Constitutional Craving

By and

Is the Constitution a partisan, Republican
document? GOP candidates sure seem to think so--they have been relentless in asserting
that they would “follow the Constitution” in pursuing goals from overturning
Roe v. Wade (Mitt Romney) to
restoring the gold standard (Ron Paul). And for decades, conservative judges
such as Robert Bork and Antonin Scalia have been backing these claims up,
advocating for a version of constitutional “originalism” that lines up quite
nicely with the Republican platform. This rhetorical onslaught seems even to
have convinced Democrats, who have been skittish and uneasy about embracing the

But the Republican hammerlock on the document was weakened in three minutes in Iowa on December 13, three minutes that could change
constitutional debate in America.
Spurred by the tremendous unpopularity and dubious legality of the Bush Administration’s
efforts to enhance its own power at the expense of both Congress and individual
rights, the Democratic presidential candidates made an explicit promise to America: In their first year in office, they
will give the United States
its Constitution back.

Commentators have called the Democratic debate in Des Moines a "love
," and nowhere was there more agreement than over the topic of
executive power. Asked to explain in 30 seconds what they would accomplish in
their first year in office, every candidate mentioned
reversing some of the policies and executive orders that have greatly magnified
the power of the president and upset the delicate balance of powers that our nation’s
founders established.

The Democrats’ rhetoric sharpened dramatically as candidates answered the
question. Senator Barack Obama started off, saying, “I’ll call in my new
attorney general to review every single executive order that’s been made by
George Bush. And any of those that have undermined our Constitution or
subverted our civil liberties are going to be reversed.”

The field’s only non-lawyer, Governor Bill Richardson, took out the legalese
and put the Constitution right up front: “I’m going to follow the Constitution
of the United States.
And that means ... not using torture as a tool in our foreign policy ... not eavesdropping
on our own citizens, that means restoring ourselves as a nation that is going
to respect the balance between the executive, the legislative, and the judicial
branch ... ”

With Richardson and Obama invoking the Constitution, other candidates also hurried
forward to claim it. Senator Hillary Clinton declared that she would rescind
Bush orders that “undermine the Constitution and betray the rule of law.” Senator
Chris Dodd put it most forcefully: “I’ll do whatever I can by executive power
to give you back your Constitution.”

That’s quite a promise. And sadly,
it’s not something we’ve heard much from Democratic candidates in recent years.
But, to be credible in making it, the candidates must look beyond executive
power, with a broad embrace of our nation’s central document. Liberals need to
stop reading the right’s talking points and start reading the Constitution’s
text and history. They’ll generally like what they find.

The Reconstruction Amendments, for
example, passed between 1865 and 1870, gave our nation what Lincoln
promised at Gettysburg:
a new birth of freedom. These Amendments ended slavery, expanded the franchise,
and broadly protected civil and human rights. Today, the 14th Amendment’s Citizenship
Clause, which makes everyone born here (including the children of illegal
aliens) a citizen, is just as useful in responding to the nativist views of
Tancredo Republicans as other portions of the Amendment have been in the past
in establishing equal rights for women and racial minorities.

Many Republicans still refuse to
fully recognize the sweeping changes to our founding document ratified after
the Civil War. Historian Garry Wills put it best in his Pulitzer Prize-winning
book Lincoln
at Gettysburg
, “Edwin Meese and other ‘original intent’ conservatives
... want to go back before the Civil War amendments (particularly the
Fourteenth) to the original founders. Their job would be comparatively easy if
they did not have to work against the values created by the Gettysburg Address.”

And it’s not just the Civil War
Amendments that Republicans get wrong. It is remarkable how many of their
claims about the Constitution have withered once constitutional historians have
had a chance to subject them to close scrutiny. To give just one example, the
property rights movement has sputtered out in court now that its claims about
the original meaning of the Fifth Amendment’s Takings Clause have been vitiated
by historical research. So-called “originalists” argued that workaday land use
and environmental regulations were “takings,” requiring government
compensation. But, in fact, when the Constitution says “nor shall private
property be taken for public use, without just compensation,” it means actually
taken, that is, expropriated.

With the GOP’s constitutional misreadings
now evident, Democratic candidates have a golden opportunity not just to
criticize Bush for his extravagant views of executive power, but also to completely reclaim
the high ground of fidelity to the nation’s founding document. Having hit their
rhetorical stride in three minutes in Iowa,
the Democrats need to take the Constitution and run with it.

Jennifer Bradley is
an attorney at Community Rights Counsel, a public interest law firm that
promotes constitutional principles, and Doug Kendall is its founder and executive director.

By Jennifer Bradley and Doug Kendall

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