The first act of an incoming president is to "solemnly swear (or affirm)" that he will "preserve, protect, and defend the Constitution of the United States." In judging prospective candidates for the presidency, it is therefore important to examine whether they interpret the Constitution properly. To help voters with this determination, Policy Review asked the following question of the principal presidential candidates still running as of November 1995: "Which parts of the Constitution are commonly misinterpreted or underappreciated, and therefore deserve more emphasis in political discourse?" We publish responses from Senators Bob Dole, Phil Gramm, and Dick Lugar; Governor Lamar Alexander, and Representative Robert Dornan. (President Bill Clinton, Patrick Buchanan, Steve Forbes, and Alan Keyes were invited to participate but did not respond by our deadline.)
Perhaps no provision of the Constitution is more misunderstood today than the First Amendment as it applies to religion.
The most basic misunderstanding is that the Establishment Clause of the First Amendment demands that any reference to religion must be absolutely cleansed from our schools and other public institutions. A second misunderstanding is that anyone who wants our public institutions to show more respect for the religious faith of the American people is really plotting to impose a particular religious viewpoint on those with different beliefs.
A good part of the blame for this confusion lies with the Supreme Court of the United States. Years ago, the Court cast aside the original meaning of the First Amendment's Establishment Clause, which forbids the establishment of an official state religion or policies favoring one religion over another. In its place, the Court has erected a variety of confusing formulas -- the Lemon test, the endorsement test, and others -- that invoke the Constitution to support the proposition that religion must be purged from public life. Using such tests, the Supreme Court has banned the display of the Ten Commandments in any public school, even for educational purposes.
Unfortunately, misguided school administrators and teachers in some areas of the country have also wrongly embraced the idea that all references to religion in school settings are unconstitutional. Among the results of this misreading of the First Amendment:
- Teachers have been disciplined for wearing a cross as personal jewelry and for reading their own Bible during break periods.
- Two Texas third-graders were prohibited from wearing T-shirts depicting Jesus -- though Power Rangers and Barney were just fine.
- Many communities have banned holiday crèche displays from public buildings and parks, even where they have been set up by private civic groups.
- Some schools have banned religious songs at choir concerts, as well as Christmas carols, and even Christmas trees.
- Students have been told they may not talk about God to classmates, and teachers have rejected religious artwork and reports on "my hero" where the students took the politically incorrect decision to write about Jesus.
In fact, studies by the National Institute of Education, People for the American Way, and Americans United for the Separation of Church and State have all confirmed that references to religion's role in American life and history have been systematically stripped from textbooks and curricula.
A fair reading of the historical record, however, shows that the Establishment Clause of the First Amendment was designed to protect religious liberty, not strip religious expression from all public institutions. As Professor Stephen Carter writes: "[T]he metaphorical separation of church and state originated in an effort to protect religion from the state, not the state from religion. The religion clauses of the First Amendment were crafted to permit maximum freedom to the religious."
After all, it was the first Congress -- which passed the Bill of Rights and sent it for ratification to the states -- that opened each day's session with a prayer led by a chaplain. This practice continues today. And 24 hours after it voted in favor of what is now the First Amendment, the Congress considered a resolution proclaiming a national day of thanksgiving. Indeed, if the Supreme Court itself really adhered to the view that the government must divorce itself from religion, then it would not open every one of its sessions with the appeal, "God save the United States and this Honorable Court."
There are some hopeful signs that the confusion surrounding the First Amendment's Establishment Clause is now beginning to clear up. Earlier this year, in a close, 5-to-4 decision, the Supreme Court rejected the argument that a public university can deny funding to a Christian student newspaper while financing student publications generally. It now appears that there are at least five justices who believe that religious expression is entitled to the same constitutional protection as other forms of expression.
To say that our public institutions should accommodate religious speech is not to say that the state should impose official prayers and punish students who do not participate. That's certainly not my position. Nor is it the position of Jay Sekulow, Pat Robertson's counsel at the American Center for Law and Justice, who has said, "We don't want to see a return to the pre-1962 situation, with a teacher leading a class i n prayer."
At the same time, we simply do not accept the view that the Constitution commands that religion be erased from whatever government touches. This view misreads the First Amendment and distorts history.
When considering the most "underappreciated" element of the Constitution, anyone who sees what is going on everyday across this country as I do will respond immediately, "the Fifth Amendment." Well known for its protection against self-incrimination, the Fifth Amendment also contains a clause that protects private property, a building block of the American foundation. The Takings Clause is a quintessential constitutional shield, artfully and specifically rejecting the idea that government officials can seize property without compensation, regardless of what public good they intend to accomplish.
Unfortunately, we are facing a threat to the right to own property that our Founding Fathers could never have imagined. In America in 1995, two consenting adults can engage in any kind of consensual behavior with total constitutional protection -- except owning private property and engaging in commerce and business. Over and over again -- every day all across America -- people are having their private property taken without compensation -- by way of the Endangered Species Act, wetlands regulation, and a host of other "regulatory takings." Property values are being reduced and land is effectively being taken to promote objectives that society considers good, but for which society refuses to pay. In fact, we have a president today whose interior secretary has suggested that private property may even be outdated in the modern world!
If government takes your property or restricts its use, you should be compensated. On this issue there can be no compromise. Private property is the foundation of our freedom, and I will defend it as vigorously as the freedom of speech and freedom of religion. As president, I will work hard to protect private-property rights and to bring the Fifth Amendment back into the family of the Bill of Rights on behalf of the people who own property, till the soil, and produce the goods and services in our country.
The most pressing constitutional issue facing our nation, however, involves a matter not actually enshrined in that great document. I am referring to the need for a Balanced Budget Amendment. I introduced a Balanced Budget Amendment to the Constitution on my first day in Congress and have worked hard to pass it ever since. But, as surprising as it may be to some of my colleagues, this debate did not begin with my tenure in Congress.
Through the course of American history, we have amended our Constitution 27 times, but haven't yet had the political will to fix the only thing Thomas Jefferson found wrong with the document. Jefferson was this country's Minister to France during the writing of the Constitution, and when he was first shown the document, he had a proposal for one change. In a subsequent letter to John Taylor, Jefferson recorded that proposal:
"I wish it were possible to obtain a single amendment to our Constitution. I would be willing to depend on that alone for the reduction of the administration of our government to the genuine principles of its Constitution. I mean an additional article taking from the government the power of borrowing."
So the present controversy is not just a debate over a balanced budget amendment, but a debate on the Jefferson amendment. It is also a debate about the future of America and a potential seed of its destruction. We need a contract between the government and the people that binds Congress with a chain that cannot be broken. The genius of the Const itution is that it rules out of bounds actions that the people have determined that they do not want Congress to take. Read the first words from the Bill of Rights in our Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances."
The American people were clear about the grievances they wanted redressed in November 1994. In the most decisive election since 1932, the people said to their government, "Stop the taxing. Stop the spending. Stop the regulating." To do that, they supported the Contract With America, a key element of which is a balanced budget amendment. But we haven't given the people what they want yet. We have not fulfilled a promise we made.
The Constitution was written because people did not trust the government. With Congress's failure to honor its promises, act responsibly, and be accountable for its actions, there is much for the people not to trust.
Virtually every clause in the Constitution has been used -- even tortured -- to justify a variety of causes. What deserves more emphasis in political discourse, however, is the spirit of what the Constitution set out to do generally: to assign to the federal government specific tasks and the powers to carry them out, and to reserve all else to the states or the people. This intent is most clearly articulated in the Ninth and Tenth Amendments of the Constitution.
The aim of the Constitution's Framers was clear enough: to create a strong, but limited, national government. Having first decided to omit a list of specific limits (or "negatives," as the Framers called them) on the national government's authority, the Framers then agreed in principle to accept them as the first amendments to the new Constitution. The first eight amendments impose specific limits on the power of government, both at the national and state levels. All serve the same end: restricting the scope and power of government. Lest there be any ambiguity, the Ninth Amendment makes clear the presumption that rights belong to the people: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." And the Tenth Amendment makes clear the boundaries that this places on the national government: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
In a way, it might be said that these provisions were not so much "amendments" to the Constitution -- in the sense of replacing existing provisions or adding new features -- as clarifications of the Constitution's underlying intent. The Framers were no libertarians; they set out to create a strong national government with powers sufficiently robust to accomplish its functions. This is especially true in the realm of national security, where powers are largely reserved to the national government. That which the federal government should do, the Framers believed, it should do well.
But that which the federal government should not do and cannot do well, it should not do at all. The modern departure from this philosophy is largely responsible for the lack of confidence that Americans now express about their government. As the national government has expanded its reach into virtually every sphere of Americans' lives, it should not be surprising that the volatility of voter preferences and discontent with government have increased. The passions of individuals and groups are inflamed on all sides of issues that are not properly within the sphere of the federal government.
Take the recent debate over funding formulas and federal "strings" on welfare block grants. It is well and good that states and localities should administer their own social welfare programs. They are closer to the people and, on the whole, they will do a better job than the federal government. This is surely consistent with the intent of the Framers.
But why should the federal government be the tax collector for the states' programs? Why, for example, should citizens of Iowa or New Hampshire or any other state send their money to Washington, only to have it returned -- after bitter fights over allocation formulas and conditions—to run their own programs? Wouldn't it make more sense for states to raise the funds to pay for the programs they establish?
In this regard, I have proposed to eliminate the federal income tax (and the 16th Amendment, which makes it possible) and replace it with a national sales tax collected by the states. National and state sales taxes can coexist perfectly well and, after a brief time, are likely to come into conformity with one another. Once this occurs, the federal government could reduce its sales tax, and allow the states to raise the funds for their own programs. Gone would be monetary transfers to Washington; gone would be formula fights; and gone would be federal strings. And limited federal government would be here to stay.
The Ninth and Tenth Amendments to the Constitution offer much needed guidance. If we were to ask whether each new proposed program, as well as many existing programs, represent legitimate tasks of the federal government, our answer would often be "no," and we could start to fashion a more efficient federal government. We would also discover that properly limiting federal government would raise its public standing commensurately.
In speaking of the amendment process, James Madison says in The Federalist No.49, "As every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in great measure, deprive the government of that veneration which time bestows on everything." A society that appeals to its national government to attend to all things -- including those for which it is not suited -- will find that that same government loses the veneration of the people in political discourse. That cannot be the goal of true friends of limited government.
One section of our Constitution distinguishes the United States from virtually all other countries: Article II, the description of the role and powers of the president. The president is the only figure in our government whose oath of office is actually written in the Constitution. He is the only person who is elected by and represents all of the people. Yet, today, it is the president whose power and authority is most in decline.
The reasons for the decline are obvious. Even at the outset of his administration, when Bill Clinton's own party controlled both Houses of Congress, nearly all his actions undermined the strength of the presidency. He has retreated from campaign promises (the middle-class tax cut, a balanced budget), sown disaffection among his own supporters (gays in the military, health-care reform), dragged the White House into embarrassing scandals (Travelgate, Whitewater), and zigged and zagged on foreign policy (Somalia, Haiti, Bosnia).
But the presidency has also suffered from the rise of the legislative branch, especially since the elections of November 1994. This development is unusual. While the Congress has often had energetic leaders, it is rare in the modern era to see the national agenda set by the legislative branch rather than the executive.
Setting the national agenda may be the single most important function of a president. A strong president is someone who can focus on the two or three most urgent needs facing our country, develop a strategy to deal with them, and then convince at least half the country he's right. President Carter, by contrast, tried to involve himself in virtually every policy matter. President Clinton has done the same. The result has been an unfocused, and consequently weak, presidency. I am convinced that much of Ronald Reagan's effectiveness as president came from having three clear goals -- lower taxes, less government, and strong defense -- and spending all eight years of his presidency pursuing them.
A careful reading of the Constitution shows that Article II provides the president with the tools to set the national agenda. He is the commander in chief and he is responsible for the conduct of the nation's foreign affairs. He can pick his own cabinet and appoint the chief officers of the government. He can select candidates for the federal bench. Through the careful use of the veto, he can reject whatever competing ideas the Congress tries to impose on the nation. All of these instruments of executive power can make for a strong president who helps chart the nation's course.
Again, President Clinton provides us with the best example of how the misuse of these powers leads to a weak executive. President Clinton's role as both commander-in-chief and the executive responsible for the conduct of foreign policy has done nothing to persuade America that there is a steady hand on the tiller. The result has been a Congress all-too-eager to usurp the president's prerogative in making foreign policy, whether it is in trade matters or the deployment of troops in Bosnia. A strong executive, as the Constitution implies, must make foreign policy, and resist congressional encroachments.
Our current situation is often ascribed to President Clinton's "inexperience" in foreign policy matters. Of course, it is not unusual for a president to arrive at the White House without a detailed knowledge of foreign affairs. But it is alarming to have a president who apparently doesn't know anyone else who does. Here we see President Clinton's ineffectual use of the power of appointment. The bureaucratic in-fighting among the State Department, Pentagon, and National Security Council personnel at the start of the Clinton presidency was a sign of the chief executive's inability to put together a first-class team that could work together. Joycelyn Elders and the series of bungled nominations at the Justice Department further eroded our confidence in the president's judgment. More recently, President Clinton's threats to veto a balanced budget amendment and the Republican Medicare plan seemed like pure political posturing rather than prudent use of executive power. These actions weakened both the president and the office of the presidency.
To be sure, there are many other aspects of our Constitution that receive too little notice: the Ninth and Tenth Amendments; the 22nd Amendment that created term limits for the president (the precedent for Congressional term limits); and the two alcohol amendments that tried to impose national legislation where local ordinances had proven more effective.
But today we are on the brink of electing the first president of the next century. It would be worthwhile for all students of the Constitution -- not to mention all candidates for president -- to reexamine Article II. Used the way our Founders intended, Article II will help a strong, agenda-setting president committed to a limited central government achieve his goals.
James Madison wrote that if "the sense in which the Constitution was accepted and ratified by the Nation . . . be not the guide in expounding it, there can be no security for a consistent and stable [government], more than for a faithful exercise of its powers." I couldn't agree more.
Seventy years of liberal activism, defined as opposing Madison's sentiment, have undone the original intent of the Framers. But no single point of judicial activism has done more harm to our nation than the doctrine of "incorporation" in the Fourteenth Amendment of the Bill of Rights. In one fell swoop, the majesty and wisdom of the Tenth Amendment -- not to mention every doctrine of liberty upon which this nation of states was founded -- came crashing down.
Our national penitence for the gross and evil sin of slavery has taken its toll on our every public institution. We fought a civil war, the bloodiest of all American wars, in large part to shed the physical chains of slavery protected by states' rights. We could have used surgically precise remedies to eventually bring closure to this historic tragedy without savaging the very liberties we insisted we were defending; instead we ignored the wisdom of our Founding Fathers and attempted a solution -- government by judiciary -- that fell way off the mark. In our earnest attempt to stop injustice from hiding behind the shield of states' rights, we threw the baby out with the bathwater. And, politics and power being what they are, "absorption" gave way to "incorporation."
Government by judiciary is perhaps the severest price our nation has paid for slavery. Through "incorporation" in the Fourteenth Amendment, the voice of the people (Congress and state and local governments) is patronized by "benevolent" judges, manipulated by strident ideologues, and mortgaged for generations by monied special interests. If the courts are, for all practical purposes, a "continuous constitutional convention," then how does our democracy differ from past oligarchies?
It is no small irony that this abrogation of federalism, our ultimate response to slavery, has brought on the second crushing evil to beset our nation: abortion. Only a judiciary that felt it had free rein to invoke "penumbras" within our Constitution could be so sick with power as to legalize mass extermination of our most innocent and defenseless citizens, our pre-born. Millions of pre-born children have been cruelly and brutally slaughtered -- a toll more horrific than any other holocaust -- because a simple majority of only nine men, ruling on behalf of 50 separate state constitutions, held that the Constitution, somewhere and somehow, contains a paramount right to privacy . . . and that "incorporation" dictates that this "penumbra" apply to the states.
Every great social question in which the U.S. Supreme Court has weighed its opinion is the spawn of incorporation. Again, by what force of irony have our earnest attempts to rectify the problem of slavery ultimately given birth, not only to an even greater national sin in abortion but to a brood of contentious national issues that federalism was designed to pacify?
Consider, for instance, the charged issue of prayer in public schools. Any person with half a brain recognizes the insurmountable social problem of maintaining one collective way of publicly expressing our national adherence to the benevolent hand of God. And yet, precisely in response to public prayer -- contention that is completely natural and expected -- a simple majority of only nine unelected rulers told all of us that because one collective way of public prayer is not compatible with national cohesion, then no public prayer will be allowed. The doctrine of incorporation gives the Court this prerogative to rule in this manner.
Every thinking American schooled in our national heritage -- all except a majority of the robed nine -- knows the intrinsic secular benefit from publicly acknowledging our Creator. Allowing and even encouraging public-school children to formally and vocally acknowledge their Creator impresses upon each of them a fundamental doctrine of Americanism -- that inalienable rights come from a Creator and not from man.
Hence, these rights cannot be justifiably taken from them by men and their governments. How else can we more effectively impress this powerful message on the minds of rising generations? Incorporation states that we need not even try.