Tuesday, March 13, 2012

Constitutional Dissonance

On the way into my office this morning, I was listening to an NPR report on the Republican candidates campaigning in the South. One voter, following a joint town-hall meeting with Newt Gingrich and Rick Santorum, commented about the need to get some closure on the nomination so that the party could focus on the more important problem of defeating Obama in 2012. Such an attitude strikes me as entirely rational, even if I disagree with the goal. But then the same voter (at least I think it was the same voter) explained his belief that the current president is not even qualified for the office, citing a non-existent constitutional requirement that for a president must the child of two natural born US citizens.

The reporter pointed out that the constitution requires no such thing, but the episode raises an interesting question: Where does such a patently false understanding of the constitution come from, and why is it so persistent, despite the ease of falsification? I don't suppose that most people walk around with a copy of the constitution in their shirt-pockets (in contrast to many law profs I know). Indeed, I would assume that most voters aren't familiar even with a handful of constitutional provisions; but then, most voters probably wouldn't claim to know what the constitution actually says.

Still, patently false constitutional beliefs must come from somewhere. Who is fostering such beliefs and for what purpose(s)? Even more difficult to understand is why it seems so hard to correct mistaken constitutional beliefs despite relatively easy access to the document itself (in any public library or on the internet)?

Legitimate disagreements exist, of course, about the meanings of various constitutional provisions (despite what every Supreme Court nominee seems required to attest in Senate confirmation hearings). But I'm not talking about those kinds of legitimate disagreements here. I'm talking about an uncontroversial, plainly stated constitutional qualification for the presidency:
 No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.
So far as I am aware, the meaning of this clause from Article II is undisputed among constitutional scholars. Nor is there any basis in the text of original understanding of that text to impute a requirement that the president be the offspring of two natural born citizens. And yet...

Perhaps we need a theory of "constitutional dissonance" (akin to the psychological theory of "cognitive dissonance") to explain it. Constitutional provisions that run counter to one's ideology or strongly held political preferences must be ignored or treated as saying something very different from what they say.

A theory of constitutional dissonance might explain a couple of recent state laws, enacted I believe in Oklahoma and Utah, purporting to require the United States to dispose of federally owned lands within their respective boundaries. Those laws are plausibly constitutional if and only if Article IV, Sec. III is read of the constitution. Here's the language of that provision:
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.
Unless the word "Power" in that clause is defined as its virtual opposite - as legal responsibility (or duty) to dispose - the state laws do not have a constitutional leg to stand on; and, in contrast to the median voter, we might have reason to suppose that our legislators have at least a passing acquaintance with our founding document. Assuming they understand the constitution does not permit to do what they have in fact done, it appears to be an even clearer case of constitutional dissonance.

No comments:

Post a Comment

I actively moderate comments for spam, advertisements, and abusive or offensive language.