Constitutional conservatives are neo-Confederates

By Frank Moraes

Last week, Steve Benen wrote a post entitled "Steve King Unveils Radical Court Scheme." It seems that King is proposing a new law, Restrain the Judges on Marriage Act of 2015. It would stop federal courts from having jurisdiction over cases related to marriage. It is actually somewhat funny. This is the ultimate sign that conservatives have lost the same-sex marriage debate. But Benen is confused because King claims to be a "constitutional conservative," and such a law would be outrageously unconstitutional. What gives?

Well, Ed Kilgore responded, "Yes, Constitutional Conservatives Are Radicals." He pointed out that what these conservatives mean when the append "constitutional" to their descriptor is just that they want to go back in time — to when the Constitution was new — "before it was ruined by courts and legislators and presidents alike." And so, in this particular case, King doesn't see a problem, because this is a states' rights issue: the federal government should have nothing to say about how states want to deal with issues related to marriage. I have a few things to add.

Note that by this logic the federal government would have no right to end slavery — much less Jim Crow. The thinking of people like Steve King is so shallow that their philosophy basically gives no guidance regarding policy matters. It is very much like the Stephen Colbert idea of "truthiness," where the the truth is whatever you feel in your gut. They really think this is a good thing. But Rob in High Fidelity is right: "I've been listening to my gut since I was 14 years old, and frankly speaking, I've come to the conclusion that my guts have shit for brains." Or more to the point: the gut is just a repository for all our baser instincts, like hating and fearing people who aren't members of our tribe.

The more fundamental issue is that constitutional conservatives actually are neo-confederates. Because the document that they constantly return to is not the Constitution but the Articles of Confederation. I wrote about this last year with regards to Garrett Epps' excellent book, Wrong and Dangerous: Ten Right-Wing Myths About Our Constitution, in a post entitled "Conservatives on Constitution Are Wrong and Dangerous." The Tenth Amendment has a very distinct change. The Articles said "the powers not expressly delegated to the United States" are given to the states. The Constitution says "[t]he powers not delegated to the United States..." The difference is in implied powers, and this is huge, as Epps explains:

If "implied powers" still sounds like tricky lawyer talk, ask yourself the following question: is the American flag unconstitutional? The Constitution doesn't make any reference to a national flag. By the "express" argument, states and only states would retain what we might call "the flag power." The U.S. Army would have to march under the fifty state flags, depending on the origin of each unit. That would be cumbersome, confusing, and dangerous — and, more to the point, stupid. Congress can "raise and support armies." Armies have to have flags — they are required under international law and necessary for military discipline and cohesion. A country that has an explicit power to raise an army has the implied power to designate a flag. Nobody seriously reads a constitution any other way.

If you hang out with hardcore conservatives (including libertarians), you will hear the Tenth Amendment brought up all the time: the federal government is interfering, taking all this power from the states, and it is unconstitutional. This is because their understanding of the Constitution is that it is just following the Articles of Confederation — when this one difference is the primary reason that we needed a Constitution and could not continue on as a confederacy.

This is also why these kinds of conservatives so often turn out to be racists. This misunderstanding of the Tenth Amendment was using in the nullification campaign of John Calhoun to support slavery. And after the Civil War, it went away — only to come up again in the 1950s in support of Jim Crow. These same people gloss over the far greater powers that the Fourteenth Amendment gave to the federal government. So Ed Kilgore is right that these people are indeed radicals and want to go way back in time. But they are also neo-Confederates, and the main reason that they are is that they want the right to discriminate.

(Cross-posted at Frankly Curious.)