Do You Have to Be a Lawyer to Understand the Constitution?

Co-blogger Orin Kerr quotes Herbert Hoover’s statement that you don’t have to be a lawyer to understand the Constitution. Interestingly, the Supreme Court agrees. As Justice Owen Roberts put it in a unanimous 1931 decision, “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” This conclusion was reaffirmed by the Court in District of Columbia v. Heller (2008).

Many parts of the Constitution really are readily accessible to laypeople. You don’t have to be an expert to understand that the Constitution establishes a system of separation of powers rather than a unitary parliamentary system, that it protects freedom of political speech, that it forbids the establishment of an official religion, that it requires the government to compensate property owners when it condemns their land, and so forth. Even when dealing with relatively simple parts of the Constitution, it may be difficult for nonspecialists to go through decades of accumulated legal precedent interpreting these provisions. But the Constitution is not just what the judges say it is, and even the latter is often constrained by the text, especially when the text is relatively clear.

There are, of course, parts of the Constitution that are difficult to grasp without at least some expert guidance. Consider the interpretation of such key constitutional terms as “bill of attainder,” “habeas corpus,” and “privileges and immunities” of American citizenship. But not everyone with relevant expertise on these parts of the Constitution is a lawyer. There are plenty of political scientists, historians, economists and others who are also experts on these subjects, and plenty of lawyers (including many law professors) who have very little specialized expertise on constitutional law.

In sum, there are numerous important parts of the Constitution that are readily accessible to the general public, though sadly many remain ignorant nonetheless. Some more technical aspects require greater expertise to understand. But you don’t have to be a lawyer to be an expert on these subjects, and being a lawyer doesn’t necessarily make you an expert on constitutional law. Just as war is too important to be left to the generals, the Constitution is too important to be left exclusively to the lawyers.

UPDATE: Scott Greenfield of Simple Justice responds to this post here:

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W]hy would “relatively simple parts” of the Constitution require “decades of accumulated legal precedent interpreting” them? Either they’re simple or not, and if the former, then no interpretation is needed. Or if it is, then it’s not so simple. You can’t have it both ways.

Let’s test this thesis, using one of the examples Ilya offers as “readily accessible to laypeople,” the Establishment Clause of the First Amendment. It says, in pertinent part:

Congress shall make no law respecting an establishment of religion…

Ten words, no waiting. How hard could that be to understand? The first five words seem about as clear as they could be, that Congress shall make no law. We certainly know what Congress is, that domed place in Washington where 535 people spend their time trying to figure out how to make each other look foolish when they aren’t asking for campaign contributions. Those people “shall,” a mandatory word, leaving no wiggle room, “make no law.”

Obviously, this doesn’t stop a teacher from requiring students to offer a prayer to Buddha before the start of a hard day of education, or a fire department from putting a creche in front of its combination garage/bar, or a judge from sentencing a drunkard to give Catholic confession twice a day for ten years. Even if we blindly incorporate this clause under the Fourteenth Amendment, none of these actors can be construed under any stretch of language as “Congress,” or lawmakers. Easy, squeezy.

Then comes the second five words, “respecting an establishment of religion.” Not nearly as clear as the first five, but not all that hard to understand. If we all agree that “respecting” means “with regard to,” the final four becomes fairly clear, right? They can’t establish, or make official, religion.

Does this mean one religion? Does this mean they can’t make a law requiring us to believe in, say, one of the top three religions, and rid us of all the squabbling about a bunch of lesser religions?….

I’m not much persuaded by this response. A “relatively simple” part of the Constitution can still lead to decades of precedent either because the courts have misapplied it and made it more complex than it needs to be or because language that is simple in its implications for most cases is still unclear in regard to some borderline cases. It’s very clear that the Establishment Clause prevents Congress from establishing, say, Catholicism, as the official church of the United States that all Americans must attend and make financial contributions too. It’s far less clear what it implies for, say, government-funded creche displays. But the former case is far more important than the latter. More generally, my point was not that the Establishment Clause is simple in all its potential applications, but that it has a simple, easy to understand core. The same is true for a number of other parts of the Constitution.

Finally, some complexity is introduced by interactions between one part of the Constitution and others. By itself, the Establishment Clause clearly does not apply to the states and only limits Congress. The question is whether that is changed by the Privileges or Immunities and Due Process Clauses of the Fourteenth Amendment, enacted many years later. And, as I indicated above, those clauses are not among the relatively simple parts of the Constitution.