Constitutional Craving

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 Constitution.

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 fest," 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