I spend a lot of time in my constitutional law class discussing with my students how the predominant rule of Marbury v. Madison (that it is the Supreme Court who "says what the law [the Constitution] is" ) is not how things work in practice. Congress interprets the Constitution and implements that interpretation through, among other ways, its section 5 powers under the Fourteenth Amendment (see Katzenbach v. Morgan; cf. City of Boerne), to say nothing of its section 2 powers under the Thirteenth Amendment (see Jones v. Alfred Mayer). The President interprets the Constitution and implements that interpretation through, among other ways, his "take care" powers (most obviously these days through the current executive's use of signing statements). State elected officials also swear oaths to the Constitution, promising that their duties be discharged in conformance with that supreme document, which would presume thoughtful attention to what that document demands (what it means).
I would guess that many of us have not sworn oaths to uphold the Constitution, but that does not preclude us from interpreting it and making it meaningful in and through our daily lives. Indeed, as many constitutional law professors can probably verify, law students come to constitutional law class misbelieving the scope of their constitutional rights. What contributes to that misbelief? So much of our every day life, our popular culture, advertising. See this company, for example, whose advertisement I pondered on the way to work. Against a red, white and blue background, the ad copy read: "Divided We Stand, United We File." It had a picture of two wedding rings, one plain the other diamond-laden. And then it said underneath the rings and next to an image of the cracked liberty bell, "We, The People." I had no idea what the ad was for -- gay marriage (was this about tax fraud, filing federal forms seperately and state forms jointly (at least here in Massachusetts)? A ballot initiative? I got to thinking about all the ways these ubiquitous phrases could be meaningful. When I finally made my way to the front of the subway car, I saw it was a document filing service. What??
The language of our constitutional polity -- united and divided (federalism?), "we, the people," (democracy and individuality) -- circulates everywhere, consciously and unconsciously. Perhaps this is just too obvious for most readers, but as I slog through some difficult cases with my constitutional law students, I am reminded by them that this constitutional law stuff feels unfamiliar to them, strange, difficult -- at least the constitutional law stuff we talk about in class. The "We, the People" advertisement, well, they knew that one. That one was familiar. And so I got to thinking more about how their misbelief (usually in the form of thinking we each have broader and more constitutional rights than we actually might) works to constitute a more generous (and perhaps more contentious) polity. For example, invoking the rhetoric of equality and privacy and individual freedom all in bald terms helps claims a stake in these concepts for the on-going vitality and deliberativeness of our society. Whether they are claimed correctly or not does not seem to be what matters. Indeed, contested claims -- more circulation and more varied interpretations of constitutional meaning -- may be what keeps us talking. At least such is the case in my constitutional law class.