The Misuse of 'Constitutionality' in Civil Debate

We aren’t yet 100 days into the Trump Administration and to survive the next nearly four years and beyond, rational public discourse requires that we define some terms. Among the most prominently and widely used criticisms levied at our federal government these days is characterizing an action of the president or Congress “unconstitutional.” But what does that really mean? To the average person at home watching TV or browsing social media, this accusation of “unconstitutional” is basically synonymous with “disagreeable” or “offensive” policy. I can’t tell you how many times I’ve read or heard commentary in the past few months that is an opinion-based objection to political action that is characterized as “unconstitutional” to justify an opinion. While a political branch’s actions may certainly be disagreeable or objectionable to you or me, depending on our particular persuasions, the term “unconstitutional” has a precise, non-opinion based definition.

I had dinner this weekend with a friend of mine, and inevitably at one point in the conversation she asked me, “Do you think Trump was right to invade Syria or was it unconstitutional?” I thought about this for a moment and what the question presumed. We tend to equate the idea, “Do you think Trump should…” with a markedly different idea, “Do you think Trump could…” The question presumes that whether or not I thought Trump was “right” (on whatever standard I personally determined measures such rightness), my opinion would dictate whether I thought Trump could. Whether the president or Congress or a government agent of any sort should is a matter of policy. We can debate the wisdom, strategy, economic benefits, values, and other kinds of imbedded issues to an action without even touching on whether such action is legal. The latter is an entirely separate question. Whether the government could reaches the idea of constitutionality. Right after the Syrian strike, members of Congress on both side of the aisle were quick to jump on the “unconstitutional” bandwagon. Sen. Rand Paul (R-KY), a prominent Republican, denounced the president’s action, writing in an OpEd for FoxNews, “Every American condemns the atrocities in Syria, and we cannot help but be shaken by the images of innocent women and children dying. It is also true that often in foreign policy, things are not as simple as they appear, and actions often have consequences well beyond the obvious.” Sen. Paul begins his argument with a policy-based consideration. Whether one or 100 percent of Americans condemns the president’s decision, our opinion has nothing to do with whether or not the president’s action was constitutional. The difference between should and could are often confused by Congress, media, and even activist judges, and the ultimate opinion rendered turns on whether or not they personally agree with or condemn the action, not whether the action is in fact constitutional. This suggests that politicians, media, and judges are outcome driven, rather than rule of law followers. We saw this important difference quickly in the new administration when President Trump signed his executive action that the press termed a “Muslim ban,” with the Ninth Circuit Court of Appeals declaring the action “unconstitutional,” and provided a 29-page opinion that completely disregarded the law and whether or not the president could temporarily halt immigration and visas from nine specific countries. Instead, the Court issued what was basically an opinion that the president shouldn’t, so therefore said the executive action was “unconstitutional.” In the hotly contested Obergefell v. Hodges same-sex marriage opinion from the Supreme Court in June 2015, Chief Justice John Roberts highlighted this important distinction in the context of the Court’s rules according to the constitution and what political and policy preferences the nine justices may have on issues like same-sex marriage. Justice Roberts said, “The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to… Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences adopted in [other prominent cases].” Many supporters of the outcome of Obergefell were angry over the dissents, even though Justice Roberts was not actually taking any position on whether same-sex marriage should be legalized. He was simply pointing out whether it could in the context of the Supreme Court’s constitutional confinements: what the Supreme Court can and cannot do. Yet, much of the public discourse surrounding the Court’s composition and the recent Senate confirmation hearings of Justice Neil Gorsuch focus on judges’ personal policy preferences, rather than (as Justice Gorsuch wisely pointed out during those hearings) the rule of law -- that what is or is not constitutional does not depend on the justices’ policy preference. As a consumer of news, the decision-makers of who sits in the Oval Office and elected positions, and as “we the people” who consent to our government’s limited constitutional authority, the American public must recognize the difference between what we may not like, but what is actually permissible and constitutional action. All of this defining of terms is only helpful if we’re willing to be honest, respectful, and teachable in our public discourse. If we’re willing to admit that while we may disagree over questions of should, the question of could is far less debatable. The Constitution is supposed to operate as a set of rules blind to political preferences. It constrains political action. Whether we are for or against abortion, same-sex marriage, immigration, refugee status, bombing Syria, repealing and replacing Obamacare, the death penalty, or any other political issue of our day, we should all be aware and also glad that our Constitution limits our government action. That, in chief, was the intent of our Founders. When my friend wanted to discuss Syria, the question might be better phrased, “Since Congress has been given the exclusive power to declare war in Article I, Section 8.11, can the president initiate any military action under his power as commander in chief in Article II, Section 2.1?” Just like a board game, rules must be viewed as a whole, and what impact, if any, other rules have upon a given rule. In exactly the same way, our constitutional rules work in tandem to provide all the specific, limited powers given to our federal government to operate -- the rules the government must adhere to in every instance. These are not strategic decision-making rules, but rules that confer powers to act. Think about how much of the noise and so-called fake news would be quelled if both sides of a political issue would be honest about this should and could distinction. The Senate democrats would have to admit that while they disliked the treatment of Obama Supreme Court nominee Merrick Garland, the rules in the Constitution require only “advice and consent” of the Senate -- not a vote or even hearings. The Senate Republicans could have more directly responded to concerns about Justice Neil Gorsuch during his confirmation hearings -- he plays by the rules, not by policy concerns for either side. (More about that here.) Legitimate disagreement over questions of should are an immeasurably valuable asset to a government concerned with the mandate of preserving and protecting our individual fundamental rights. The Founders displayed remarkable ability to contribute meaningfully to public discourse while sharply disagreeing, and yet still created even the rulebook itself through respecting political clash and, importantly, understanding the business of liberty and freedom. They understood that we have to govern, somehow. Our Founders intended to give America a simple, five-page set of rules for our government. The Constitution tells us what the government can do, and our Bill of Rights enumerates specific actions government cannot do. This is how we are in fact a constitutional republic, not a democracy. We are not driven by the “should we?” opinion of the majority, but by “can we?” concrete rules of representative governance. We can very clearly read our Constitution and determine what our government can and cannot do. So what should a president and Congress do with their powers? Well, that is why our meaningful public discourse on policy and especially our votes are so incredibly important. Jenna Ellis is an attorney, a fellow at the Centennial Institute, a constitutional law professor at Colorado Christian University, and the author of The Legal Basis for a Moral Constitution.