Rule of Law

The First Presidential Debate: The Candidates, the Constitution, and the Unanswered Question

Both President Obama and Governor Romney have described the upcoming election as a critical choice between two very different visions of America – and so it is.  As the presidential race enters its final stages, the candidates and their respective parties remain deeply divided over taxes, the federal deficit, the social safety net, and the government’s role (if any) in creating jobs and spurring economic growth.  These issues will, once again, be front and center this Wednesday evening, as PBS’s Jim Lehrer will devote one-sixth of that evening’s presidential debate – 15 minutes in all – to a discussion of the “Role of Government.”  The question remains whether Lehrer or either of the candidates will acknowledge the 800-pound gorilla lurking in the background of this discussion: the U.S. Constitution.


For the past two years, tea partiers and other so-called “constitutional conservatives” have been shouting at the top of their lungs that their vision of a strictly limited federal government – a government powerless to address national problems like health care and retirement security – is not a policy choice, but a constitutional requirement.  Of course, they already lost this debate on the largest possible stage, failing to convince a majority of the conservative-dominated Supreme Court that the Affordable Care Act’s individual mandate was beyond the powers of the federal government.  Nevertheless, Governor Romney’s allies continue to push this radical constitutional vision in, among other places, the Republican Party Platform.  At the same time, Romney remains divided against himself – on the one hand, siding with the dissent over the majority in the Affordable Care Act case, while, on the other hand, suggesting that he does believe that the federal government has a robust role to play in addressing the health care crisis in America.


For Romney, then, the question for Wednesday night is whether he will embrace the hard right’s constitutional vision or distance himself from it.  Either way, Lehrer simply can’t  allow Romney to offer his views on the role of the federal government, generally, without first clarifying whether he believes that the Constitution itself ties a President’s hands on key national policy questions  (and, if so, on which ones and to what extent).  


Across from Romney will be President Obama, a former constitutional law professor who seldom speaks about the Constitution.   Throughout the battle over the Affordable Care Act, and even after emerging victorious in the Supreme Court, the President has never articulated a compelling constitutional vision to answer the tea party – one that authorizes vigorous government action to address genuinely national problems, while still recognizing some limits on federal power.  Instead, the President and his allies have been focused almost exclusively on talking about the Act’s concrete benefits – for grandma, for twenty-six-year-olds, for those with pre-existing conditions.  This is an important line of argument, to be sure, but one that is largely unresponsive to the tea party’s relentless attack on the Act as an unconstitutional assault on individual liberty.  The predictable result was polling, prior to the Supreme Court’s landmark ruling, showing that even supporters of the Act believed it to be unconstitutional, despite compelling constitutional evidence to the contrary.  That’s why it’s just as important for President Obama to be pushed by Lehrer into articulating his own constitutional vision.


In a campaign season packed with trivia and diversion, Lehrer’s decision to have the candidates discuss their views on the role of government hits upon the central issue in this election, and the defining controversy that has divided our major parties over the last four years.  The candidates themselves recognize this to be “the choice” facing voters, yet so far, they have said precious little about the foundational question that underlies this choice:


“What do you believe the Constitution allows when it comes to the federal government’s power to address national problems, such as health care, and what limits do you believe it imposes?”


If that question gets asked and meaningfully answered on Wednesday, the choice facing the American electorate this November will be far clearer.


This piece is cross-posted on Huffington Post.

This article has been reprinted in the following publications