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Constitutional Chicanery

Where in the Constitution, sir, do you see it authorized that Congress can be involved with “health care,” or fund “health care”? I am asking here about the Constitution, not any court rulings. Thank you.

This was the content, in its entirety, of an email I received last night from John Lofton, editor of, a friend and supporter of Constitutional Party 2004 presidential candidate Michael Peroutka, and—get this—communications director for an organization called the Institute on the Constitution. We heard a lot from last summer’s protesters and people like Mr. Lofton about the sanctity of the Constitution and constitutional principles. Granting that tea partiers and people who send me silly emails should not necessarily be taken seriously as constitutional experts, there nonetheless seems to be an unusually high level of either uninformed or knowing manipulation of the Constitution in service to pre-ordained agendas.

I’m not a constitutional scholar. (N.B.: Protestors and other critics attacking the president ought to take note that he is.) Nor do I want to get into specific constitutional controversies. My aim is to rebut a few of the most absurd fallacies that seem to have gained traction–primarily but not exclusively in conservative circles–about the nature of American constitutionalism. To wit:

First, there is the fallacy that anything not specifically prescribed by the Constitution is unconstitutional. True, the Constitution doesn’t mention health care; but neither does it mention air traffic control. Is the FAA’s safeguarding of our skies from commercial crashes therefore unconstitutional? Of course not. First, there is the matter of the “necessary and proper” clause. And second, just because the Founders clearly meant to avoid the whole business of constitutionalizing specifically policies–see point #3, below–doesn’t mean they didn’t want the government to have any policies. If they did, why create a legislature?

Second, and conversely, there is the fallacy that anything not specifically proscribed by the Constitution is constitutionally permissible. We have one of those nutty preachers who shows up in the common areas of campus. One of his favorite claims is that because the Constitution makes no mention of the separation of church and state, we are free to infuse church into state. He’s right about the omission, but the Constitution doesn’t mention sex with minors, incest, or gay marriage, and so, by the omission-is-permission logic an adult man could consummate his marriage to his 14-year-old nephew. I mean, the Founders didn’t say anything about not doing that, so it must be OK constitutionally, right?

Third, too few people wrapping their policy arguments in constitutional claims understand that the Founders wrote a short charter dedicated almost exclusively to the design, structure, officers and powers of the government because they wanted to avoid constitutionalizing specific policies. The Constitution has only thrice ventured into the prescription or proscription of a specific public policy: the slavery provisions, the prohibition of alcohol, and the enactment of the income tax. The first was the most glaring, nearly fatal problem with the original document; the second, initiated by amendment, was such a bad idea it led to the only direct reversal of a previous amendment; and the third, well, you’d think anti-tax conservatives would have long ago advanced the argument that constitutionalizing policies is a bad idea, given the establishment of the national income tax. Oh, and since the latter two were policies enacted via amendment, that means only slavery–which the Founders avoided mentioning by name–was an “originalist” policy. That should be cautionary tale enough. Look, the Founders were brilliant, but imperfect, but the part they were near-perfectly brilliant about was not constitutionalizing policies, which is what they designated the elected and appointed branches of government to handle.

Fourth, the federal court system is–brace yourself now–constitutional. The quote from Mr. London implies that a matter decided in some way by courts must be either unconstitutional, or at least inferior or suspect. Come again? Given the four previous points, the business of the courts is to clarify and fill in constitutional gaps, especially on matters where the Constitution is silent or ambiguous. We don’t need the Supreme Court to clarify whether one needs to be 35 years old to be elected president, but we do need it to decide whether torture is constitutional. The sad consequence of the decades-long campaign to systematically denigrate “liberal activist” judges—even though there are “conservative activists” aplenty on the federal bench—has been to delegitimize the court system and judges generally, as if they are impostors who have visited themselves upon our democracy by force and without invitation. So, even if the original or amended Constitution did, in fact, prescribe or proscribe a whole list of policies, that still doesn’t mean federal courts can’t insert themselves. Last time I checked, the federal court system was provided for by the Constitution’s Article III; ignoring the courts is ignoring the Constitution.

Fifth, if you want to be a strict constructionist, fine, but be one even when it’s inconvenient. Imagine if the Second Amendment read as follows: “A woman’s ability to survive childbearing being necessary to a free state, the right to abort a fetus shall not be infringed.” Now, do you think the anti-choice movement would simply ignore the leading clause and resign themselves to the idea that a woman has an unconditional right to abortion? Not a chance, and they’d be right to fight because the language clearly implies a conditional right. And yet we almost never hear gun rights advocates mention the actual Second Amendment’s leading clause, “A well regulated militia being necessary to the security of a free state….,” which at least suggests a collective right—indeed, obligation—to an armed defense of the state, rather than an individual’s right to use arms to protect himself and his property. For the record, I support gun rights with some restrictions, but that’s besides my point, which is that you can’t be so selective in citing the language in the Constitution that you chop off inconveniently ambiguous parts of the same sentence upon which you base a categorical claim.

Well, I’m sure this is not an exhaustive list of the sort of rhetorical chicanery currently used by proponents of this or opponents of that. I love the Constitution and believe in it. But my ears tend to perk up the moment somebody reaches for the Constitution and the Founders to justify an argument–especially when they do so fallaciously and without an understanding of the historical meaning of the document.

UPDATE: I obviously couldn’t know at the time that the Washington Post’s Ruth Marcus would be writing today about the supposed controversy over the constitutionality of health care reform and mandates, but sure enough, she has a nice takedown here. (Thanks and a hat-tip to 538 reader Mike in Maryland.)