Jennifer Bradley and Doug Kendall: At long last, Democrats are finally trying to reclaim the Constitution.
[Jennifer Bradley is an attorney at Community Rights Counsel, a public interest law firm that promotes constitutional principles, and Doug Kendall is its founder and executive director.]
Is the Constitution a partisan, Republican document? GOP candidates sure seem to think so--they have been relentless in asserting that they would "follow the Constitution" in pursuing goals from overturning Roe v. Wade (Mitt Romney) to restoring the gold standard (Ron Paul). And for decades, conservative judges such as Robert Bork and Antonin Scalia have been backing these claims up, advocating for a version of constitutional "originalism" that lines up quite nicely with the Republican platform. This rhetorical onslaught seems even to have convinced Democrats, who have been skittish and uneasy about embracing the Constitution.
But the Republican hammerlock on the document was weakened in three minutes in Iowa on December 13, three minutes that could change constitutional debate in America. Spurred by the tremendous unpopularity and dubious legality of the Bush Administration's efforts to enhance its own power at the expense of both Congress and individual rights, the Democratic presidential candidates made an explicit promise to America: In their first year in office, they will give the United States its Constitution back....
... Liberals need to stop reading the right's talking points and start reading the Constitution's text and history. They'll generally like what they find.
The Reconstruction Amendments, for example, passed between 1865 and 1870, gave our nation what Lincoln promised at Gettysburg: a new birth of freedom. These Amendments ended slavery, expanded the franchise, and broadly protected civil and human rights. Today, the 14th Amendment's Citizenship Clause, which makes everyone born here (including the children of illegal aliens) a citizen, is just as useful in responding to the nativist views of Tancredo Republicans as other portions of the Amendment have been in the past in establishing equal rights for women and racial minorities.
Many Republicans still refuse to fully recognize the sweeping changes to our founding document ratified after the Civil War. Historian Garry Wills put it best in his Pulitzer Prize-winning book Lincoln at Gettysburg, "Edwin Meese and other 'original intent' conservatives ... want to go back before the Civil War amendments (particularly the Fourteenth) to the original founders. Their job would be comparatively easy if they did not have to work against the values created by the Gettysburg Address."
And it's not just the Civil War Amendments that Republicans get wrong. It is remarkable how many of their claims about the Constitution have withered once constitutional historians have had a chance to subject them to close scrutiny. To give just one example, the property rights movement has sputtered out in court now that its claims about the original meaning of the Fifth Amendment's Takings Clause have been vitiated by historical research. So-called "originalists" argued that workaday land use and environmental regulations were "takings," requiring government compensation. But, in fact, when the Constitution says "nor shall private property be taken for public use, without just compensation," it means actually taken, that is, expropriated.
With the GOP's constitutional misreadings now evident, Democratic candidates have a golden opportunity not just to criticize Bush for his extravagant views of executive power, but also to completely reclaim the high ground of fidelity to the nation's founding document. Having hit their rhetorical stride in three minutes in Iowa, the Democrats need to take the Constitution and run with it.
Read entire article at New Republic
Is the Constitution a partisan, Republican document? GOP candidates sure seem to think so--they have been relentless in asserting that they would "follow the Constitution" in pursuing goals from overturning Roe v. Wade (Mitt Romney) to restoring the gold standard (Ron Paul). And for decades, conservative judges such as Robert Bork and Antonin Scalia have been backing these claims up, advocating for a version of constitutional "originalism" that lines up quite nicely with the Republican platform. This rhetorical onslaught seems even to have convinced Democrats, who have been skittish and uneasy about embracing the Constitution.
But the Republican hammerlock on the document was weakened in three minutes in Iowa on December 13, three minutes that could change constitutional debate in America. Spurred by the tremendous unpopularity and dubious legality of the Bush Administration's efforts to enhance its own power at the expense of both Congress and individual rights, the Democratic presidential candidates made an explicit promise to America: In their first year in office, they will give the United States its Constitution back....
... Liberals need to stop reading the right's talking points and start reading the Constitution's text and history. They'll generally like what they find.
The Reconstruction Amendments, for example, passed between 1865 and 1870, gave our nation what Lincoln promised at Gettysburg: a new birth of freedom. These Amendments ended slavery, expanded the franchise, and broadly protected civil and human rights. Today, the 14th Amendment's Citizenship Clause, which makes everyone born here (including the children of illegal aliens) a citizen, is just as useful in responding to the nativist views of Tancredo Republicans as other portions of the Amendment have been in the past in establishing equal rights for women and racial minorities.
Many Republicans still refuse to fully recognize the sweeping changes to our founding document ratified after the Civil War. Historian Garry Wills put it best in his Pulitzer Prize-winning book Lincoln at Gettysburg, "Edwin Meese and other 'original intent' conservatives ... want to go back before the Civil War amendments (particularly the Fourteenth) to the original founders. Their job would be comparatively easy if they did not have to work against the values created by the Gettysburg Address."
And it's not just the Civil War Amendments that Republicans get wrong. It is remarkable how many of their claims about the Constitution have withered once constitutional historians have had a chance to subject them to close scrutiny. To give just one example, the property rights movement has sputtered out in court now that its claims about the original meaning of the Fifth Amendment's Takings Clause have been vitiated by historical research. So-called "originalists" argued that workaday land use and environmental regulations were "takings," requiring government compensation. But, in fact, when the Constitution says "nor shall private property be taken for public use, without just compensation," it means actually taken, that is, expropriated.
With the GOP's constitutional misreadings now evident, Democratic candidates have a golden opportunity not just to criticize Bush for his extravagant views of executive power, but also to completely reclaim the high ground of fidelity to the nation's founding document. Having hit their rhetorical stride in three minutes in Iowa, the Democrats need to take the Constitution and run with it.