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Friday, September 02, 2005

This Week's Imprimis

Constitutional Myths and Realities

Stephen Markman
Justice, Michigan Supreme Court

Stephen Markman, who teaches constitutional law at Hillsdale College , was appointed by Governor John Engler in 1999 as Justice of the Michigan Supreme Court and subsequently elected to that position. Prior to that he served as United States Attorney in Michigan (appointed by President George H. W. Bush); Assistant Attorney General of the United States (appointed by President Ronald Reagan), in which position he coordinated the federal judicial selection process; Chief Counsel of the U.S. Senate Subcommittee on the Constitution; and Deputy Chief Counsel of the U.S. Senate Judiciary Committee. Justice Markman has written for numerous legal journals, including the Stanford Law Review, the University of Chicago Law Review , the University of Michigan Journal of Law Reform and the Harvard Journal of Law & Public Policy.

The following is adapted from a speech delivered on April 29, 2003, at a Hillsdale College National Leadership Seminar in Dearborn, Michigan.


The United States has enjoyed unprecedented liberty, prosperity and stability, in large part because of its Constitution. I would like to discuss a number of myths or misconceptions concerning that inspired document.

Myth or Misconception 1: Public policies of which we approve are constitutional and public policies of which we disapprove are unconstitutional.

It might be nice if those policies that we favor were compelled by the Constitution and those policies that we disfavor were barred by the Constitution. But this is not, by and large, what the Constitution does. Rather, the Constitution creates an architecture of government that is designed to limit the abuse of governmental power. The delegates to the Constitutional Convention of 1787 sought to create a government that would be effective in carrying out its essential tasks, such as foreign policy and national defense, while not coming to resemble those European governments with which they were so familiar, where the exercise of governmental power was arbitrary and without limits. Therefore, while the Constitution constrains government, it does not generally seek to replace the representative processes of government.

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