Almost every debate in American politics, about the law and what things it should or should not allow, brings up the issue of constitutionality.
The US Constitution, drawn up in the late 1700s when little ol’ America was just starting to cut loose of the apron strings and make its own way in the world, has formed the bedrock of its legal system ever since, and provided vital and unassailable decisions on how hundreds of millions of people’s lives should be run.
I’m not really a fan.
Don’t get me wrong, it’s got some good ideas. It’s just weird how reverentially it’s treated sometimes. A lot of major political players and law-makers seem to act like it’s the unquestionable be-all and end-all of every legal dispute that can be imagined. If what you want to do is unconstitutional, no dice, end of.
And I don’t get it. If you share the values it espouses, then by all means embrace it for that, but… You do know that whether or not something matches up with what some guys 250 years ago had in mind isn’t as important as whether it’s actually a good idea, right?
I’ve seen this a number of times with regard to gun control. People who like their guns point to the “right to bear arms” guaranteed by the Constitution, while those on the left often claim that this was only intended to refer to the 18th century weaponry that existed at the time it was written. The country’s founders couldn’t have predicted the range of pistols, assault rifles, and the like available today, and wouldn’t have condoned their unchecked possession.
It’s hard to imagine what could be less useful to the gun control conversation that the imagined and hypothetical opinions of some people two centuries dead on the subject of modern technologies of which they had absolutely no knowledge. Can’t we try to be smart and figure out how it makes sense to act, based on what we know now?
Actually, you don’t even have to go as far as the Second Amendment to find a good example:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This is generally about the government staying out of people’s way, which is largely a good thing. But the question of exactly what constitutes “freedom of speech”, against which no law shall be made, is a notoriously knotty one. There’s no mention of fraud, libel, or shouting “Fire!” in a crowded theatre anywhere in the clause. There have been numerous legal decisions since the Constitution regarding these subjects, as well as on things like obscenity and campaign finance, and the law itself acknowledges a good deal of nuance to an obviously complex issue.
But it still tends to be framed around whether certain harmful or undesirable forms of speech or expression are “constitutional”. It always seems to be about whether something “counts” under that part of the Constitution. Surely a decision to restrict or punish certain types of behaviour should stand on its own?
In practice, I imagine it usually does. The law is trying to reflect what behaviours are actually desirable or should be punished, and it probably doesn’t make a lot of difference that technically this takes the form of contrivances and qualifications being continually added to those important, constitutional principles. It just seems a strange obeisance to continue making.