The Ground Zero “Mosque,” Double Standards and the Limits of Strict Constitutionalism

The Ground Zero mosque controversy has highlighted a fundamental question relating to the nature and shortcomings of our constitutional system–is that which is constitutional always ethical as well?

Consider the following remarks made by opponents of the Cordoba Center project during the talking-head torrent following Obama’s remarks:

“The Muslims have, as everyone else does, the right to practice their religion and they have the right to construct a mosque at ground zero if they wish,” said Rep. Peter King, R-New York, on CNN’s “State of the Union,” “what I’m saying, though, is they should listen to public opinion, they should listen to the deep wounds and anguish this is causing to so many good people.”

Or these comments from Republican strategist Ed Rollins on CBS’ “Face the Nation.” , “Intellectually, the president may be right, but this is an emotional issue, and people who lost kids, brothers, sisters, fathers, what have you, do not want that mosque in New York.”

Or finally, the ever eloquent Sarah Palin, who put it succinctly, “We all know that they have the right to do it, but should they?”

They have the right, but do they have the should? Whether you’re stewing in outrage over the Supreme court decision Citizens United vs. FEC or simply watching a popcorn lawyer flick, we’ve all experienced the aggravating reality when that which is sanctioned as legal or constitutional often seems immoral or just plain wrong.

And as the bard says, herein lies the rub inherent in our constitutional system; We only have two possible options from which to choose in solving a social dilemma–legal or illegal, constitutional or unconstitutional. What is lost in this kind of legal structure is the human element; the ability to solve our differences by listening to each others’ stories, pains and experiences and coming to a mutually agreeable common ground.

The kind of listening Rep. King speaks of when he says, in spite of the legality of the Cordoba Center, we “should listen to the deep wounds and anguish this is causing to so many good people” is exactly the kind of listening that is made impossible when one side of the argument is deemed unconstitutional, for is there anything more invalidating and disqualifying to one’s entire belief structure than the label “unconstitutional”? What dignity is left to salvage when ones opinions are so thoroughly judged as ill-fitting to society. Unconstitutionality, it seems, is the modern form of exile.

Thus, the opponents of the Cordoba Center have made a valid point, and one which deserves the respect of audience. The right of Muslims to build a community center and place of worship two blocks from Ground Zero is unquestionable, but before we rush off into framing the issue as one of right and constitutionality, why don’t we slow down and listen to the concerns of the community first. After all, if the Center’s stated aim is to build trust and goodwill between communities of different faiths within the pluralist American society, how can we hope to achieve this aim if our starting point is one of mutual antagonism rather than mutual empathy?

…But there’s still something about this issue that sticks in my proverbial craw– something a bit sketchy and cynical about Conservatives like King, Cornyn and Palin making the argument for empathy over constitutionality in this particular instance. Conservatives have opportunistically applied this standard of judgment at a time when it best supports their ideological position.

Consider Rep. Kings statements once again:

“The Muslims have, as everyone else does, the right to practice their religion and they have the right to construct a mosque at ground zero if they wish. What I’m saying, though, is they should listen to public opinion, they should listen to the deep wounds and anguish this is causing to so many good people.”

Now let’s give it a little makeover:

“All Americans have…the right to right to bear arms and they have the right utilize their second amendment liberties if they wish. What I’m saying, though, is they should listen to public opinion, they should listen to the deep wounds and anguish this is causing to so many good people.”

Where is the Conservative sense of empathetic listening above strict constitutionality when it comes to the cries of victims and families of gun violence? Why is it more permissible to “refudiate” Muslim’s first amendment rights when it comes to the wishes of the victims of Islamic extremism than to abridge second amendment rights in light of those who have fallen by the gun?

Obviously there’s an absurdity here; we can’t disregard the Constitution in favor of bowing to popular opinion without ceasing to be a liberal society of law and order, checks and balances. But we also can’t have a coherent political discourse if our parties are allowed to choose an ethical standard du jour.

The goal of a Constitutional system should be to incorporate within a strict legal framework, a social generosity that, as Romand Coles writes, “elaborates itself…in dialogues torn between different sensibilities and visions of the future; a generosity torn between, on the one hand, the pursuit of what appear to be among the best political directions, principles and practices that have been illuminated thus far…and, on the other…the radical need to listen attentively to the voices and visions that come from places it cannot or has not yet illuminated.”

Such an incorporation might allow our society to find more inclusive ways to solve trenchant social dilemmas; it might indeed allow us to “listen to the deep wounds and anguish” of “so many good people” without necessarily having to appeal to antagonistic legalities. But if all this is just a possibility, one thing is for certain–such a potential will never come to fruition if we use the ethical standard of empathetic listening not for the sake of community strengthening, but for the sake of blind political opportunism.