Let’s make America great again, you say? We’d settle for making the Constitution great again. That’s been a goal of Republicans for years, and it’s a worthy one. It is essential, in fact, to making America great again.
Let us therefore express our disappointment that the Constitution was so little discussed by the major speakers at the Republican National Convention.
Sen. Jeff Sessions, a member of the Judiciary Committee, said nothing about it. Nor did Rudy Giuliani, a former U.S. attorney. Somehow Wisconsin governor Scott Walker, California congressman Kevin McCarthy, Iowa senator Joni Ernst, and Arkansas senator Tom Cotton all managed to take the stage and leave it without mentioning the Constitution.
Majority leader Mitch McConnell broke the constitutional silence with this: “Let us put justices on the Supreme Court who cherish our Constitution.” A Democrat could have said that.
Tennessee representative Marsha Blackman spoke of “the men and women who give their lives and their sacred honor to protect [the] Constitution.” Obviously a good thing.
Florida senator Marco Rubio did endorse “constitutionalist judges, who will respect the proper role of the judiciary.” Rubio failed to say that role is a limited one—that limitation being the reason Alexander Hamilton described the courts as the “least dangerous” branch of government. But at least Rubio was making an issue of the Constitution, saying that unlike Barack Obama and Hillary Clinton, Donald Trump is committed to appointing constitutionalist judges. Trump has said that.
Speaker of the House Paul Ryan made the most pointed case for constitutionalism, criticizing Obama and the Democrats, for whom “constitutional limits [are] brushed off as nothing.”
Ryan gets an A for stating plainly that Democrats appoint judges who make the law up as they go along and that they treat the Constitution itself as though it were a blanket writ to regulate every aspect of our lives.
Lost in the controversy over Ted Cruz’s nonendorsement of Trump was the solid argument he made for Supreme Court justices who “don’t dictate policy but instead follow the Constitution.”
But the best case for constitutionalism as an issue in this campaign came from vice presidential nominee Mike Pence. “It seems like no aspect of our lives is too small for the present administration to supervise,” he said, “and no provision of the Constitution is too large for them to ignore.” None too small, none too large: a compelling formulation.
While “we are filling the presidency for the next 4 years, this election will define the Supreme Court for the next 40,” Pence warned. “Elect Hillary Clinton and you better get used to being subject to unelected judges, using unaccountable power to take unconstitutional actions.”
Newt Gingrich said the only major-party presidential nominee who will uphold the Constitution is Trump. Which brings us to the convention’s final speaker, Trump himself, who said, regarding the Constitution, only this: “We are . . . going to appoint justices to the . . . Supreme Court who will uphold our laws and our Constitution.”
Convention speakers said just enough about the Constitution to remind party activists about the two constitutionalist projects that must be pursued if the Constitution is to be made great again. One project is legalistic, about the proper interpretation of federal law and the Constitution. Judicial selection—the nomination and appointment of conservative judges and justices—is part of this project.
The other constitutionalist project is fundamentally political. It’s about understanding the Constitution, University of Virginia political scientist James Ceaser writes, “as a document that fixes certain ends of government activity, delineates a structure and arrangement of powers, and encourages a certain tone to the operation of the institutions.” It isn’t just for the courts to think about the Constitution, it is up to “political actors” to make “political decisions to protect and promote constitutional goals.”
Politicians need to stop thinking of the Constitution as something to be got round with the help of the courts and start recognizing the Constitution as a fundamental restraint on their own power and ambitions. Thus, a program affecting the states that was once upheld as constitutional in the courts may be abandoned by the elective branches upon their judgment that federal authority is now reaching too far and has created an imbalance of power that needs to be recalibrated for the sake of constitutional liberty.
“Bringing the Constitution back into our politics would,” Ceaser writes, “promote the principle of limits on government.”
In the event Trump wins, we will need a political actor or two of demonstrated commitment to constitutionalism to school Trump on limited government, federalism, and the separation of powers. Pence and Ryan have shown they have what it takes to help make the Constitution great again.
