November 7th, 2010

Constitutional Literalism

photo credit: BrentDPayne

Perhaps one of the most overused and under-explained arguments wielded in the 2010 election cycle is the assertion that a certain law is unconstitutional. While candidates waving pocket Constitutions were, on the whole, far more prepared to offer arguments to defend their assertion, it was (and is) quite common to hear the word used by an individual who, quite frankly, has no idea what they are talking about.

Like the lesson learned in the story of the boy who cried wolf, the rote regurgitation of this label lessens its potency; political opponents soon retort that the individual must think everything is “unconstitutional”. This propensity to attack a policy by immediately attacking its constitutional legitimacy led Elder Oaks to recently comment on the subject:

Some of the things said by various persons in recent public discourse cause me to urge that we be more careful in the way we throw around the idea that something is unconstitutional. A constitution should not be used as a weapon to end debate. A public policy or a proposed law that is unwise is not necessarily unconstitutional. Even if it is a stupid proposal, it is not necessarily unconstitutional. A constitution gives the people and their elected leaders the opportunity to make many decisions that are unwise or even reckless. When that happens — when the government or one of its officials engages in some kind of action that we consider to be wrong — we should engage in vigorous public debate about it. But we should not use up a constitution by attempting to strike down every ill-conceived act of government or to discredit every unwise official. A constitution is the ultimate weapon, and we preserve that weapon best by using it sparingly and carefully. If we call some action unconstitutional, we should be prepared to explain what provision or principle of a constitution it violates. In this way, a constitution can be used to stimulate discussion and to seek unity.

Ironically, for those who understand the debates surrounding the creation of the Constitution, the plain language it contains, and the prevailing “original intent” offering context to the document, there are myriad policies whose lack of constitutionality are glaringly obvious. It is interesting, however, to note patterns with which this label is used. Often times, those who shout “unconstitutional!” the loudest fail to do so in regards to equally unconstitutional yet personally preferential programs whose existence they either depend upon or enjoy. The tea party protester who rails on Obamacare yet receives unemployment benefits, the conservative critic of federal economic stimuli whose future retirement has been planned to include social security benefits, and the hard-working farmer who decries EPA regulations yet welcomes federal farm subsidies all embrace an apparent cognitive dissonance that further neuters their outcries about the constitutionality of this or that. If these critics lack consistency, they lack the moral authority to advance their arguments.

But there exist a number of laws, programs, and policies which are equally unconstitutional, yet whose existence is never questioned. For these, it is assumed that simply because they are necessary or widely regarded as important, that any discussion of their constitutional legitimacy is verboten. Despite this irrationality, there are no sacred cows when it comes to what the federal government is up to.

The Constitution either means something or it does not. Its words either have semantic meaning and discernible implications, having been debated and heavily scrutinized by the men who crafted them, or they stand as infrequently-referenced suggestions to be casually disregarded by those who disagree. If the words do mean something, as they do in any binding contract, then they should be referenced, heeded, and implemented in exactness, without any deviations. Any extrapolation or inference from those words that cannot be reasonably reconciled with the specific text should be rejected.

Those who wish to treat the Constitution as putty, easily moldable to adapt to different circumstances, rarely try to adequately justify their actions. Instead, they often rely on superficial explanations of their proposed law’s constitutionality (e.g. citing the commerce clause) or, if they’re particularly brazen, dismiss the question outright. If one really tries to loosely interpret various clauses of the Constitution, power can be found for nearly any action the federal government might take. This is, of course, the modus operandi for those who chafe at the restraints contained in the document.

But if the plain text of the Constitution doesn’t mean what it says, then what’s the point of having it at all? For example, in Article I, Section 8 of the Constitution, the federal government is delegated authority “To raise and support Armies” and “To provide and maintain a Navy”. The Marines and Coast Guard, which can be reasonably included in the naval forces authorized, pass constitutional muster. The Air Force, however, has no constitutional language to support its existence—something never questioned because, again, this military force is almost universally regarded as being important to have.

But rather than simply inferring authority broadly for a “military” of various branches, why not work to amend the Constitution? Clearly, a proposed amendment to authorize an Air Force would be ratified in short order. This would foster a respect for and adherence to the Constitution that has been sorely missing for decades. The alternative—the status quo—is a symbiotic relationship between ideological opponents where, with a subconscious wink and a nod, each side either ignores or loosely interprets the Constitution in regards to the laws they propose, thus enabling the other to do likewise. Soon enough, the system itself has been established with an entrenched disregard for adhering to the actual words contained in the Constitution.

Perhaps another example will illustrate the point.

Those who try to justify the constitutionality of existing federal immigration laws often rely upon the naturalization clause, also in Article I Section 8, which empowers the federal government “To establish an uniform Rule of Naturalization”. From this, it is asserted that the government should likewise have the authority to regulate and restrict the migration of individuals to determine who may and may not reside within the United States. It is said, under this argument, that the government cannot efficiently regulate the citizenship of individuals if it does not likewise control who travels to and from the country.

On this issue, as with others, the cognitive dissonance earlier referred to manifests itself. This same liberal application of related powers has been used since Wickard v. Filburn to justify Congress’ regulation of any economic activity at any level, anywhere within the country. In that decision, the Supreme Court decided that a single individual’s actions were subject to the constitutional interstate commerce power (“To regulate Commerce with foreign Nations, and among the several States…”) because, in the aggregate, many individual commercially-related actions impact interstate commerce. It was affirmed, put more simply, that Congress couldn’t effectively regulate interstate commerce if it couldn’t also regulate individual commerce.

Conservatives (who are aware of Wickard, and the decisions made and policies justified on its precedent) lambast the Court’s decision while actively encouraging the same exact application in regards to immigration. Rather than being “strict constructionism”, “textualism”, “contextualism”, “literalism”, or any other method of interpreting the Constitution, this is an ad-hoc, piecemeal approach that has no consistency. To rigorously demand adherence to the text of the Constitution on one issue while looking the other way on another is hypocritical.

As was stated earlier, policies and programs which, despite their unconstitutional nature, enjoy wide support, would likely be passed quickly and affirmatively as a constitutional amendment. Pursuing this option, rather than relying upon loose interpretations and an avoidance of the amendment process, would create a respect for the text of the document. The Constitution’s language has literal meaning, and unless we ensure the government abide by what it actually says—with a consistent application, even and especially in regards to pet political issues—we will be enabling and tacitly approving the entrenched indifference so many feel towards the restraints and specifically enumerated powers it provides.

10 Responses to “Constitutional Literalism”

  1. rmwarnick
    November 7, 2010 at 11:31 pm #

    The Air Force originated as the Army Air Corps, and nothing in the Constitution prohibits the military from using the latest technology.

    You can point to lots of common governmental practices that are not enumerated in the Constitution. Political parties, for example. Or executive orders, or printing paper money.

    Delaware Senate candidate Christine O’Donnell provoked laughter at a law school recently by asserting that separation of church and state isn’t in the Constitution– by which she meant that exact phrase can’t be found in the First Amendment. Yet the separation of church and state is recognized as a bedrock American principle because you cannot have a democratic form of government without it. Oh, and the word “democracy” is also not in the Constitution!

  2. john f.
    November 8, 2010 at 8:52 am #

    Rather than being “strict constructionism”, “textualism”, “contextualism”, “literalism”, or any other method of interpreting the Constitution, this is an ad-hoc, piecemeal approach that has no consistency.

    There is no virtue in consistency for its own sake. Harmony is perhaps more important, but it can and often does entail some element of inconsistency.

    Pragmatic, stable institutions, such as those inherited from our Anglo heritage, are the bedrock of a prosperous and beneficial society. Our Constitution establishes such institutions as adopted and in some cases modified from the British predecessor institutions. The contours of our constitutional caselaw that has been promulgated since the Ratification of the Constitution have trended in favor of the pragmatism necessary for any form of government to truly work, ideologies aside. Fortunately, the Founders seem to have understood the need for pragmatism in the work of government and the permanency of Anglo-American institutions, and the Constitution is drafted accordingly. This is the beauty of having a short, concise document setting up the framework of our federal system rather than a 100+ page document codifying every imaginable power and prerogative of government, such as the substantially problematic constitutions of many countries.

    Strict constructionism also falls prey to the scarcity of our knowledge about the thoughts, intents and desires of the Founders. It is only through a false sense of historical fundamentalism that we can think we know very much about what the Founders intended. And surprisingly, from my observation, sources like specifically the Federalist Papers that actually explain in painstaking detail what was intended in the drafting of the Constitition are often not a particularly highly regarded resource for Tea Partiers, especially where they lend support to the idea of and the need for the federal government and its activities in the United States. We impute the contours of the debate today about what the Constitution is and should be onto the Founders as they created it and force conclusions about their intentions and this is not very helpful in facing the challenges and issues relevant to a modern, technology-based society.

  3. Jeffrey T
    November 8, 2010 at 5:25 pm #

    I do believe that there is truth to the claim that *an* air force can be covered under the clause that calls for the creation of a navy—if you see an air force as an extension/component of a navy. Aircraft carriers (ships) can carry airplanes (aircraft).

    The point is this: A navy is necessary to defend against foreign invasion, and it makes some sense to have it under the purview of the federal government. So is an air force (but I would want it under the command of the navy).

    However, an federalized army (foot soldiers/tanks, etc.) is only necessary if you plan on invading another nation. It all you plan to do is down enemy ships and aircraft as they approach, then ships armed with planes are necessary. And if enemies make landfall, state national guards can be called to assist, under the direction of the state governors, and defending the particular states under attack.

  4. Clumpy
    November 8, 2010 at 10:49 pm #

    I don’t have a specific comment on this article, Connor. I’d just like to say that you have a gift for laying out an argument in a linear, logical and coherent fashion, even when I disagree. Writing something that contains ideas I want to express and reads well is certainly something that I wish I could do better.

  5. Pops
    November 10, 2010 at 10:37 pm #

    Hey, rmwarnick, you shouldn’t be disappointed that the word “democracy” isn’t in the Constitution. After all, it wasn’t a democracy that was established by it, but rather a constitutional Republic.

  6. Jim Davis
    November 10, 2010 at 11:42 pm #


    It appears that you subscribe to the philosophy of pragmatism- (that if certain means work, or have practical consequences, then those means should be used to get the desired results). My question to you and all other pragmatists is this- What if the means used to get to those results are unethical?

    A strict pragmatist might endorse abortions for lower income families for economic reasons. The less babies born to financially unstable families the less of an economic burden is placed on society.

    A strict pragmatist might endorse ethnic cleansing in order to “clean the gene-pool”.

    A strict pragmatist might endorse starting a war to diminish over-population or to save one’s nation’s economy.

    A strict pragmatist might endorse the police-state in order to reduce crime.

    A strict pragmatist might wish for a dictatorship over a constitutional-republic because of how efficient and practical that system is over the other.

    A strict pragmatist might endorse a “plan of salvation”- a plan which would save ALL man-kind…and not one soul would be lost.

    The point I’m getting at is this- just because something works, is practical, or pragmatic doesn’t make it right. I hope the type of pragmatism you’re endorsing is principled first, then practical.

  7. Matt L.
    November 11, 2010 at 2:15 pm #

    @ Jim Davis:

    Way to take things to extremes and throw in Satan to make a point. I felt the spirit’s rebuke when you referenced the plan of salvation.

    I think there is a happy pragmatic medium that can be reached by responsible leaders and citizens. Hitler, Stalin, Satan, and their homies are not the only pragmatists out there.

  8. Jim Davis
    November 12, 2010 at 6:05 pm #

    Matt L,

    I was using extreme examples to show that pragmatism is only good when it is first filtered through good principles. Pragmatism, by itself, is not a virtue. It wasn’t clear to me whether John was advocating practical consequences by any means necessary or not.

    On another note I thought this article was well written and timely. I have seen people go to many extremes when interpreting the Constitution. I’ve heard the “unconstitutional” argument over-used to the point that even I, a strict interpretation-ist, roll my eyes at how careless and ignorant that rebuttal has been used by some. I agree with Elder Oaks that the “unconstitutional” card should be played rarely and carefully.

    Despite the “unconstitutional” card being over used by some I think the biggest problem exists by the many who don’t even consider whether the bill/policy in question is consistent with principles of liberty or the Constitution.

  9. mark
    November 13, 2010 at 9:23 pm #

    Well written and very well thought out on your part. It’s about time I agree with you 100%. I think you should consider running for public office. A state Rep, a state senate seat, or US Congress. Im serious.

  10. Eric Checketts
    November 14, 2010 at 3:19 pm #

    It seems to me, that the strength of a constitution lies within strict adherence to its original intent. The concept of a “living document”, subject to change with the changing opinions of leadership, seems to nullify the very need of a constitution.

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