At the Republican debate on Wednesday night, some 228 years after the Founding Fathers made the Constitution the supreme law of the land, candidates vying to be the next president of the United States appeared to be little shaky on their knowledge of civics and American history.
The candidates took the stage just hours before the start of Constitution Day and Citizenship Day — two national holidays commemorating the signing of the Constitution and the contributions of naturalized citizens — creating some irony in just how much the GOP’s rhetoric has been at odds with core American values and norms.
Rewrites for religious freedom
Though LGBT issues received relatively little air time during Wednesday night’s back-to-back debates, several Republican presidential candidates found time to express support for Kim Davis, the Kentucky clerk jailed for defying a federal order that she issue marriage licenses to same-sex couples. Louisiana Gov. Bobby Jindal, for example, bemoaned the “discrimination” taking place against Christian business owners who want to turn away gay and lesbian customers. Former Florida Gov. Jeb Bush, meanwhile, called for an “accommodation” to allow people like Davis to opt out of their professional duties when doing so conflicts with their religious convictions.
But two candidates — former Arkansas Gov. Mike Huckabee and former Pennsylvania Sen. Rick Santorum — went further than any of their competitors in condemning the recent Supreme Court decision that found state same-sex marriage bans unconstitutional. They were so appalled by the justices’ actions, in fact, that the socially conservative White House hopefuls advocated for all Americans, lawmakers, and even the president to stand up against the high court’s “judicial tyranny” in a way that raises some questions about their understanding of the U.S. Constitution.
Noting that the 5-4 ruling in the landmark case of Obergefell v. Hodges was “very, very divided,” Huckabee accused the justices of redefining marriage “out of thin air.”
“I thought that everybody here passed ninth-grade civics,” said Huckabee. “The courts can’t make law. They can interpret one. They can review one. They can’t implement it. They can’t force it.”
Setting aside the fact that the Obergefell decision was actually decades in the making — as opposed to created out of nothing, as Huckabee suggested — the justices actually did exactly what the former Baptist pastor said was within their powers. They reviewed four states’ same-sex marriage bans — including Kentucky’s — and interpreted those laws to be in conflict with the 14th Amendment’s guarantee to equal protection. They did not “legislate,” as Huckabee accused them of doing, but rather exercised their power under Article Three to review the constitutionality of laws — in this case, same-sex marriage bans.
That the decision was “very, very divided” has no bearing on its legitimacy. Consider, for instance, the controversial rulings in Bush v. Gore, which awarded the presidency to George W. Bush, and Citizens United v. FEC, which blew the lid off campaign finance regulations.
In the earlier “happy hour” debate, Santorum made arguments that were similar to Huckabee's, though he faced more pushback from his rivals onstage.
“We need a president who's going to fight a court that is abusive, that has superseded their authority,” said Santorum. “Judicial supremacy is not in the Constitution, and we need a president and a Congress to stand up to a court when it exceeds its constitutional authority.”
“Wow,” responded former New York Gov. George Pataki. “We’re going to have a president who defies the Supreme Court because they don’t agree?”
“I hope so!” said Santorum.
“Wow. We’re going to have a president who defies the Supreme Court because they don’t agree?”'
South Carolina Sen. Lindsey Graham similarly cast doubt on Santorum’s constitutional know-how.
“I wasn’t the best law student,” joked Graham. “But on the first day in law school — it's called Marbury v. Madison. The group in our constitutional democracy that interprets the Constitution as to what it means is the Supreme Court. In a 5-4 decision by the Supreme Court, they have ruled that same-sex marriage bans at the state level violate the 14th Amendment to the United States Constitution equal protection clause.”
“I don't agree with it,” he continued, “but that is the law of the land.”
Later, in a post-debate conversation with MSNBC’s Chris Matthews, Santorum elaborated on his understanding of judicial review, citing the Dred Scott decision as evidence that the courts can “get it wrong” every now and again. It wasn’t the first time Santorum has brought up the 1857 ruling that denied African-Americans any protection under the Constitution. (Huckabee has also referenced that decision, which is regarded as one of the worst in American history.) But repetition doesn’t make the argument any more true.
In Santorum’s mind, Davis’ actions were similar to President Abraham Lincoln’s signing of the Emancipation Proclamation six years after Dred — that is, both were courageous acts of defiance. However, as Todd Brewster recently pointed out in The Daily Beast, Lincoln did not write the Emancipation Proclamation in contradiction to Dred, but rather rooted it — rather ironically — in the Supreme Court’s logic.
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“Slaves, as Chief Justice Roger Taney had reinforced in his opinion in Dred, were property and the act of freeing them was, in effect, a ‘taking,’ barred by the Fifth Amendment,” wrote Brewster. “Rather than challenge that, Lincoln decided to go ahead and treat the slaves as property, for once he did, surmised Lincoln, he could, in his power as Commander-in-Chief, free them as an act of war.”
Two years after Lincoln signed the Emancipation Proclamation, Congress passed the 13th Amendment, establishing a new law of the land that abolished slavery. Should either Santorum or Huckabee be elected president, they’d be more than welcome to go down a similar path. Though given the fact that Congress could not pass a constitutional amendment banning same-sex nuptials at the height of "traditional marriage" fervor more than a decade ago, it seems unlikely lawmakers would be able to do so now, when a majority of Americans believe gay and lesbian couples should be able to wed.
Line edits on birthright citizenship
Candidates on Wednesday night continued to dig their heels in with assertions that the Constitution could be re-interpreted on the issue of birthright citizenship without requiring a full constitutional amendment. Far-right elements of the Republican party that have perennially tried and failed to pass legislation to “clarify” the Constitution — arguing that the language is outdated and was not intended to include the children of undocumented immigrants.
“It can be corrected with an act of Congress — probably doesn't even need that,” GOP front-runner Donald Trump asserted.
“The original author ... of the 14th Amendment said on the Senate floor that this was applying to slaves, and did not specifically apply to others,” Kentucky Sen. Rand Paul said.
But what’s more likely, as Carly Fiorina pointed out Wednesday night, is that the quest to end birthright citizenship would be a long and arduous process, requiring a full constitutional amendment, two-thirds support from Congress and three-fourths of state legislatures — in short, a near-impossible political feat to accomplish.
“The truth is, you can't just wave your hands and say ‘the 14th Amendment is gonna go away,’” Fiorina said.
The recent sudden interest in birthright citizenship started out with just two small lines buried in the middle of Trump’s immigration proposal that claimed even Senate Minority Leader Harry Reid thought automatic citizenship rights were a bad idea. (Reid later abandoned the issue entirely.)
From there, the issue has billowed into a major campaign issue, seemingly landing very close to becoming an official party platform. It’s dredging up old dog whistles condemning “anchor babies,” a term critics see as racially coded to denigrate immigrants.
“A woman gets pregnant. She's nine months, she walks across the border, she has the baby in the United States, and we take care of the baby for 85 years,” Trump continued.
“There are people buying tourist visas that go to resorts with maternity wards with the expressed purpose of having a children here in America,” Graham said. “That to me is bastardizing citizenship.”
Others kept the criticisms rolling, demanding that English be a prerequisite for all newcomer immigrants. “Immigration without assimilation is invasion,” Louisiana Gov. Bobby Jindal declared. “We need to insist the people who come here come here legally learn English, adopt our values, roll up their sleeves and get to work.”
“We have to have assimilation to have a country. This is a country where we speak English, not Spanish,” Trump said.
But in reality, the language gap is hardly as large as the candidates make it out to be. The Pew Research Center found that a record 68% of Hispanics in the U.S. ages 5 and older speak English proficiently. The share of Latinos with English proficiently jumps to 89% for those born in the U.S., in large part because more Latino families speak English at home.