Before long a member of the US Armed Forces will be ordered by this administration to do something violent that to many would seem a clear cut violation of the US Constitution. How do we prepare? Shouting “It’s unconstitutional!” at the top of our lungs is not much of a strategy. Yes, all members of the armed forces take an oath to defend the Constitution, but for enlisted soldiers that same oath commits them to obeying orders from their superiors and the President. (Thanks to Laurel CR who pointed out that officers’ oaths do not mention obeying the President.) The Constitution itself has never been all that clear about how to balance the role of Commander in Chief against other claims to authority, and the Republican Party and more than half of the Supreme Court have been enthusiastically working to shift the scales towards the former. The best we can hope for is that some officers in key positions come to believe that the Constitution comes first, at least in a particular case.
The Constitution is a living document always subject to interpretation according to context, if for no other reason than that originalist and contextualist ways of interpreting the Constitution are impossible. In spite of various claims to the contrary, the words on the page just can’t operate like lines of code, mechanically executing commands. (FWIW, the conservatives on the Court have in practice largely abandoned any sense of originalism anyway.)
So perhaps we should be doing what we can to cultivate a vivid sense of ways of thinking about constitutionality as a commitment to fairness, to a world where no one is above the law, where some decisions are necessarily made with the long term health of democratic society as a whole in mind. The principle of follow-the-leader-because-he-says-so, against the interests of democracy over the long term, needs to be understood as unconstitutional. We need to be telling stories to bring that understanding to life, particularly for folks who might feel themselves squeezed between conflicting forces. Some of them might be Generals.