Well it’s hard to come up with much better than the increasingly shrill self-immolation of the American conservative movement over yesterday’s Supreme Court ruling upholding the Affordable Care Act. I mean a GOP spokesman calling for armed rebellion over this can barely be topped. Perhaps the unwashed conservative masses pledging to escape socialist medicine by moving to Canada overtakes the hyperactive militiaman, but it’s a close race.
However, because the speaker is a popular conservative Senator with a cult-like following, the dumbest thing I heard this week emanates from the office of America’s preeminent aquatic worshipping dingbat, Rand Paul.
“Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional.”
Unlike many progressives, I would not object if Rand Paul limited his comment to stating that Supreme Court may issue decisions that are nonetheless unconstitutional. After all, the Supreme Court declared segregation entirely constitutional for nearly 60 years and that did not make it truly constitutional. There is a de facto/de jure distinction here — it is possible to have a contrary understanding of the Constitution as long as you simultaneously respect that, as a practical matter, the Supreme Court defines constitutionality. It’s kind of their job.
My beef with Rand Paul is that this statement goes much further than challenging the constitutional jurisprudence of the highest court in the land. Rather, Rand Paul denigrates the Court as a trifling non-actor in the American system and he did so with a public statement sure to erode the limited support he receives from the ever dwindling moderate corners of the Grand Old Party.
First off, a “couple of people” are not involved. Five Justices of the United States Supreme Court are involved. There’s a value to undermining the credibility of your opponents by withholding some respect, but taking that to such an extreme actually undermines Paul himself, making him appear to simply not understand basic American civics. By sneering out the words that even if these random people in robes “declare something to be ‘constitutional’ does not make it so” he expresses disdain for the role of Court itself. This sort of thinking undermines the legitimacy of the Court itself eroding the confidence of America in the idea that the constitution has any final arbiter, throwing the legal landscape of the country into doubt.
Republicans savagely attacked President Obama for “not understanding” Marbury v. Madison when the President declared the possibility of a Supreme Court overturn “unprecedented.” This attack was ill-founded, sophomoric attack because Obama wasn’t suggesting that the Court lacked the power to overturn the law, but that they lacked the constitutional basis, as backed by the plain text of the Congressional tax power and the history of commerce clause jurisprudence (which the Court botched yesterday anyway). Ironically, after all those conservative attacks, it is the conservative Rand Paul who actually needs the remedial lesson on the role of Marbury v. Madison.