...The last time I remember hearing so many dangerous and bogus claims about the Constitution, I was a boy in the segregated South listening to my elders explain that the Commonwealth of Virginia had the power to pass a statute "nullifying" Brown v. Board of Education. That experience taught me to be suspicious of grand claims about the secret meaning of the Constitution (such as the eerily familiar claim, advanced earlier this month in federal court, that the Commonwealth of Virginia has the power to pass a statute nullifying the Patient Protection and Affordable Care Act); it also taught me that at some point, constitutional arguments may lead to, rather than prevent, blood in the streets...
Garrett Epps will spend the summer trying to rescue the Constitution from people who, many of us agree, are no less and probably more dangerous to the US than bin Laden ever was. The far right, Epps says, "seeks to convince us that the Constitution somehow forbids the United States from becoming a modern nation-state, with an integrated economy, a rational health-care system, a unified national citizenship, an open electoral process, and a system of bedrock civil and political rights."
So he will be writing about the battle to save the Constitution from the authoritarian right's big eraser. He invites others to join in the discussion of "Constitutional myths". He warns there are disqualifiers including for those who dismiss others' opinions out of hand. He asks us to add to his "top ten" list of Constitutional myths, but with a caveat
Nominators should bear in mind that "you are a liberal and therefore you don't count," "even to suggest that idea is outrageous," "my civics teacher taught me the opposite in 1978," and "you teach creative writing and so you should shut up" don't (how can I put this politely?) qualify, in the strictest sense, as constitutional arguments. Beware, too, of any argument that includes the phrase "no amendment can change," unless you are referring to the rule of equal suffrage in the Senate. And don't try "everybody knows what the founding fathers were really thinking," unless you can find and cite some pretty dog-nab convincing evidence in the text and the actual historical record.
Here are Epps' "top ten" Constitutional myths. What are yours?
- Conservatives believe only in "original intent" and others believe in a "living Constitution," meaning whatever they want.
- The Founders wrote the Constitution to restrain Congress and limit its powers.
- The "Unitary Executive" means all unclaimed federal power flows away from Congress and to the President.
- The Constitution does not provide for separation of church and state.
- Corporations have precisely the same First Amendment rights as natural persons.
- The Second Amendment was "intended" to make government "fear the people."
- The Tenth Amendment and state "sovereignty" allow states to "nullify" federal law.
- The Fourteenth Amendment was written solely to address the situation of freed slaves, and has no relevance today.
- Election of Senators is unfair and harmful to the states.
- International law is a threat to the Constitution and must be kept out of American courts.