“Bad Policy” Does Not Always Equal “Unconstitutional”

There is a mantra that is repeated across these United States on a regular basis. It is most often invoked when someone does not like a particular policy of the President or legislation being considered by the Congress. The mantra goes like this. Someone hears about a new bill in Congress that they oppose or something the President is proposing to do that they do not like. Immediately, it is labeled as “Unconstitutional.” The term itself has become a political trump card, but unfortunately the users all too often do not know the difference between a bluff and trump.

It is an unfortunate fact of life that too few Americans ever read the United States Constitution. Oh, yes, it is taught in school, but being part of a curriculum does not necessarily mean that students actually read the document itself. More importantly, we all come away with our particular impression of what the Constitution says and that memory is usually incomplete and heavily influenced by cultural factors and political persuasions.

Many times I have thought that all natural-born Americans should be required to pass a citizenship test before their rights as a U.S. citizen are conferred upon them. I believe that most naturalized U.S. citizens have a better working knowledge of the Constitution than many natural-born Americans. This is a sad state of affairs that could be easily rectified.

If you have not done so in recent years, find yourself a copy of the U.S. Constitution and read it—all seven Articles, the Bill of Rights, and the rest of the Amendments. It is a relatively short and easy read. It is a beautifully written and masterfully constructed document as evidenced by its having endured these 222 years. One of its greatest strengths is in what it does not say as much as what it says. It is an organizational document that sets up three branches of government and the checks and balances among the three that prevent any one branch from dominating. It describes how our leaders are to be elected or appointed; it articulates their powers and authorities; it sets out our rights as citizens; and it limits the role of government.

But, the U.S. Constitution does not tell us what is right or wrong; it does not differentiate between good and bad. The Constitution does not tell us which policies would best help achieve the purposes of the federal government articulated in the Preamble. The Constitution establishes the process by which we govern ourselves and it identifies those rights that shall not be infringed upon. As long as we adhere to those processes and do not abridge those rights, as ultimately determined by the Supreme Court, there is wide latitude delegated to the Congress and the President to establish whatever policies they determine will advance the above-mentioned purposes.

There is a subtle point—a fine line—where Americans cross pollinate bad policy with unconstitutional. I have very strong views about a number of issues including health care reform, energy and environmental policies, support for our military, and the prosecution of the war on terror, just to name a few. Regardless of my views about any particular policy, I believe all these issues and others are within the domain and established purposes of the federal government. The domain and purposes of the federal government are laid out in the Preamble to the Constitution. “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Moreover, if you think that an action by Congress is unconstitutional, I invite you to read Article I, Section 8, where the powers of Congress are enumerated.

An important distinction to make is that there are very clearly articulated philosophies of government that were expressed by the Founding Father of this great country. They formed their views of democracy and a vision of limited government in the context of having been oppressed by the English monarchy and unfair taxation policies. They believed in the power of individual liberty and the freedom to pursue happiness. They saw the potential of free enterprise to create a better world. And they believed that government should help, not hinder or over regulate, the individual’s freedom to pursue life, liberty and happiness. I firmly believe that there is plenty of historical documentation that would suggest that the Founding Fathers would be firmly opposed many of the social engineering and taxation policies proposed and in place today.

I also believe it is correct to say that this nation was founded upon Judeo-Christian principles and that most of the Founding Fathers considered themselves to be Christians. That said, those same Founding Fathers ensured freedom of religion in the First Amendment and when they inserted into Article VI of the Constitution: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Another principle often misunderstood by a lot of people is that there is no Constitutional responsibility of our elected Representatives or Senators to carry out our desires or necessarily the wishes of the majority of their constituents. The Constitution created a “republican” form of government, not a pure democracy. We elect leaders to serve the United States of America. They should gather information from all sides of an issue. They are to understand the policy or legislation being proposed. They should consider what is best for the nation as a whole as well as the collective will of the people they represent. Finally, our leaders cast their vote knowing that they will be held accountable for their positions every two or six years when “We the People” have our opportunity to cast our votes.

The only Oath or Affirmation articulated in the Constitution (Article II, Section 1), and the basis for all oaths pertaining to federal service, is:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." There is nothing in that oath of office or the Constitution obligating our leaders to act in accordance with our wishes, collective or individual. For me, I do not want a leader who makes decisions based on polling data, putting their wet finger in the air to see which way the political winds are blowing today. Polls can be too easily manipulated by the media and the pollsters, and all too often the opinions of the general public are not well informed or thoughtful. I want a leader with the same core values that I embrace, who acts on principles, and has a moral rudder that will guide them through the stormy seas whipped up by the political winds.

For America to continue to be that bright shining star of liberty and freedom and the land of opportunity, we must firmly exercise our rights as citizens to hold to our beliefs and to express them peaceably. It is our solemn duty to engage in the political process of selecting our leaders and to make known to them our informed position on any given issue. But, whether or not we like a proposed policy or law, let us not resort to the high-handed bluff of declaring it “Unconstitutional!” Let us read and more fully understand what the Constitution says, and just as importantly, what it does not say. And let us leave questions of Constitutionality to the purview of the courts as envisioned by the Founding Fathers and enshrined in Article III of the Constitution.