Over at the Lawyers, Guns and Money blog, Paul Campos has written multiple points in recent years pointing out that the Constitution isn’t self-enforcing. To take an example from the W administration, it’s fundamentally unconstitutional to lock people up without trial and hold them indefinitely. W did it anyway. We’re still holding some of them.
But a couple of years back, after Michael Flynn (IIRC) had called for making Christianity our state religion, Ihlan Omar dashed off a tweet that what he was saying was blatantly unconstitutional. Campos’ response was that he didn’t like liberals “fetishizing” the constitution — heck, for the first hundred years it didn’t even apply at the state level.
Omar was right, Campos was wrong. Flynn was talking about imposing a federal state religion which is definitely unconstitutional. If Omar had said “it can’t happen, the Constitution won’t allow it” that would have been wrong; but what she said was right. And more to the point, it’s good politics. Simply declaring “the Constitution is ineffective” may be accurate but it doesn’t offer a solution, nor inspire much action. Neither does a dissertation on first amendment law; fine for a blog post or a book, not for an immediate response. Saying that X is unconstitutional is politically much more effective because many people still think of constitutional/unconstitutional as good/evil. There’s no reason liberals shouldn’t invoke that the same way conservatives do.
And that put in mind of a post from the Obsidian Wings blog that I saved to my laptop (but it was 15 years back, at least, and I don’t have a link). Writing during the Bush II presidence, blogger Katherine discusses the way Bush invoked “rights and dignity and matchless value” and claimed invading Iraq and reducing it to violence and anarchy was totally in tune with the Founders’ vision of freedom. As Katherine says:
“there is no abstract noun on earth that is so beautiful, powerful, essential or true that it cannot be corrupted or misappropriated.It doesn’t even help to shift from acting in the name of beautiful, glittering words (freedom, liberty, justice) to acting against the ugly ones (torture, slavery, genocide). The National Review is perfectly capable of arguing, with a straight face, that because our enemies torture prisoners and kill civilians, in order “to promote human dignity, [they] belong in a black hole.” If we accidentally throw victims into that black hole, too bad for them.”
We see the same thing now as Republicans scream “freedom” to justify or excuse homophobia, misogyny, mass shootings and anti-vaxxing. Still, Katherine says, “if we shouldn’t make any moral argument that an unscrupulous leader can use an excuse for harming people, we basically shouldn’t make any moral arguments.” She points out that human-rights group had a long tradition of getting dictators to commit to statements like Bush’s, then document how they violate their supposed principles:
“So how does one respond to a war fought in the name of “freedom,” “liberty,” “human dignity,” “the idea of America,” “human dignity”, “democracy”, which advances none of those things & leaves behind hundreds more dead and maimed bodies every single week? I can understand feeling that those abstract nouns themselves are partly to blame–a lovely excuse for ignoring the ugly reality of our policies, which Americans are only too ready to embrace. I can understand feeling like you can’t stand to listen to these words anymore, not even from earnest liberal law professors and Democratic presidential candidates. I can understand feeling, as our commenters do, that even the relatively benign, liberal forms of “American exceptionalism” do more harm than good; that it’s past time for us to outgrow them.
I understand that view. I don’t accept it. A lot of people would call that naive, but I think it’s less a matter of naivete than a strategic decision–or maybe just sheer stubbornness. The contradiction between the lovely abstract nouns that America uses to describe itself and the concrete reality of our policies is as old as the country. The abolitionist movement faced them first: What do you do with a country founded by slaveowners who write beautiful, ringing declarations about the natural rights of man–not only wrote them, but meant them? What do you do with the Constitution & Bill of Rights when the Supreme Court interprets them not only to give black men “no rights which the white man was bound to respect,” but to forbid Congress from interfering with slaveowners’ rights over their “property”?”
One solution was abolitionist William Lloyd Garrison’s, to denounce the Constitution as a pact with Satan.
Another was Frederick Douglass, who hailed the Constitution as a “glorious liberty document” that didn’t mention slavery or protect it.” Of course, that’s not exactly true — the three-fifths clause was all about slavery — but they didn’t want to bring up such an ugly topic, one that gives the lie to the Constitution’s ideals. It gives the lie to the beautiful words about rights and freedom.
Katherine concludes liberals can work with that: “Sometimes, when presented with a stark contradiction between the bedtime stories we learned about this country as children, and concrete effects of our actions, we will choose to make the bedtime story true rather than give it up entirely. It’s not an easy thing to do, but it sometimes works. It’s worked a number of times in this country’s history.” More recently, Jamelle Bouie gives us some examples. Katherine: “As I said before, it’s the exact same strategy that the human rights movement has adopted: it’s much easier to get Egypt, Haiti, or Uzbekistan to make some universal promise never ever to torture or murder any human being ever, than to actually get them to stop torturing and murdering people. So first you get them to make the universal promise, signed and in writing, knowing full well that many of these countries have no intention of keeping it. Then, when you carefully gather all the concrete evidence of them torturing and murdering specific individuals.”
As she says, it doesn’t always work. On many Republicans, so deep down the delusion hole that the J6 rioters are persecuted patriots and medical quarantine is tyranny, I doubt it works at all. But they’re far from the only ones out there. And as Katherine says, ceding “liberty” and “justice” to those who pervert them isn’t a good answer either. Fight to reclaim them. Remind people of when America falls short of them. We’re patriots too. Let’s start saying it.
