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November 7th, 2010

Constitutionally Literate 2012 Hopefuls

By Nathan Tucker
Now that the 2010 midterm elections are behind us, the attention will be shifting to the field of potential candidates to be the Republican nominee to unseat President Obama in 2012.  As these hopefuls begin their “exploratory” campaigns in earnest and make Iowa and New Hampshire their second homes, their knowledge of the Constitution will become far more prominent than it has been in recent decades.

It used to be that the only questions a presidential hopeful received about the Constitution were in the context of social issues such as abortion, federal money for religious schools and charities, and homosexual marriage.  As presidential contenders were busy telling voters how wonderful their proposed government programs were, they never once had to worry about being asked whether the Constitution authorized such federal action.

In fact, in the not so distant past such questions would have been laughed at by all but a few judges and law professors.  In the Tea Party Era, however, people are not only carrying copies of the Constitution in their pockets, but are actually reading and studying them.  And in so doing, they’ve realized, likely for the first time, that the federal government provided for in the Constitution is not the federal government we have today.

There are several questions, therefore, that these voters will expect these 2012 presidential hopefuls to be able to answer.  The first and most basic question is whether they believe that the Constitution established a federal government of limited, enumerated powers.  Most of them will likely be able to answer this in the affirmative without too much difficulty.

But it is one thing to agree with that statement, it is another thing entirely to put that general truism into practice.  For instance, these 2012 presidential contenders should be expected to explain what things they believe the Constitution does not allow them to regulate.   Their answer should be more than simply stating that the individual mandate of ObamaCare is unconstitutional.  They need to explain what other restraints, if any, they believe the Constitution imposes on them.

Third, these candidates should be expected to be able to name for voters the powers given to Congress.  For their convenience, these enumerated grants have been paraphrased into the following fourteen powers:

  1. Borrow money.
  2. Regulate foreign and interstate trade.
  3. Regulate naturalization.
  4. Create national bankruptcy laws.
  5. Regulate currency and punish counterfeiting.
  6. Established the post office and post roads.
  7. Create copyright and patent laws.
  8. Provide for the federal judiciary.
  9. Prosecute piracies.

10.  Declare war and provide for a military.

11.  Govern federal lands.

12.  Regulate the time, place, and manner of casting federal ballots.

13.  Regulate interstate comity laws.

14.  Raise taxes for those purposes.

Fourth, these presidential hopefuls should be expected to be able to explain how their own proposed legislation is constitutional.  This need not be a scholarly exegesis, but they should be able to give a reasonable synopsis of how one of the above fourteen powers authorizes their legislative agenda.  Additionally, they should be able to describe the constitutional deformities, if any, in such legislation as cap and trade and card check supported by their opponents across the aisle.

These questions are aimed to find constitutionally literate presidential candidates who can articulate constitutional principles that, because they make some accommodation for unenumerated federal power, have a chance of being politically viable while simultaneously reestablishing some resemblance of a federal government of limited, specified powers.

The goal should not be the repeal of all unconstitutional federal laws because such an attempt will go no where.  Rather, the focus of these constitutional principles should be the prevention of further unconstitutional legislation by Congress and the repeal of the most egregious acts of the recent past, such as ObamaCare.

This isn’t about taking away grandma’s social security or defunding the Department of Education; it is about stopping future constitutional abuses.  This isn’t about being the party of “No,” but of “Yes, you can…at the state level.”  This isn’t about “radical” ideas, but about protecting freedom by incrementally returning to a constitutionally-mandated decentralized federal government.

Voters in the Tea Party Era are no longer simply looking for conservative leaders, but for constitutionally literate leaders who will fight to renew federalism once again.  Will any of the 2012 presidential hopefuls answer the call?  Will any of them go beyond mere lip service to the Constitution to actual fidelity?  Sadly, they won’t unless We the People continue to persistently hold them accountable by demanding they take this constitutional literacy test.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at nathanwt@juno.com.




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