Tags: 2020 Elections | Barack Obama | Donald Trump | Joe Biden | Supreme Court | campaign | moderators

The Constitution Should Be the Subject of This Week's Debate

The Constitution Should Be the Subject of This Week's Debate
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By Tuesday, 20 October 2020 09:47 AM Current | Bio | Archive

President Trump has indicated his belief that the election on Nov. 3 is the most important in the nation’s history, and while there are probably those who have had similar thoughts regarding every election, in a very real sense, everything is at stake this time.

Indeed, it's not too far-fetched to argue that this election is not simply a referendum on the two candidates for president, but on our Constitution itself.

The genius of the Constitution is its structure of checks and balances — and its separation of powers.

The basic insight of our nation's Framers was that power tended to corrupt, and if the sovereignty of the American people and the preservation of our republic was to prevail, some means had to be found to prevent anyone in the government from exercising arbitrary and unchecked power.

So it was that our federal government was limited in power, with the state and local governments — those closest to the people — having the responsibility for most decisions regarding how we were to be governed, including the law of property, contracts, torts, business associations, and criminal law.

This was one of two basic principles in the Constitution — Federalism, or "dual sovereignty," with a federal government of limited and enumerated powers, and the rest to be exercised by the states, or the people themselves.

The other basic principle — the separation of powers — ensured that only the legislature would create new law, while the executive was responsible for carrying out the law, and the judiciary for ensuring that the other branches followed the existing law.

To state these basic principles is now somewhat quaint, since the federal government has grown into a Leviathan that would have horrified our Framers.

Worse, the judiciary has, for almost a century, been engaged in remaking our laws, and the executive agencies and the presidency itself has been engaged in the promulgation of regulations which substantially alter and affect American life.

For progressives, since the time of Woodrow Wilson through that of both Roosevelts and right up to Barack Obama, Bernie Sanders, and Alexandria Ocasio-Cortez, this has been just fine, since they believe that these original Constitutional restraints on government prevent them from transforming our society in what they believe to be a more just manner.

In particular, they are quite impatient with a constitutional structure that makes it harder for them to redistribute income and resources to help those less fortunate, and to meet what they believe to be perceived existential threats such as disease and climate change.

The Democrats and Joe Biden are the heirs of these progressives. If they are successful this November, not much will be left of the original constitutional scheme.

The Republicans in general, and Donald Trump in particular, have understood that the Constitution’s structural plan, designed to preserve federalism, individual liberty, and private property, is endangered, and, to a great extent, this has been the theme of both the president’s 2016 campaign as well as the one for 2020.

Another important indication of the difference between the two parties in their attitude toward the Constitution, is the nomination of Judge Amy Coney Barrett to the U.S. Supreme Court.

She is a jurist in the mold of Antonin Scalia (for whom she clerked), her judicial philosophies of originalism and textualism are employed to preserve the original constitutional structure and the original separation of powers and federalism.

Because the Republicans have a majority of the U.S. Senate, she is likely to be confirmed, but it will be with few if any votes from Democrats, who understand that their progressivism is not hers.

It's a shame that our mainstream media and even the format for presidential debates does not appear to recognize what is at stake in this election.

The so-called "moderators" of the presidential debates and town halls appear to come to them with a partisan agenda designed to perpetuate media narratives such as the president’s purported racism, or his asserted failure adequately to repudiate Vladimir Putin, or to prevent 200,000 deaths from coronavirus.

Other matters, such as the evidence of extraordinary profiting by Vice President Biden’s family from his official position, or the Obama administration’s employment of intelligence and investigative agencies to undercut President Trump’s 2016 campaign and his administration are apparently off-limits in the media, banned from digital platforms, and not part of the debate agenda.

President Trump has managed to articulate these concerns in his campaign rallies. But, it's crucial that the last presidential debate, this Thursday, be something other than an exercise in "Gotcha!" journalism.

Is it too much to hope that the moderator this time will actually offer the candidates a chance to stray from NBC's Kristen Welker's preferred narrative, and actually permit them to address what is at stake (and will be for a long time) for the nation?

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. Read Stephen B. Presser's Reports — More Here.

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Matters, such as the evidence of extraordinary profiting by Vice President Biden’s family, or the Obama administration’s employment of agencies to undercut Trump are apparently off-limits in the media, banned from digital platforms, and not part of the debate agenda.
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2020-47-20
Tuesday, 20 October 2020 09:47 AM
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