It’s the dead of winter, the time of the year for baseball “fantasy camps.” Located in warm-weather locations like Florida and Arizona, these camps allow fans to take part in baseball drills, meet current and former players, and play ball while wearing their favorite team’s uniform.
What you might not know is there’s a right-wing constitutional fantasy camp. Campers learn to cite provisions of the Constitution, parrot legal words and phrases, and make arguments that sound convincing–until someone who’s studied actual constitutional law at an actual law school shows up.
Over the past few weeks, I’ve run across many fantasy-camp constitutional arguments. Here are the dooziest of the doozies:
The Inverse Supremacy Clause
Notwithstanding Article Six, Clause 2 of the Constitution, many right-wing politicians insist that state laws trump federal laws. And you thought that argument was resolved for good in Grant, et al. v. Lee, et al. (Appomattox Court House, April 9, 1865). Silly, silly you.
First Amendment, Director’s Cut
Right-wingers love to argue that any consequences of making controversial statements violates their freedom of speech–even if the consequences come strictly from the private sector. Dave Agema, a member of the Republican National Committee from Michigan, went one step further, adding the Tail Gunner Joe Codicil by calling his critics “domestic enemies”.
Second Amendment: Twice as Important As The First
Alan Arcand, Republican candidate for Congress in MI-01, offered this gem on his website: The Second Amendment is the only Amendment that protects all the others.. Which, of course, explains why the Framers gave it second billing after the First Amendment, which protects freedom of speech and assembly and the right to petition the government.
The “Because We Said So” Doctrine
MIssouri Senate Bill 613, the “Second Amendment Preservation Act” (who knew it was so endangered?) purports to nullify federal gun regulations. The bill contains this doozy: “[T]he act declares that federal supremacy does not apply to federal laws that restrict or prohibit the manufacture, ownership, and use of firearms, firearm accessories, or ammunition within the state because such laws exceed the scope of the federal government’s authority.” Why? Because we said so.
The Outlier Clause
Did you know that acts of the 111th Congress shouldn’t be given legal effect because the Democratic majority never should have happened? Last fall Ann Coulter said, “We got Obamacare because, at a brief moment in time, the Democrats happened to have aberrationally large majorities in the House and Senate, as well as the presidency. It was quickly and unconstitutionally enacted on a strictly party-line vote.” Unconstitutional? Surely Ms. Coulter, a graduate of Michigan Law School, is aware of NFIB v. Sebelius, 567 U.S. — (2012)?
Diminished Legal Standing for Unpopular Parties
Jennifer Gratz, an outspoken opponent of affirmative action, blasted a federal appeals court decision that overturned Michigan’s ban on the practice. One of her arguments is that the plaintiff in the case is “the radical group By Any Means Necessary”. Gratz also argues that the affirmative-action ban can’t be held unconstitutional because 58 percent of state voters approved it.
The Doctrine of Anticipatory Unconstitutionality
John Lamping, a Missouri state senator, introduced a bill that would suspend insurance companies’ state licenses if they accepted subsidies offered to policyholders under the Affordable Care Act. Lamping’s reasoning is that the subsidies are illegal and eventually will be thrown out by a federal court.
Last but not least, the Field of Dreams Article
Forget what you learned about the Constitutional Convention. The Constitution wasn’t drafted by James Madison and the Framers, but was written by God Himself and based on biblical principles. Former House Majority Leader Tom DeLay is one of many on the right who profess to believe this.