Last week, the eleven poll-leading candidates for the Republican nomination for president gathered at the Reagan Library for a televised debate. With the journalist moderators mostly asking the candidates to respond to criticisms they had previously leveled against one another, the event highlighted differences in both style and substance. It also covered a wide range of topics.
The debate occurred the night before “Constitution Day,” a congressionally mandated day of reflection on the U.S. Constitution. Fittingly, many of the candidates discussed their views of how the Constitution bears on the issues of the day. Unfortunately, what they said about the Constitution ranged from the amusingly uninformed to the arrogantly hypocritical. I shall focus on the statements of six of the candidates.
Donald Trump began the constitutional foolishness by claiming that “the 14th Amendment says very, very clearly to a lot of great legal scholars—not television scholars, but legal scholars—that” children born in the United States to undocumented immigrants are not citizens. Trump added that “some of the greatest scholars” think that a president could strip people born in the U.S. to undocumented immigrants of their citizenship without even going through Congress.
As I explained in an earlier Verdict column, under the most natural reading of both the text of the Fourteenth Amendment and the leading case construing it—the 1898 ruling in United States v. Wong Kim Ark—the provision in fact does grant such persons birthright citizenship. It is true that Wong Kim Ark did not involve a person whose parents entered the country illegally, and that therefore a few scholars argue that such a case can be distinguished. But not even they think that the Fourteenth Amendment “very, very clearly” rules out birthright citizenship for the children of undocumented immigrants. Meanwhile, it is impossible to take seriously the claim of a reality television show personality to be able to distinguish between “television scholars” and “legal scholars.”
Buoyed by her vivid, albeit false, claims about Planned Parenthood, Carly Fiorina put in a strong performance after having been promoted from the junior varsity debate in August. Yet she also displayed constitutional ignorance. Fiorina called Trump on his anti-immigrant bluster but quickly proved that she knows as little about the Constitution’s Article V as Trump knows about its Fourteenth Amendment. Suggesting that it would likely take a constitutional amendment to abolish birthright citizenship for the children of undocumented immigrants—which is true—Fiorina then said that to ratify such an amendment would take a vote of “two thirds of the states”—which is false. In fact, although two thirds of the states can propose a constitutional convention, ratifying an amendment proposed by Congress—which is what Fiorina was discussing—requires approval by the legislatures of three-fourths of the states.
Perhaps Trump and Fiorina can be forgiven for their lack of familiarity with the Constitution. Neither has been to law school nor has held public office. They are both running for president based on the premise that success in business readily translates into effective political leadership. Even granting the somewhat dubious premise that Trump’s and Fiorina’s business careers were unqualified successes, the claim is hardly self-evident. Some people with business acumen have had success in elected office; former New York City Mayor Mike Bloomberg is an example.
But for all of Americans’ professed distaste for politicians, successful presidential candidates have almost invariably had substantial political experience. The only exceptions were war hero generals like George Washington, Ulysses Grant, and Dwight Eisenhower. Let us therefore turn to the elected politicians, beginning with Kentucky Senator Rand Paul.
Rand Paul’s Idiosyncratic Constitution
Although he was an ophthalmologist for most of his working adult life, since becoming a Senator in 2011, Paul has shown that he has a deep appreciation for the Constitution. Senator Paul’s criticism of the surveillance state is admirable, even refreshing. So is his deep skepticism of the tendency of both parties to use the U.S. military to try to solve complex foreign political problems.
Yet on at least two occasions during last week’s debate, Senator Paul asserted idiosyncratic views of the Constitution as though they were fact. At one point, he stated that enforcement of federal marijuana laws in a state (like Colorado) that has legalized marijuana would violate the Tenth Amendment, even though the Supreme Court quite clearly rejected that view ten years ago in Gonzales v. Raich.
Later, in his closing remarks, Senator Paul implicitly suggested that President Obama, and perhaps other presidents, had taken the country to war unconstitutionally because they did not obtain congressional approval. Under a Paul presidency, he said, “when we go to war, we go to war in a constitutional way, which means that we have to vote on it, that war is initiated by Congress, not by the president.”
It is not clear whom or what Paul meant to criticize by this remark. Congress did in fact approve both the Afghanistan and Iraq wars. It has not yet approved fighting ISIS in Syria or Iraq, but not for lack of a request by President Obama (who also claims that the post-9/11 authorization suffices in any event). Perhaps Senator Paul meant his remark as a criticism of President Obama’s failure to seek congressional approval for military action in Libya in 2011, which would be fair, but Paul appeared to be making a broader point—that a president needs something like a formal declaration of war by Congress to use virtually any amount of military force. Yet Congress has not formally declared war in over seventy years and nearly no serious scholar thinks that such a declaration is always necessary for the president to use military force.
In both of these examples, it appears that Senator Paul holds an idiosyncratic view of what the Constitution requires and that, as president, he would be prepared to act on such a view regardless of what the Supreme Court or the weight of other legal authority says on the matter. Even that may be a defensible position but one would have greater confidence in Senator Paul if he were to recognize the dangers that can flow from a president unilaterally deciding that the Constitution imposes greater constraints than nearly everyone else—including the Supreme Court—believes it imposes.
Still, if Senator Paul’s approach would elevate his own views of the Constitution over those of others, at least he would do so in domains in which the president has discretion. After all, the Obama Administration has already scaled back enforcement of the federal marijuana laws in states that permit medical or recreational marijuana. And there is certainly nothing in the Constitution to prevent a president from consulting with Congress about war-making to a greater extent than is strictly required.
The Arrogance of Bush, Cruz, and Especially Huckabee
Meanwhile, at last week’s debate, three other candidates expressed constitutional views that were dismissive of, and disrespectful towards, the views of others.
Answering a question about appointments to the Supreme Court, former Florida Governor Jeb Bush indicated that he would appoint proven conservatives, but he did not put it that way. Instead, he vowed to seek nominees “with a proven experienced record of respect for upholding the Constitution.” Has there ever in the history of the Union been a Supreme Court nominee with a proven record of disrespect for the Constitution? All presidents nominate judicial candidates who sincerely wish to uphold the Constitution. They disagree about what respect for the Constitution entails—which makes it disrespectful for a presidential candidate to claim that only conservatives seek to uphold the Constitution (as it would be equally disrespectful for a candidate to say that only liberals do).
If Bush’s disrespect for constitutional disagreement was subtle and general, Senator Ted Cruz’s was obvious and directed. With no evidence whatsoever, Cruz accused Chief Justice John Roberts of violating his oath of office in the two leading Affordable Care Act cases—NFIB v. Sebelius and King v. Burwell. In the former, the Chief Justice voted to sustain a key provision of the Act as a valid exercise of Congress’s power to tax; in the latter, he voted to permit the provision of subsidies for the purpose of purchasing health insurance on federally operated exchanges.
Why did Senator Cruz think that Chief Justice Roberts ignored the Constitution and the statute “for a political outcome” in these cases? Because Roberts is an “amazingly talented lawyer,” and therefore, Cruz reasons, Roberts must have read the Constitution and the statute exactly as Cruz reads them. Roberts could not possibly have come to different conclusions based on a good-faith disagreement about the law. No, Cruz is so assured that he is right that an amazingly talented lawyer like Roberts could only disagree with him if Roberts were ignoring the law and lying about his reasons.
The grand prize for constitutional arrogance at last week’s debate, however, must go to former Arkansas Governor Mike Huckabee, who compounded his patronizing unctuousness with hypocrisy—or perhaps more charitably, with incoherence.
Huckabee described the Supreme Court’s recognition of a constitutional right to same-sex marriage in Obergefell v. Hodges as coming “out of thin air.” The ruling was not merely mistaken, Huckabee contended, but wholly illegitimate, as it ignored a basic principle of “ninth-grade civics. The courts cannot legislate.”
Of course, the Justices in the Obergefell majority did not purport to legislate. They found that laws barring same-sex marriage violate both the longstanding principle that the Constitution protects a fundamental right to marry and the obligation to treat all persons—including gay and lesbian persons—equally. To say that the Court “legislated” is merely a disrespectful way of saying that Huckabee disagreed with the ruling.
If “judicial legislation” is an impolite charge, it is also a familiar one, and it may even connote a defensible approach to constitutional adjudication, one most famously articulated in the late nineteenth century by Harvard Law Professor James Bradley Thayer. According to Thayer, unless the Constitution speaks very clearly to a question, courts ought to leave the matter to be decided by politically accountable actors. Most charitably understood, Huckabee’s accusation that the same-sex marriage case amounted to judicial legislation can be seen as an endorsement of Thayerism.
Yet just minutes later, Huckabee himself advocated what—by Thayerist standards—can only be described as judicial legislation. He said that a President Huckabee would apply a “litmus test” in nominating Supreme Court Justices, screening out anyone who does not believe that “the unborn child is a human being” for constitutional purposes.
Some critics of Roe v. Wade attack the decision on Thayerist grounds. They say that the Constitution is silent on abortion and that therefore the issue is relegated to politics. In this view, state legislatures and Congress have the discretion to ban abortion, to permit it, or to regulate it.
But Huckabee’s criticism of Roe is far from Thayerist. During the August Republican Presidential debate, he made clear that he would read the Due Process and Equal Protection Clauses of the Fourteenth Amendment to ban abortion. Huckabee’s problem with Roe is not that it is judicial legislation but that it legislates what he regards as the wrong result. In light of his willingness to read his own religious conservative values into the grand generalities of the Constitution, Huckabee’s preaching about ninth-grade civics to more liberal Justices with somewhat different values rings hollow.
But let us be charitable to Huckabee. Perhaps he is not a conscious hypocrite. Perhaps he is merely confused about the Constitution and even about his own views of it. If so, that would hardly make him stand out in the current Republican presidential field.
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I’m not sure this supposed attempt to apply rigorous constitutional analysis to answers given by non-expert politicians during a televised debate was ever meant in good faith. But at least it would have been more credible if you hadn’t injected your own snarky– and irrelevant– political views at every turn.
In regards to amending the Constitution. Mr. Dorf briefly discusses Article V in his essay only mentioning an Article V Convention in passing. The fact is many of the issues he mentions in this article will be the subjects of the agenda of an Article V Convention. It requires 34 applications from 34 states to cause a convention call as Mr. Dorf mentions. What he failed to mention was the states have long since satisfied that requirement meaning that the entire landscape of politics will soon shift. It is one thing to speculate about a proposed amendment. It is quite another to realize that Congress is obligated to call a convention which is empowered to actually propose such an amendment. As to the number of applying states and total applications: you can read the 766 applications from 49 states covering some 50 different amendment issues which will come before a convention at http://www.foavc.org .
I love reading Mr.Dorf’s essays. as he pontificates on many
issues. He is the sort of guy that gives juice to his blog. But I don’t think I
would ever want to take a class in Law with him as the teacher. Why is that? I
don’t think I could tolerate his predilection for –as Allington puts it
–“snarky” unkind–and unnecessary –bon mots — because he comes across
as a mean- spirited bigot, even as I do suspect he’s a really nice guy to take to lunch , but overly opinionated and gives no quarter to dissent. So you see why I would never enroll in any course where he is the teacher. I would walk out!