Nelson: On this Constitution Day, our founding document is still showing signs of life

September 17 is Constitution Day, the day we pay mostly lip service to our founding document signed on this date in 1787. We mutedly sing its praises between bouts of ignoring it or actively wiping our feet on it.

The Founders’ eyes would be as big as dinner plates if they saw the behemoth, fingers-in-every-pie, overweening monstrosity the federal government is now. Some worried that the legislative branch would overwhelm the executive, so try to imagine their reaction to President Joe Biden’s statement that “if the Senate will not move to tackle the climate crisis…I will take strong executive action to meet this moment.” If the people’s legislature won’t do something, the executive will step in and force it down our throats. Despots everywhere will admire his stance.

Not that Biden is the first president to act unconstitutionally. He follows a lengthy line of presidents, Republican as well as Democrat, who have committed “a long train of abuses and usurpations” of authority. Americans have generally approved. Like the ancient Israelites, we have preferred kings to rule us rather than judges, i.e. powerful central figures to legislators.

It’s almost comical to hear those dismayed by the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision, which overturned Roe v. Wade, run squealing to the Constitution for supposed support. They likely had to blow an inch of dust off their copies if they could even find them. The Court decided that abortion was not a constitutional right but whose legality was a state matter just as it was before Roe. What a thunderclap: an issue that the federal government has nothing to do with but to leave to the proper authorities, the states. The Constitution, while doddering to the dustbin of history, still has a little life in it.

But how to reconcile the Ninth Amendment—”The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”—with leaving abortion rights with the states? Author of the Dobbs decision Justice Samuel Alito argued, borrowing from precedent, that any right “must be deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” He noted that until quite recently there was no constitutional abortion right in America and that most states at the time of the Fourteenth Amendment’s ratification (the bedrock of the pro-abortion argument) outlawed abortion entirely.

Thus, we have practically unlimited rights listed and unlisted in the Constitution from important to trivial; e.g. from the right to peaceably assemble to the right to take early morning walks, barring an important and valid government reason why not. They all fit Alito’s description of being rooted in history and an ordered society, which is another way of saying that not everything people do or wish to do is a constitutional right. Running naked down the freeway or beating a horse doesn’t qualify.

In his opinion, Alito also remarks that the judiciary should not follow popular trends that are contrary to the Constitution or worry about the consequences of those decisions. Law scholar Thomas Cooley said the same 150 years ago: most of a written constitution’s benefits would be lost if bent by circumstance or modified by public opinion.

Nelson lives in Casselton, N.D., and is a regular contributor to The Forum’s opinion page. Email him at dualquad413@gmail.com .

This column does not necessarily reflect the opinion of The Forum’s editorial board nor Forum ownership.