Defending the Constitution?

Wednesday, March 30, 2016

By Bill Lynch, Nichole Yunk Todd, Emily Bell, and Mildred Larson, Members of the ACLU of Wisconsin Board of Directors

Most elected officials in this country profess to support the U. S. Constitution. While the constitutionality of various issues is debated in our state and federal judicial systems every day, the Constitution is becoming a political issue in this year’s presidential primaries. In this environment of largely unaccountable campaign rhetoric, we should take caution whenever a candidate pledges that he or she will defend the Constitution. Our caution should take the form of demanding to hear that candidates actually understand the Constitution.

Views of our Constitution and what public policies flow from it vary widely. It is not enough for a candidate to claim that he or she will fight to defend the Constitution.  What do they mean? 

A provision of the Bill of Rights that has been frequently obfuscated in this campaign is the First Amendment.  When you hear that a candidate is defending religious freedom, it is critical to remember that the First Amendment provides for the free exercise of religion as well as prohibits the state from establishing a religion, which means the government may not support or endorse any religion over other religious viewpoints.  Free exercise and separation of church and state go hand in hand. Protection against imposition of religious beliefs on others is an essential component of religious liberty. 

Elected officials who claim to be pro-Constitution sometimes find themselves playing intellectual Twister.  They support an individual’s right to possess guns, but go out of their way to not protect personal autonomy and privacy from government intrusion regarding women making decisions about their own individual reproductive health.  In the case of guns, any regulations are seen as an infringement of rights, yet in the case of women’s health, heavy and burdensome restrictions are completely acceptable. 

Especially vulnerable to being ignored are the provisions of the Constitution providing for equality before the law as they relate to civil rights.  We have seen some invoke equal protection under the law as an objection to Affirmative Action policies that are believed to “injure” the majority, but when equal protection of the law leads to marriage equality, those who oppose same sex marriage abandon the principle. 

Perhaps most alarming, in this presidential election cycle, candidates have openly invoked policies reminiscent of the exclusion and mass deportation acts that we study as a shameful part of our not too distant history.  U.S. actions like the Chinese Exclusion Act of 1882 and “Operation Wetback” are disgraceful, and no candidate for any office should endorse similar policies in 2016.

The civil rights and civil liberties that are enshrined in our Constitution came at the great expense of those who truly did fight for them and we should all recognize how important it is to defend them.  In an election year as critical as this, everyone should be a civil libertarian and we should demand that those who want to lead our country demonstrate that they are worthy to continue this charge.