The US Constitution doesn’t exist in a vacuum. There are strong ideological and philosophical underpinnings behind its provisions and framework.
In American society, “unconstitutional” is a tremendously heavy word, often tossed around with surprising ease. However, despite the frequency of its use, I have often observed there is an inconsistency with its meaning. There have been many times I have called certain policies unconstitutional and even pointed out certain visions which are in contempt of the constitutional order. Often, I’m surprised by responses which call my assertions preposterous. Clearly, there is a disconnect in what “unconstitutional” actually means.
The nature of this disconnect is not necessarily tricky to uncover. Even in the Constitutional Convention, there were contending interpretations of its meaning and intent. Schools of thought actually exist in constitutional jurisprudence, and we often see those schools of thought at work as we witness decisions by the US Supreme Court and other lower courts. Most of us are unknowing disciples of one of these schools of thought.
For some, the idea of constitutionality is purely a legal consideration, a matter of specific, but not necessarily contextual, precedent. When it comes to prospective laws, they would mostly deal with issues of contemporary concern. Often without knowing it, those who believe such ways are adherents to what is called the “Living Constitution” or loose constructionism. Loose constructionism views the context of present circumstances as the paramount consideration and only looks to the context of original intent as a loose guideline, if it should be looked to at all.
For others, including myself, we view constitutionality as an ideological and philosophical consideration, a matter of adherence to a vision expressed through the US Constitution and other founding documents. For us, the question isn’t just a matter of whether a law could be enacted; it’s whether a law should be adopted based on our understanding of an inherited philosophical legacy. We are adherents to originalism, also called strict constructionism. Originalism views the context of the theories, philosophies, and ideas held by the framers as the paramount consideration and looks to present circumstances with practical concern but remains wary of frustrating the constitutional order of things.
So, what are constitutional values? What is the constitutional order? Simply put, believing in constitutional values is presuming each provision of the US Constitution had a reason for its inclusion in the text, even if the reason is disagreed with. Moreover, believing in the constitutional order is understanding that the American Republic is well-constituted because the US Constitution, and each of its provisions, is well-constituted.
It is for this reason why those who hold originalist ideas point out contempt for the Constitution as evident in specific policies, notions, and organizations. “Unconstitutional” to an originalist is a term worthy of use for that which violates constitutional values and would frustrate the constitutional order.
Present ideas and proposals I would cite as contemptible of the Constitution would be removing the electoral college, socializing healthcare and upper education, wealth redistribution, encroachments upon the right to bear arms, and any further centralizing of governing authority. Why? These provisions would damage the sovereignty of the states while introducing urban-centric elections, remove the exercise of economic freedom, punish individual success and innovation, assault the right of self-defense, and disrupt the balance of powers inherent to a federalist system. Each of these ideas, without exception, stands against the various political philosophies which provide the foundation of the US Constitution. Each one would necessarily disrupt the constitutional order as intended.
Many would say that thanks to two hundred years of societal advancement, we know better. Perhaps we do. However, if we must pretend that the original context of constitutional law doesn’t exist or if we feel we have to deny that specific provisions would change the constitutional order, then perhaps we may not know better after all. It is true that a working part of the constitutional order is the ability to amend the framework of the Constitution and to pass new legislation for present circumstances. Admittedly, the founders did not expect us to labor forever in strict adherence to how the world was viewed in their day. However, we should not embrace change out of hand nor without consulting that oracle of truth which guides the decisions of the wise: experience. Chiefly, the experience of those who came before and successfully crafted a foundation which we still stand upon.