Starting Points: “Countering Challenges to the Constitution”
By Matthew J. Franck
Earlier last month, Matthew J. Franck participated in a panel at “We the People: Fidelity to the Constitution,” a conference hosted by the Bradley Foundation in partnership with JMC. The panel’s topic was, “Challenges to the Constitution.” Professor Franck’s remarks have been adapted into this article on the Starting Points website.
It is characteristic of every age under our Constitution that Americans are prone to see contemporary challenges to the national charter as dire, perhaps unique—or to see the Constitution as urgently in need of being challenged, or changed. Justice Scalia observed, in the Tanner Lectures published as A Matter of Interpretation, that the Constitution’s—any constitution’s—“whole purpose is to prevent change.” But people who want certain changes chafe under a Constitution that fails to provide or perhaps even permit them.
Others who reject or resist certain changes turn to the Constitution to find the means to resist them—even if it cannot provide those means. Still others, in pivotal constitutional moments such as the post-founding era and Reconstruction, have attempted to maintain a status quo ante that the Constitution itself changed—and so they challenged the Constitution by reinterpreting it to deny its manifest meaning, or simply defied it.
So, in the Marshall Court period, states’ rights doctrines represented a denial that (as John Marshall put it) the American people had exchanged their old league, under the Articles of Confederation, for a real government under the Constitution. Whether he was vindicating the supremacy of his Court over state courts on the decision of federal questions, or validating the breadth of legislative power granted to Congress, or reminding states that they operated under the constraint of federally protected rights, Marshall spent his long career putting out brush fires set by partisans who challenged the basic structure of the Constitution…
Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute. He is Professor Emeritus of Political Science at Radford University, where he taught constitutional law, American politics, and political philosophy. As Director of the Simon Center, Franck supervised the work of the Task Force on International Religious Freedom, which resulted in the Institute-published monograph Religious Freedom: Why Now? Defending an Embattled Human Right (2012), a volume of essays on institutional conscience. In addition, he has published essays and reviews in numerous academic journals, including Journal of Politics, The Review of Politics, and American Political Thought, as well as in general-interest publications including The Claremont Review of Books, Imprimis, and National Review. Professor Franck has appeared on the nationally syndicated “Morning in America” radio show, as well as on Fox News, CNN, and NPR.
Want to help the Jack Miller Center transform higher education? Donate today.