I was recently confronted by an unsettling phenomenon at my local artisanal coffee shop in Georgetown. The barista, while handing me my oat milk cortado, made an offhand remark about the First Amendment. I froze. Not because her latte art was substandard, but because a person who operates an espresso machine for a living believed she had the standing to interpret the foundational legal charter of the United States.
This egalitarian delusion is spreading. Everywhere I look—from the chaotic replies to my tweets, to the earnest cardboard signs at protests, to the pages of certain wildly irresponsible left-leaning magazines—I see the same dangerous sentiment being peddled: the idea that the Supreme Court does not "own" the Constitution, and that the document actually belongs to something called "the people."
Let us dispense with this populist romanticism immediately. It is time we accepted a hard, necessary truth: the Supreme Court absolutely owns the Constitution, and the rest of us are merely its month-to-month tenants.
The crux of the amateur argument usually rests on the preamble. "It starts with ‘We the People’ for a reason," they bleat, as if a three-word rhetorical flourish from 1787 is a binding legal contract that overrides centuries of carefully gatekept jurisprudence. As I explained to a rather defensive undergraduate during a panel at the Aspen Ideas Festival last week, "We the People" was simply an 18th-century marketing gimmick. It was the "Terms of Service" that nobody was actually expected to read, drafted by men who owned large tracts of land and, frankly, other human beings.
To take "We the People" literally is to fundamentally misunderstand the architecture of American governance. The Constitution is not a public park. It is a highly exclusive country club, and the nine justices of the Supreme Court are the membership committee.
Consider the sheer arrogance required for a layperson to read the Fourth Amendment and assume they know what "unreasonable searches and seizures" means. When an auto mechanic reads the word "unreasonable," he brings his pedestrian, working-class definition to the text. He thinks it means "without good reason." He lacks the sophisticated, $1,500-an-hour appellate training required to understand that "unreasonable" actually means "whatever a police officer felt was entirely justified in the heat of the moment, provided the officer is acting within the bounds of qualified immunity as established by a 5-4 decision in 1982."
You simply cannot leave a document this delicate in the hands of the uncredentialed masses. If you let ordinary citizens decide what the Constitution means, they will inevitably try to use it to protect themselves. They will read the Equal Protection Clause and assume it means they should be protected equally. It takes years of rigorous study at Yale Law School to learn how to read the Equal Protection Clause and realize it was actually designed to protect a multinational fossil fuel conglomerate from a municipal plastic bag ban.
I was discussing this very issue over a perfectly seared branzino at the Cosmos Club with an old friend, a prominent conservative legal scholar whose name you would recognize from several very prestigious amicus briefs. He sighed, adjusting his tortoiseshell glasses, and articulated the burden of judicial supremacy better than I ever could.
The framers never intended for the document to be read by people who fly commercial.
Arthur is entirely correct. The Supreme Court does not just interpret the Constitution; they possess it. They have achieved squatter's rights over the parchment. Through the sheer volume of 150-page opinions laden with impenetrable Latin phrases and selective historical citations, they have successfully terraformed the document into a proprietary asset.
Originalism, often misunderstood by the laity as a mere judicial philosophy, is in fact a highly advanced, proprietary technology. It requires a specialized scrying orb that only nine people are legally permitted to touch. Through this proprietary method, the justices can peer into the soul of a 1789 land speculator and divine exactly what he would think about algorithmic data mining or the environmental impact of Bitcoin. To ask a normal citizen to perform this task is like asking a toddler to land a Boeing 787. It is not just foolish; it is dangerous.
And thank God they have secured this monopoly. Imagine the chaos of a democratized Constitution. We would have a society where civil rights were subject to the whims of the majority, rather than the far superior system we have now: civil rights subject to the whims of Samuel Alito after he has read a particularly annoying article in the New York Times.
The current Court has worked tirelessly to assert its rightful ownership. When they strike down a federal agency's ability to regulate clean air, they are not merely ruling on the Chevron doctrine; they are reminding us who holds the deed to the republic. When they carefully comb through the 17th-century diaries of a misogynistic English jurist to determine whether a modern American woman has bodily autonomy, they are demonstrating the exhaustive, proprietary labor required to maintain the estate.
The critics who complain about the Court's "illegitimacy" are simply experiencing the natural resentment of renters who have just been told their security deposit is being withheld. It is unseemly. You do not own the building. You are lucky the landlords let you sleep here.
So, the next time you feel the urge to buy a pocket Constitution and wave it around at a town hall meeting, I urge you to reconsider. Put the booklet down. Leave the heavy lifting to the professionals, the billionaires who graciously fund their luxury travel, and the Federalist Society sherpas who guide them to their inevitable conclusions.
We the People do not own the Constitution. We are merely the audience, sitting in the cheap seats, watching nine people in robes perform a highly specialized, incredibly expensive magic trick. It is a beautiful performance, really, provided you don't look too closely at where the rights are disappearing.