt to develop a nation is in the expansion of freedoms. But Alito’s opinion is staunchly populist in nature – he touts the necessity of bringing the decision back to the people, of allowing them to decide on their own. In subscribing to an originalist view, that we must view the constitution within its original context and its meaning to those who wrote it, Alito has rejected court precedence and opened a door for populist sentiment to invade the court – the most elevated, supposedly unpolitical, separated body in the US government. With up to 26 states set to ban abortion, politicians calling for the end of Plan B, IUD’s, birth control, and in one case, even condoms, it seems that the judicial pathway from originalism to populism has done the opposite of promote the expansion of freedoms. Rather, an originalist perspective has not only allowed populism into the court’s precedence, but actively limited personal freedoms, and thus, in Sen’s conception, set back American total development as a nation. 

Given that the Supreme Court speaks for the constitution itself, combined with the original mythology, this sets a dangerous precedent that the constitution, in all its infallible, miraculous glory, condones the loss of freedoms in favor of populist sentiment. Populism, meanwhile, is a generally accepted cause of democratic backsliding – a symptom of a frustrated populace, unhappy with the status quo. Logic thus dictates that, in the case of the United States, constitutional mythology eventually trickles down into democratic erosion, as long as populism exists – and populism, still gaining traction every day, does not seem liable to disappear anytime soon. 

No easy solution exists for this trickle down effect – the Supreme Court will remain the ultimate constitutional authority in the land, and the interpretations of justices will continue to have an impact upon the opinions put out. There is no simple way to rid ourselves of populism, rather than to wait it out, and allow it to run its course. The court is currently stacked with conservative (originalist) justices, and that is not liable to change in the near future. The fact is, there may be no saving Roe, at least not for now. Clearly, though, the system itself needs to be remodeled, if it is so easy for popular political sentiment to weasel its way into the lofty halls of the Supreme Court. But with constitutional mythology alive and well, and the court having judicial-reviewed itself into a position of power in Marbury v. Madison, based on the words of that eternal document, such remodeling is highly unlikely – we simply hold the constitution, and by proxy, its interpreters, in too high accord. 

Sources

https://www.mtsu.edu/first-amendment/article/1312/harry-blackmun

https://www.jstor.org/stable/41178693?seq=2

https://www.everycrsreport.com/reports/R45129.html

https://today.law.harvard.edu/brilliant-and-highly-flawed/