What is Unconstitutional?
Most people would answer that question by starting with a philosophical sounding explanation. It might involve judicial theory or perhaps a legal philosophy. Terms like “originalist”, or “living constitution” would appear. Then complex arguments underneath these banners would arise to explain why or why not a particular law passed constitutional muster or not. In the hurly burly of the current Supreme Court five votes out of nine is what decides constitutionality. This of course is a changing standard as the 1973 Roe v. Wade decision changed the constitutional status of abortion. Until Dobbs v. Jackson changed that status back again in 2022.
In the end, what is considered constitutional or not for most people is highly dependent upon the policy under consideration. Policies that people like are, of course, “constitutional”, and policies not so favored are obviously “unconstitutional”. This attitude is even true of Supreme Court justices. This does not seem to be a very good standard but is the logical outcome to a vaguely worded document written 240 years ago.
But Isn’t the Text Clear?
The text of the US constitution seems clear enough to those arguing for one position or another. For those inclined to favor large government they point to the “necessary and proper clause” that seems to give carte blanche for the government to do whatever is needed for the “common good”. Those wanting more limited government will point to the “enumeration of powers” clauses to claim that only those powers are allowed. Which is correct? Again, 5 out of 9 Supreme Court votes decides. How do the 9 justices vote? Based on ideology, of course.
For that matter, where in the constitution does it give the Supreme Court final say over the constitutionality of a law? Only long-standing precedent, and a bipartisan desire to grant the court such power maintains this notion. The text itself is irrelevant, it is always a question of the underlying ideology that matters most. When most people thought government should be limited (except for slavery, of course), then the constitution was interpreted that way. When the ideology changed over the course of the 19th. century the interpretation changed along with the ideology. This trend continued in the 20th. century. Two examples will highlight this phenomenon.
One is a recent example. In a case before the Supreme Court recently, Murthy v. Missouri, which concerns the US government violating free speech rights by pressuring social media companies to censor ideas not favored by the federal government during the covid pandemic. Justice Jackson asked whether the court would be hamstringing the government from needed action during a once in a lifetime pandemic. The problem is the plain text of the first amendment does not contain a “once in a lifetime pandemic” exception. Yet, there is case precedent for the restriction of speech that has been endorsed by conservatives and liberals alike over the years. The state of Missouri is opposing these federal efforts because the state is run by Republicans, and they are opposed to these kind of speech restrictions. Yet, Missouri itself is a part of an effort to suppress speech they find objectionable. Constitutionality depends on whose ox is being gored.
The other excellent example of this phenomenon is the case of Justice Clarence Thomas and his opinion of the 9th amendment. Thomas is considered an arch conservative and one the proponents of an originalist interpretation of the constitution. He is generally of the opinion that the government can do only what the text allows by way of a grant of specific authority. The 9th. amendment gives great assistance to this effort as it is specifically written to reassure the citizenry that just because the government has outlined specific rights (especially in the Bill of Rights) that these are not the only rights retained by the people. Yet, from the beginning of his Supreme Court tenure Thomas has all but ignored and rejected the 9th. amendment.
The reason is that a rigorous use of this amendment would damage the legality of a host of things that Thomas, and many conservatives think the government should be doing. Everything from abortion to much of the regulatory regime could be put at risk by use of this amendment. So, the text is not clear and is open to much interpretation. This may be intentional. This vagueness may have been necessary to gain acceptance at the Constitutional Convention. It also has the benefit of making it easier to grow the government, due to the imposition of a legal philosophy upon a vague text. It should be clear that growing the government was the point of the US constitution, even if the size of government pales in comparison to the government today. The reactionary element in US society needed a strong government to confer upon themselves the power to steer policy to their advantage. This is the perspective of a fine history of the development of the constitution; America’s Counter-Revolution: The Constitution Revisited.
As for my own view, I agree with the thought of the great 19th. century anarchist Lysander Spooner, in his classic No Treason: The Constitution of No Authority:
But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.
It is only the direction and form of that power that separates “judicial philosophies” from one another and makes the whole enterprise of constitutional interpretation akin to reading tea leaves.
Why The Whole Constitution is Unconstitutional
The other reasons why I am not much interested in reading the tea leaves of constitutional interpretation are first, all government is unrighteous, coercive, immoral and produces deleterious social effects. Second, it is clear that the US constitution was enacted to enlarge the government. Lysander Spooner was quite correct. However, if I must make a judicial interpretation then I would adjudge the entire document unconstitutional.
The constitutional convention was no such thing. A convention was called to revise the Articles of Confederation. They were given no remit to create an entirely new document. Further, amending the Articles, which were the law of the land, required unanimous agreement among the states, not the 9 of 13 that was used to pass the constitution. This episode is a perfect example of ideology driving the “law”, and its creation. It was the desire of those at the Convention to create a new document, and they prevailed. The subsequent history claims that, of course, all this was legal. Even though clearly it was not. Legal fiction, then and now, is driven by what policy you want enacted.
So, in the end, it is best to forget slavish devotion to any document. Instead, I would suggest that we should work toward reducing the coercive powers of government as an end in itself, and on its own terms. No appeal to a document written 240 years ago, and vague enough to support all manner of governing philosophies should be considered as controlling. All that this reading of tea leaves does is expose hypocrisy on all sides and add legitimacy to an enterprise that deserves nothing but moral opprobrium.
Praise Be to God
