From Steven Smith:
As the celebration of Constitution Day attests, Americans still honor our Constitution. But is it alive and well and with us still, actively guiding our decisions and shaping our law? Or is it something that we gratefully acknowledge for its historical significance but then ignore—like the Mayflower Compact, for instance, or maybe the Magna Carta?
It is surely true that we continue to invoke and talk about the Constitution as ifit were our currently governing law. And at least some of what happens in modern governance does seem to conform to what the document prescribes. For example, every state is still represented in Congress by two senators, even though some people think it is unfair that Wyoming and Nevada get as much representation in the Senate as New York and California do. Those senators are directly elected by the people, which is not what the original Constitution provided, but that change was formally and explicitly authorized by the adoption, in the constitutionally prescribed manner, of the Seventeenth Amendment. So, in this case, we seem to be adhering to the Constitution in a plausible, straightforward sense.
In other areas, though, our laws seem only distantly related to, or even incompatible with, what the Constitution prescribes. In these areas, the Constitution exercises a kind of ceremonial or perhaps diversionary function; it provides a venerable facade that covers or disguises the real workings of government. This sort of situation is hardly without precedent; a look back at the disintegration of republicanism in the Roman Empire yields important lessons for contemporary American government.