The U.S. Constitution needs to be studied — and venerated: Erik M. Jensen

Democrats, with good reason, are challenging the constitutionality of many actions of the Trump administration. The president thinks he can do anything he wants by executive order, even if the subject isn’t supposed to be within his control. (For example, the power to levy taxes, including tariffs, belongs to Congress under the Constitution.)

I’m delighted to see many left-of-center folks taking the Constitution seriously. It really is a striking document, written by extraordinary men who were well-read, thoughtful and energetic. What is also striking, however, is that many who complain about President Donald Trump used to denigrate the Constitution when doing so served their purposes. They helped create the climate in which the Constitution isn’t venerated by many Americans, including the president.

At least two criticisms of the Constitution are made by left-leaning politicians and academics. One is that the document was irredeemably tainted by slavery and should therefore be ignored when it gets in the way.

Compromises with slavery were certainly made; there would have been no union otherwise. But it’s amazing how few references are made to slavery in the Constitution. (Indeed, that nasty word isn’t used at all.) In a speech in 1863, Black abolitionist Frederick Douglass argued that “the Federal Government was never, in its essence, anything but an anti-slavery government. Abolish slavery tomorrow, and not a sentence or syllable of the Constitution need be altered…. If in its origin slavery had any relation to the government, it was only as the scaffolding to the magnificent structure, to be removed as soon as the building was completed.” Just so.

A second criticism is that the Constitution’s old. We shouldn’t be limited, the argument goes, by an 18th-century document written by guys unfamiliar with today’s complex problems. If taken seriously, the checks and balances in the Constitution keep us from having a modern government — that is, one controlled by the president.

Hm-m-m, maybe the Founders knew what they were doing, after all. An unchecked leader is acceptable only if we’re sure he (or she) will be decent and honorable. But we can’t always be sure of that, can we?

All of us (including the president) should be revisiting (or reading for the first time, as the case may be) the text of the Constitution and pondering its provisions. For example, the Due Process Clause reads, “No person shall be deprived of life, liberty, or property . . . without due process of law.”

Yes, no person, not no citizen. What constitutes due process depends on the circumstances, but due process requires something even for possibly illegal immigrants. It’s not enough for the administration to say a particular person is here illegally and therefore should be summarily imprisoned and deported. Nor is it appropriate for the president to say he is simply doing what the voters elected him to do. The Constitution is supposed to constrain popular impulses, not empower them.

What can we do to revive the Constitution? In 2016, I wrote an op-ed about the lack of civics education in high schools. Students aren’t routinely exposed anymore to the Constitution. Provisions that might at first seem silly often have a good purpose; in any event, those provisions ought to be taken seriously and discussed in the classroom.

I used to think it would be easy to remedy this problem: reinvigorate a requirement for rigorous study of the Constitution. But I’m increasingly pessimistic. How could we find enough teachers in a country full of people who haven’t read the Constitution? If we don’t work quickly, it will be too late.

Jensen is the Coleman P. Burke Professor Emeritus of Law at Case Western Reserve University. He writes from Cleveland.

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