Saddam vs. Sodomy: A Critical Look at Conservatives and the Constitution

By Paul J. Gessing

The Constitution is without a doubt the single most important document in American history. It was intended by the Founding Fathers as both a framework for our nation’s government and as a set of rules to limit the size and power of the federal government. The "living Constitution" concept has been a staple of left-of-center political thought for years. These people often see the document’s language as outdated and malleable to changing mores and tastes. After all, the 2nd Amendment outlines a "right to keep and bear arms," but we don’t want individuals to have nuclear weapons or missile launchers, do we? Conservatives, on the other hand, have long prided themselves on being "strict constructionists" of the Constitution. Many claim direct knowledge of the framers’ intentions.

In 2000 conservative columnist Anne Coulter expressed the feelings of many on the right responding in responding to Gary Bauer’s questioning of candidate Bush’s conservative credentials. "Gay marriage and abortion aren’t the ‘fundamental questions’ defining the two parties," she wrote. "These are merely symptoms of the real fundamental difference between the two parties, which is: We believe in the Constitution and they don’t." Conservatives and their Republican brethren usually talk a good game in criticizing undue federal regulatory expansion or courtroom activism displayed in Roe v. Wade, on Constitutional grounds, but these very same conservatives fail miserably when their ideologies are tested on freedom of speech and war powers.

In fact, a comparison of conservative positions in the debates over war in Iraq and over the Texas sodomy case, Lawrence and Garner v. Texas, are a useful in putting to rest the myth that conservatives are consistently follow the Constitution.

In the Lawrence case, the court was asked to rule on the constitutionality of a Texas statute that prescribed criminal penalties, including jail time, for two individuals of the same sex that engaged in anal sex. When the Supreme Court handed down its decision in June, conservatives went berserk. Jan LaRue of Concerned Women for America complained to USA Today that the Court had "magically discovered a right to privacy that includes sexual perversion." Ken Connor, president of the Family Research Council, added to the hysteria on the right saying, "Once again judicial activists have used their fertile imagination to create rights that simply don't exist in the Constitution. In doing so, they have imposed their own moral judgments in place of state legislatures and have thereby undermined the democratic process."

Sure enough, there is some constitutional justification for the rights of states to legislate morality, but conservative outrage is more than a bit overwrought. The 9th Amendment states that, "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." This provision clearly nullifies the griping over "magically discovered rights to privacy" and the rights of individuals not to be bothered. Although the Constitution gives no "positive" rights insofar as health care, education, and housing, the 9th Amendment plainly leaves the door open for the inclusion of a "right to privacy."

The 10th Amendment provision that "powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people" is similar to the 9th Amendment, but it reserves rights certain unnamed rights for both states and the people. Clearly, there is some degree of conflict inherent in the Constitution over whether people or the states hold priority. The Founders left the matter unsettled, so the idea that it would fall to the Supreme Court came to decide on the matter actually seems quite logical. In fact, intervening in heated debates over Constitutional questions is exactly what the Court is supposed to do!

The debate over President George W. Bush’s rush to war in Iraq is even more illustrative of conservative inconsistency over the Constitution. Rather than getting worked up over a Supreme Court decision that clarified a significant Constitutional conflict, Conservatives were almost uniformly silent about the blatant violation of Article 1, Section 8 of the Constitution that explicitly gives Congress the duty to declare war. It is that simple. There are no caveats or provisions for "resolutions" that allow Congress to delegate its authority nor does it explicitly authorize the President to use his power as "Commander in Chief" aside from their being called into the "actual service of the United States" – presumably during a declared war or in the event of a sneak attack the precludes Congress from authorizing military action in advance.

Considering the overwhelming silence on the lack of constitutional authority of the Iraq war, it is hard to give many conservatives much credibility when it comes to consistently defending the Constitution – not just when it is in their interests. The left and right both need to be skeptical when government exercises its power because although you might support specific programs that you see as helpful, the Constitution is a rulebook. Allowing one side to tear pages out of the rulebook in the middle of the game leads to a game that is no fun for anyone.

The conflicting arguments and rhetoric from the right are a useful illustration of how the right picks-and-chooses which constitutional provisions it will obey and how there can be no justification for this outside of ideology.