Every four years, the US votes for a new president, and 70-80 million people on each side of the election decide whether this is a “respect the Constitution” president, or if this is an “amend the Constitution” president. It’s something I’m guilty of myself–when our First Amendment is under attack, for example, I’m quick to point it out.
However, this can be a dangerous game: the Constitution has gotten it wrong before. The fact we have 27 Amendments–10 of which we needed immediately, and 2 of which undo each other–is proof enough that constitutionality itself is not the foundation of an argument, but rather, a shortcut.
The allure of a bedrock
A shared rhetorical bedrock is appealing because it saves time and builds trust, and our current culture is already so divisive. After all, if we agree on a few non-negotiables up front, finding common ground is easy. Asserting the Constitution as one such bedrock of debate is attractive because it holds so much bipartisan weight, but it comes with risk. If you assume the Constitution is a source of morality, and not just the contemporary equilibrium that the country can agree on, you put yourself in a position where you may be unable to defend the times the Constitution implicitly allowed slavery, or discrimination, or even undid itself (like with Prohibition, where the 18th and 21st Amendments banned and then unbanned alcohol production within a 12 year period).
Avoiding the trap
The key is to use the Constitution as a starting point and dig deeper to the underlying principles. For example, when I talk about the role of ICE, or the militarization of our cities, I tend to reference the Fourth and Fifth amendments as arguments that the Constitution upholds liberty over security.
That in itself is not a moral truth, but rather, a decision the Founding Fathers made in response to Britain’s control. They had just won a rebellion against the most powerful empire of their day, which imposed control via unrepresentative taxation, soldiers in homes, and a government impervious to political dissent. Inspired by philosopher John Locke, they arrived at the conclusion that liberty comes before security, because “security” is often a smokescreen for “control” in the hands of authority.
As such, my argument can present the Fourth and Fifth Amendments as a shortcut to highlighting these ideals, but I have to be prepared to justify their existence if challenged.
Call it out
On the other hand, when the Constitution is used as a bludgeon or a crutch for a poor argument, use this principle to your advantage. Don’t just take the fact that the Constitution does or doesn’t protect something as a hard moral reality; challenge the speaker to explain why the Constitution was written that way, and on what basis it ought to remain that way. The Founding Fathers amended the Constitution ten times following its first draft–it was made to be changed.
The Constitution is a framework, not a finish line. Use it as a shortcut when it helps, but don’t mistake it for truth. Arguments stand or fall on principles, not parchment.
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