Constitutional Literalism

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 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 lawsoften 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.


  1. But Connor, what you recommend (utilizing the amendment process for all non-enumerated powers and authorities) would significantly hamper legislators’ ability to “get things done”. Additionally, going back and addressing all the unconstitutional issues in current law could occupy their time for years, forcing, in most cases, states to address the problems of daily governance. Couldn’t have that…

    1. The idea that we must “rush” or avoid gridlock is absurd; the Founders made the process slow and cumbersome if you will on purpose. Lengthy debate is healthy and necessary for true republican government to succeed.

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