By
Josh Sager
One common meme among the right wing in the United
States is the classifying of things that they don’t agree with as
unconstitutional. The accusation of unconstitutionality as a partisan attack is
leveled by a wide variety of political actors, ranging from candidates for
president to political pundits. This tactic is used to sway low information
voters to argue against their own interests through appealing to their loyalty to
an imagined interpretation of the constitution.
Republican presidential candidates have recently declared
a wide range of government functions to be unconstitutional during the 2012
primary debates and in press releases. Virtually every candidate on the primary
stage, as well as numerous right wing political strategists, have claimed that
the Affordable Care Act (“ObamaCare”) is unconstitutional; a claim that is blatantly
false given not only that the interstate commerce clause allows the federal
government to regulate a wide variety of services but that the idea of the
mandate was supported by most of the people who are now fighting it. The entire
idea of the mandate was created by the Heritage Foundation (an extremely right
wing think-tank), promoted by Gingrich, and implemented by Romney. Unless many on the right wing are willing to argue
that their own ideas are unconstitutional when adopted by the Democrats, they
clearly don’t believe their own claims of unconstitutionality to be true.
The allegations of unconstitutionality are not limited
to the health care fight, as many Republican political actors have made similar
claims against policies that they don’t like. Rick Perry, Ron Paul, and
numerous other right wing leaders have both claimed that the entire social
safety net (Medicare, Medicaid, and Social Security) is in fact
unconstitutional due to the fact that it is never mentioned in the
constitution. Other right wing leaders
have decried various policies such as welfare, federal monetary policy, banning
prayer in schools, and protecting women’s rights as unconstitutional
overreaches of federal power.
Unfortunately, this epidemic of claiming progressive
policy as “unconstitutional” is not only rampant but acting as a mask for the
policies that are truly unconstitutional. Using the constitution as a partisan
tactic is both abhorrent to the political discourse and simply dishonest on its
face. Rather than fighting a policy position on its merits, those who use this
tactic simply smear the policy with lies and need not present any facts.
Because the claims are not rooted in reality, there is no way to fight them
with the facts and thus the left wing is unable to effectively counter this
tactic; this tactic is similar to claiming that the moon is made of green cheese
and thus any samples taken from the moon are obviously fake because they are
not made of
cheese.
It is important to exclude true originalists (basically,
Ron Paul) from the tactical component of this argument as they are not using
the allegation of unconstitutionality as a tactic but rather as a genuinely
held belief. The concept that anything not expressly mentioned in the constitution
is called originalism and, while it is widely discredited as a realistic political
belief, that doesn't mean that those who hold this belief are immoral.
Regardless of whether the allegations of
unconstitutionality are genuine or merely an immoral tactic, they desensitize
the public to the claims when there are truly unconstitutional things happening
in politics. In recent years, we have seen numerous demonstrably unconstitutional
legislations suggested and even passed in some occasions. The recent,
bipartisan, reauthorizations of the NDAA (National Defense Authorization Act)
and the Patriot act are two examples of legislations that have blatantly
unconstitutional aspects that have passed without significant challenge. The
Patriot Act infringes upon our fourth Amendment rights while the NDAA (in its
amended form) infringes upon our 4th, 5th, 6th,
and 8th amendment rights. While the NDAA and the Patriot act are
probably the most relevant examples of recent unconstitutional legislation,
such legislative overreach is not limited to defense policy. The widespread
attacks on a women’s right to an abortion and everybody’s right to vote are
simply two examples of non-defense policy that are in fact, unconstitutional. How
is it that virtually an entire party of the US government can unite behind the
false accusation of unconstitutionality while supporting or ignoring genuinely
unconstitutional policies?
The problem in this situation is the use of constitutionality as
a tactic rather than a fact. When constitutionality has become devalued to the
point where it is dependent upon the partisanship of the sponsor of a bill, it
is no longer considered a true ideal; if the constitutionality of a bill is
seen as partisan affiliation dependent, everything the other side suggests is automatically
wrong, no matter how reasonable, while everything that your side suggests is
automatically right, no matter how egregious. The constitution is the framework
of the laws and politics of our country, not a specific set of rules that apply
to one party more than the other. I can, and often do, disagree with somebody
and believe that their positions are either ignorant or immoral (See: Tea
Party), but I can’t use the constitution to attack their policy where it is not
unconstitutional. The constitution should not be used as a partisan weapon nor
should we devalue its constraints to the point where truly unconstitutional
legislation passes unquestioned.
Credit to Sam Seder: Case in point.
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