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Constitution? Absolutely!

By Jesse Taylor
Tuesday, February 14, 2012 15:44 EDT
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Andy McCarthy has a problem with a lesson from high school civics:

Very clear constitutional commands that, for example, “Congress shall make no law … abridging the freedom of speech”, or that “the right of the people to keep and bear Arms, shall not be infringed,” or that “No state shall … deny any person within its jurisdiction the equal protection of the laws”, have not stopped courts from upholding campaign finance reform, prohibitions against gun possession, or racial preferences.

Most of us, sometime around 11th grade or so, learn that there are no absolute rights in the Constitution. This makes sense, because about the time we’re seventeen is when we realize that, while saying “penis” at competitively escalating volumes is hilarious, it’s not really an appropriate thing to say during class and we deserve to be punished for it. While giggling, obviously.

Under a theory of constitutional absolutism, Andy McCarthy should support the free practice of sharia law. After all, it would almost certainly offend the conscience of Muslims who seek to practice it to have that practice banned. Yet…he doesn’t. The First Amendment clearly states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[,]” which would seem to indicate that private citizens choosing to govern their affairs by private religious laws should have that choice reaffirmed by the courts, rather than trampled on by intolerant secularist bigotry.

Or something, whatever. I’m not entirely sure what sharia law is, except that the Muslims in my apartment complex have nice curtains, so I assume that’s part of it.

Of course, it doesn’t, because the Constitution isn’t a legal code. It’s an outline applied to the world as it exists, within the context of society as it evolves. There are things it protects and things it doesn’t, however imperfectly those realms are determined. Constitutional absolutism of the sort that results in a “right of conscience” to be free of laws you find offensive only works so long as you assume the Constitution was meant to protect you and only you, and that there was a mysterious Eleventh Amendment lost from the original Bill of Rights that tells everyone else to kiss your hairy ass.

Of course, if I had a constitutional right to play the penis game in school, I’m totally going to pretend to be the world’s oldest high school senior next year.

Jesse Taylor
Jesse Taylor
Jesse Taylor is an attorney and blogger from the great state of Ohio. He founded Pandagon in July, 2002, and has also served on the campaign and in the administration of former Ohio Governor Ted Strickland. He focuses on politics, race, law and pop culture, as well as the odd personal digression when the mood strikes.
 
 
 
 
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