Tuesday, October 05, 2004

Make Constitutional Compliance a 2004 Election Issue

Posted by Craig Westover | 3:26 PM |  

Received the following e-mail from Jon Roland at the Constitution Society on the state of constitutional compliance as an election issue. Not exactly up there with Swift Boat action and the cloak and dagger world of forged memos, constitutional issues have a far more lasting impact on our nation.

Although I don’t necessarily agree with the implied “strict constitutionalist” litmus test for judges, the essence of Jon’s e-mail is right on target and well worth the read. Browse my published columns, and you’ll find numerous examples of government overstepping it’s constitutional authority.


There is a glaring omission from the issues addressed in not only the presidential debates, but the debates and campaign literature of almost every candidate for public office in the United States. It is also missing from media coverage, polling, debates on the floor of Congress, and most public discussion. That issue is constitutional compliance.

Once in a while someone who doesn't like some policy or official act will call it "unconstitutional", but usually without much explanation of why it might be unconstitutional. Too often it is just a special pleading that is dismissed as such. Determining what is and is not constitutional is not just a duty of lawyers and judges. It is a duty of every citizen, in the way he or she lives and works, and in the ways he or she votes. Corruption begins with every voter who votes his pocketbook instead of for what's good for the country in the long term.

President Bush promised to nominate only "strict constructionists" to the federal bench, but do his nominees qualify? Or are they just conservatives whose copies of the Bill of Rights are missing the First and Ninth Amendments?

On the other side, many of his nominees have been blocked by Democrats who claim they are trying to protect Roe v. Wade, but who privately seem more concerned that much of the legislation and spending programs favored by their constituents might be stuck down as unconstitutional by true strict constructionists. Their copies of the Bill of Rights seem to be missing the Second and Tenth Amendments.

The media and pundits seem focused on process over substance, and to try to fit every issue into a left-right ideological spectrum, which might apply to distributionist issues, but which ignore concerns about constitutional legitimacy, regardless of how the burdens and benefits of governmental action might be distributed.

Too many people, perhaps even the readers of this message, are all too willing to ignore the constitutional restrictions on delegated powers when they want government, especially the federal government, to solve some problem, and then complain that government is threatening civil liberties, forgetting the warnings of the Founders that rights could not be protected against government if there was not strict enforcement of the limits on powers.

Perhaps it is time to rethink our positions on what we want government to do, or whether there may not be unacceptable risks and costs to having government do things that we should have to do in the private sector.

Perhaps it is time to reconsider whether the corruption and abuse of power that comes with giving more powers to government may not be too great to be offset by the imagined benefits, which may not in fact be as great as we think.

Honest people can and do disagree about what is and is not constitutional, but we can all agree that the debates in every election should make constitutional compliance a critical issue, ranked as high or higher than all the others that now get most of the attention.