"Legalize the Constitution"

I saw a bumper sticker that said this yesterday, and I couldn't help but think two things:

1. What a nice sentiment, and
2. Huh?

I understand that people want to wrap themselves in the constitution and claim fealty and loyalty to this supposedly "divine" document. I too revere the constitution, including its many flaws which in a perfect world would be rectified, but we man is a fallen being.

That aside, here is a little hierarchy for those playing along at home:

• The Constitution is atop all else in our legal framework. It is a vague statement of principles and grant of power to the federal government. It is the supreme law of the land and trumps (no pun intended) all other assertions of power. If it violates the constitution, it is illegal. The U.S. Supreme Court has the power to determine whether a law violates the constitution. See Marbury v. Madison.
• Based on the power granted under the Constitution, the Congress has the power to pass laws; the Executive has the power to execute the laws; and the Court has the power to adjudicate controversies about such laws (including whether they comply with the Constitution). This is basic schoolhouse rock stuff.
• As the constitution is generally vague, so too are laws at times. For example, a law that says that people aren't allowed to "pollute" needs a bit of explanation. Clearly, dumping cyanide into Lake Michigan, millions of gallons at a time, seems to count as pollution. What about throwing batteries away in my normal trash can? What about dumping a port-a-pot into the local creek? Poop is natural after all. I have a hard time entrusting our know-nothing congress critters to make that determination. I am more comfortable allowing them to designate that decision to actual experts who do such crazy things as read books in order to learn about what they're doing. This is where the administrative state comes into play.
• In the example above, the EPA would then be tasked with determining what amounts to "pollution" under the Clean Water Act. Different presidents will likely employ professionals who see things their way, i.e. a Republican will likely employ an EPA administrator who believes that environmental laws should be read narrowly, whereas a Democrat will likely employ an EPA administrator who reads environmental laws broadly. Nonetheless, they are each, in theory, employing knowledgeable people who can interpret and apply the law that Congress passed.

Please note, Congress can't pass laws that violate the constitution. Agencies can't pass rules that violate their "enabling" laws. These issues (whether a law violates the constitution and whether a regulation/rule violates its enabling statute OR the constitution) are litigated constantly.

To legalize the constitution is an oxymoron. It just doesn't make sense because literally nothing is legal if it does not abide the constitution, as interpreted by the U.S. Supreme Court.

Also, please note that there is more to the story than the framework laid out above, particularly when we start dealing with state and local laws, whether the Bill of Rights has been "incorporated," whether laws have been pre-empted, etc. That is a discussion for another day.