The Republican war against constitutionalism

Good news from North Carolina, where the ruling Republican Party has killed an attempt by some of its members to assert the state’s right to establish its own religion.

America was spellbound last week by the story, after senior Republicans produced a draft resolution  that asserted that North Carolina was beyond the reach of the First Amendment – and by implication, beyond the reach of federal law in general. Its recitals included the claims that “the Constitution of the United States does not grant … the federal courts the power to determine what is or is not constitutional” and that “each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion.”

This of course conflicts not only with the US constitution but with North Carolina’s own constitution, which prescribes (article 1, section 5) that “Every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force.”

North Carolina House speaker Thom Tillis evidently decided that this was not helping the Republican brand, and announced on Thursday that the measure would not be put to a vote.

But while it’s enticing to contemplate the idea of North Carolina setting up a state religion, or for that matter prohibiting the free exercise of someone else’s religion, the case is more interesting for what it says about the Republican Party’s view of constitutionalism in general.

It’s quite true that the First Amendment in its own terms – “Congress shall make no law” – does not apply to the states. But the Fourteenth Amendment, ratified in 1868, extends its protections to the states, laying down that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

The Fourteenth Amendment is the outstanding badge of Union victory in the American Civil War. It comprehensively repudiates the constitutional claims of the southerners, overturning the 1857 decision of Dred Scott v. Sandford and giving priority to national citizenship over state citizenship. It’s not surprising that it’s a prominent hate object for the nativists and white supremacists.

But there’s something deeper lying behind the view of the constitution expressed by House Joint Resolution 494. Have another look at that sixth recital: “the Constitution of the United States does not grant … the federal courts the power to determine what is or is not constitutional; therefore … the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people.”

That’s not specific to religion or even more widely to the Bill of Rights; it’s a blanket statement against judicial review. And since, if the constitution is the supreme law, then the courts must be able to enforce it, it’s implicitly an argument against constitutionalism in general.

Nationally, the Republicans are in opposition, with the Supreme Court as at least a potential ally, so their opposition to judicial review in recent times has been muted. It certainly did not prevent them, for example, trying to have President Obama’s health care legislation struck down.

But in the politics of the last fifty years that attitude has been more the exception than the rule. More often the Republicans have been railing against “judicial activism” and civil liberties cases such as Miranda v. Arizona, Hamdan v. Rumsfeld, Lawrence v. Texas, and of course most famously Roe v. Wade. If the Supreme Court this year strikes down the Defense of Marriage Act, you can be sure it will get the same reaction.

Most of this can easily be explained as just hostility to judicial review that, from their point of view, goes the “wrong way” (or “too far”). But every now and then something like the North Carolina case shows us that for many Republicans, especially in the predominant southern wing, the constitution itself is the real enemy.

One thought on “The Republican war against constitutionalism

  1. WTF??? So the Right, who’ve been pushing for years on the centrality of the Constitution, are now abandoning it?


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