In Utah, perhaps more so than in other places in America, electoral politics often seems to degenerate into a contest over who loves the Constitution most. But aside from oral professions of admiration, and, perhaps, carrying a pocket Constitution (will it become the new American flag lapel pin?), just how does one show respect for the Constitution?

I want to take a step beyond the obvious, “you follow it,” and suggest to you that, often times, and especially in politics, truly respecting the Constitution requires you to set it aside and let the frustrating, ineffective political process take its course.

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Please give me the opportunity to very carefully explain what I do and do not mean.

I am not suggesting that the Constitution is outdated or irrelevant.

I am not suggesting that we should just ignore the Constitution when it gets in the way of our preferred political solution.

I am not suggesting that all elected officials leave enforcement of the Constitution solely to the United States Supreme Court.

I am not suggesting that I don’t love or respect the Constitution.

But I am suggesting that the Constitution purposefully creates a wide sphere for political action and that truly respecting the Constitution requires that we set aside any belief that the Constitution itself ordains one true political philosophy over any other (except, perhaps, democracy — broadly defined, my Utah legislative friends — over authoritarianism).  It requires that Republicans stop pretending that every disagreeable (to them) Democratic political action is an unconstitutional deprivation of economic liberty and that Democrats stop pretending that every disagreeable (to them) Republican political action is an unconstitutional assault on our civil rights.

In short, respect for the Constitution requires that we show respect for the vast majority of political outcomes, even (especially) those we disagree with, and that we stop using the Constitution as a political tool of first resort.  Rather than requiring us to roll over and fatalistically accept every law we disagree with, true respect for the Constitution serves to orient our responsive efforts away from the courts and toward our own political representatives, in all but a few cases.  And in those few cases (which I am not going to define other than to say that I do not believe Obamacare is one of them), a turn to the courts and a resort to the Constitution is entirely proper and justified.

It is true that the Constitution exists to set limits on what government can do.  These limitations are important and not to be ignored.  But it is also important to remember that these limits are primarily designed to protect minority rights with an eye to ensuring that the political process can function fairly and with the input of all.  The United States Supreme Court recognized this in “Footnote Four” of its otherwise pedestrian opinion in United States v. Carolene Products Co., 304 U.S. 144 (1938).  In its opinion, the Court emphasized the “presumption of constitutionality” of ordinary congressional legislation:

There is no need to consider it here as more than a declaration of the legislative findings deemed to support and justify the action taken as a constitutional exertion of the legislative power, aiding informed judicial review, as do the reports of legislative committees, by revealing the rationale of the legislation. Even in the absence of such aids, the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless, in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.

In the much more famous footnote to its opinion, the Court acknowledged that there were certain situations in which the presumption of constitutionality may not apply and where more searching judicial inquiry into motives and justification was warranted.  In particular, the Court singled out cases where the legislation itself negatively impacted the abilities of minorities to defend themselves through the political process:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U. S. 359,283 U. S. 369-370; Lovell v. Griffin, 303 U. S. 444, 303 U. S. 452.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U. S. 536; Nixon v. Condon, 286 U. S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U. S. 697, 283 U. S. 713-714, 283 U. S. 718-720, 283 U. S. 722; Grosjean v. American Press Co., 297 U. S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 283 U. S. 369; Fiske v. Kansas, 274 U. S. 380; Whitney v. California, 274 U. S. 357, 274 U. S. 373-378; Herndon v. Lowry, 301 U. S. 242, and see Holmes, J., in Gitlow v. New York,268 U. S. 652, 268 U. S. 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 365.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U. S. 510, or national,Meyer v. Nebraska, 262 U. S. 390; Bartels v. Iowa, 262 U. S. 404; Farrington v. Tokushige, 273 U. S. 284, or racial minorities, Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare 17 U. S. Maryland, 4 Wheat. 316, 17 U. S. 428; South Carolina v. Barnwell Bros., 303 U. S. 177, 303 U. S. 184, n 2, and cases cited.

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I certainly realize that Carolene Products is an rational basis/due process, rather than a federalism, case (which are more in vogue these days).  But I still think the principle coming out of the case is valuable and applicable no matter the nature of the objection to congressional action.  The principle is that the Constitution creates a wide channel in which government — even our national government — is able to act (and this itself is controversial for some) and that grievances are supposed to be addressed first through the political process.  It is only when that process has failed us (and a “failure” is different from a “loss”) where the Constitution is to be invoked in a turn to the courts.

I believe that understanding this principle is the beginning of true, thoughtful, respect for the Constitution.  It’s something both parties and nearly all of our representatives need to take into account.