Caucus Roundup: Constitutional Conundrums
COLUMN BY JOHN WINGERT
This month we celebrate Constitution Day, the little-known, oft-ignored anniversary of our nation’s guiding principles, source of authority, and contentious legal document. This campaign cycle, and in politics in general, the Constitution has been constantly misrepresented. Candidates have been rehashing its meaning from every possible direction to reinterpret it in a way favorable to them.
To honor the Constitution, why not fact-check some of the more absurd claims from current candidates about our Constitution and its meaning?
As with everything Donald Trump has done, his claims about the Constitution have been both dumbfounding and far outside the mainstream. His main constitutional claim recently has been that the Fourteenth Amendment does not support birthright citizenship. Birthright citizenship is the idea that being born within a country’s borders entitles that newborn to citizenship within that country. Trump, the tonsorially-challenged frontrunner in the GOP race, has sedulously declared that the Fourteenth Amendment does not provide such rights to people born in the United States. This claim has become an extension of his more extreme immigration policy.
So what does the Fourteenth Amendment actually say? The first sentence of it reads, “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.” The more turbid part of this clause is “subject to the jurisdiction thereof.” This has been widely interpreted to mean subject to the laws of the United States.
This interpretation was clarified by the Supreme Court case United States v. Wong Kim Ark. In it, the only exemptions were, “children born to foreign diplomats, to hostile occupying forces or on foreign public ships, and . . . children of Indians owing direct allegiance to their tribes,” according to the Congressional Research Service. The Supreme Court ruling also added, that the Fourteenth Amendment “has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship.”
It would seem that no matter how Mr. Trump claims to interpret it, the Fourteenth Amendment ensures birthright citizenship definitively.
Another claim has been posited by Carly Fiorina in her quest to use the momentum of political outsiders to seize the White House. In her announcement speech, she alleged that, “our founders never intended us to have a professional political class.”
Given that James Madison, the chief architect of the Constitution, joined the Virginia legislature at the age of 25 and spent the rest of his career as a state representative, secretary of state, and president, the claim seems immediately dubious.
In fact, looking at the meeting minutes of the Constitutional Convention in Philadelphia makes the claim’s veracity seem nonexistent. Many of the Founding Fathers wholeheartedly supported a cohort of professional politicians as a bulwark against uneducated masses moved like reeds by the gales of prevailing whims.
Elbridge Gerry, an eventual Congressman, governor, and vice president, argued that, “The people are uninformed and would be misled by a few designing men.” James Madison argued that ordinary people “were liable to temporary errors, thro’ want of information as to their true interest, and that men chosen for a short term, & employed but a small portion of that in public affairs, might err from the same cause.”
To him, people who were not career politicians would not have the knowledge of policy to govern successfully. Those who were only employed for “a small portion” of time in government could not possibly understand the intricacies and consequences of their actions. Unfortunately, Ms. Fiorina’s claim does not seem to withstand scrutiny.
The last, and most pervasive, assertion amongst candidates and politicians is the purpose of the Constitution.
At the second Republican debate, Rand Paul said, “I spend my days defending the Constitution and the Bill of Rights. I think there’s nothing more important than understanding that the Constitution restrains government, not the people.” To celebrate Constitution Day, Senator Orrin Hatch of Utah argued, “the Constitution limits government in order to preserve freedom.”
However, the notes on the Constitutional Convention make such a pervicacious interpretation less certain.
At the time of the Convention, the Articles of Confederation, a quaggy, festinated form of government, provided the national government few powers and little ability to govern effectively. In order to maintain order amongst the states and put down rebellions, more power had to be delegated to the federal level.
At the time, eventual Supreme Court justice, James Wilson said, “The great fault of the existing confederacy is its inactivity. It has never been a complaint [against Congress] that they governed too little. To remedy this defect we were sent here.” James Madison, when debating one proposal, was very concerned about a weak national government, saying, “Will it prevent encroachments on the federal authority? A tendency to such encroachments has been sufficiently exemplified, among ourselves.”
The purpose for the Constitution was not to limit or reduce the powers of government, but instead to meaningfully expand them and provide safeguards for the federal government, and not to leave “the will of the States as uncontrouled [sic] as ever.”
In case there was any remaining doubt, Madison truly drives the point home when demanding that a strong national government is necessary, because of “the propensity of the States to pursue their particular interests in opposition to the general interest. This propensity will continue to disturb the system, unless effectually controuled [sic].”
Certainly, the federal government is delegated certain powers and the Tenth Amendment ensures that unlisted powers are the areas of the states, but the purpose of the constitution was not to limit it. However much Rand Paul or other politicians may want to change the fundamental truths of the Constitution, the history and primary sources make it all too clear, that the Constitutional Convention was designed to dramatically increase the power of the national government.
It should be noted that the reason Democratic presidential candidates have not made it onto this list is due in large part to the absence of any sort of interpretations from them as to what our Founders intended. Although Clinton, Sanders, and O’Malley have all proposed constitutional amendments, none of them have looked to the past to legitimize their policy positions. Instead they tend to choose to shy away from tradition and toward change.
Regardless of your affiliations or preferences, it is important to understand our guidelines of politics and the rules of engagement. Also, do not forget to be wary of those who seem too eager to invoke the constitution to make their point for them.