The Imaginary Constitution and Last Night's Republican Presidential Debate

In 2003 Ron Paul posted a short piece on line charging the federal courts with enforcing an “imaginary constitution.”   An imaginary constitution was very much in evidence during last night’s Republican Presidential Debate in New Hampshire, but the fictive foundational law in question was hardly the same one that Paul once accused “activist” federal judges of visiting on the nation.  Judge-made constitutional law said Paul in 2003, shortly after publication of the Lawrence v. Texas decision, was illegitimate as soon as it departed from the constitutional text and original intent of the founders.   Not only was the constitutionalism behind liberal judicial activism illegitimate in Paul’s eyes, but worse still it was unsavory, in that it lead to results considered distasteful by libertarians and social conservatives.  The obvious and overdue remedy said Paul nearly a decade ago was popular reconsideration of lifetime tenure for federal judges.   He did not stop to mention that tenure upon good behavior for federal judges is expressly and unambiguously guaranteed in Article III Section 1 of the Constitution, and he gave no indication that he had the amending process as opposed to legislation in mind as a prescribed solution to the ills he diagnosed.   Textualism and original intent one must suppose have their limits even for so principled a strict constructionist as Paul, and those limits are discoverable at the boundaries between political outcomes social conservatives find desirable and those they find abhorrent.   But perhaps it is uncharitable for me to suggest hypocrisy. It may well be that Paul has simply never read the Constitution (i.e. the written one as opposed to those imagined into being by dreamers of various stripes).  In any case, whether the cause was failure to abide by principle, ignorance, or an active capacity to fantasize, constitutional imagination figured everywhere in last night’s debate.   Consider the following short and in-exhaustive typology of constitutional orthodoxies proffered by the candidates last night at St. Anselm that depart markedly from the constitutional text ratified by selective groups of long since dead people inhabiting some regions of the current United States in 1787-89, 1789-91, and 1865-68.  I have grouped my observations into three classes, which I call text, tradition, and covenant.   Each of them will form the topic of a Blawg entry.  This entry deals with Text, specifically the Citizenship Clause and the Test Clause.

Former Minnesota Governor Tim Pawlenty lambasted Congress and the activist federal judiciary for recognizing birth-right citizenship for children of illegal immigrants, and touted his record of appointing conservative judges in Minnesota as proof that he was committed to ensuring the federal judiciary would not in future be staffed with liberals unwilling to take the Constitution seriously.  Given the enormous amount of attention directed at nascent movement to amend the Constitution to purge the Citizenship Clause of the Fourteenth Amendment, Pawlenty’s belief that birth-right citizenship is a judicial creation is hard to fathom.   Section 1 clause 1 of the Fourteenth Amendment states “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.”  There are those who argue that the children of non-citizens are not subject to the jurisdiction of the United States and therefore fall outside the Citizenship Clause, but the more natural reading is surely that all persons in the United States except those who enjoy diplomatic immunity are subject to the jurisdiction of the United States, and that their children are therefore entitled to birth right citizenship.  After all, nobody could seriously argue that a person lacking diplomatic immunity who was detained in the United States for a crime allegedly committed in the United States was not subject to the jurisdiction of the United States because his parents were foreigners.  To be sure, Pawlenty may not be out of the mainstream of Republican Party thinking on the question of birth-right citizenship, as the Birth Right Citizenship Act of 2011, currently in committee in the House, purports to eliminate birth-right citizenship for children both of whose parents are illegally in the country, constitutional text notwithstanding.  Whether it would amount to activism or plain meaning textualism for the judiciary to hold this Bill unconstitutional under the Citizenship Clause should it ever become law probably depends more on the intellectual honesty of the observer than nice semantic questions.   One can’t but wonder whether constitutional change as inelegant as the Eleventh Amendment might not offer a slightly (and only slightly) less disingenuous way out for those who wish to deport the children of illegal immigrants and still feign fidelity to the Constitution:  Nothing in the Constitution (such as perhaps the Birth Right Citizenship Clause) shall be construed to confer birth right citizenship on the children of illegal immigrants, or other classes transient legislative majorities may find objectionable, and hence ineligible for constitutional protections cast in otherwise universal terms.

Godfather Pizza magnate Herman Cain, who held out his chief qualification for presidential office as complete lack of political experience, likewise favored using a rubric of cultural purity to establish fitness for civic participation. Where Pawlenty failed to account for the Citizenship Clause of the Fourteenth Amendment in assessing the eligibility of native-born children for continued residence in the United States, Cain chose to consider fitness for political appointment in blissful ignorance of the Test Clause of Article VI, which commands that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”  When moderator John King asked Cain to clarify recent remarks suggesting he would never appoint a Muslim to a cabinet position, neither Cain nor any other candidate on the stage gave any evidence of familiarity with or loyalty to the Test Clause.  Cain appeared to retreat somewhat from the ironclad rule he had earlier described, implying that in some instances it might be possible to survive the additional tier of vetting appropriate when nomination of a Muslim was under consideration.   The two-tiered process for Muslims and no others would be very difficult to reconcile to constitutional Equal Protection principles, a serious constitutional concern that equally escaped all the candidates’ attention.  Then again, for federal as opposed to state action outside the area of appointment to office, it is generally possible for a principled textualist to make a case that Equal Protection is irrelevant, which comes close to what Robert Bork did forty years ago in arguing that Brown v. Board of Education was rightly decided, but Bolling v. Sharpe (requiring desegregation of public schools in Washington D.C.) was not, since the Equal Protection Clause does not by its own terms target the federal government.   The Test Clause however applies squarely to federal appointment, so from a purely textual basis, religion-based exclusion from federal office is on even shakier ground than race-based discrimination in hiring by federal actors.

Last night’s debate was fascinating and engaging, and though constitutional text was celebrated with much fanfare, the particular positions developed by the various candidates discussed above did not evince on an individual or collective level a rock solid commitment to knowing and enforcing constitutional text.  Entries on the role of constitutional tradition and constitutional covenant in yesterday’s debate will follow shortly.