Constitution Week is scheduled for Sept. 17-23, celebrating the magnificent document that established our government and the basic freedoms it protects. Based on recent headlines, including talk of a “constitutional crisis” and a Supreme Court nomination hearing, we couldn’t wait a week to discuss its steadying influence when we need it most.
This nation was built not on the notion of race, religion or other identifying quality but on shared ideals of liberty, equal opportunity and the rule of law, expressed in 4,543 words written in the late 18th century that still guide us on that path. Yet in recent news stories, we see that even some elected to high office don’t fully understand the Constitution or how it works.
To wit: Senate hearings for Supreme Court nominee Brett Kavanaugh last week have played out according to a well-choreographed political dance: Republicans defend Kavanaugh as a skilled jurist; Democrats criticize his past rulings or his lack of clarity in how he will rule on key issues such as abortion. Those roles would clearly be reversed for a nominee by a Democratic president.
Judicial candidates often are measured for their views on particular issues, though ruling on the benefits of any laws or their intended effect is not their duty. Judges are to be objective arbiters applying matters of law, not amending them to meet popular approval.
Judges in jury trials don’t rule on guilt or innocence, but guide proceedings fairly within the law. Similarly, referees in a ballgame don’t act to create a desired outcome; they apply the rules as written.
Kavanaugh has been slammed by foes for not supporting the rights of women or workers. As judge, he’s not supposed to support anything but the Constitution and the law; if the laws being interpreted don’t provide the desired protections, that falls to legislators to fix, and voters to pick those who will do so. To pin Kavanaugh or any other nominee down to decide a hypothetical case is pointless.
The court often is said to “swing” left and right, and it often follows those directions. But not always. Chief Justice John Roberts twice voted to support the legality of the Affordable Care Act, not because he believed in its effectiveness, just that it passed legal muster. Similarly, some “liberal” justices sided with the majority in the case of the Colorado baker refusing to serve a same-sex couple, their vote based not on their beliefs on the topic but how the case was adjudicated.
Kavanaugh, when confirmed, will replaced retiring Anthony Kennedy, a so-called “swing” vote who didn’t follow predictable left-right rulings. Ideally, every justice should “swing” to apply only the law, not their own views and prejudices. If Kavanaugh or any nominee can occupy that high ground, they have earned their robe.
During the hearings, we saw another constitutional protection on display. Protesters interrupted the proceedings regularly by shouting opposition to Kavanaugh before being escorted out of the chamber. Though we question what they hope to accomplish, their actions fall within First Amendment rights. The Capitol is the people’s house, and silencing dissent, however disruptive and pointless it may appear, is not the practice of a free democracy.
An even more inflammatory recent news story involves publication of an anonymous op-ed piece in the New York Times from a White House insider describing President Donald Trump’s leadership style and perceived shortcomings. Its appearance and reaction to it raise several constitutional questions.
The first is easy: Of course the Times has the right to print it. There are no legal limits to what can be published unless malice libel can be proven in court.
The bigger question was raised by the mystery writer who claims a cabal of administration officials have acted to divert the president’s agenda at times, even discussing if the 25th Amendment should be invoked to remove him from office. This is a serious concern that meets the description of a “constitutional crisis” if it were to play out that way.
The 25th, ratified in 1967, spells out details of presidential succession. One section indicates that if the vice president and a majority of the “principal officers” of the executive branch indicate to Congress the president is unable to discharge his duties, he could be removed from office. This usually would come into play if a president were incapacitated by illness or injury and unable to step down by his or her own decision, as indicated in the amendment.
But the idea of Cabinet officials overturning an election’s outcome because the president is deemed “impulsive” and “reckless” seems arbitrary. Coup d’etats occur more often in undeveloped countries, but this nation must stand on its electoral results, short of a president committing “crimes and misdemeanors” leading to impeachment by Congress or an obvious physical or mental illness. It’s not within the power of unelected bureaucrats to take executive duties into their own hands simply because they don’t like decisions being made and directions taken, however gallant their intentions may seem to many.
True, Trump seems unaware of limits on his own powers. In the aftermath of the op-ed, he ranted about “treason,” which this was not; urged members of Congress to change libel laws, which are set at the state level, not federal; and suggested the Justice Department should investigate the matter over concerns of “national security,” though no laws have been broken.
Such invective gives credence to concerns he doesn’t fully understand the workings of the government he helps lead. But misinformed comments don’t meet the standard of “crimes or misdemeanors.” Trump was duly elected, and until American voters or Congressional prosecution decide otherwise, his staff should perform their assigned duties and not seek to overthrow a president.
This week, we will have another reminder how the Constitution protects us in times of turmoil. After the Sept. 11, 2001, attacks, 17 years ago Tuesday, the nation’s bedrock ideals were on full display. Terrorists killed more than 3,000 people with hijacked airplanes, yet they couldn’t put a dent in the democratic principles that threaten their single-minded fascism. The Constitution remains our greatest standard against those who find freedom too messy and threatening, both inside and outside of U.S. borders.
In a time of political upheaval, knowing the Constitution still hums along as our saving grace is a calming influence. We will survive chaos in the short term knowing our Founders’ framework will do so for generations to come.