Constitution Day thoughts – why calling everything unconstitutional demeans the Constitution

In honor of Constitution Day, here’s a piece I wrote a few years back.  Sadly, it’s still relevant four years later.

Social 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 a 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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