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Tuesday, September 27, 2011


In 2008, when Sen. Barack Obama was running for president against Sen. John McCain, there were three formal televised presidential debates. The Constitution was not raised at all in the first debate or the second. In the third, it was raised three times: once when McCain said that as president he would put justices on the Supreme Court who would be in favor of strict adherence to the Constitution; once, when Obama said that he believed that the Constitution contained a right to privacy; and last, when Obama discussed the constitutionality of a ban on late-term abortions. Now compare that to the present environment. At last week's Republican debate in Florida, there were eight references to the Constitution, in either in a question or an answer. At the CNN-Tea Party debate on September 12, the Constitution was raised 13 times. At the Iowa debate in August, 24 times. What is happening here? Driven mostly by Republicans, the Constitution is fast becoming the central subject of the 2012 campaign.

The themes raised repeatedly at the Republican debates are easy to summarize: the Constitution is a document prescribing limited government and yet today our government is anything but limited (all). Social security is unconstitutional (Rick Perry) or maybe not (Perry, again), and "Obamacare" is most assuredly unconstitutional (Michele Bachmann, Mitt Romney, Newt Gingrich and many others). This much should seem familiar to most readers. Yet there are other claims, less familiar: Ron Paul insists that the Federal Reserve Act is facially unconstitutional and would dismantle the central bank. Gingrich, Rick Santorum, Romney and Bachmann all are in favor of a constitutional amendment banning same-sex marriage. And at the American Principles Project Debate on September 5, APP Founder and Princeton Professor Robert George asked the candidates if they would endorse legislation aimed at reading the 14th amendment's protection due process and equal protection provisions as protecting the "unborn," effectively ignoring the Court's 1973 decision on Roe v. Wade and challenging the Court's role as the final arbiter on what is constitutional. Three of the candidates present -- Bachmann, Herman Cain and Gingrich -- agreed that they would. Romney and Paul said they would not.

So much for new readings of old texts. How about a new text altogether? This past weekend, at the Harvard Law School, there was a conference calling for an Article V constitutional convention; in other words, a re-write. It was sponsored by the law school and two widely divergent organizations: the Tea Party Patriots -- a grass roots organization that works to mobilize efforts towards reducing government and taxation -- and which was co-founded by Harvard Law Professor Lawrence Lessig largely in response to the Citizens United decision of a couple of years ago. Its mission is to reduce the influence of private money in politics. The Harvard Crimson was appalled that the institution's esteemed law school would do something that would "legitimate the reactionary Tea Party movement." Not to be outdone, the Crimson editorial suggested that the law school turn instead to a "viable and emancipatory alternative": a constitution for "The New Socialist Republic in North America" as authored by the Revolutionary Communist Party, which advocates the overthrow of the capitalist system of the United States and the establishment of a dictatorship of the proletariat. You can read the entire document here.

That leads me to Seth Lipsky, the editor of the conservative New York Sun and author of "The Citizen's Constitution: An Annotated Guide." Lipsky wrote an editorial in the Wall Street Journal last week asking that the political parties consider doing a presidential debate next year exclusively on the Constitution. Wouldn't it be nice, he mused, if we knew what a prospective president thought about the document he or she might soon be asked to "preserve, protect, and defend'? Yes, and appropriate for a day and age when the Constitution seems to be on everyone's "reconsider list."


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