Paul Campos: Santa Claus and the Supreme Court

Among American adults belief in Santa Claus is very rare, but belief in the Constitution is epidemic. Consider the new federal law banning so-called "partial birth" abortion procedures. Legal scholars are already predicting with great confidence that this law will be declared unconstitutional.

This confidence is well warranted. Barring some change in the Supreme Court's personnel before the case is decided, the law will certainly be struck down. Why is it so easy to predict this? Is it because reading the Constitution provides the answer to the question of whether this law is unconstitutional, in the same way that reading the Constitution tells us that a law allowing a 30-year-old to be elected president or California to have three senators is unconstitutional?

Obviously not. A normal human being, when reading the Constitution, would come to the conclusion that it says nothing about abortion procedures. In order to conclude that the Constitution has something to say about abortion, one must be what Joseph Stalin referred to in another context as "a special breed of person." That is, one must be a judge, or at least someone who treats what judges say about the Constitution as true by definition.

In fact, the situation is a good deal more peculiar than this. To certain members of the Supreme Court, it's perfectly obvious that there is such a thing as a constitutional right to abortion. To other members of the Court, it's just as obvious that there is no such right.

How can this be? How is it possible that our most important court of law could be split almost exactly down the middle, in the most divisive manner possible, regarding what one would think is a fairly straightforward question regarding the meaning of a legal document?

The answer is that, like all hotly contested questions of constitutional law, the question of whether abortion is a constitutional right has nothing to do with the meaning of the Constitution. What decides controversial constitutional questions are the political preferences and ideological inclinations of federal judges, and nothing more.

Because these preferences and inclinations get expressed through the intellectually confused and psychologically disingenuous process known as "legal reasoning," it's not exactly correct to say that law is merely politics by other means. Nevertheless, the end product of this process is identical to that which would result if lawyers were not as confused and disingenuous about such matters as they tend to be.

When we argue about free speech, or freedom of religion, or affirmative action, or abortion, or any other controversial matter of constitutional law, we are arguing about many things -- but the meaning of the Constitution is not one of them. Considered as an 18th century legal document, the Constitution exists. Considered as a mystical, magical text that tells us what to do about contemporary political controversies, it does not.

For people who are professionally obliged to believe in, or at least pretend to believe in, this magical entity, the situation is depressing in the extreme. Such people have the choice -- if it is a choice -- of remaining terminally confused, or of vainly repeating that there is no Santa Claus, to people who are going to believe in Santa Claus no matter what anyone may say.

Nevertheless, Virginia, there is no Constitution.

Paul Campos is a law professor at the University of Colorado.