Franke: The Essentiality of the Constitution

March 8, 2023

by Mark Franke

“To uphold and defend the Constitution of the United States of America.”

These words represent the first purpose for the existence of the American Legion and holds this place of honor in the preamble to its constitution. I recently attended the American Legion’s National Legislative Conference and was reminded once again of its priority.

This lofty principle sounds fine when recited, and we do recite the preamble at every meeting, but what does it really mean in practice? Do we ever mention the Constitution when we debate an issue?

All government proposals should pass a constitutionality test before even discussing whether it is a good thing, let alone whether it should be done by government at taxpayer expense rather than let our free enterprise system determine its worthiness.

I would hope that those who hold liberty dear and the Constitution as the ultimate defender of that liberty would think this way first. Unfortunately this litmus test has not always produced very positive results in Indiana.

I mention just two recent illustrations of how this isn’t happening. And I hope these two are exceptions which don’t prove the rule.

First, an adjunct scholar of this foundation, Jason Arp, has been maintaining a database of Indiana General Assembly votes on bills affecting property rights. The picture is not encouraging as two-thirds of legislators score in a middling range of 40-60 percent favorable to this essential liberty. It is especially discouraging that many self-proclaimed conservatives, a political philosophy constructed to protect liberty, score so poorly.

Second, a recent bill before the General Assembly removed from National Guardsmen the right of appeal to a court-martial in non-judicial punishments. I don’t think I was the only one to see this as a negation of rights under the Sixth, Seventh and Fourteenth amendments. The Indiana American Legion did its best to bring the constitutional issue to the forefront of the legislative debate but without success.

This brings us back to the legislative checklist mentioned above. Perhaps it should be a requirement that all bills introduced contain first a constitutional compliance statement before its financial and environmental impact is addressed.

The problem is that such a requirement would degrade to just one more auto checkoff without serious study. It might be better to add this to the procedural rules of the party caucuses as they determine how to vote on specific bills and to what extent member compliance will be enforced.

Here’s a better idea: Required that each lobbyist begin his spiel with a factual statement about how his group’s advocacy on this specific issue upholds the Constitution.

I am not so naïve to think that any of my three suggestions will be adopted or honestly applied. At least I personally can continue to give priority to the constitutionality of all legislative proposals.

And I will do the same for court issues. I won’t assess Supreme Court rulings based on whether “my side” won but rather if the Court ruled strictly on constitutional rather than political concerns. I know that won’t always make me more popular with my informal focus groups of friends and fellow travelers, but so be it.

The student loan forgiveness court case is an example of our (and by that I mean John Q. and Jane Q. Citizen) loss of constitutional focus. Nearly every opinion I hear expressed on how the Supreme Court should rule is based on whether the individual thinks student borrowers should receive forgiveness. I drove by the Supreme Court building last week and all the protestors’ signs reflected the political stance of the sign holder.

The last thing we want the Supreme Court to do is rule on the policy aspects of student loan forgiveness. We elect a Congress to do that, not the Supreme Court. Whether the President can spend these funds without Congressional authorization is the real issue before the Court. That, and whether states have standing to sue the federal government on this issue, something I will leave to my lawyer friends to explain.

I concur with George Will’s idea of activist courts. They should actively review administrative and legislative actions for their compliance with the Constitution and be quick to void them when questionable. This is not the common understanding of an activist court but it is the correct one.

Perhaps we are too politicized to let the Supreme Court do its constitutional duty without picketing the justices’ homes and harassing them outside restaurants. This may be hyperbole but I believe the Supreme Court is our last bastion for defense of liberty.

In the final analysis there are only two options: Either one pledges to “uphold and support” the Constitution or one views it as a speed bump along the path to political victories.

The life of our republic depends on us all choosing door one.

Mark Franke, M.B.A., an adjunct scholar of the Indiana Policy Review and its book reviewer, is formerly an associate vice-chancellor at Indiana University-Purdue University Fort Wayne.


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