Tuesday, November 6, 2012

What Happened to the Constitution?


Looking  back on the long road to election day, one of the more striking developments was the disappearance of the Constitution as a talking point on the campaign trail.

When the race for the Republican nomination began in earnest in early 2011, we were in the midst of a Tea Party-led constitutional revival tour.  Tea Partiers had placed the Constitution at the center of the 2010 midterm elections.  Candidates regularly carried their pocket Constitutions with them to the lectern, ready to wave and even read when the spirit moved them.  Promises to return the nation to its small-government constitutional foundations—including the repeal of the unconstitutional Affordable Care Act (ACA)—paved the way to victory for many a Republican.  The new Republican-majority House of Representatives began its session with a reading of the Constitution, and Tea Party-favorite Michelle Bachmann launched her much-publicized congressional Constitution study group with a visit from Justice Scalia.

It was little surprise, then, that when the Republican primary got underway, the contenders could not talk enough of the Constitution, particular when the discussion turned to the ACA.  Mitt Romney talked about the Tenth Amendment in trying to explain his support for the individual mandate provision of the Massachusetts health care law while opposing the mandate on the federal level.  Bachmann declared all health insurance mandates, whether state or federal, a violation of the Constitution.  The Republican primary debates were filled with Constitution talk.

But as the Republican primaries slowly whittled down the field until Romney was the last man standing, talk about the Constitution dissipated.  Rand Paul gave a shout-out to the Constitution and James Madison at the Republican convention for the Tea Party faithful, but his constitutional call to arms felt somewhat out of place in Tampa.  Romney gave only a passing, generic reference to the Constitution in his acceptance speech. 

What happened?  Part of the explanation goes to the fact that after winning the nomination Mitt Romney charted a strategic move to the political center, at which point the Tea Party-inspired rhetoric about the Constitution no longer had a place in his campaign.  Part of the explanation must also run to the Supreme Court and the litigation challenge to the ACA.  The Tea Party’s demands for popular and legislative constitutionalism were overtaken by a national Court-watching party.  The Court’s ruling upholding the mandate seemed to take some of the wind out of the sails of the law’s critics.  Meanwhile, President Obama has shown little interest in resurrecting a public debate over the meaning of the Constitution (to the frustration of some on the left).  Discussion about the Supreme Court and potential future appointments to the bench has been rare in the closing months of the election.  The President seems to be following the advice Harold Ickes gave Franklin Roosevelt in 1936 when he too was challenged by a movement of “constitution cryers.”  Ickes’ advice: “The Constitution should not be brought into this campaign as an issue.”  It worked for FDR.

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