Republicans Passionate Defenders of The Constitution—As They Imagine It

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CommonDreams.org

Republicans Passionate Defenders of The Constitution—As They Imagine It

Last November, the satirical newspaper the Onion published an article entitled "Area Man Passionate Defender of What He Imagines Constitution To Be."  The piece "reports" on a man who incorrectly believes that the Constitution declares the United States to be "one nation under God" while also prohibiting flag-burning and the income tax.

In this year's midterm election campaign, Republican candidates, especially those endorsed by the ubiquitous yet inscrutable "Tea Party", are working hard to convince us that the Onion's headline applies equally to their understanding of the Constitution: Republicans solemnly proclaim their deep respect for the nation's founding document, but don't seem to have actually read the thing. Delaware senate candidate Christine O'Donnell declared that, "when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional".  That is a worthy goal and could save the courts some time in having to exercise judicial review, but it depends on O'Donnell having at least a working knowledge of what the Constitution says and means.  In one recent debate, she claimed that "where the question has come between what is protected free speech and what is not protected free speech, the Supreme Court has always ruled that the community, the local community has the right to decide."  That's the polar opposite of what the Court has decided: unpopular speech is protected by the First Amendment and majorities -local or otherwise-do not get to decide otherwise.  As Justice Jackson eloquently put it in a 1943 decision: "One's right to...free speech...and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."  In another debate, O'Donnell didn't seem to know that the First Amendment prohibits Congress from passing laws "respecting an establishment of religion."  (A professor who attended the second debate reports that "you actually heard the audience audibly gasp" when O'Donnell revealed her ignorance).

While O'Donnell has become a convenient go-to candidate when describing the shortcomings of Tea Party-backed Republicans, she's hardly the only one to betray a gap between aspirations toward constitutional purity and reality. Constitutional ignorance has plagued the Republican party for some time.

During the 2008 campaign, presidential candidate John McCain concluded that "I would probably have to say yes, that the Constitution established the United States of America as a Christian nation," despite the fact that the word "Christian" appears a grand total of zero times in the Constitution.  The original pre-Bill of Rights document contained just one reference to religion: Article VI provides that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States".  The First Amendment added two additional provisions, including the Establishment Clause prohibition against any "law respecting an establishment of religion" that O'Donnell seemed surprised by in her recent debate.

McCain's former running mate, Sarah Palin, reached a similarly unfounded conclusion last May in an interview with Bill O'Reilly-Palin claimed that "the Constitution allows that Judeo-Christian belief to be the foundation of our laws and our Constitution, of course, essentially acknowledging that our unalienable rights don't come from man. They come from God."  Like "Christian", the word "God" also appears a grand total of zero times in the founding document Palin invoked (the Constitution doesn't refer to a Creator either-that's in the Declaration of Independence).  The same pesky Establishment Clause that keeps popping up also prohibits the Judeo-Christian theocracy Palin imagines.

It goes on and on-the Republican party of strict constitutional construction doesn't believe in actually reading the document they'd like to strictly construct.  Instead, Bush advisor Karen Hughes, tasked with improving America's image in the Muslim world, explained to an Egyptian opposition leader in 2005 that the reason why American presidents frequently refer to God in public speeches is that "our Constitution cites "one nation under God."  (No, it doesn't-that's the Pledge of Allegiance.)  Maine Sen. Susan Collins criticized the Obama administration for providing the attempted Christmas Day bomber Miranda warnings and access to an attorney, protections she said the Constitution guaranteed to "American citizens" (she emphasized these words). Not correct-none of the protections in the Bill of Rights is limited to citizens only.

A number of Republican candidates associated with the Tea Party, including O'Donnell, have signed the ten point "Contract from America": point one is "Protect the Constitution."  A better starting point might be actually reading the nation's founding document.

Chris Edelson

Chris Edelson is an assistant professor in American University's School of Public Affairs, Department of Government, where he teaches classes on constitutional law. He's also a lawyer and has published writing in the Philadelphia Inquirer, Washington Lawyer, Common Dreams, firedoglake.com, and Metroland (Albany, NY).

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