Carson and the constitution

Ben Carson is under attack from both liberals and conservatives for saying “I would not advocate that we put a Muslim in charge of this nation; I absolutely would not agree with that.” Dr. Carson’s comment deserves to be criticized. It is too sweeping.

Carson recognized as much. That’s why he later said that what he disagrees with is voting for candidates (of any religion) who want a theocracy.

But the attacks on Carson’s original statement are also too sweeping. They incorrectly insist that the statement put Carson at odds with the Constitution.

I argued here that there is no such conflict. Yes, Article Six of the Constitution forbids a religious test as a requirement for qualification to any public office. But Carson didn’t say that Muslims should be barred from public office. He simply said that he wouldn’t advocate that a Muslim be elected president.

Charles Krauthammer rejects this argument:

[I]t is no defense of Carson to say that he was not calling for legal disqualification of Muslims, just advocating that one should not vote for them. That defense misses the point: The Constitution is not just a legal document. It is a didactic one. It doesn’t just set limits to power; it expresses a national ethos. It doesn’t just tell you what you’re not allowed to do; it also suggests what you shouldn’t want to do.

For example, the First Amendment allows you to express whatever opinion you want — even, say, advocating the suppression of free speech in others. But a major purpose of the Constitution is to discourage and delegitimize such authoritarian thinking.

This view of the Constitution goes too far. The Second Amendment protects the right to bear arms. But this doesn’t mean that it’s “incompatible” (Krauthammer’s word) with the Constitution to say “I wouldn’t advocate that any individual ever buy a gun.”

The Constitution has been found to grant a right to same-sex marriage. This doesn’t make it incompatible with the Constitution (as interpreted by the Supreme Court) to say “no one should marry someone of the same sex” or “I will not participate in any way in a gay wedding.” Nor does it make it incompatible with the Constitution (as interpreted by the Court) to say “same sex marriage is evil and against God’s will.”

The proper purpose of the Constitution is not to create “an ethos” — be it pro-gun ownership, pro-gay marriage, or pro-Muslim participation in government — but to create a government structure and to declare specific rights. References to a constitutional “ethos” remind me of (though they are not quite the same thing as) finding “emanations and penumbras” in the Constitution, which is how the Supreme Court got to Roe v. Wade. They carry the potential for serious mischief.

They also run up against the question of constitutional repeal. A candidate might urge the repeal of a provision of the Constitution. This could be viewed as putting the candidate at odds with whatever ethos stands behind the provision. But to persuasively condemn the candidate, it wouldn’t be enough to say that he’s going against the constitutional ethos. One would have to show that his position isn’t sound on the merits.

Fortunately, Dr. Carson’s original statement fell well short of calling for the repeal of the Sixth Amendment. The statement can (and should) be criticized on the merits, but it doesn’t violate the Constitution (as CAIR’s spokesman claimed) and is not incompatible with that document.

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