Stop Calling Everything Unconstitutional.

Jon-Erik G. Storm
Jul 27, 2017 · 2 min read

Edit: Update 8/26/2017. We now have an article saying “Charlottesville’s monuments are unconstitutional.” Quit being stupid, that’s unconstitutional, I claim!

Cristian Farias writes in New York that Trump’s military transgender ban is “grossly unconsitutional.”

No.

Farias notes that this supposed “animus” doctrine has been used against Trump’s “Muslim ban.” But wait. The Supreme Court let large parts of that stand. The other cite is to language from Justice Kennedy in the case overturning gay marriage bans.

Anyone approaching Supreme Court jurisprudence this way is either paralyzingly naive or stuck in a bubble from decades ago. For every piece of dicta you can take from a recent case that you think creates a “doctrine,” I can give you five where doctrines that Justices were supposedly famous for were scrapped when it conflicted with their political priorities.

Let’s not forget that everyone thought Ted Olson was crazy when he launched the case that ultimately led to the overturning of gay marriage bans. The moral of the story is, you don’t know what is or isn’t constitutional until the Supreme Court decides.

And that’s leaving aside the arguments on the merits: namely that the President usually has broad powers of issues like immigration and the military—something that finds no parallel in the gay marriage cases.

Yet even still, even if we assume that on the merits and on the votes the transgender ban is unconstitutional, this entire exercise continues to rely on the Supreme Court as a political veto council on the one hand and as a safety net against bad policy on the other. Liberals expecting this particular institution to buffer them against Trumpism are in for serious disappointment.

Our elected political leaders make the policies. We can’t expect a bailout every time they make a mistake and we should vote accordingly.

Jon-Erik G. Storm

Written by

Academic, Writer, Politician, Judge Advocate

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