Rule of Law

Tea party pols get ‘F’ in Con Law

Tea-party favorite and Senate candidate Christine O’Donnell of Delaware drew scorn and laughter during her recent debate against Chris Coons when she questioned whether the “separation of church and state” is in the First Amendment—which prohibits Congress from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof.” According to O’Donnell’s campaign, however, she was not questioning the concept of church-state separation—which she views as “established by the courts”—but rather making “the point that the phrase appears nowhere in the Constitution.”

Put aside whether you believe that O’Donnell was making a clever point about the First Amendment’s literal text or embarrassingly revealing her ignorance of the religion clauses’ meaning. More shocking – and substantive — was O’Donnell’s unabashed admission that she doesn’t know what the 14th Amendment says.

Not that she disagreed with a specific interpretation or was quibbling over whether certain concepts were covered by its words – O’Donnell didn’t know what the 14th Amendment was.

To be sure, many Americans may not know that the 14th Amendment guarantees citizenship at birth for all born or naturalized in the United States, that it prohibits states from infringing “the privileges or immunities of citizens” and guarantees “due process of law” and “equal protection of the laws” to all persons in the United States. But most Americans are not running for Congress, wrapping themselves in the rhetoric of constitutional principles and claiming that the Constitution will be their “litmus test” for voting yea or nay on proposed legislation.

The 14th Amendment is one of our Constitution’s most important provisions. It writes the principles of the Declaration of Independence into our Nation’s charter, while ensuring the equality and liberty that the American Dream is founded upon. How can the Constitution be your litmus test when you don’t know what this says — much less what it means?

It’s not just O’Donnell. This outlook seems to be shared by many high-profile tea party candidates. From Alaska’s Joe Miller on Social Security, to Kentucky’s Rand Paul and West Virginia’s Republican John Raese and Democrat Joe Manchin (who has vowed to repeal “the bad parts of Obamacare”) on health care reform, to Nevada’s Sharron Angle on the Environmental Protection Agency, tea partiers are now arguing that unless a particular program or agency is specifically listed in the Constitution, it is unconstitutional. This is flat wrong.

Our Constitution creates a federal government of enumerated powers — not enumerated subjects of regulation. For example, the Constitution gives Congress the power to tax and spend to promote the general welfare. But as James Madison writes in “The Federalist Papers” (No. 41), this does not suggest a limitation as to the objects or types of taxation.

Conditions may change over time, Madison realized, making one sort of tax more appropriate than another. “A system of government meant for duration ought to contemplate these revolutions,” the father of the Constitution writes, “and be able to accommodate itself to them.”

As this example of one enumerated power shows, while the Constitution certainly does not give the federal government unlimited power, Congress is given constitutional authority to pass a broad range of laws on a wide array of subjects. If the founders thought it was necessary for every subject of legislation to be written into the Constitution, they would not have created the enduring charter that we have had for more than two centuries.

Fortunately, the genius of the founders’ design was a Constitution that would give the federal government enough power and flexibility to govern a new and growing nation — while preserving fundamental freedoms and a vibrant federalist system.

This is basic constitutional history. Something every candidate for Congress—who, if elected, exercises the powers delegated to Congress under the Constitution—should know.

The Constitution is not the political equivalent of a Snuggie—something you wrap yourself in for a warm fuzzy feeling, while leaving your hands free to do other things — like, say, getting rid of Social Security or derailing climate change legislation. It means something.

Do we really want leaders who pose as our constitutional standard-bearers without actually knowing what the document says? After all, if these politicians claim to base their positions on the Constitution, but are ignorant of its contents, where are they getting their information?

Before Election Day, voters should press candidates of every political stripe to explain and support their views of the Constitution — to insure that their elected leaders are going to govern according to the real Constitution. Not a version cobbled together from ideological talking points or desired policy ends.