From unconstitutional to anti-constitutional

Most of us know what it means for something to be unconstitutional. An unconstitutional act is one that violates some aspect of the Constitution as understood by the courts, although the public and its representatives are also free to make claims about the constitutionality of one act or another.

The courts have said, among other things, that racial segregation in public schools is unconstitutional; that unequal representation in state legislatures is unconstitutional; and that laws banning same-sex marriage are unconstitutional. Moving to the present, we can say that President Donald Trump’s order overturning birthright citizenship is, according to the plain text of the 14th Amendment, unconstitutional. There is also a strong argument that the president’s effort to remove transgender people from military service is, as a court ruled Tuesday night, unconstitutional.

You get the picture.

But there are other ways to evaluate the actions of a government. You can ask a somewhat different question: not whether an action is constitutional, but whether it sits opposed to constitutionalism itself. You can ask, in other words, whether it is anti-constitutional.

The project of constitutionalism, historian Henry Steele Commager wrote, is the project of “government under law, by law, through law, in conformity with law.” It is, to borrow from John Locke, “to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it.” And in the American political tradition, it is the central principle that “governments are not omnipotent” but of “only limited authority.”

Part of the conceptual basis of constitutionalism is a division between sovereignty and government. Sovereignty is the possession of supreme authority over the polity, and government is the instrument of that sovereignty. In an absolute monarchy or dictatorship, sovereignty belongs to the man or woman in charge, who commands the state in its entirety. The Congress may make law, the president of the United States may be head of state and head of government, and the Supreme Court may interpret the Constitution, but as instruments of the people’s sovereignty, each is bound by ordinary statute and higher law.

This brings us back to the notion of anti-constitutionalism.

An anti-constitutional act is one that rejects the basic premises of constitutionalism. It rejects the premise that sovereignty lies with the people, that ours is a government of limited and enumerated powers and that the officers of that government are bound by law.

The new president has, in just the first two months of his second term, performed a number of illegal and unconstitutional acts. But the defining attribute of his administration thus far is its anti-constitutional orientation. Both of its most aggressive and far-reaching efforts — the impoundment of billions of dollars in congressionally authorized spending and the attempt to realize the president’s promise of mass deportation — rest on fundamentally anti-constitutional assertions of executive authority.

The Constitution is clear. Congress holds the power of the purse. Its decisions are laws, not recommendations or advisory opinions. The executive’s duty is to “take care that the laws be faithfully executed,” which is not — as the president’s allies might have it — justification to implement or ignore the law however the president would like.

The president and his de facto co-president, Elon Musk, have unleashed the so-called Department of Government Efficiency to slash the federal workforce and unravel entire agencies such as the US Agency for International Development and the Department of Education. But the 1883 Pendleton Act, establishing the federal civil service, is a law. The 1979 Department of Education Organization Act, establishing the titular agency, is a law. The Foreign Affairs Reform and Restructuring Act of 1998, which established USAID as its own agency, is a law. And it is a fundamental rule of American constitutional government that the only force that can invalidate an act of Congress, other than a ruling of the Supreme Court, is another act of Congress. To assert, against the plain text of the Constitution, the power to seize appropriations and destroy the work of the legislature is to break a core premise of constitutionalism. It is anti-constitutional.

Even more egregious are the president’s efforts to ship immigrants allegedly in the country illegally to the Terrorism Confinement Center, a mega-prison in El Salvador. Over the weekend, the president invoked the 1798 Alien Enemies Act to deport, without due process, hundreds of people the White House has accused of criminal behaviour.

There is much to say about the administration’s decision to seemingly ignore a court order to halt or reroute deportation flights for these people and return them to US. For now, let’s focus on the Justice Department’s initial defense of the president’s order, in which government lawyers argued the following: “Beyond the statute, the president’s inherent Article II authority is plainly violated by the district court’s order. As a function of his inherent Article II authority to protect the nation, the president may determine that [Tren de Aragua, a criminal gang] represents a significant risk to the US … and that its members should be summarily removed from this country as part of that threat.”

This is a claim of sovereign authority. This is a claim that the president has the power to declare a state of exception around a group of people and expel them from the nation — no questions asked. It is anti-constitutional — a negation of the right to be free, in Locke’s words, of “the inconstant, uncertain, unknown, arbitrary will of another man.”

There is nothing in this vision of presidential power that limits it to foreign nationals. Who is to say, under the logic of the Department of Justice, that the president could not do the same to a citizen?

When the president claims sovereign power to ignore Congress or deport foreign nationals without due process, he is both degrading the constitutional order and abdicating his responsibility to future generations of Americans. He is rejecting the obligation we have, as citizens, to carry on the effort to “form a more perfect union” and ensure that “government of the people, by the people, for the people, shall not perish from the earth.”

Thankfully, Trump’s anti-constitutionalism is not the last word. How can it be otherwise? “It is the people who make constitutions work,” Commager wrote. “Where people are ignorant or apathetic, where they distrust democracy and are frightened by liberty, constitutionalism will fail and tyranny will take its place.” But, he said, “Where people are enlightened and alert, where they are inspired by faith in themselves and in democracy, where the spirit of liberty flourishes, constitutionalism will succeed.”

Where all this goes is still up to us.

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