Wrong and Unconstitutional
“Just because something is wrong doesn’t mean it’s unconstitutional.” You’ve probably heard that phrase before. The problem is that it isn’t true.
In practice, when a consensus exists that something is very wrong courts do hold that unconstitutional if the issue is subject to judicial review. That is the doctrine under the Cruel and Unusual Punishments Clause (“evolving standards of decency”), but it is also an accurate description of how the Justices approach due process and equal protection. While the question of whether a consensus exists is often hotly contested, few people insist that a state action that is clearly awful is still constitutional. Saying, as Justice Scalia sometimes does, that stare decisis forecloses an accurate interpretation that would permit intolerable laws is just a dodge.
Why do people conflate justice with the Constitution? Because “The Constitution Can Do No Wrong.” That’s the title of a paper that I’m writing. In other words, the Constitution’s legitimacy cannot survive if folks think that evil laws are countenanced by the text. They can accept the idea that the Supreme Court is incorrectly interpreting the Constitution. But there must be some platonic or “real” Constitution that is pure. In this sense, we use legal fictions just as England does when it says that “The Queen Can Do No Wrong,” even though individual monarchs can make mistakes.