We may be letting the U.S. Constitution go by the boards.

Byline: Stephen Mathis

COLUMN: AS I SEE IT

With the U.S. Senate recently failing to garner enough votes to reinstate habeas corpus for foreign detainees, the ongoing investigation of the National Security Administration's warrantless wiretapping program, and the upcoming confirmation hearings for attorney general nominee Michael Mukasey, key aspects of our Constitution are at stake and, with them, perhaps also our national identity.

For Americans, the United States Constitution is much more than a legal document that establishes a system of government and enumerates the rights of its citizens. It defines us as a people. Since the founding, thanks to the diversity of peoples that have made up our population, the Constitution - and the ideals it stands for - has been the one thing all Americans have in common. And unlike with shared history and traditions, the content of our ideals we decide for ourselves.

For this reason perhaps as much as any other, our Constitution embodies a sort of liberty and self-determination that many see as characteristically American. But our Constitution does not only allow us to define ourselves generally or figuratively, it also allows us to define ourselves, via our definition of our system of government, in the most fundamental sense.

Some scholars have referred to our Constitution as the "higher law," especially when contrasted with the normal statutes and regulations the states and the federal government create on a regular basis. What this means is that the Constitution, beyond having formally created a nation and set up a government, also validates - or invalidates - normal statutes or regulations. As such, legislators and judges employ its rules for making laws and appeal to its restrictions on the Congress and on the states on almost a daily basis. In so doing, our government is constantly reaffirming our ideals, and to some degree, then, our national identity.

But there is a flip side to the Constitution's serving as "higher law," and I discuss this with my students in most of my courses on legal philosophy or jurisprudence. It is this: As the "higher law" of the United States, there is no standard above it, nothing to validate it and make sure that it is being followed properly. The status and the power of the Constitution lies with us, we the people.

Normally, in talking about this aspect of the legitimacy of the Constitution, I tell my students that to abandon the Constitution and no longer treat it as the "higher law" would be to engage in a kind of revolution, overthrowing our government once and for all. But when Senate Republicans blocked a vote on an amendment to a bill that would restore the rights of habeas corpus to foreign detainees, I began to think that perhaps there is another way in which the Constitution could fail to be our "higher law": We could just let parts of our Constitution go unenforced. Our government officials are sworn to follow and uphold the Constitution, but if they do not, there is no higher law to which we can appeal other than ourselves.

I concede that there may be disagreement about whether or not passing the law suspending habeas corpus in the first place represents a denigration of the Constitution. However, there is no question that, in many of the decisions we see Congress and the president making these days, whether it be suspending (or failing to reinstate) habeas corpus or sanctioning warrantless wiretaps, we find ourselves in situations in which we may be letting the Constitution go by the boards.

If we let all or part of our Constitution go unenforced, then all or part of it would cease to be our Constitution in any relevant sense, and insofar as the Constitution serves to define us, we would be a different people as a result.

Stephen Mathis is a philosophy of law scholar and chairman of the philosophy department at Wheaton College in Norton.