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.
The fifth and thirteenth amendments coming after Article I section 8, they should be read to prohibit conscription. Either way, as a non-signer of the Constitution, I oppose conscription as slavery in fact, inherently immoral regardless of constitutional permission.
ReplyDeleteGood work on pointing out Constitutional inconsistency of the Constitution platform. You could make even stronger arguments about the Republican and Democrat platforms :) I can envision an originalist argument that the Constitution Party is closest to the original intent of the founders, with most significant amendments after the first ten straying from that intent. No doubt you'd disagree. But it's true that Christian Reconstructionism is a more foundational element of the party than Constitutionalism.
ReplyDeleteDerby,
DeleteOne can certainly hold that conscription is immoral or a bad policy choice, but that doesn’t make it unconstitutional. And I doubt that the framers of either the Fifth or Thirteenth Amendments would say that it was.
Also, I realize that the same analysis could be made with regard to the Republican or Democratic platforms. But at the same time, they’re openly pragmatic. The Constitution Party, in contrast, holds itself out as the party of Constitutional principle. So I’d actually agree with you that it’s probably the closest thing we have to an originalist party (even with the reconstructionist starting point and the pick-and-choose approach). But the original Constitution has been changed, and refusing to recognize that means the party is advocating an archaic legal position. If it is erroneous to treat the Constitution as a “living document” and project the changes we want into it without actually amending it, it’s likewise erroneous to ignore the legal changes that have been made. Neither position shows respect to the foundation of our legal system.
Good post, Nicholas.
ReplyDeleteI'm surprised they do not advocate the repeal of the 14th Amendment, which led to Roe v. Wade and opened the door for the interpretation of "church and state" conservatives hate. The sad truth is, as much as we like to call on our founding fathers, we don't live under the Constitution they designed. Some of those changes may have been for the better, but many of them have been for the worse.
ReplyDeleteThe 14th amendment has been used for bad things, but that is contrary to the wording of the amendment. When it has been used for bad, it has been wrongly used and in fact, mangled.
DeleteThe 14th amendment has rightly lead to all the instances of protecting religious freedom, supporting rights (like parental rights), and upheld all other freedoms in the United States. The 14th amendment has been key to making America unique and great. What we need are judges who apply this (and all of the Constitution) using strict adherence to the text not their wild imaginations. The problem is not with the 14th amendment; in fact I would fear a United States without it.
Precisely, Jeremiah. The problem is not with the text of the 14th Amendment, but with what the courts have done with it and their erroneous interpretations.
DeleteIt is not realistic to expect good men to accompany centralized authority. History consistently shows that with the centralization of authority (in this case, the 14th Amendment, with a text sufficiently broad to allow selective incorporation) comes costs (millions dead) that usually outweigh the benefits.
DeleteDerringer,
DeleteI’m afraid this is going to sound patronizing, but for a while I shared your skepticism of the Fourteenth Amendment. Then I began to learn about the history behind it (and the other post-Civil War Amendments). The Fourteenth Amendment didn’t just lead to the excesses you described, it also put an end to racism. Furthermore, it is a major check on state power. Every time you hear about a church asserting religious liberty against a state, every time a local government moves against free speech or free exercise of religion in the public square, or a state against homeschooling or the right to bear arms, or a county wants to seize someone’s property, it’s the Fourteenth Amendment that stops them. Not the original Constitution, not the Bill of Rights. The Fourteenth Amendment.
The original Constitution was written on the belief that the people’s freedom were best protected by the states against federal excess. The Fourteenth Amendment extended that, and confirmed what slavery and discrimination had already taught us—that the people also need protection from their states. In fact, more so. Because state and local government is closer than federal government, it has the potential to do more damage. The original Constitution did not address this problem. But the Fourteenth Amendment does. Now it may be misapplied at times, but don’t forget all the good it also does.
Nicholas,
DeleteDon't worry, I don't feel patronized :D
Believe me, I'm far from writing off the 14th Amendment as a waste. Now, I don't think that it ended racism (racism, like other forms of hate, cannot be "fixed" with by passing laws, although its outward manifestations may be suppressed) but I think it helped bring about the end of institutionalized racist/segregationist policies, all of which was good.
But, at always, there is a two-edged sword at play, and it's hard to weigh abortion against the benefits of the 14th. Would I like to see the 14th done away with? Naah. But if someone could make clearer what the rights, privileges, and immunities of a US citizen were, that's be nice. (A Right To Life Amendment to the US Constitution, properly written, might solve that problem.) Keep in mind that, because of the broad phrasing of the text, SCOTUS literally had to pick and choose what rights to incorporate from the US Constitution, which rights to create out of thin air, and which ones to ditch. That's the problem I have, and it's NOT one I blame the writers of the document for. As far as I know (and I could be wrong), the only reason they were writing it was to clear up the post-Civil War mess, and if we applied it as such, it would be useless (for good or evil) today. IMHO, the 14th is another example of how man is able to twist almost kind of power intended for good into something evil.
I think we all agree that the Supreme Court needs to use sound doctrine and has not done so in the past. But I have a hard time believing that the court in the 1970s needed the 14th amendment to legalize abortion. They were going to do it anyway. As far as I can tell, in the 1970s almost no one cared about following the Constitution closely and approached it like many people approach the Bible, just looking for ways to support their own points. Fortunately that seems to have shifted.
DeleteWell, take a look at Roe v. Wade itself (and talk to Dr. Donnelly :D). The Court specifically invoked the 14th (and 9th) Amendment in their ruling, and before the 14th Amendment, the Bill of Rights was held to be inapplicable to the states.
DeleteI suppose, theoretically, if SCOTUS decides to rule that the moon is cheese, they can, but I think if they did something like that, they'd probably get a "They made their decision, let them enforce it."
Jeremiah,
DeleteIt has significantly shifted, due in large part to the Reagan appointees and his DOJ focus on getting back to the text.
Derringer,
I still think you have too narrow a view of the Fourteenth Amendment. The Supreme Court in the Slaughter House Cases, 83 U.S. 16 Wall. 36 36 (1872), originally interpreted it the way you suggested, just dealing with slavery and other Civil War problems. However, as the dissent strongly argued (and whose position was eventually adopted), the legislative history of the Amendment shows a much farther reaching intent of Congress and the drafters.
The problem you describe of the problem of judges determining what the various clauses mean is inherent in having a judicial system. Even the clearest Congressional act (and there aren’t many) have loopholes and problems with interpretation. The Fourteenth Amendment very intentionally copies the Fifth in several elements. Personally, I prefer the approach of the Constitution setting out the broad structures of our legal system, and then letting the three branches (and the states) work out the difficulties of applying it. That way it both sets some inflexible principles, but allows the application of those principles to be adapted to changing conditions. The other approach is to be very specific and risk having more amendments like the Third – addressing a problem that no longer exists. States constitutions tend to go for the latter approach and as a result tend to be cumbersomely long and replaced every few decades.
I think a good argument can be made that the Voting Rights Act is _unconstitutional_ _because_ of the 14th Amendment. By applying the law to only certain states, Congress is not promulgating "equal protection of the laws" to all American citizens. Given SCOTUS turning down a 10th Amendment challenge to the VRA last year, some Texas politicians are looking at challenging the VRA on the 14th Amendment basis. I think the VRA served a vital purpose when it was enacted, but today there is simply not a good case to be made that Virginia or Texas will be more politically "racist" than say Ohio or Arizona.
ReplyDeleteTony,
DeleteOnly the preclearance portion of the VRA singles out specific states (and jurisdictions within states). The rest applies nationwide—so it would survive that sort of a challenge. And the Constitutionality of the preclearance provision survived challenge in South Carolina v. Katzenbach, 383 U.S. 301 (1966) as a valid exercise of Congress’ Fifteenth Amendment power. However, the Court indicated a willingness to consider the position that the preclearance provision is no longer necessary (and therefore no longer justified) in Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009). I believe the Virginia voter ID case is the one to keep an eye on for possible further preclearance challenge.
But I don’t think an equal protection challenge would work. Although the formula is rather dated, the preclearance jurisdictions are determined by the existence of discriminatory voting laws or insufficient minority voter registration. Additional jurisdictions (Michigan has two) have since been added to the preclearance requirements. If anything, that section is singling out states that fail to provide equal protection and voting access, not violating equal protection.
The preclearance provision, which requires covered jurisdictions to get approval from the DOJ before changing their voting laws, was only adopted because Congress and the Courts could not keep up with the states’ creativity in inventing new ways to violate the Fourteenth and Fifteenth Amendments and discriminate against African Americans. Texas was particularly notorious, and was responsible for a whole series of cases before the Supreme Court prior to the VRA. So Congress preemptively addressed the problem with the VRA.