The Sarcastic Liberal: Progressive and Abrasive: What is Unconstitutional?

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 4^th, 5^th, 6^th, and 8^th 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.