The Constitution is our most fundamental law. It is, in its own words, "the supreme Law of the Land." Its translation into the legal rules under which we live occurs through the actions of all government entities, federal and state. The entity we know as "constitutional law" is the creation not only of the decisions of the Supreme Court, but also of the various Congresses and of the President.
At bottom, in the space left by a limited central government, the people could rule themselves by their own moral and social values, and call on local political institutions to assist them. Where the people, through the Constitution, did consent for the central government to have a role, that role would similarly be guided by the people's sense of what was valuable and good as articulated through the political institutions of the central government. Thus, at its deepest level popular government means a structure of government that rests not only on the consent of the governed, but also on a structure of government wherein the views of the people and their civic associations can be expressed and translated into public law and public policy, subject, of course, to the limits established by the Constitution. Through deliberation, debate, and compromise, a public consensus is formed about what constitutes the public good. It is this consensus on fundamental principles that knits individuals into a community of citizens. And it is the liberty to determine the morality of a community that is an important part of our liberty protected by the Constitution.
[A]fter an unequivocal experience of the inefficacy of the subsisting federal government, [the people] are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the Union, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world.
The Constitution was born in crisis, when the very existence of the new United States was in jeopardy. The Framers understood the gravity of their task. As Alexander Hamilton noted in the general introduction to ,
Meaning that for power to be granted, it is necessary to establish a constitution.
The 10 & 51 were essays which helped persuade the citizens of the United States to vote for the federal Constitution.
The undying strength of our country and our way of life is firmly entrenched in the simple, yet well-structured Bill of Rights to the United States Constitution.
By this, of course, Warren did not mean that a constitutional decision by the Supreme Court lacks the character of binding law. He meant that the Constitution remains the Constitution and that observers of the Court may fairly consider whether a particular Supreme Court decision was right or wrong. There remains in the country a vibrant and healthy debate among the members of the Supreme Court, as articulated in its opinions, and between the Court and academics, politicians, columnists and commentators, and the people generally, on whether the Court has correctly understood and applied the fundamental law of the Constitution. We have seen throughout our history that when the Supreme Court greatly misconstrues the Constitution, generations of mischief may follow. The result is that, of its own accord or through the mechanism of the appointment process, the Supreme Court may come to revisit some of its doctrines and try, once again, to adjust its pronouncements to the commands of the Constitution.
Yet it is the court system, particularly the decisions of the Supreme Court, that most observers identify as providing the basic corpus of "constitutional law." This body of law, this judicial handiwork, is, in a fundamental way, unique in our scheme, for the Court is charged routinely, day in and day out, with the awesome task of addressing some of the most basic and most enduring political questions that face our nation. The answers the Court gives are very important to the stability of the law so necessary for good government. But as constitutional historian Charles Warren once noted, what is most important to remember is that "however the Court may interpret the provisions of the Constitution, it is still the Constitution which is the law, not the decisions of the Court."
It has been the business of the Supreme Court to decide the constitutionality of these laws, deciding whether acts deemed illegal by congress are truly expressions of opinion or just malicious behavior.
And there is no government which can be trusted to function successfully and honestly without the discipline of clear constitutional rules laying down the essential principles to which government can be held accountable.
This recognition of the distinction between constitutional law and the Constitution itself produces the conclusion that constitutional decisions, including those of the Supreme Court, need not be seen as the last words in constitutional construction. A correlative point is that constitutional interpretation is not the business of courts alone but is also, and properly, the business of all branches of government. Each of the three coordinate branches of government created and empowered by the Constitution--the executive and legislative no less than the judicial--has a duty to interpret the Constitution in the performance of its official functions. In fact, every official takes a solemn oath precisely to that effect. Chief Justice John Marshall, in (1803), noted that the Constitution is a limitation on judicial power as well as on that of the executive and legislative branches. He reiterated that view in (1819) when he cautioned judges never to forget it is a constitution they are expounding.
But, while I support your right to broadcast your views, and I even support those views in most cases, I cannot endorse your belief that the Constitution of the United States of America should be amended with an exception to the First Amendment!