18 August 2009

The Fantasy Constitution

Q: Which "fantasy constitution" is that?

A: I'm talking, of course, about the one that has no effect whatsoever on the way the world actually operates. Claiming that the "true" constitution somehow prohibits actions Congress has been taking for decades, which have been repeatedly upheld by the courts, and which enjoy popular political support, is just silly.

You're not going to find the law simply by studying a copy of the constitution and other 18th century texts.

The "fantasy constitution" is an apt description for the legal world that conservatives often operate in. It is a description of the constitution as they imagine it could be, not as it has actually been interpreted in the real world by courts, or plausibly might be interpreted by courts. It is advocacy, not law. It is like trying to deduce the nature of modern Christianity solely by reading the Bible. It can't be done.

I came across the term in comments to a blog post (quoted above) discussing constitutional concerns about the Obama health care plan raised by the Independence Institute, which like most Independence Institute proposals, had no real merit. The objections raised would invalidate almost all of the federal programs since the New Deal, including Social Security, Medicare and Medicaid, despite the fact that these programs have survived multiple generations without falling to a constitutional challenge.


Michael Malak said...

It is certainly fantasy to think that the courts will spontaneously start embracing constructionism. However, this fantasy is not limited to "conservative" groups. A quick Google search yields 4520 hits for "unconstitutional" at dailykos.

Andrew Oh-Willeke said...

Mere hit numbers don't tell you much. Daily Kos is an old site, I'm userID 1415 and first posted a comment there May 4, 2005. As the site notes:

"Founded in May 26, 2002, Daily Kos is the premier online political community with 2.5 million unique visitors per month and 215,000 registered users. . . . Daily Kos has eight paid staffers and . . . [does] top-tier independent polling (about 100 polls in 2008, double that scheduled for 2009)."

The site is producing dozens of front page posts, scores of user diaries, and thousands of comments a day from 30 million+ visitors a year, and has been doing so for many years. It is also talking about politics and law. Many of those posts announce that a court has declared a law to be unconstitutional or that the issue in a pending case is whether a law is unconstitutional, or talking about the history of judicial review or of a judicial nominee's attitude towards finding laws to be unconstitutional.

Some posts declare that a political actor's conduct, or a program or proposed program is unconstitutional, of course. But, much of the discussion involves cosiderably better established theories than those in the post that I reference, often for novel activities (like widespread random wiretapping or torture of terrorism detainees) that don't have well established precedents vaidating them one way or the other.

The number of the 4520 hits on this subject are fairly thin for a site of this kind of volume.

Liberals at Daily Kos do argue for and dream about possible future constitutional rules, and they do misstate existing law. But, mostly, they distinguish between fantasy and reality expressly, and mostly they defer to comments that show that the real law is different than the law as claimed.