The Country Thinker

Con­sti­tu­tion? We don’t need no stinkin’ Constitution!

Thoughts on Politics

This Con­sti­tu­tion … shall be the supreme Law of the Land.

—U.S. Con­sti­tu­tion, Art. VI, § 2

I do solemnly swear (or affirm) that I will faith­fully exe­cute the Office of Pres­i­dent of the United States, and will to the best of my abil­ity, pre­serve, pro­tect and defend the Con­sti­tu­tion of the United States.

—U.S. Pres­i­den­tial Oath of Office

I sup­port return­ing strict adher­ence to Con­sti­tu­tional prin­ci­ples to our government.

—Pres­i­den­tial Can­di­date Gary John­son (plank 9 of 9 from his Press release declar­ing his intent to seek the Lib­er­tar­ian Party nomination.)

The Con­sti­tu­tion is a char­ter of neg­a­tive liberties.

—Pres­i­dent Barack Obama

[Texas Gov­er­nor Rick] Perry has asserted that a fed­er­ally run Social Secu­rity pro­gram is uncon­sti­tu­tional. If this remains his posi­tion, it sug­gests that the pro­gram must be devolved to the states notwith­stand­ing the advis­abil­ity of such an approach.

—Repub­li­can Pres­i­den­tial can­di­date Mitt Rom­ney, Sep­tem­ber 21, 2011

As Mark Fitzgib­bons and Richard Viguerie explain in The Law that Gov­erns Gov­ern­ment: Reclaim­ing the Con­sti­tu­tion from Usurpers and Society’s Biggest Law­breaker, the Con­sti­tu­tion is the only safe­guard we have to keep the fed­eral gov­ern­ment in check. The gov­ern­ment can­not be scaled back to a man­age­able size with­out strong adher­ence to fun­da­men­tal Con­sti­tu­tional principles.

We will not have fis­cal respon­si­bil­ity with­out a strong con­sti­tu­tional pres­i­dent. Eco­nomic lib­erty will not be pro­tected with­out a strong con­sti­tu­tional pres­i­dent. Per­sonal lib­erty will not be pro­tected with­out a strong con­sti­tu­tional pres­i­dent. In many ways you could say that 2012 is a ref­er­en­dum on the Con­sti­tu­tion, because with­out it nearly every other issue is moot.

Like it or not, we have a three-​​horse race for the White House (which will blos­som into a four-​​horse race when Amer­i­cans Elect selects a can­di­date), and right now there’s only one strong con­sti­tu­tional can­di­date in the race.

We know Obama’s views of the con­sti­tu­tion; it’s an old rag whose pri­mary use is to line a lit­ter box. George W. Bush was no dif­fer­ent, and when­ever either has men­tioned the Con­sti­tu­tion it has been a cause for alarm, not com­fort. If defend­ing the Con­sti­tu­tion is a vote-​​turning issue for you, Obama obvi­ously ain’t your man.

Sadly, Mitt Rom­ney has shown a propen­sity for play­ing fast and loose with the Con­sti­tu­tion. That should come as no surprise—he learned con­sti­tu­tional prin­ci­ples from the same Har­vard law fac­ulty that taught Obama and Clin­ton. When Rom­ney breaks out con­sti­tu­tional “prin­ci­ples” (if they can be called such), it’s a polit­i­cal ploy, not a philo­soph­i­cal argu­ment. He knows that con­ser­v­a­tives and Tea Partiers respect the Con­sti­tu­tion, so he throws the term around loosely to gar­ner sup­port, even if his argu­ments don’t with­stand even casual scrutiny.

For exam­ple, con­sider his state­ments regard­ing Oba­maCare and its fore­bear, Rom­n­ey­Care. Rom­ney has said again and again that Rom­n­ey­Care is “right for Mass­a­chu­setts,” and that Oba­maCare is uncon­sti­tu­tional. (When Rom­ney men­tions the Con­sti­tu­tion, the hairs on the back of your neck should stand on end.)

So, let’s take a look at Romney’s con­sti­tu­tional claim. Oba­maCare could be uncon­sti­tu­tional while Rom­n­ey­Care is con­sti­tu­tional for two main rea­sons: a) the fed­eral man­date is uncon­sti­tu­tional, but the state man­date suf­fers no such infir­mity, or b) prin­ci­ples of fed­er­al­ism dic­tate that health care is a state issue, and Con­gress lacks author­ity under Arti­cle I to imple­ment a national health care plan.

Look­ing at the first, states undoubt­edly have more author­ity under their gen­eral police pow­ers than Con­gress. So the idea that a state can force you to pur­chase health insur­ance where the fed­eral gov­ern­ment can­not is plau­si­ble—if you are will­ing to accept that a state’s police pow­ers are broad enough to force you to eat broc­coli. (That’s the usual anal­ogy for the man­date.) I do not accept that propo­si­tion, and if I were a judge I would strike down the Rom­n­ey­Care man­date as quickly as ObamaCare’s.

The sec­ond pos­si­bil­ity is even more trou­bling. If health care is an area of exclu­sive state con­trol (the fed­er­al­ist defense of Rom­ney Care), aren’t Medicare and Med­ic­aid also uncon­sti­tu­tional? Is Rom­ney propos­ing to divest these pro­grams to the states as well? Or would he allow these uncon­sti­tu­tional pro­grams to stand because “advis­abil­ity” trumps the Constitution—just as with Social Security?

Rom­ney plays fast and loose with the Con­sti­tu­tion just like Obama and his pre­de­ces­sors. If elected he will be the fourth straight Har­vard grad in the White House to do so. (George H.W. Bush was a Yale grad—even worse.)

In com­ing weeks as I go through all of Gary Johnson’s main plat­form planks you will see that the Con­sti­tu­tion is a recur­ring theme in his polit­i­cal think­ing. The same can­not be said for the other can­di­dates. But, given that the duty to pre­serve, pro­tect, and defend the Con­sti­tu­tion is job num­ber one for a pres­i­dent, this fact alone makes Gary John­son the only can­di­date in the three-​​horse race who is qual­i­fied for the office. The other two deserve our ridicule, not our votes.

This arti­cle is also pub­lished at Polit­i­cal Real­i­ties.