Constitution Check: Which candidate or party can claim the Founders?

Lyle Denniston looks at claims by political followers that their candidates best exemplify the spirit of the Constitution and the Declaration of Independence.

The statement at issue:

“Progressives [have a] general reluctance to root our arguments in the Constitution and its history.  As a result, the president let Governor Romney claim the Constitution and the Declaration of Independence without a fight….We [progressives] should stop ceding the Founders and their key texts to conservatives.  Instead, we should begin to reclaim them as our own.”

– Tom Donnelly, message director and counsel of the Constitutional Accountability Center, a Washington-based think tank, in an online essay October 11, titled Mr. President, Don’t Forget the Founders.” The discussion was a reaction to the first presidential debate, and offered advice for the second debate (scheduled for tonight).

We checked the Constitution, and…

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.

There is one place in the national government where, in fact, the Constitution—and, sometimes, the Declaration of Independence, too—are regularly and seriously discussed in terms of their present-day significance and impact. But that is in the U.S. Supreme Court, and constitutional application is part of the justices’ job.

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.

Constitutional argument is too vital a part of the national conversation to be left to the judges alone, and too crucial a part of governmental policy making to be left to the stump speech or to scoring cheap points in a legislative floor debate.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Indeed, the Founders themselves set the example when three of them, in the Federalist Papers, took the Constitution phrase by phrase and issue by issue, and told the people just what they would be getting if they ratified it into existence, as, of course, the people did.   For example, there is no better analysis of what the independent federal judiciary should do than Alexander Hamilton’s Federalist 78.

This year’s presidential campaign, from its very beginning months ago, has had one over-arching constitutional issue at its center: how should today’s America divide up government power between the national and state governments. Indeed, it was that issue that the moderator at the first presidential debate this month, PBS’ Jim Lehrer, had in mind when he asked the two candidates to discuss “the role of government.”

To give credit where it certainly is due, that issue has risen to prominence in part because the tea party movement wanted it to be a central issue, and insisted upon talking about it at every rally. Some of that conversation, of course, was not the most elevated, but the civic instinct that motivated it was commendable.

Both of the presidential candidates are fond of describing the deep differences they have over their conflicting “vision” for America’s future, but too seldom does that lead them into serious commentary on what they see as the Constitution’s vision and how that should be implemented in contemporary policies.

One illustration of that failure is the almost complete absence of discussion on the campaign trail about the candidates’ view of the proper role of the Supreme Court in the nation’s governance. Presidents seldom have as much impact on history as they do when they select nominees to be Supreme Court Justices, and yet one is tempted to conclude that the Court is not an issue in the campaign, at all. Indeed, the last time the court was a central issue in presidential politics was when Richard Nixon ran against the Supreme Court for supposedly being “soft on crime.”  And that was 44 years ago.

No one doubts that the presidential candidates revere the Constitution and the Declaration of Independence. The people just need to know where those fit into the plans for actual governance—with specifics, not generalizations.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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