A welcome “check” before tonight’s debate

Lyle Denniston picks up Tom Donnelly’s post-debate piece in his “Constitution Check” post this morning.

From Constitution Daily at the National Constitution Center:

America’s founding documents—the Constitution and the Declaration of Independence—are not the political property of one party or another, one candidate or the other. As part of the nation’s cultural inheritance, they belong to and inspire all of the people and, of course, should be an ongoing inspiration to the government’s leaders, too. …

But, in the political branches, and in political campaigns, the founding documents often are used for rhetorical purposes.  Too often, in those venues, the Founders’ words are summoned up in bromides and platitudes, putting them alongside motherhood, apple pie and Old Glory—the flag.

Whether or not Mr. Donnelly is right about what happened at the first presidential debate on October 3, he almost certainly is right in general: America’s voters and citizens need to know how political candidates relate their policy aspirations to what the Constitution expects of those who take an oath to protect and defend it, and what it allows them to do if they take office.

Denniston’s point that no party can claim ownership of our founding documents is undisputed, and gets no debate from these quarters. (It’s worth noting, of course, that one party consistently comes close to doing otherwise: see the 2012 Republican Party Platform, the second chapter of which begins, “We are the Party of the Constitution…”)

That doesn’t mean that all constitutional arguments are created equal in the political arena, any more than they are in the judicial.

To use the recent example of Fisher v. University of Texas, the Constitution’s text and history simply do not serve both sides equally on the 14th Amendment and the subject of race-conscious policies. The popular conservative conceit that the Framers of the 14th Amendment demanded that all government programs be rigidly colorblind does not square with the fact that those Framers themselves created the Freedman’s Bureau, special veterans benefits protections, dedicated schools and other resources exclusively for African Americans. (David Gans’ op-ed in the Austin American-Statesman drives the point home once again this week.)

Denniston’s frustration about the use of our founding documents for style-points rather than substance in debates is well said, and shared. American voters deserve better answers from the candidates. Here’s hoping they get them at tonight’s debate.