The Problem with Constitutionalism

This may be the only place you ever hear what I’m about to say, so let me say it up front: Speaker of the House Nancy Pelosi (D-CA) may be the most honest member of the United States Congress. Per

When asked House Speaker Nancy Pelosi (D-Calif.) on Thursday where the Constitution authorized Congress to order Americans to buy health insurance — a mandate included in both the House and Senate versions of the health care bill — Pelosi dismissed the question by saying: “Are you serious? Are you serious?”

Pelosi’s office provided the usual “interstate commerce clause” cover later, but the moment provided a peek into the mind of a typical American politician.

The claim that then-President George W. Bush referred to the US Constitution as “a goddamned piece of paper” has been credibly called into question, but there’s a generous dollop of verisimilitude in that claim. Maybe he said it, maybe he didn’t, but it’s hard to believe that he didn’t at least think it.

Believe it or not, politicians — even the ones who claim to — simply don’t understand the Constitution as limiting, or even placing any conditions on the exercise of, their power. In the normal course of business, they consider it merely a formal affirmation of their omnipotence. On the rare occasion that they actually find themselves challenged by it, it becomes a “word search” puzzle which, correctly solved, opens their way to wherever they care to go.

The conservative niche marketing device commonly known as “constitutionalism” — a device which massages the libertarian impulse in a way that makes it an ideal fetish for “smaller government” types to wave at anarchists — boils down to the notion that government could be made to “work” if only we herded it back into the corral of constitutional limitations.

While that’s a very debatable notion, it’s one we don’t really have to reach, because the question it raises is answered in the negative at the word “if.” Government can’t be herded back into the Constitutionally OK Corral. It trampled down that corral’s fences long ago; the corral no longer exists. Any time you see some random piece of government standing in the area that the fences used to surround, what you’re seeing is a mere temporary coincidence of the running battle between that piece of government and some other. Government is an animal run wild. That it happens to occasionally run across the area its old pen used to cover is to be expected.

Even the House of Representatives’ leading “constitutionalist” politician goes the “goddamned piece of paper” route when the Constitution gets between him and his deepest desires. Yes, I’m talking about Ron Paul (R-TX).

When Paul decided that he wanted to “protect” marriage by providing for the outlawing of it, he authored a bill (the “Marriage Protection Act”) which if passed and enforced would have exempted the states from the 14th Amendment’s “equal protection clause” as that clause bears on the earlier “full faith and credit clause.”

As a “constitutionalist,” Paul no doubt knows (in his brain) that the Constitution can only be changed by amendment, requiring passage by 2/3rds of both houses of Congress and ratification by 3/4ths of the state legislatures. But he really, really, really wanted what he wanted, so instead of listening to his brain, he listened to his heart: “Are you serious? Are you serious?”

Maybe he agonized over it; I’d like to think he did. Lesser legislative lions just pour their “beliefs” into legislation, and the Constitution be damned. For example, earlier today US Senator Lindsey Graham (R-SC) justified an attempt to repeal the Sixth Amendment (2/3rds of both houses of Congress … cough … ratification by 3/4ths of the state legislatures … mumble) by announcing that “we believe we’re at war.”

Beliefs are fun things, but they don’t trump facts. The Constitution empowers Congress to declare war. If it hasn’t done so, then the United States is not, in any legal sense, at war. That hasn’t happened since the long-concluded wars declared in 1941. The current conflicts in the Middle East and Central Asia were “authorized” by Congress in pieces of legislation which included specific language to clarify that they were NOT declarations of war.

Constitutions can’t protect you from government. It’s a wild, savage animal, and the only way to protect yourself from it is to take it around back of the barn and put it out of your misery.

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