The Hypocrisy of Conservative Constitutional Theory

So the blogosphere is up in arms about the latest wing nuttery to come from the hard core of Republicans that remain after all the centrists have been kicked out of the party. Virginia's Attorney General has ordered (back in March) that state's public universities to stop treating sexual preference as a protected class. Now, a bigoted Republican on a power trip is not really news. What's interesting is the reasoning he applies. Last week, AG Cuccinelli justified his position by arguing that the 14th Amendment only applied to those groups that were at issue at the time of its passage. Since sexual preference was not an issue in 1868, the 14th Amendment cannot possibly apply.

This is absurd and internally inconsistent. He seems to be making a version of the typical right wing rhetorical argument about constitutional interpretation. Many movement conservatives (I'll call them "Movementarians" in keeping with the theme of this blog), like to argue that the constitution should only be interpreted to mean exactly what it meant at the time it was written. That is, they believe that the constitution has an objective meaning that is constant throughout time. This is just like the fundamentalists' view of the Bible and of course we know there is a high correlation between Movementarians and Fundamentalist Christians.

But there is an inherent flaw with this view. We have very little idea of what exactly the people who wrote the Constitution were thinking. Granted, we have the Federalist Papers etc (which contradict many dearly heald Movementarian dogmas) but these are intended as one side of a debate about a compromise already arrived at. In any event, what Movementarians are left with is their best guess TODAY of what the framers intended 200 years ago. Their (erroneous) assumption is that their interpretation is both uniquely correct and immutable.

And this is where the hypocrisy comes in. On the one hand they argue that the Constitution cannot be interpreted without destroying it. On the other hand, they cannot help but interpret it themselves. If all they said was "my interpretation is preferable to your interpretation" I'd disagree with them but I wouldn't accuse them of hypocrisy. But they make the argument that their view is the objective "truth" and anyone who doesn't agree 100% with them is "interpreting" - which is dismissed as fruitless and disloyal (they often call it "un-American").

Consider the implications of their kind of argument. Taken to its logical conclusion, amendments to the Constitution itself are an act of disloyalty to the intentions of the framers. That would mean that even the Bill of Rights is "Un American." Given their views of all but the 2nd half of the 2nd Amendment, I wouldn't be shocked if they were OK with dispensing with the whole shebang.

I'm not legal scholar so I'm sure that LTG will find critical omissions in my discussion. I look forward to his comments.