A couple of posts back, I mentioned the expression: The Constitution is the White Man's Ghost Shirt (original source unknown, seen originally on Usenet back in the 90s, feel free to step forward and claim it if it is yours).
My wife asked me about this expression, so perhaps I should explain it in a bit more detail. The Ghost Shirt was an item that a number of Indian factions believed would protect them against the White Man's bullets and other weapons during an uprising. Typically such shirts would be covered with all sorts of mystical symbols and writing. Needless to say, confronted with naked force (specifically, the bullets and sabres of US cavalrymen), they didn't work terribly well.
The Constitution has a similar talismanic property in the minds of lots of White People, especially conservatives. This is a mistake, both tactically and strategically. The tactical mistake is that as a conservative, or, God forbid, a reactionary or counter revolutionary, you will pretty much never win a position on the strength of the Constitutional argument for it. You'll find instead that your Constitutional position will only be grudgingly recognized by the courts once you've won the position in the court of public opinion or at least made the issue totally radioactive for the politicians who would oppose you. This, for instance, is how the gun control battle has been largely won in recent years. For years gun advocates appealed to the courts about how utterly clear their case was in the plain language of the Bill of Rights. This didn't work---the courts will rule how the hell they want to rule with little regard to such considerations as the literal meaning of the text. However when the NRA started seriously going after its enemies in the electoral process, claiming scalps and picking on the weakest of their enemies in earnest in the 90s, things began to change. Once the issue became radioactive to the Democratic party, all of the sudden, the courts started taking the 'Embarrassing Second Amendment' somewhat seriously. Did the meaning of the text suddenly change? Was it amended? No, nothing changed except the political calculus. This is why it is a tactical mistake to attribute the powers of a talisman to the US constitution.
The strategic mistake is this: The Constitution and Bill of Rights can best be described as constituting a set of rules of engagement for political conflicts within the US. At least that was the intent. Rules of engagement have this universal property: They only 'work' when both sides generally abide by them. When only one side obeys those rules, it tends to suffer pretty massive disadvantages in the conflicts that the rules theoretically govern. If you have a massive advantage in a conflict, you can sometimes afford this, either because the rules of engagement represent some moral principle that you're willing to suffer greatly for, or because you believe that the peace after your victory will be more liveable if you do. But when you're at a significant disadvantage, you can't afford this sort of thing, especially if your conflict is existential. Simply put, reactionaries, conservatives, and counter revolutionaries should never shelve a particular desire for the mere reason that it wouldn't be constitutional. The rules of engagement are breached and you'd better get used to that. If you had the ability to have violators of the constitution hanged from lamp posts, especially those who 'interpreted' it beyond recognition, things might be different. But at present you don't, so don't feel bound by anything for such reasons, especially when they're not even in the plain text (the words separation of Church and State do not exist in the document, it rather forbids the Establishment of a Church, which meant nothing more than that the US would not have an official Federal church, like many nations in Europe, which would be supported by mandatory tithes--several states, did in fact have State churches, and this was considered perfectly kosher) but rather in the interpretation that some guy in a black dress dreamed up.
A Postmodern Permutation of the Bill of Rights
17 hours ago