Beware Of Cafeteria Constitutionalism

This week’s Courier Herald column:

Last week is one that I will never get back.

I’m ready to admit it was a wasted effort.  Between online postings at PeachPundit.com and far too many phone, email, and in-person conversations – as well as a radio and TV news appearance – much of the week was dedicated to Donald Trump’s call for a “total and complete shutdown” of Muslims entering the country.

Before he walked back his position to mean only immigrants and those seeking temporary visas, his spokesperson had clarified that Trump’s position – issued in writing and thus not a verbal gaffe – was for  “everyone” including American citizens living abroad.

At its crux, using religion as the determining factor is the problem of Trump’s original statement.  The U.S. of course has the right to alter immigration patterns as a matter of national security.  It’s quite debatable to determine how and what screening measures should be used.  It’s a bigger problem for the federal government to implement a religious test.  It’s blatantly unconstitutional to do so to American citizens.

Religious freedom, above all our constitutional protections, is one our country was founded upon. It includes the freedom of all religious people.  This means the freedom to not practice religion as well.  When the government sets the precedent that it can regulate our travel or anything else based on our religion, we’ve given up these rights for all.

I stand by this without equivocation.  What follows is no attempt at that, but instead should demonstrate this is part of a wider problem.

One of the reasons I continue to be frustrated with Mr. Trump is that he always seems to make these statements when someone else is dominating the headlines.  Just days before the President was speaking of an act of terrorism in San Bernardino California. He suggested that to curb these acts of terrorism we should be able to stop people on the “no-fly list” from buying guns.

This list has no due process.  It has been riddled with errors and has included prominent politicians that have taken weeks or months to get their names removed.  How is an ordinary citizen to believe his second amendment rights are being protected when any number of unknown bureaucrats may simply add names at will in a secretive process with no explanation?  …from the same government that has weaponized the IRS against partisan opposition with no recourse toward those who did so?

The President’s Attorney General Loretta Lynch also suggested she would prosecute “hate speech” directed at Muslims in the wake of the California shootings – because one of the casualties of terrorism is the first amendment apparently.  For bonus points, Democratic Presidential Candidate Martin O’Malley decided that the best way not to be ignored from the left was to call for gun confiscation by executive order.

Instead of Republicans spending the week talking about the constitutional overreaches of Democrats in the name of public safety, we allowed Donald Trump to “begin negotiations” by trampling a different part of the constitution.  In summary, our national Presidential debate last week was over which inalienable rights we should give up to protect our citizens in a world that frightens us.

Any American that values our Constitution should not look at this situation for partisan advantage, absolution, or comfort with the party with which they currently align.  Our Constitution does not work if we only choose to abide by the parts with which we agree, that are convenient, or are enforced most of the time.  The Constitution is an “all of the above” proposition.

We don’t pick up the parts we like as we move through a buffet line of rights. Those who read this and only see the problem within the confines of a presidential election are missing the point that large portions of both political parties believe that our basic rights are now subject to majority whim.

I continue to hope that this week was truly wasted – One where most non-political types were focused on Hanukkah, Christmas, Final Exams, or whatever.  Because if the debate for President really is over which rights it’s time to give up then we’ve lost a lot more than a week. We’re on the verge of losing who we are as a country.

28 comments

    • blakeage80 says:

      Advocating changing the Constitution and ignoring it to satisfy your own ends aren’t quite the same thing.

  1. Three Jack says:

    We are living by mobocracy, not constitutional law. Been that way for a while and only getting worse as almost all newscasts start with “the latest {fill in polling company/network} poll has {fill in candidate name} in the lead.” This is followed up by a demo breakdown of the polled and their ‘feelings’ about various issues depending on what is popular during a given polling period.

    For those desiring a constitutional republic, oh well. It was a decent try, but a failure. Going forward we can only hope that the mob eventually disperses as government handouts dry up due to a lack of funding. It will happen, just a matter of how long the pols can keep buying votes with taxpayer money before taxpayers finally fight back.

    • saltycracker says:

      Mobs led by charismatic leaders with self serving lieutenants and incompetent minions believing they will get a piece of unearned spoils

  2. saltycracker says:

    Well said

    “it is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions….there are men….who mean to govern well but they mean to govern…to be masters….the love of power may sink too deep in their own hearts.”
    Daniel Webster

    “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief be the chains of the Constitution”
    Thomas Jefferson

    PC in the schools and universities today they proclaim the Constitution outdated, ban the pledge, reject laws in the name of charity and condone riots against citizens in the name of justice.

    We are not on the verge but in the process of losing what we are. One word to understand how voting made a difference in speeding this process up: Obama. And that came on and the heels of how we got confused: Bush

  3. seekingtounderstand says:

    Your right Charlie! I think it was a timing issue with your column.
    America needed to hear “those bad people are not going to win”, they are not going to take our way of life, our freedoms!

  4. DanPhillips says:

    Trump speaks off the top of his head. We all know this. So it is opportunistic outrage to freak out before the dust settles. I never had any doubt that this was about immigrants and maybe temporary visa seekers. If I knew it, then I suspect that so did most everyone else who follows these matters.

    As for immigration restrictions, this is common sense, and I and many other paleoish commentators have been saying so for a long time. Dealing with domestic terrorism has always been an immigration restriction issue, and has never been about bombing far off countries.

    • Charlie says:

      It was a written statement, not speaking off the top of his head.

      Furthermore, his official spokesperson clarified that he meant “everyone” when asked to specify if this included American citizens who are muslims.

      I realize you’ve invested a decade of intents quoting the constitution to us as if you’re the only one that’s ever read it so you’re going to be quite selective in your facts now as you use Trump as your “murder weapon” against the GOP. Fine. Just don’t expect those like me who have made the mistake of paying attention to you all this time to respect you for your hypocrisy after lecturing us about principle for all these years.

      • DanPhillips says:

        The primary thrust of the Constitution was not what the Fed Gov couldn’t do, but what it could do. The Bill of Rights were added after passage to satisfy the objections of the (now prescient) anti-Federalists. So I’m not sure you want to condemn cafeteria constitutionalism unless you have come out against un-enumerate Central Banking, etc.

        Trump is not a Constitutionalist, and I have never claimed he is, but he is right about immigration which if current rates are not halted will turn the country irreversibly Blue in a decade or two. And he is right about sovereignty sacrificing globalist trade deals. He is also closer to right (non-interventionist) on foreign policy than most people realize and than any other GOP candidate except Rand Paul.

        As for principle vs. pragmatism, my support of Trump clearly represents an at least temporary move toward the latter. I’m not sure why you don’t credit this to me as “growth.”

        • benevolus says:

          ” will turn the country irreversibly Blue”

          Ah, so this isn’t really about constitutionality after all.

          • DanPhillips says:

            I didn’t say immigration was about constitutionality, although it’s one of the few functions the Feds are actually empowered to do. I am a conservative. That means I want to conserve things. There is no policy more inherently conservative in the most basic sense of the word than restricting immigration. Why wouldn’t I support it?

      • seenbetrdayz says:

        “Just don’t expect those like me who have made the mistake of paying attention to you all this time to respect you for your hypocrisy after lecturing us about principle for all these years.”

        Do you not realize just how easily that could go both ways here? Maybe substitute ‘principle’ for ‘pragmatism’ and it would be a mirror image.

        Quite frankly if the Charlie who wrote this article met the Charlie who was spitting out weekly columns during the bailouts, they wouldn’t even recognize each other.

        Make no mistake, I agree 100% with what you wrote up top. It just doesn’t mean as much coming from you. In fact, I’m wondering if your account has been hacked or something.

    • benevolus says:

      So Trump speaking off of the top of his head gets a pass to revise and edit what he says, but the “mainstream” candidates, who have already thought these things through and can therefore speak realistically about them, are somehow less attractive? Sad state of affairs for Republicans.

      • DanPhillips says:

        The issue is not getting a pass. The charge I made was opportunistic outrage. This works both ways. When Trump initially said something about taking in some of the Syrian refugees, a lot of people in my circles freaked out. I told them to take some deep breaths because I was sure Trump would walk his statement back which he did the next day. Trump is not, contrary to the hysterics, an ideologue. He is a Middle American Radical who happens to be a billionaire. Nor has he spent his life immersed in the conservative milieu, although he has long had publicly expressed political opinions. Therefore he is bound to misstep because he doesn’t understand all the sensibilities of either the conservative base or the mainstream media. But he clearly has advisors who have their ears to the ground and follow social media, etc. who advise him when he needs to walk something back. This is how I knew with utter confidence that he was going to walk back the Syrian refugees comment. I’m not a political scientist. If I knew he was going to walk back and clarify, then so should others. Trump is really not as inscrutable as a lot of people seem to believe. He just doesn’t fit the Red/Blue cookie cutter.

        • joe says:

          “He is a Middle American Radical who happens to be a billionaire. ”

          ??????????? He was born with a silver foot in his mouth.

        • benevolus says:

          His comment was not about Syrian refugees. It was ” all Muslims”. And while he has reframed it regarding American citizens, I don’t think he has restricted it to “Syrian refugees”. Did I miss something?

          • DanPhillips says:

            Wrong comment. What I was referring to was at the beginning of the refugee crisis Trump made a comment approving of us taking some in which he then walked back. That’s what I meant by Trump’s misstatements going both ways.

  5. joe says:

    “Our Constitution does not work if we only choose to abide by the parts with which we agree, that are convenient, or are enforced most of the time.”

    A long time ago, with the help of both SCOTUS and POTUS, we began to adjust what the Constitution means. A few examples are “Congress shall make no law…”, “…secure in their houses, papers, and effects, against unreasonable searches…”, “…shall enjoy the right to a speedy and public trial…”, “Excessive bail shall not be required…”, and “The powers not delegated to the United States…”

    And I didn’t even mention the 2nd amendment.

    If we are going to follow the Constitution, and Charlie is right about the ” ‘all of the above’ proposition”, then we need to look at the meaning of the words.

    What do you call 10,000 lawyers at the bottom of the ocean?

  6. Dave Bearse says:

    The no-fly/watch lists having no due process is a valid argument.

    The same government that has weaponized the IRS against partisan opposition with no recourse toward those who did so is a stretch.

    • David C says:

      Calling it a stretch is being charitable. It’s a straight up falsehood, ginned up to work the referees into ignoring all the “Social Welfare” and “Charity” organizations that actually exist to help hide the millions they spend on electioneering. But it becomes an article of faith on the right, convenient here to Charlie can have some “But the other guys!” to point to while denouncing someone on his own team. It’s funny to speak of “cafeteria constitutionalism” in suddenly worrying about the due process protections of gun owners but not the due process protections of the right to travel found in the Privileges and Immunities Clause (Art. 4, Sec. 2, Clause 1).

      Meanwhile, the attack on O’Malley is a complete strawman falsehood as well. O’Malley announced his plans in early November, not last weekend. And the actions in question, taken directly from his website right here (https://martinomalley.com/the-latest/7-executive-actions-to-reduce-and-prevent-gun-violence/) are not about “confiscation.” Instead, they involve using federal procurement contracts to drive safety standards, not defending gun dealer immunity from civil suits, using federal licensing requirements to step up audits of dealers and enforce standards for gun locks and safes, ban ‘cop-killer’ bullets, creating an alert system to raise a red flag in the background check system when a prohibited individual tries to buy a gun. The only section even dealing with guns as currently owned rather than purchased in a future instance is promising to more aggressively enforce the Gun Control Act of 1968 and the relevant section of the Violence Against Women Act, which forbid domestic abusers fro posessing fire arms. But, of course, if Charlie actually referenced the policy, people would realize that a) You don’t want domestic stalkers and abusers to have the ability to kill women and b) It’s a perfectly constitutional regulation to prohibit a felon from owning a firearm. But providing nuance would prevent his partisan whattaboutery , so whatever strawman out there was heating up right wing twitter this week gets thrown in there to prove his bonafides.

      • Dave Bearse says:

        The point about travel had occurred to me. I appreciate the citation.

        The right to purchase guns could perhaps be handled the way the GOP advocates for abortions be available. Multi-day waiting periods, imposing restrictions to limit purchase to only a few places statewide, required counseling in connection with every gun purchase.

        Or maybe just ban purchases altogether, except in instances where a family member has been murdered by a gun, but only if the purchase is made before three days after the body is laid to rest.

  7. John Konop says:

    The constitution is a brilliant document that is all about compromise. Instead of playing a political football game we need a real compromise to solve the issues with immigration and the visa problem.

    We should use our immigration policy to help solve the problem with domestic terrorism not declare a culture war. We could use the illegal immigration policy to give temporary work visas, and work with the immigrants to weed out gangsters and terrorist. The vast majority of immigrants would turn on them quickly if we took them out of the dark, if they would not have fear of deportation. Their communities are the first victims usually by terrorist and gangs.

    Also we must tighten the visa and immigration in our country. It should be clear you are a guest of our country, and subject to extra checks and monitering.
    If anyone becomes part of gangs, terrorist groups…..immediately treated like war criminals…..not normal due process…..subject to military courts.

  8. Will Durant says:

    There are limits even within the Bill of Rights which our courts are asked to draw all the time. The fire in a crowded theater example on freedom of speech is one of course . I would suggest that the idiot who waltzed around the Atlanta airport terminal with his rifle and his gun should be one on the 2nd amendment. I can’t help but wonder how that would have played out if he had looked like this guy:
    https://youtu.be/9KcDmvsJmfA

    But we have already seen the 4th amendment trampled in the name of “National Security” many times since 9/11 and most people have been fine with that. I don’t mean another upper-limit extreme line crossed but starting with Cheney and Addington giving the NSA carte blanche to record everything foreign and domestic without warrants the 4th may as well not exist.

    The 6th has been violated with at least one assassination of an American citizen by drone without due process and I could go on, but suffice it to say that violating the Constitution is not new to Trump. The real horror is our willingness to allow it to happen in the name of security. Yes, we need security, but if we are to continue as a nation of laws then we need to decide lawfully on the placement of the boundaries. Keep in mind that the Bill of Rights are there to protect the individual from the will of the majority in certain sacred areas and violating them for whatever cause is indeed a slippery slope.

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