© Josh Sager – April 2013

If you were to ask the average American right wing citizen—both Republicans and “independents” who always votes republican—what the most important document to them is, you would likely hear either the bible or the United States Constitution. This is understandable, as the majority of the right wing identifies as some variety of Christian and the Constitution is the most important document in our country’s politics (possibly rivaled by the declaration of independence, but that has little impact on modern policy).

Unfortunately, the current right wing in our country appears to have a paradoxical understating of the Constitution that largely relegates the document to the status of political prop. Rather than reading the Constitution and interpreting the text, these individuals have constructed their own theoretical version of the document that conforms to their ideology and declares everything that the other side does unconstitutional. While this is a sweeping statement and it would be totally unfair to extend this to every right winger, I feel that this accurately describes a significant portion of the right wing base.

In essence, the right wing has convinced themselves that their current policy position always represents the constitutional position and that any idea to the left of theirs is an unconstitutional attack on personal liberty—this hold true even if they previously suggested the idea that the other side has now adopted.

We see this phenomenon best in the fight over the Affordable Care Act (ObamaCare), when the Heritage Foundation spent several years decrying the mandate that they created as a terrible and unconstitutional threat to liberty.

The Heritage Foundation’s Consumer Choice Health Plan, 1993–2007:

“Require all households to purchase at least a basic package of insurance, unless they are covered by Medicaid, Medicare, or other government health programs. The private insurance market would be reformed to make a standard basic package available to all at an acceptable price.”

The Heritage Foundation Brief to the Supreme Court, 2012:

“The heart of the Patient Protection and Affordable Care Act, popularly known as “Obamacare,” is an unprecedented mandate that individuals purchase health insurance. The briefs of the parties challenging Obamacare and their supporting amici argue persuasively that, if the Supreme Court hews to the original understanding of the Constitution, it will have no choice but to strike down the mandate.

Not to be snarky, but somebody should really ask The Heritage Foundation whether they created and spent over a dozen years promoting a plan that was in blatant and egregious violation of the Constitution, or whether they are simply lying about the constitutionality of the mandate now. To me, either answer invalidates their credibility on policy issues, as they are either ignorant on the Constitution or simply liars.

If this type of hypocrisy were an isolated incident, I think that people could overlook it but the right wing confusion over the Constitution is a common and enduring problem. Ultimately, the paradoxes surrounding the right wing’s obsession of the Constitution can be boiled down to two logically fallacious statements:

“I love the Constitution and think that many policies which the other side proposes are in violation of its restrictions on government power, but I don’t really know what is actually in the Constitution.”

For a group of people who claim to love the Constitution, many on the right wing are shockingly ignorant to what is actually in the document. In a variety of issues, ranging from women’s health and gay rights to executive authority and the regulatory power of the federal government, the right wing has consistently supported unconstitutional policies while declaring clearly constitutional policies to be unconstitutional.

Probably the clearest area of policy where Republicans have obviously disregarded (or are simply ignorant of) the content of the Constitution is that of abortion rights. Regardless of ones’ opinions on abortion, the Supreme Court case of Roe v. Wade decided that abortion access is a constitutionally protected right and that government interference in a pregnancy before the time of fetal viability is a violation of the law. Despite this decision, the right wing has passed dozens of laws targeting the right of a woman to have an abortion—these laws are a direct violation of the Constitution. Here are just a few examples of such laws in just the last few months

The North Dakota legislature passed a “personhood amendment” that could ban all abortions in the state by declaring every fetus a person from conception—this would also disrupt the ability of women to access hormonal birth control.

Mississippi attempted to put the last abortion clinic in its borders out of business by passing TRAP regulations that were designed to be impossible to meet (ex. mandating all abortion doctors get admission privileges at a local hospital while knowing that this is unnecessary and impossible for the doctor to get). This violates the Constitution for the simple reason that making it impossible to get an abortion is identical to banning the procedure.

Arkansas passed a law that will ban abortions at the first sign of a fetal heartbeat. As a heartbeat can often be found by as few as 6-12 weeks, this law prohibits abortion way before viability and is in violation of the Roe v. Wade decision.

The recent pushes to ban abortion proves that many in the GOP either don’t realize that they are passing bills that violate the document that they love or they simply care more about controlling women’s bodies then preserving the Constitution

The current right wing has consistently either promoted or ignored violations to the 4th, 5th, 6th, 7th, and 8th Amendments as they regard the prosecution of the “war on terror.” Starting with the Bush administration, right wing politicians and executives engaged in a massive subversion of these amendments, passing warrantless wiretapping laws that violated the rights of American citizens and using the “enemy combatant” language to sidestep these Amendments for suspected terrorists.

Unfortunately, the Obama administration has continued most of these violations of the Bill of Rights (with the change that we no longer torture people), and upped the ante by summarily executing several US citizens via drone. Despite the right wing’s willingness to speciously claim every other action by Obama to be unconstitutional, they have somehow neglected to mention the widespread truly unconstitutional actions in this area. Perhaps they simply skipped over the middle of the Bill of Rights, but it is much more likely that they just don’t care about these Amendments and don’t want to call out Obama on these issues because they fully support such violations of the Constitution. There are a few libertarians who have bucked this selective acceptance of violations to the Constitution (ex. Rand Paul), but they are in the minority and have been unsuccessful in doing anything about the situation.

In issues of the 1st Amendment separation of church and state, the current right wing has an abysmal record in both rhetoric and policy. Many right wing politicians on the state level have pushed unconstitutional initiatives that insert religion into public policy. This insertion has taken many forms, including the teaching of creationism in public schools, the display of religious symbols on public buildings, and even a recent attempt by the South Carolina legislature to declare a state religion. In recent fights over contraception access, the right wing has attempted to limit womens’ access to contraception under the theory that their right to practice their religion is violated when a women is allowed to use chemical contraception. Put plainly, those who suggest these policies either fundamentally lack an understanding of our 1st Amendment or have chosen to ignore it in order to promote their religion—neither explanation is particularly comforting.

The 2nd Amendment is a favorite of the right wing and they have convinced themselves that the 2nd Amendment protections on gun ownership rights are far more expansive then they actually are. In the aftermath of the recent shootings, the right wing has fought against all sane gun regulations and has even declared studying gun violence, mandating background checks, and enhancing permitting requirements to be violations of the 2nd Amendment. Currently, virtually every major Republican in the federal legislature calls a ban on assault weapons and large magazines to be unconstitutional, despite the fact that less than a decade ago there was such a ban that was upheld as constitutional.

A huge portion of right wing fundamentally doesn’t understand the scope of the 10th Amendment; they see it as a virtually universal argument to justify “state sovereignty” and the ability of a state to overstep its authority. The 10th Amendment gives states the authority over things not addressed by the federal government, but many on the right have come to believe that the virtually only purpose for the federal government is to facilitate a national defense. Such “tenther” arguments are used to claim that states can nullify federal laws or regulations because the specific statues are not specifically named in the Constitution (ex. there is never a direct mention of federal environmental regulations in the Constitution, thus these people believe that the federal government has no authority to regulate polluters). These people are simply incorrect, as they fail to recognize that preserving the general welfare of the country is a highly expansive mandate for the federal government and that the interstate commerce clause gives the federal government fairly broad regulatory reach.

One particularly stark area where right wingers fail to understand the content of the Constitution is that of the income tax. Many on the right claim that the income tax is unconstitutional and is government-mandated theft of their earnings. This argument is simply absurd, as the federal income tax was created when the 16th Amendment to the Constitution explicitly created it.

In the previous examples, I have named several areas of policy where the current right wing is simply ignorant of the actual content of the Constitution; these are by no means the only policy areas where the right fundamentally misunderstands the Constitution, but listing every way that the right has misunderstood the Constitution would simply take too long.

Put plainly, if you misunderstand the 1st, 2nd, and 10th Amendments, don’t care about violations to the 4th, 5th, 6th, 7th, and 8th Amendments, want to eliminate the 14th and 16th Amendments and consistently fail to grasp the basic constitutional authorities granted to the federal and state governments, you simply don’t understand the Constitution at all.

“The Constitution is perfect and any changes to it amount to blasphemy, but I will push to amend it to ban gay marriage, reduce taxation, and prevent illegal immigrants’ children from becoming citizens.”

Despite their claims that the Constitution is a dead document and that any changes to it are wrong, they are often the first in line to make changes to it. Modern Republicans have suggested numerous changes to the Constitution, including attacks on the 14th Amendment and attempts to codify anti-gay bigotry.

First of all, the idea that the Constitution is a perfect document that should never change is absurd on its face. As it was originally signed, the Constitution lacked any of the Amendments that constitute the Bill of Rights (the first ten amendments), and considered African American slaves to be 3/5 of a person (a compromise giving southern states additional political representation while denying slaves the rights of free people). Unless you are willing to argue that that version of the Constitution was perfect and we should still be using it, then you must concede that the Constitution is a living document that must grow with the times.

During the fight over illegal immigration and measures to help the United States deal with the large numbers of undocumented immigrants within our borders, the right wing has commonly talked about repealing the 14th Amendment. This is the Amendment that ensures that everybody born in the United States is an American citizen (originally used to guarantee freed slaves citizenship rights), deserving of all rights under the law. As the children of the undocumented are born here, they are citizens (offensively-called “anchor babies” because their status allows their parents some legal protections) and are legally exempt from deportation. Many on the right don’t like this and have supported amending or simply ignoring the 14th Amendment in regard to undocumented children.

Many on the Christian right have supported the idea of a constitutional amendment defining marriage as between a man and a woman. This amendment is based around the fictional Christian origins of our country and is blatantly discriminatory as well as a likely violation of the 1st Amendment (if the Amendment was justified in any religion). While no such Amendment has taken hold in the federal government, many such laws have been implemented by state constitutions.

I don’t know how Republicans can rationalize blocking any progressive changes to the Constitution as attacks on the document, while simultaneously attempting to enact their own changes to the document. I suppose that they think something along the lines of “it’s okay when I work to amend the Constitution because I know what the founders were really thinking but the opposition is just trying to insert their socialist dogma into our perfect document.”

The fact is, if you want to change the Constitution, you have already conceded that it is a living document and that a pinched “originalist” interpretation of the Constitution is not the only way to look at it—you cannot claim that the Constitution is immutable, because you support changing it.

Conclusion

The current Republican Party has fetishized the United States Constitution to the point where they have ceased to care what it actually says. They will constantly use the Constitution as a weapon against their political foes and, unfortunately, have managed to confuse many in their base to the point where they don’t even know where the true Constitution actually stands. This phenomenon is dangerous to our democracy and degrading to the actual text of the Constitution.

Speciously accusing the opposition of suggesting unconstitutional laws is a quick and dirty tactic that is sometimes very effective. Many people simply don’t know what is in our Constitution and trust politicians to honestly assess and report what is constitutional and what isn’t. If a politician is deluded as to the content of the Constitution (ex. Christine O’Donnell laughing at the idea of the separation of church and state) or willing to lie and subvert the Constitution in order to push an agenda (John Yoo calling the president’s power unlimited in a time of war), they can often drag the American people down the rabbit hole with them.