An Unconstitutional Debate

As President Obama’s Affordable Care Act works its way through the federal courts, and public figures label numerous federal agencies unlawful, the Constitution has never been more relevant to modern political discourse. Though the highest law of the land has historically been a fulcrum for debates over controversial legislation, three crucial factors have increased the quantity, though not necessarily the quality, of constitutional discourse: the demands politicians currently face in Washington, the Tea Party, and the advent of instant communication. However, this trend of heightened constitutional discourse may not be as beneficial for the American polity as its advocates presume. In an era of warp-speed constitutional warfare, the allegation of unconstitutionality has become an increasingly corrosive political weapon.
An Old Debate
Claims of constitutionality are no new phenomenon in American politics. In 1832, President Jackson famously decried the Bank of the United States as unconstitutional in validating his opposition to the institution. Over one hundred years later, the Supreme Court struck down several of President Roosevelt’s New Deal programs under a similar rubric. Labeling legislation as at odds with the will of the founders is as old as the Constitution itself, as Harvard Law professor Mark Tushnet, told the HPR. “It’s always been the case that people say that controversial policy proposals they oppose are unconstitutional.”
Further, constitutional arguments have a cyclical nature. Harvard Law professor Laurence Tribe asserts, “If you go back some decades, it was common to attack lots of attempts to use federal power… as an unconstitutional excess.” These past few years have been a throwback of sorts. “We’re simply going into another cycle in which people are questioning the extent to which the movement from the Articles of Confederation to the Constitution really did give the central government such types of powers,” Tribe continues. While Tushnet and Tribe are correct that the Constitution has long been relevant to American politics, a perfect political storm in today’s environment has heighted the import of constitutional debate.
The Great Revival
Politicians seeking reelection in the polarized political climate have faced extraordinary fundraising and ideological demands. Policy arguments alone frequently fail to satisfy the base. Recognizing this limitation, politicians have capitalized upon the fact that Americans appear to align the morally good with the constitutionally permissible. As Harvard Law professor Richard Fallon elaborates, “The more sharply divided people become… then the more people are likely to roll out the heavy guns of constitutionality.” Politicians, seeking the ammunition that the Constitution provides, seek to take advantage of the moral weight of the founding document. Already, such claims paid huge dividends for Republicans in the 2010 elections, propelling firebrands like Allen West to Washington.
The never-ending media cycle adds fuel to the ideological fire. “How did the debate play out 200 years ago in a newspaper people read once a week because it was delivered to them by pony?” asks Roll Call editor Christina Bellantoni. “Now we have a debate at warp speed because of the Internet and 24/7 news media.” Steven Hayward, a political commentator and policy scholar, succinctly profiled what has become of national debate. Referring to then-Speaker Nancy Pelosi’s statement “Are you serious?” when asked about the constitutionality of the health care law, he reflected, “In a century, we’ve gone from three days [of discussion] to three words.” Because short sound bites are far more likely to garner attention than detailed policy speeches, substantive discussion about whether legislation is constitutional is almost impossible. Even the famed Lincoln-Douglas debates would likely be summarized into several succinct sentences by today’s media.
Moreover, the endless news cycle has allowed the Tea Party to play a significant role in elevating the Constitution in the public discourse. Bellantoni offers her perspective, stating that “The Tea Party sort of burst on the scene; they put on colonial garb and used the Constitution as their sort of weapon. And once that happened… you just got more and more lawmakers echoing what they heard at those rallies.” With the Tea Party championing a revival of the Constitution and the pressures of fundraising frenzies, invoking the founding document has become difficult to avoid for those seeking public office. Tea Party sympathizers and opponents have similarly been drawn into this discussion, laying the groundwork for continued heated rhetoric.
Who’re You Calling Unconstitutional?
Increased references to the Constitution, however, do not conflate with greater legitimacy. The debate over who has the right answers to these important constitutional questions rages on. Representatives Michelle Bachmann (R-MN) and Ron Paul (R-TX), among others, have called everything from the EPA to Obama’s health care policy unconstitutional. Scholars like Hayward nonetheless defend both claims. With regards to the EPA, Hayward fears that, “more and more we’re governed by administrators rather than by Congress,” which could have implications for the separation of powers. Regarding health care, he explains that, “with something like Obamacare, we are testing the limits of what is left of the Commerce Clause… if Congress has the power to [mandate that all citizens buy health insurance], what don’t they have the power to do?” Here, Bachmann and Paul’s constitutional arguments are rooted in deeply held ideological beliefs that government has exceeded its powers.
Yet others feel that such views run contrary to the very spirit of the Constitution. Tribe, for instance, views such positions to be “both ahistorical and functionally problematic.” Bachmann and Paul espouse, “a kind of literalist reading which would cripple the economy and which one couldn’t accept without, in fact, dismantling the entire federal structure.” Tribe goes so far as to label such rhetoric as “Neanderthal” emphasizing that the demands of modern society make such views antiquated. Indeed, opponents to landmark legislation like the Civil Rights Act similarly claimed that the Acts were unconstitutional.
Regardless of where the answer lies, broad discussion of constitutional values has some inherent value, simply because public discourse promotes civic awareness. Unfortunately, however, the heightened rhetoric has generally not translated into a deeper understanding of the Constitution among the American populace. In fact, Bellantoni explains, “most young people don’t have as much familiarity with the Constitution… as they did 30 years ago.” Ultimately, today’s intensely partisan rhetoric has created a toxic environment in Washington, with the result that the 112^th Congress is on track to becoming one of the least productive ever, a particularly dire situation, given its incredibly challenging tasks. For all the attention America has given the Constitution in recent years, Americans have failed to follow the founders’ wish to amicably resolve our differences.
Daniel Ki ‘15 and Jacob Drucker ’15 are Contributing Writers