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Ep 98 - Republicans & the Constitution: Terms and Conditions May Apply

Jul 15
8 min read

Republicans love the Constitution. They will tell you so at length, usually while holding a pocket-sized copy of it and speaking as though James Madison personally asked them to protect the republic from school librarians. They invoke the Founding Fathers, original intent, strict construction, states’ rights, limited government, and the sacred architecture of a constitutional republic. They say the word “Constitution” with the reverence normally reserved for scripture.


The Constitution only works if we defend the parts that inconvenience our own side.
The Constitution only works if we defend the parts that inconvenience our own side.

The problem is not that they talk about the Constitution too much. The problem is that they seem to have read it selectively.


For decades, conservatives have branded themselves as the document’s exclusive guardians. Liberals, according to this story, are always stretching it, rewriting it, inventing rights, and asking activist judges to squeeze modern values into eighteenth-century language. Conservatives, by contrast, simply follow the text. They read the words. They honor the structure. They obey the limits. Or at least that is the sales pitch.


Then Donald Trump returned to office, and suddenly constitutional certainty became much more flexible.


The First Amendment remains sacred, of course, when a conservative says something offensive and other people respond by calling it offensive. Then we hear solemn speeches about free expression. But when the Trump administration uses federal power against law firms connected to his political enemies, pressures universities with funding threats, or punishes institutions that refuse to adopt the administration’s preferred positions, the sacred principle becomes less urgent. Apparently free speech matters most when conservatives are speaking and least when the government is retaliating.


That is not constitutional devotion. That is approved speech with patriotic packaging.


The Fourth Amendment receives similar treatment. Conservatives have spent generations warning Americans about government agents, warrantless searches, federal intrusion, and the danger of the state entering your home. Yet when immigration officers conduct aggressive stops based on appearance, location, occupation, or language, many of the same people suddenly become less concerned about unreasonable searches and seizures.


It is easy to defend privacy when the person behind the door looks like you, votes like you, and owns the same bumper stickers. The real test is whether the Fourth Amendment still matters when the person being stopped is Latino, speaks Spanish, works at a car wash, or is merely suspected of being undocumented.


Constitutional protections are not rewards for being popular. They are restraints on government power. That is the entire point.


The Fifth Amendment makes the contradiction even harder to ignore. It says no person shall be deprived of life, liberty, or property without due process of law. Not no citizen. Not no voter. Not no taxpayer. Person.


And yet one of the most common MAGA responses to concerns about immigration enforcement is that undocumented immigrants have no constitutional rights because they are not citizens. That is simply false. Noncitizens do not possess every right citizens possess, but undocumented status does not erase personhood.


Due process does not mean nobody can be arrested, detained, or deported. It means the government must follow a lawful process before taking someone’s liberty. It means notice, evidence, the opportunity to respond, and a meaningful chance to prove that the government is wrong.


That matters because governments are wrong all the time. Names get confused. Records are incomplete. Citizens are detained. People with legal status are swept up. Courts issue protections that agencies ignore. The more aggressive the enforcement, the more important due process becomes. Not less.


Without due process, accusation becomes proof. Error becomes punishment. And government power becomes something you survive only if officials happen to identify you correctly.


Then there is the Tenth Amendment, perhaps the most selectively beloved amendment in Republican politics. For years, Republicans could not stop talking about states’ rights. Washington was too powerful. Local leaders understood their communities better. Decisions should be made closer to the people. Governors deserved autonomy.


Then Democratic states began exercising it.


Suddenly sanctuary policies, state election systems, local policing decisions, and resistance from blue-state governors became intolerable acts of defiance. Republican states received sovereignty. Democratic states received supervision.


Apparently states’ rights come with a partisan zip-code restriction.


The federal government has legitimate authority. Immigration is primarily federal. Congress has power over federal elections. States do not possess absolute independence. But federalism does not mean governors are regional managers for the White House or that mayors are federal subcontractors who must obey presidential demands.


If local control matters, it matters when California says no. It matters when New York says no. It matters when Minnesota says no. It matters most when the president is furious about it.


The Fourteenth Amendment is where conservative constitutional hypocrisy becomes almost impossible to disguise. Donald Trump tried to use an executive order to deny birthright citizenship to certain children born in the United States.


Think about that. A president attempted to redefine the opening sentence of a constitutional amendment with one signature. The same political movement that spent decades insisting the Constitution can be changed only through the amendment process suddenly became interested in a much quicker method. One man. One pen. One convenient reinterpretation.


The Fourteenth Amendment says that all persons born or naturalized in the United States, and subject to its jurisdiction, are citizens. It does not say unless Donald Trump dislikes the immigration status of their parents.


The administration argued that children of undocumented immigrants or temporary visitors were not fully subject to American jurisdiction. But undocumented immigrants are subject to American jurisdiction when the government arrests them, prosecutes them, taxes them, detains them, or deports them. The claim was essentially that the government had enough jurisdiction to punish the parents but not enough jurisdiction for the Constitution to protect the child.


Maximum government power. Minimum constitutional obligation.


Birthright citizenship was written into the Constitution for a reason. It created certainty. It prevented states, judges, presidents, and political majorities from deciding which American-born children were worthy of belonging. Trump’s approach would have replaced a clear constitutional rule with inherited status. Citizenship would depend not only on where a child was born, but on who the parents were and whether the government approved of them.


That is not originalism. That is a bloodline test wearing a legal costume.


The Fifteenth Amendment prohibits denying or abridging the right to vote on account of race. Yet modern voting restrictions, racial gerrymandering, and attacks on minority voting power often receive far less concern from Republicans than imaginary armies of noncitizen voters.


A vote can be accepted and still be stripped of power. District lines can divide minority communities, pack them into a small number of seats, or weaken their ability to elect representatives. The Fifteenth Amendment was not written merely to guarantee that Black citizens could physically enter a polling place. It was written because officials were skilled at denying political power while pretending the rules were neutral.


The Nineteenth Amendment has also entered strange territory. Repealing women’s suffrage is not official Trump administration policy, but conservative influencers, Christian nationalists, and far-right personalities have increasingly treated the idea as provocative content rather than political disqualification.


The idea that women should lose the right to vote should not be an edgy podcast discussion. It should not be a clever thought experiment. It should not be normalized by people who constantly lecture the rest of the country about constitutional fidelity.


Imagine prominent liberals debating whether men should still be allowed to vote. Conservative media would melt through the floor.


Then there is the Twenty-Second Amendment, which says a president cannot be elected more than twice. Trump spent months teasing a third term, selling “Trump 2028” merchandise, talking about possible methods, and encouraging supporters to treat a constitutional limit as a loophole challenge.


The defense was always the same. He was joking. He was trolling. He was selling hats.


Imagine Barack Obama doing the same thing. Imagine an Obama store selling “Rewrite the Rules” merchandise. Imagine Democratic lawmakers proposing an amendment written specifically to let him return to power. The conservative reaction would have been visible from orbit.


The Twenty-Second Amendment does not contain an exception for presidents with branded merchandise.


And beyond the individual amendments lies the Constitution’s larger design: checks and balances, separation of powers, congressional authority, judicial review, federalism, oversight, and the deliberate division of government power.


Donald Trump’s second administration has repeatedly treated these safeguards as obstacles. Congressional spending decisions become optional. Inspectors general become expendable. Career civil servants become suspect. Judges who rule against the president become corrupt. Independent institutions become enemies.


The Constitution was designed to make presidents hear no.


Congress can refuse. Courts can block. States can resist. Watchdogs can investigate. Career professionals can explain that a presidential demand is illegal, impossible, or dangerous. That friction is not sabotage. It is the system working.


The Founders did not divide power because they trusted leaders. They divided power because they did not.


And this is the central problem with modern Republican constitutionalism. It is increasingly less about rules and more about permission. The Constitution matters when it protects conservative speech, conservative states, conservative religion, conservative power, or conservative policy. When it protects immigrants, minority voters, women, journalists, students, critics, Democratic governors, or limits on Donald Trump, the certainty disappears.


The text becomes unclear. The judge becomes partisan. The limit becomes unfair. The amendment becomes outdated. The rule becomes negotiable.


That is not principle. That is team loyalty.


Team loyalty requires no Constitution. It requires a jersey.


The Constitution is bigger than Donald Trump. It is bigger than the Republican Party. It is bigger than the Democratic Party. It is bigger than my politics and yours. That is what gives it value. The rules are supposed to survive elections.


I do not prove that I believe in constitutional limits by demanding that they restrain Trump. I prove it by accepting that they must also restrain presidents I support. If a Democratic president punished law firms for representing Republicans, tried to redefine citizenship by executive order, threatened hostile universities, seized control of a Republican state’s National Guard for political theater, or teased a third term, I should oppose it.


Principle means the rule does not change with the name on the door.


The Constitution was never meant to make power comfortable. It was meant to slow it down, divide it, frustrate it, and protect people who cannot protect themselves from the state. It exists for the hard cases, not the easy ones.


Anyone can wave a flag. Anyone can quote the Founders. Anyone can call himself a constitutional conservative.


The hard part is defending the Constitution when it protects someone you dislike. The hard part is obeying it when it blocks the president you support. The hard part is accepting that no election, no emergency, no movement, and no man stands above it.


That is the test.


And for today’s Republican Party, terms and conditions may apply.



SOURCES

U.S. Constitution and amendments, Constitution Annotated, Congress.gov - https://constitution.congress.gov/constitution/

Supreme Court ruling rejecting Trump’s birthright-citizenship order - https://www.supremecourt.gov/opinions/25pdf/25-365_4hdj.pdf

Supreme Court docket and filings in Trump v. Barbara birthright-citizenship case - https://www.supremecourt.gov/docket/docketfiles/html/public/25-365.html

Federal court ruling finding unconstitutional conditions and First Amendment violations in the Harvard funding dispute - https://www.harvard.edu/federal-lawsuits/2025/09/03/memorandum-and-order/

Ninth Circuit ruling concerning immigration stops and racial profiling in the Los Angeles area - https://cdn.ca9.uscourts.gov/datastore/opinions/2025/08/01/25-4312.pdf

Supreme Court ruling requiring meaningful judicial review for removals under the Alien Enemies Act - https://www.supremecourt.gov/opinions/24pdf/24a931_2c83.pdf

Supreme Court ruling concerning Kilmar Abrego Garcia’s improper removal to El Salvador - https://www.supremecourt.gov/opinions/24pdf/24a949_lkhn.pdf

Trump executive order targeting sanctuary jurisdictions and threatening federal consequences - https://www.whitehouse.gov/presidential-actions/2025/04/protecting-american-communities-from-criminal-aliens/

Ninth Circuit ruling concerning Trump’s federalization of the California National Guard - https://cdn.ca9.uscourts.gov/datastore/opinions/2025/06/19/25-3727.pdf

Trump Justice Department withdrawal from the lawsuit challenging Georgia’s 2021 voting law - https://www.reuters.com/world/us/change-course-us-justice-dept-drops-challenge-georgia-voting-law-2025-03-31/

Pentagon response after Pete Hegseth shared a video promoting repeal of women’s suffrage - https://www.reuters.com/world/us/hegseth-supports-womens-right-vote-pentagon-says-despite-his-having-reposted-2025-08-14/

Trump saying he was not joking about seeking a third presidential term - https://www.reuters.com/world/us/trump-says-he-is-not-joking-about-third-presidential-term-2025-03-30/

Official Trump 2028 merchandise using the slogan “Rewrite the Rules” - https://www.trumpstore.com/trump-2028-hat

Government Accountability Office explanation of the Impoundment Control Act and congressional spending authority - https://www.gao.gov/legal/appropriations-law/impoundment-control-act

GAO review of Trump’s June 2025 request to rescind congressionally approved spending - https://www.gao.gov/products/b-337581

GAO decision concerning unlawful withholding of congressionally appropriated funds - https://www.gao.gov/products/b-337202

Federal ruling finding that Trump unlawfully fired inspectors general without the notice and justification required by law - https://www.reuters.com/legal/government/judge-will-not-reinstate-us-government-watchdogs-despite-unlawful-firings-2025-09-24/

Trump administration order implementing Schedule Policy/Career for policy-influencing federal employees - https://www.whitehouse.gov/presidential-actions/2026/06/implementing-schedule-policy-career-in-the-excepted-service/

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