Tenth Amendment Center: Pulling on Constitutional Threads; Watching It Unravel
If you’ve ever snagged your sweater, you know how tempting it is to pull on the loose thread. You also know that giving into that temptation can lead to a ruined sweater. You pull just a little bit and the next thing you know the whole thing’s come unraveled.
Pulling on the threads of the Constitution can lead to the same result.
Still, most people can’t seem to resit the temptation. When their policy preferences conflict with the Constitution, they tend to go with the policy instead of the Constitution.
Both the left and the right have been pulling at constitutional threads for decades. But it’s most frustrating when it comes from self-proclaimed “constitutionalists” on the right. I see it a lot lately in calls for a federal crackdowns on sanctuary cities and verbal gymnastics used to justify overreaching presidential war powers.
A few weeks ago, I wrote an article titled The Constitution Should Trump Your Policy Preferences warning that conservatives should be wary of supporting a federal actions against sanctuary cities because it would ultimately undermine a longstanding legal principle that opens the door for states to resist federal overreach simply by refusing to cooperate.
In fact, sanctuary city supporters follow Madison’s blueprint for limiting federal power – a refusal to cooperate with officers of the union. Even the Supreme Court has upheld this principle through the well-established anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. In the foundational case, the Court held that the federal government could not force states to assist in fugitive slave rendition.
Within the framework of the anti-commandeering doctrine, state and local governments can resist a wide range of federal actions, from gun control to Obamacare. Forcing sanctuary cities to comply with federal whims destroys this legal principle. Even so, I got hate mail. Apparently, some people are more concerned about San Francisco’s policy on immigration than they are about preserving a powerful tool to resist the feds. .
It’s pragmatism over principle. But it the long run, it isn’t even pragmatic.
In a recent article published at FEE, Dan Sanchez demonstrated the imperative of protecting free speech for everybody – even a “seditious bigot” – through the work of philosopher David Hume. Using the same reasoning, we can also show why it’s crucial to consistently follow the Constitution.
In his Treatise on Human Nature, Hume conceded that a single act of justice could prove “prejudicial to society.” He goes further to admit that an individual could “impoverish himself by a single instance of integrity, and have reason to wish that, with regard to that single act, the laws of justice were for a moment suspended in the universe.” In other words, adhering to a principle (in this case justice) and doing the right thing could result in harm to both society and the individual. As Sanchez pointed out, defending Nazi free speech appears to fall into this category.
“Such a defense may seem contrary to the public good, since the Nazi’s message accomplishes nothing but evil. It may even seem contrary to the libertarian’s personal interests, since collectivist, particularist Nazis often rightly recognize individualist, universalist libertarians as their antithesis and as their most dangerous ideological nemeses.”
So why do it? Why not deny the Nazi’s free speech for the benefit of both the individual and society?
Because individual actions always take place within a broader context. The single case doesn’t play out in isolation. If you deny the principle in even one instance – I defend free speech absolutely except for Nazis – you pull at the thread.
Hume argues that you have to look beyond the single thread and consider the entire sweater.
“But however single acts of justice may be contrary either to public or private interest, it is certain that the whole plan or scheme is highly conductive, or indeed absolutely requisite, both to the support of society, and the well-being of every individual. It is impossible to separate the good from the ill. Property must be stable, and must be fixed by general rules. Though in one instance the public be a sufferer, this momentary ill is amply compensated by the steady prosecution of the rule, and by the peace and order which it establishes in society. And even every individual person must find himself a gainer on balancing the account; since, without justice, society must immediately dissolve, and every one must fall into that savage and solitary condition which is infinitely worse than the worst situation that can possibly be supposed in society.”
We can apply Hume’s principle to following the Constitution. Remaining true to the Constitution every issue, every time, no exceptions, no excuses will contradict your policy preference at some point. It may even seem contrary to America’s best interest. But it’s certain that the whole plan – the constitutional system itself – is essential to support both the American society and the individuals who live in it. Without the Constitution, rule of law in the United States unravels. When you allow government to expand in one area, you open the door for expansion in every area. One exception leads to another, which leads to another.
You pull on the thread because you believe you can fix the sweater. You end up destroying it. Ignoring the Constitution because it doesn’t advance your immediate purpose has the same effect. We need every thread in place.
Mike Maharrey
September 02, 2017 at 08:59PM
