SIDEBAR: Does the Constitution Still Matter?
How rights depend on what we think happened
Imagine a case that reaches the Supreme Court involving a student disciplined by his school. Everyone agrees the student spoke. The disagreement is about something subtler. Was he punished for his words, or for the way he behaved while speaking. That single distinction determines whether free speech protections apply at all.
The justices do not debate the value of free expression in the abstract. They focus on context. Where was the student standing. Who could hear him. What else was happening at the time. The outcome turns on how to describe what occurred.
This hypothetical captures something essential about constitutional law. Rights do not activate on their own. They are triggered by facts. Before the Constitution can protect speech, religion, or protest, someone has to decide what kind of event actually took place.
We often miss this because we talk about rights as if they are automatic. Either you have them or you do not. Either the Constitution applies or it does not. In practice, constitutional protection depends on whether facts are understood in a way that lines up with the boundaries the law has drawn. Facts are the gateway.
Speech is protected only if it is recognized as speech rather than disruption. Religious practice is protected only if it is understood as religious practice rather than ordinary behavior. Protest is protected only if it is distinguished from threat or violence. The Constitution does not answer these questions for us. It waits for them to be answered.
For much of American history, that work happened slowly and deliberately. Courts gathered evidence, listened to competing accounts, and explained why one version of events mattered more than another. The process was imperfect, but it was designed to stabilize facts long enough for law to do its work.
The religion context makes this especially clear. Whether religious freedom applies often turns on how a burden is described. A government rule can be seen as a minor inconvenience or as a serious pressure that forces someone to choose between faith and participation in public life. Exposure to ideas can be framed as harmless or as deeply disruptive to a way of life. The legal standards may remain the same, but constitutional protection rises or falls with how the facts are understood.
The same is true for speech. A demonstration can be described as peaceful expression or as dangerous obstruction. Filming officials can be understood as accountability or as interference. The Constitution draws lines between these categories, but it does not tell us which side of the line a particular event falls on. That judgment comes first.
This is where this piece by my friend John Inazu is especially helpful. He explains that many of our disagreements collapse three different kinds of claims into one. We confuse claims about what happened with claims about what the law says, and we confuse both with claims about what we think is right. When those categories blur, factual disputes turn into moral standoffs, legal questions flatten into slogans, and people stop trusting the processes meant to resolve disagreement.
Inazu’s insight is that these distinctions matter. A factual claim asks what occurred. A legal claim asks how the law classifies that occurrence. A moral claim asks how we should evaluate it. Each plays a different role, and each requires a different kind of reasoning. Treating them as interchangeable makes it almost impossible to reason together.
This essay begins one step earlier.
Before we can separate facts from law, or law from morality, facts themselves must be understood in a way that fits the structure of constitutional law. If the law protects speech but not threats, everything depends on how the event is described. If the law protects religious exercise but not every personal preference, everything depends on how the practice is characterized.
When facts are unstable, constitutional law cannot do its job. Rights do not disappear because the Constitution has changed. They fail to attach because the event never makes it through the gateway.
Outside the courtroom, this problem becomes even more visible. In public life, events are interpreted almost instantly. Short video clips circulate before investigations are complete. Narratives form quickly and confidently. Moral conclusions often arrive before factual ones have settled.
Here too, facts determine whether rights are thought to exist at all. A protest is either dissent or danger. Filming authorities is either accountability or interference. A religious objection is either conscience or discrimination. These judgments come first, and once they harden, it becomes difficult even to ask what the Constitution requires.
The killing of Renée Good revealed this dynamic with painful clarity. From the outset, there was no shared understanding of what had happened. Competing accounts emerged immediately, each carrying not just a description of events but a conclusion about their meaning. Without agreement on the facts, the question of constitutional limits never fully came into view.
Then came the killing of Alex Pretti.
The Pretti shooting feels different not because it is simple, but because the violence resists easy reframing. A man filming federal agents, later pinned to the ground, shot multiple times. Whether filming counts as protected activity or as interference is not a moral question. It is a factual one that determines whether constitutional limits apply at all. When that judgment is made too quickly or too loosely, the space for rights collapses.
In both cases, the Constitution did not vanish. What faltered was the gateway. Before courts could meaningfully weigh in, before doctrine could do its work, the most consequential factual judgments had already been made. Once an encounter is understood as a threat, the law’s protective categories recede. Once it is understood as interference, constitutional safeguards narrow. The boundaries remain, but the event never reaches them in protected form.
This is why the question of whether the Constitution still matters feels so urgent. The text remains. The doctrines remain. But constitutional law can matter only if facts are understood in a way that aligns with the lines the law has drawn.
The Constitution does not enforce itself. It relies on shared habits of care in describing events. It relies on our willingness to pause long enough to ask what happened before deciding what it means or how we feel about it. When that step is skipped, the Constitution does not disappear. It simply never turns on.