Sunday, June 17, 2012

The Constitution Party’s Constitution

With Mitt Romney wrapping up the Republican nomination, many conservative evangelicals may be tempted to vote for the Constitution Party instead of for Romney. After all, if Romney’s just a go-along big-government liberal in disguise, we might as well support someone who be faithful to the Constitution.

If that’s your motive, don’t vote for the Constitution Party.

No, this is not going to be a “don’t throw your vote away” post. Instead, I’m going to do what is not done very frequently. I’ll engage with the Constitution Party platform on its merits. It wants to be taken seriously, so I will take it seriously. For the sake of argument, I’ll assume for this post that the party has a chance of winning. What would it do if it took power? Would we return to the Constitution? Well, only if you exclude the seventeen amendments adopted after the Bill of Rights (as well as some other significant portions of the original document).

Since it was originally written, our Constitution has been amended 27 times. Those amendments change the text and meaning of the Constitution itself. The first ten amendments we know as the Bill of Rights. The Constitution Party (mostly) loves those amendments. The rest, however, are strangely absent from its platform.

In fact, a search of the platform shows that the only two post Bill of Rights Amendments to get any mention are Sixteen (income tax) and Seventeen (direct election of Senators). Both are specifically targeted for repeal.

Now some of the missing amendments are rather insignificant or technical. Eleven, for example, deals with the jurisdiction of the federal courts. Twelve makes minor adjustments to the method of electing the President. Eighteen and Twenty-One cancel each other out (prohibition and repeal). So it’s not surprising that these don’t get any mention in the platform.

But others are incredibly significant. Such as the Fourteenth Amendment. (In fact, not only is the Fourteenth Amendment never mentioned in the platform, a search of the party’s website using both their built in search and Google returned no results.) It really should be mentioned in the following planks:

  • Abortion. The platform (rightfully, I might add) holds that abortion may not be legalized on either a federal or state level. In doing so, it uses the Declaration of Independence, the Preamble to the Constitution, and Congress’ Constitutional duty to ensure that every state have a republican form of government. What it doesn’t use is the Fourteenth Amendment, which reads “nor shall any State deprive any person of life . . . without due process of law.” Of all possible Constitutional provisions, that one is the strongest for the pro-life argument. So why does the “Constitution” Party not include it?

  • State Sovereignty. The platform has a plank on state sovereignty, which it interprets under the Tenth Amendment. But it neglects to mention that a large number of later amendments have steadily shifted powers from states to the Federal government. States can’t permit slavery (Thirteenth Amendment) and can’t racially discriminate on voting (Fifteenth Amendment), despite the original Constitution leaving those matters to state discretion. Also, and most significantly, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Fourteenth Amendment) Adopted after the Civil War, the Fourteenth Amendment gave Congress huge authority to oversee what the states do. It also put limits on state action that weren’t there prior, which the courts now enforce. No mention of this fundamental legal change appears in the “Constitution” Party’s platform. Also missing from the platform’s discussion of state sovereignty is any discussion of the interstate commerce clause, which does grant power to Congress to enact certain economic regulations.

  • Election reform. The platform unequivocally states that “The federal government has unconstitutionally and unwisely preempted control in matters of district boundaries, electoral procedures, and campaign activities. The Voting Rights Act should be repealed.” With regards to districting, the legal justification for federal oversight has been the Fourteenth Amendment’s due process clause. Furthermore, the Voting Rights Act was implemented to ensure compliance with both the Fourteenth and Fifteenth Amendment (which both give specific enforcement power to Congress). The only way to oppose those as “unconstitutional” is to ignore the Fourteenth and Fifteenth Amendments. Which the platform conveniently does.

  • Immigration. The platform holds that children of illegal immigrants born in the US should not be afforded citizenship. This is contrary to the Fourteenth Amendment’s provision that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Enacting this plank of the “Constitution” Party’s platform would actually violate the Constitution.

Furthermore, the platform ignores portions of the original Constitution and Bill of Rights which undermine its libertarian/reconstructionist position.

  • Conscription. The platform argues that conscription violates the 5th Amendment’s takings clause. However, it completely ignores the fact that Congress has specific power to “raise and support armies” (Art. 1, sec. 8, cl. 12), which is what conscription has historically been considered under. Furthermore, the Second Amendment’s reference to militias (which gun advocates like to point out is a reference to all adults) assumes the ability to call up said militia (i.e. conscription).

  • Religious freedom. The platform states: “We particularly support all the legislation which would remove from Federal appellate review jurisdiction matters involving acknowledgement of God as the sovereign source of law, liberty, or government.” This would make major parts of the First Amendment’s non-establishment clause a dead letter. While there is plenty of room to criticize the current jurisprudence on the First Amendment, giving Congress a blank check to legislate whatever it wants and selectively suspending judicial review is not a solution that respects the Constitution.

  • Commerce clause. Domestically, the platform states that “We deny that civil government has the authority to set wages and prices; so doing is inconsistent with principles of individual liberty and the free market.” However, with regard to international markets, the platform relies on the commerce clause to establish a system of tariffs that throw up trade barriers to keep foreign goods more expensive than domestic goods. The problem is that the Constitution gives Congress power to regulate commerce among foreign nations and between the several states. The party’s distinction, which affirms power internationally but denies it for interstate commerce, ignores Congress’ clear authority to regulate interstate commerce. (In fact, as with the Fourteenth Amendment, there is no reference to the interstate commerce clause in the entire platform.)

The platform also strays from strictly Constitutional issues into changes at the state level that are certainly not required in light of the party’s strict state-sovereignty stance. These issues include: getting rid of the popular vote for president, reinstituting the manual counting of ballots, abolishing compulsory attendance laws, and abolishing laws restricting gun ownership.

In summary, the so-called “Constitution” Party has a misleading name. It does not support a return to or abidance by our Constitution as it exists today. Instead, it appears to want to return to a previous form, excluding or ignoring the amendments which changed our Constitutional structure. Furthermore, it adopts a pick-and-choose approach to the original Constitution itself, ignoring powers that don’t align with the party’s agenda. And that agenda, which includes “restor[ing] American jurisprudence to its Biblical foundations” includes more than a shade of Christian Reconstructionism. While as a matter of policy, some of these may actually be good ideas, calling them Constitutional requirements is legally misleading, historically inaccurate, and in multiple instances actually does violence to the very Constitution the party is pretending to support.
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