Calling everything unconstitutional demeans the Constitution
By Brian Schoeneman | Friday, November 26th, 2010 | PolicySocial Security. Medicare. Medicaid. The Wars in Iraq and Afghanistan. TARP. The auto bailouts. Unemployment insurance. Accepting a Nobel Peace Prize (Roosevelt, Wilson and Obama). The PATRIOT Act. No Child Left Behind. Support for faith-based organizations. The Defense of Marriage Act.
What do all of these various acts of government have in common? They’ve all been called unconstitutional.
One area where the Tea Party and I agree is our desire to return our government to constitutional principles. And one area where the Tea Party and I disagree the most is what exactly those constitutional principles are. Tea Party members are quick to call almost any spending program or other government action that they dislike unconstitutional. In arguments and on the blogs over the last week I have had to defend every military action taken since World War II from charges that they’re unconstitutional, I’ve seen No Child Left Behind and Medicare both called unconstitutional, and we’ve all seen the bevy of charges levied from Tea Party candidates like Joe Miller that just about every government program that has any popular support is unconstitutional. Labeling something unconstitutional has become to the far right what labeling someone a racist is to the left – a cheap, easy, and often unprovable way of dismissing an idea or a person you disagree with. And I have a serious problem with that.
As you all know, I’m a law student, and my legal training informs my opinions about what things are and aren’t unconstitutional. But beyond that, I’ve done my best to read as much as I can about the document, reading it scores of times, reading the federalist papers, reading the various ratifying debates and other scholarly works on the document. For those who want a good background on the document, I strongly recommend America’s Constitution – A Biography, by Akhil Reed Amar. It is critical that all of us who claim to be constitutional conservatives not simply know the text of the document, but understand it in context, both the context of its drafting in18th century America, and the context of the major epochs of constitutional interpretation. Of the many groups out there like the “living constitutionalists,” the “strict-constructionists,” etc. I consider myself to be a “textualist,” which means I want to focus on the words of the document itself and give them a reasonable interpretation, not focusing on the intent of the drafter (originialism), nor taking the strictest meaning of the language (strict-constructionism). Nor do I want to read into them things that aren’t there but could be there if we start wrapping the gauzy framework of penumbras and emanations around the text (living constitutionalism). The Constitution, in my opinion, should be read as it was written, given a reasonable interpretation and be given a construction and that doesn’t make any part of the document superfluous or unnecessary.
The real question as to whether something is or isn’t unconstitutional rests in a variety of hands. Since Chief Justice John Marshall (a federalist, who I consider to be a forerunner of the modern Republican party) declared in Marbury vs. Madison that it was emphatically the province and duty of the judicial department to say what the law is, the Supreme Court has rested as the final arbiter over the constitutionality of laws. The founders didn’t expect things to shake out that way. In his book, Amar makes it clear that the founders intended all three branches to play a role in constitutional interpretation – Congress should refrain from passing an unconstitutional law, the executive should veto them, and the judiciary should refuse to decide cases under them. While some presidents have been more than willing to veto laws they viewed as unconstitutional (Democrats have used the veto most liberally, Andrew Jackson beginning the trend, with Franklin Roosevelt and Grover Cleveland joining him with over a thousand vetoes between them), most have abdicated that responsibility to the Supreme Court, choosing to let the unelected justices take the heat for overturning popular legislation that runs afoul of the Constitution. That being the case, what I find most exasperating in many of the arguments of those who call themselves “constitutional conservatives” is the fact that they ignore decisions by the Supreme Court in their analysis of what is or is not a valid law. Bring up that a law has been found constitutional and inevitably someone will yell “judicial activism” in response. While that may sometimes be the case, it is the exception, rather than the norm. If we want to argue about the constitutionality of a law, we should at least respect the opinions of those whose opinion is final on those questions of interpretation, and who – at least in practice if not in actual written authority – are uniquely in a position to determine those questions under a grant of authority from Article III of the Constitution itself.
Most of the charges of unconstitutionality people make have already been litigated – and some of those have withstood the test of time and deserve to be preserved on a stare decisis basis.
Social Security has withstood multiple court challenges with Helvering v. Davis, 301 U.S. 619 (1937) being one of the most commonly cited. The decision in Helvering can easily be applied to Medicare, Medicaid and other federal government entitlement programs – which is perhaps the reason why no serious direct constitutional challenge to those laws has been made (at least to my knowledge). The argument that no war is constitutional unless a formal declaration of war is made was dispensed with in Bas v. Tingy, 4 U.S. 37 (1800), when the Supreme Court held that Congress could authorize limited hostilities without a formal declaration of war, as they had done during the Quasi-War with France. This decision was confirmed in the Prize Cases, 67 U.S. 635 (1863), which allowed President Abraham Lincoln to blockade southern ports without a declaration of war – a declaration that, had it been made, would have construed nation status on the Confederacy, something Lincoln and the federal Congress were unwilling to do. The 1973 War Powers act recognized that it was possible to go to war without an active declaration, and that’s why Congress enacted it over a presidential veto – to ensure that, at the very least, any active hostilities that last more than 60 days require some kind of Congressional assent. The Supreme Court has never construed the War Powers Act, despite multiple chances to do so – nearly every major conflict since the passage of the War Powers Act has resulted in a lawsuit against the government, including an attempt (which failed) by servicemen to enjoin President Bush from starting the war in Iraq. See Doe v. Bush, 323 F.3d 133 (2003). I could go on and on, but the suffice it to say that most of those things listed above have either withstood legal attempts to find them unconstitutional (parts of the PATRIOT Act and DOMA were found unconstitutional, but the bulk of both still stand), or no serious challenge has been mounted. Thus, we should be wary to simply throw out, without some kind of reasonable basis, the charge that they are unconstitutional.
Which leads to the more fundamental problem with the Tea Party folks who want to call everything under the sun unconstitutional – it cheapens the charge. Labeling something as unconstitutional should have the same gravity as labeling someone a traitor – it should never be used lightly and it should be based in a rational, well thought out manner. And it should have some basis in our understanding of the Constitution and the state of constitutional law today. That’s why when you see me arguing that something is unconstitutional, I hope that my readers will recognize that what I’m saying is a big deal because I don’t use the phrase lightly. When I argued months ago that the mandates in Obamacare were unconstitutional, I provided analysis and case law from the Supreme Court to support that contention. I didn’t make it lightly. Unfortunately, too many people throw the phrase around to characterize anything they dislike and the charge has lost its potency – much like the charge of racism has when coming from a Democrat.
The Onion had an hilarious article a few months ago that sums up well the problem that many who lead the charge in labeling all legislation with which they disapprove unconstitutional: Area Man Passionate Defender Of What He Imagines Constitution To Be. There are far too many people – many on our side of the aisle – who use the charge loosely and apply it to anything they disagree with, regardless of whether the law has faced constitutional challenge and passed. It is important that all of us who claim to be constitutional conservatives check our facts and don’t simply lash out at laws we don’t like by applying a label to them. That is as demeaning to the Constitution as adopting laws that violate it.
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About the author
A veteran political professional, long-time Republican party activist and attorney Brian W. Schoeneman has been offering his opinions at Bearing Drift since 2010. He serves on the Board of Virginia Line Media, LLC, which operates Bearing Drift and spends his days representing the U.S. Merchant Marine in Washington, D.C. He hails from Fairfax County, Virginia, where he lives with his wife and son.
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26 Responses to "Calling everything unconstitutional demeans the Constitution"
Point taken. But before someone calls something “unconstitutional” we need to first ask them what they believe IS constitutional. I believe that the only “constitutional” functions of the federal government are to (A) provide for national defense (B) regulate interstate commerce and (C) manage foreign policy. Therefore everything you mentioned is unconsitutional under my understanding of the constitution.
Brian: Nice post. As a point of contrast, in Virginia the legislature does consider the constitutionality of bills that it deals with. A bill that raises constitutional issues is flagged by legislative services when they draft the bill. Constitutionality is often raised on the floors of the House and Senate and in committees as a reason to oppose a bill. And Virginia governors have NOT been shy in exercising the veto on bills they believe are unconstitutional.
TJ: I think you miss Brian’s point. Your understanding of the Constitution doesn’t matter. The Supreme Court has ruled that the federal government has more powers under the Constitution than you believe.
TJ, if you restrict your belief in constitutionality to those 3 things, you’re ignoring a score of legitimate grants of authority that were given to the central government by the Constitution, and you’re engaging in exactly the kind of analysis that I decried here.
There’s a lot more to the constitution than regulating commerce, foreign policy and national security.
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Great post and since you seem to be quite knowledgeable on this subject I have a question that I have wanted answered for some time;
Do you believe the verdict of a court on a constitutional issue has to do more with the skill of the lawyer arguing for or against it than the actual constitutional merits of the case?
Take Citizens United for example. Had Kagan not argued the government could ban books, it is very likely the court would not have struck down that provision. Perhaps had there been better or worse lawyers on either side, many of those cases would have been decided differently. If you listen to the audio of the argument, you can clearly see how Kagan could have rephrased her argument to win the case.
I am sure you are well aware that a judge can only take things into account that were actually argued during the case. If a lawyer is incompetent then the judge would be forced to rule something is constitutional when it could be clearly demonstrated not to be by a more skilled lawyer.
I could of course be misinformed or wrong, but you’re the expert, so you tell me.
NEK: Judges, particularly Supreme Court justices, are not limited in the manner you describe. They are free to ignore anything either lawyer said. Actually, often in court you’ll hear judges reargue the lawyers case for him in more pursuasive langauge.
While what Mr Schoeneman states is technically correct as is appropriate for a legal argument, it is also true that practically speaking there is no current danger of the Constitution being interpreted too narrowly. The danger is all on the other side. Therefore I feel that unless people hold to a very strict interpretation we will soon have no need to write books on the Constitution. There is an amendment process. Why did the Founders make it difficult but certainly not impossible to amend the Constitution if not to forestall the dictators or totalitarians?
NEK, generally the Supreme Court and other courts will go out of their way to not decide cases on constitutional principles. I honestly think that the arguments of the lawyers don’t always have to be either skillful or persuasive if they have the benefit of a court filled with jurists who believe that it is time to either change existing precedent or take the law in a new direction.
While judges may only take into evidence and arguments made, that doesn’t mean that they don’t take into a case their own prejudices and philosophies about a case that inform the arguments made by the lawyers. I think that while Kagan was a pretty good Solicitor General, the real reason Citizens United was decided the way it was because the court had finally reached a critical mass of jurists who were opposed to further erosion of the First Amendment under a line of cases that many felt were incorrectly decided to begin with. Scalia wrote a scathing dissent in Austin, the primary case that Citizens United overruled – he was primed to join Alito and the other conservatives regardless of whatever arguments the lawyers made.
I definitely think oral arguments is kind of pointless, considering that the justices rarely let the lawyers get a word in edgewise before jumping in and asking questions – I appreciate the Justice Thomas rarely does that, but other Justices, like Scalia, waste no time in jumping in to the point that reading an oral argument transcript is sometimes difficult as there are few coherent thoughts strung together – and they often lead to odd lines of reasoning like Kagan’s book banning argument – which, although it sounds nuts, was an accurate reading of the state of law after Austin.
I think it will be interesting to see the outcome of the Phelps case, which was argued at oral argument by one of Phelps’ kids who I thought sounded like a wacko in the oral argument.
while I agree Tea Partiers are quick to call something unconstitutional, often they are correct. In the examples above, programs such as No Child Left Behind/Dept of Education is clearly beyond the scope of the US Constitution based on the 9th and 10th amendments. of course, the flip side is taking the “general welfare” clause as justification for every federal bureaucracy or stimulus package. so I think the gist is really not whether a program/dept should exist or not but whether it should exist at the federal, state or local level.
Amit, I have to disagree. Most of the time they’re wrong. There’s nothing inherently unconstitutional in either NLBC or the DoED. The “general welfare clause” doesn’t give the federal government plenary authority to do whatever it wants to do – all that clause states is that the Congress has the power to tax and spend. The reason why No Child Left Behind is constitutional is simply because all of the programs are voluntary – states may opt out if they choose, but if they do that, they lose access to federal money, so all of them opt in.
The creation of a Department of Education is not, in and of itself, unconstitutional – no more than the creation of the Bank of the United States was, another entity not mentioned at all in the Constitution. That education has traditionally been handled by the states doesn’t mean that the federal government can’t get involved – they’re just limited in what they can do. Most of what DoED does is based on providing money for states with strings attached.
That’s why they are able to do what they do. The 10th Amendment recognizes that powers not given to the federal government by the Constitution are reserved to the states and the people, but the Constitution itself does not expressly state every power the federal government has – if it did, there would be no need for a necessary and proper clause to allow for non-enumerated powers to be given in order to effectuate enumerated grants of authority. That’s why it’s tough to really say what the 10th amendment prohibits.
While I think we need to adhere to the spirit of the Constitution and not read into it ridiculously large grants of power to the federal government that would destroy the concept of limited government itself (and the 10th amendment is a confirmation by the Founders that they didn’t want a government with general police powers like the states have), that doesn’t mean that we have to ax every program that isn’t expressly authorized in the document.
Hilarious…while Amit wants to know how the Tea Party is going to balance the budget on defense. You now want to lecture the Tea Party on overusing unconstitutional and you pull an example of Joe Miller.
Meanwhile, the three individuals who used the constitutional argument were, other than you was J. Christopher Sterns, Britt Howard and James Quigley, all directly linked to Libertarians. So why does the Tea Party need lectured?
While the Tea Party encompasses maybe 5% of Congress…everyone wants to make them responsible or the problem. Let’s lay blame where it deserves, we’ve lied to ourselves long enough and it is not the Tea Party’s fault.
I used the Tea Party because in the last two days I’ve seen a variety of Tea Party activsts, like Karen Hurd, specifically call programs like NLCB and Medicare unconstitutional – http://masonconservative.typepad.com/the_mason_conservative/2010/11/thought-of-the-day-on-the-primary.html#comments
I don’t care who is doing it – be they Tea Partiers or Libertarians – I think it’s a bad idea. Joe Miller came to mind specifically because he had a penchant for calling anything and everything unconstitutional.
They’re certainly not the whole problem, and like I said I agree with them on the idea we need to move back towards a less expansive interpretation of the Constitution. But calling everything unconstitutional does not further that goal. It just makes us all look reactionary, and it cheapens the charge.
@Schoeneman, the necessary and proper clause is the justification of every expansion of the federal govt. both Republicans and Democrats abuse it and have put us in our current predicament.
I see what you’re saying though conservatives, libertarians and Tea Partiers need to quit beating up each other. Meanwhile, Progressives maintain control of our government. In 2012, we’ll need every conservative and liberaterian possible to defeat the Progressive machine.
Getting back to the unconstitutional argument, my problem is not with the court system…but the self-proclaimed, self-regulated lawyer profession. With lawyers like Gloria Allred, Rod Blagojevich and Howard Stern, they’ve really tarnished the profession and it really needs some independent oversight.
It’s a shame that our Second Amendment rigth (McDonald v Chicago) survived by a 5-4 ruling. Luckily, we have a conservative majority. Meanwhile, Chicago immediately approved legislation 45-0 that established new gun-control measures. Citizens do not have the manpower or the money to challenge this self-regulated lawyer/judge profession. Even though Mayor Daly says it’s to keep guns out of the hands of criminals, we know otherwise. Where does this fall into the unconstitutional realm?
One Federal judge has the power to overturn portions of state law (Arizona Immigration reform), eight million voters (Prop 8 CA) and validated Shariah Law (New Jersey case). Judges use whatever method they deem necessary, and yet we have no means of repeal but to go to the very institution that regulates itself.
These are actions that push us into an Overton window. The problem is that the politicians have been pushing the window so far left, we the citizens haven’t been able to keep up with where the window is now.
As for Karen Hurd, I’ll keep my opinions to myself. Even though I consider myself a Tea Party supporter, it doesn’t mean that I agree with all the actions of certain individuals. But I do support the overall cause, so with that I will support her direction.
Amit, again, no. The Commerce clause is the real culprit, as that is what the vast majority of regulatory authority that is abused by the federal bureaucracy is based off of.
Fortunately, we have a Supreme Court that has been pushing back on the constant expansion of the commerce clause, and that’s why I am confident that the mandates in Obamacare will be overturned.
During a debate between Coons and O’Donnell, O’Donnell stated that the Constitution did not mention the separation of church and state. When she did, the law students at Widener University Law School obnoxiously laughed. AS this must be taught as “obvious” in law school, why does this statement draw laughter?
What is your interpretation of the “Establishment Clause?” Would this not be something that needs to be addressed because it is a recent (1947) interpretation of the Constitution? If it isn’t up for debate, then where does the observation of a Federal Holiday like Christmas fall?
With the Supreme Court being sorta relaxed on this issue (of late), would this not be an interpretation issue?
The healthcare mandate is just the vehicle to single-payer healthcare. The left will give up the mandate for the end result.
Obamacare seems to be forcing the US health care system into the form of British National Health Service (NHS). Since the British seems to think that the HNS is the worse system in the world, perhaps we should try something else.
Would like to destroy obamacare and start over. Nothing wrong with health care reform but why not do it right?
What are the 5 best health care systems in the world?
The people of Denmark like their system.
Why not let the states run health care? With 50 states someone should be able to figure it out.
John, the statement draws laughter because there are a lot of law students who like to think they’re smarter than everyone else, for no apparent reason (some would say I fall into that group – I really hope not, because I can’t stand that attitude).
O’Donnell was right and she was wrong. The phrase “separation of church and state” does not appear in the Constitution – it’s a shorthand that people use for the concepts embodied by the establishment clause. The phrase was first written by Thomas Jefferson and later quoted by the Supreme Court in a long line of establishment clause cases. It’s similar to the concept of a “right to privacy” which isn’t in the text of the Constitution either, but is derived from the concepts embodied in a variety of amendments taken as a whole.
So she’s right – the phrase doesn’t appear, but the concept does.
My take on it is simple: the clause forbids any federal or state support for a specific religion. That’s the 30,000 foot answer, and the question generally turns on what is considered support. But I haven’t seen anything in the Court’s current jurisprudence that I think is ridiculously wrong.
If someone had told me 2 years ago that the northern Virginia blogger/politician that I’d agree with the most would be Amit Singh, I’d have laughed, but here we are and he’s once again, right on the money. I still can’t get over this fact…
Brian, you brought up defending military intervention in your post. I would like a simple explanation as to how aggressive military interventionism without a declaration of war is constitutional? The Constitution is pretty clear on the matter, without a DoW, you are in violation.
@Dan, too bad you didn’t agree with me 2 years ago but better late than never!
Dan, I pointed out why that’s not the case in the article. The constitution provides that Congress has the authority to declare war, but it doesn’t say in what way that authority must or should be exercised. Congress passing an authorization for the use of military force, as was done in Iraq and Afghanistan, is the functional equivalent of a declaration of war without being called that. Congress has the authority to regulate the military, to appropriate money for them, and the President is commander-in-chief. You don’t need a formal declaration of war so long as you have a Congressional authorization in some form.
The War Powers Resolution specifically allows the use of force in the event of a declaration of war, a statutory authorization from Congress, or an immediate attack against US forces or territory.
That’s why none of the wars prosecuted since World War II have been unconstitutional. All have been legitimate.
[...] was a time, I believe it was in 2007, when I declared that blogospoheric dustups like the Kenney-Schoeneman battle over constitutionality could not happen while I was away from the blogosphere. Then again, [...]
We have nuanced the Constitution to the point that no one can agree on its meanings. If no one can agree on the rule of law, then the only law that matters is that backed by the biggest gun.
I disagree, James. There’s a fundamental agreement on the meaning – the problem is when people either don’t know or don’t care what it is.
And the corrupt trick James iso isolate your opposition by claiming there is agreement on the meaning you hold on that particular day and claim the rabble opposed to your view either is selfish and don’t care about the meaning or are too stupid and don’t know.
So what is essentially being said is, ‘the fox can guard the hen house’ with self appointed powers that were never given by a contract that was created by the States in forging a limited Federal Government.
Also, doesn’t it mean that if there is no kept standard meaning of the law (Constitution), then the law (Constitution) essentially has no more meaning?
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