Constitutional Corner: We live in a post-constitutional society

What is a post-constitutional society? We’re living it today.

All federal officers, everyone in Congress and those in state and local governments, take an oath and affirm their promise to carry out the duties set forth in the U.S. Constitution, and most then immediately go about their business ignoring the Constitution.


There are two schools of thought on interpreting the constitution. In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. On the other hand, President Grover Cleveland pledged to be “guided by a just and unstrained construction of the Constitution, a careful observance of the distinction between the powers granted to the federal government, and those reserved to the states or to the people.” Grover vetoed 414 bills in his first term that he deemed unconstitutional.

Those adhering to Roosevelt’s theory seem to be winning out. Tell me I’m wrong. There are too many examples arguing that we are operating in a post-constitutional society and it started a long time ago.

Executive Order 9066 signed by President Roosevelt in 1942 authorized the internment of tens of thousands of Japanese American citizens of to be detained without trial and without committing a crime. In the well known case, Korematsu v. United States, the Supreme Court ruled that “military necessity” outweighed the civil rights of Japanese Americans.

In Brown v. Board of Education the constitution finally prevailed when the concept of “separate but equal” was ruled unconstitutional under the Equal Protection Clause of the 14th Amendment.

More recently, California Governor Gavin Newsom signed a law requiring candidates running for president to submit five years of tax returns. Qualifications for running for president are defined under Article II of the U.S. Constitution and this law is certain to be ruled unconstitutional.

This may be unpopular in the aftermath of so many mass murders, but the Second Amendment is short and quite easy to understand. However, the people’s right to keep and bear arms is infringed when states pass mandatory background checks to buy ammunition or dictate exorbitant fees for registration and licensing of guns.

The NSA collects phone records and internet data of American citizens without warrants, a blatant Fourth Amendment violation. The National Defense Authorization Act (NDAA) gives the government the authority to indefinitely detain a US citizen on American soil — a direct violation of the Fifth Amendment. Then we have sanctuary cities choosing to defy federal law despite the Supremacy Clause found in Article VI of the Constitution dictating that federal laws have jurisdictional authority over state laws in the event there is conflict between the two governing bodies.

Boys are taking over girls sports in the name of gender identity rights but in gross violation of the 14th Amendment’s Equal Protection. Free thought and free speech have all but been extinguished from classrooms, the workplace and on Twitter. Say the wrong thing and you’ll be fired or have your business boycotted and ruined.

American progressives believe the principles of the Declaration of Independence and the U.S. Constitution represent obstacles to political progress instead favoring an administrative state whose purpose was unlimited power. And that’s where we are today, a top-heavy federal government with the people detached from democracy. It’s time to restore the rule of law and try to steer this ship away from the popular alternatives to democracy.

It is incumbent upon all of us and especially our lawmakers and the lower courts to legislate and act within the framework of the Constitution. Uphold your oaths of office or get out of office. We all deserve better.


As citizens of a free republic it is our duty to preserve it. If you would like to take a free online course on the U. S. Constitution go to:

Mikie Kerr is an constitutional enthusiast who lives in Waikoloa and writes a monthly opinion column for West Hawaii Today.