Constitution loses in popular debate

Last night (29 September 2020) President Donald J. Trump held his first debate with opponent Joe Biden. The debate took place at Case Western Reserve University, Cleveland, Ohio. CNAV will waste no time discussing Trump’s rapid-fire interruptions, Biden’s appearance of illness, or Chris Wallace’ utterly ineffectual performance as a moderator (with or without bias). If Kamala Harris wants to say between her teeth, “I’ll decide the platform, not you, you doddering old fool!” in response to something else Biden said, let her. CNAV will discuss something far more important. For the debate did have one loser above all. The Constitution of the United States lost that debate.

How did the Constitution lose?

The Constitution lost because neither man saw fit to mention it. Never mind Joe Biden’s proposals to lock the country down all over again, and take even more from some for the benefit of others who never earned it. The American people expect that from Democrats. Which is why the death of Ruth Bader Ginsburg upset them so.

The nomination of Amy Coney Barrett to take her place, makes them burn with white-hot fury.

But why does the one Party that puts the Constitution ahead of all else, not enjoy a groundswell of support? Indeed that Party barely rates a mention, except on this site when a prominent member shares his podcast transcript. (As you recall, this member endorses Amy Coney Barrett for the Supreme Court. He does so precisely because she respects the Constitution as a Justice of the Supreme Court should.)

But, sadly, the Constitution Party rates no mention in the polls or the mass media.

The Republicans, for their part, now are serving up some isolated heroes of the Constitution. Chief among them today: Governor Kristi Noem of South Dakota. Who specifically said she did not lock down her State because she has no such authority. Not under the federal or her State Constitution.

Does nobody even remember what the Constitution says?

Which brings us now to the Presidential debate last night at Case Western Reserve University. Many things went wrong with that debate, and all have to do with this harsh reality. Almost no adult eligible voter in these United States seems to respect the Constitution, if they know what it says.

President Trump will take a lot of criticism, from CNAV’s contributors and elsewhere, for not standing on the Constitution. One need only look at the reaction, however much the Cleveland Clinic’s rules muted it, to know why Trump did not so stand. But not only did the audience not care, but the debate organizers did not care, either.

Why ask a reporter and not a Constitutional professor to moderate?

Chris Wallace had no business moderating that or any Presidential debate. Again, CNAV will make no issue with his performance. Anyone who watched it even for one hour knows that he lost control. But the real reason he shouldn’t have moderated the debate goes deeper. He is a reporter! To moderate, or judge, a debate between or among contenders for the highest office in the land, why doesn’t anyone choose a professor of Constitutional law? Such a professor on the faculty of the CWRU School of Law would have known the right questions to ask. And perhaps have been able to call out either candidate on matters of Constitutional authority.

CNAV uses that word perhaps deliberately. Sadly, Constitutional law has become a war game, not a study in immutable principles. Ever since Franklin Delano Roosevelt replaced the Supreme Court almost entirely, the Constitution has meant whatever the Supreme Court says it means, any time it says it. Arguably the Constitution has meant that since McCullough v. Maryland even before the War Between the States. Which is why Thomas Jefferson lamented that the Court turned the Constitution into “a mere thing of wax.” And also why the Supreme Court has become a political battleground.

If not a professor, we could recommend at least two alternatives…!

Therefore one must ask: does no one exist who teaches Constitutional law as the Constitution deserves? Can no one find a moderator who will say:

Hey, come on, Mr. Vice-President! More lockdowns? You’re kidding, right? You’re not kidding?!? Then you’re out of your mind!!! You served as Vice-President for eight years. Have you forgotten that the Constitution nowhere grants the government the authority to do anything like that? Or did you ever even learn this? My God, what did they teach you in your civics class?!?

Well, of course, God is Out-of-fashion nowadays in university faculty lounges. So perhaps the organizers should have asked CNAV Contributor Bradlee Dean to moderate! He wouldn’t hesitate to say just that! Not after he cited this federal judge in North Carolina who said the Constitution makes no exception for fighting a contagion, no matter how deadly!

Or this other federal judge in Pennsylvania who ruled, effectively, the same:

If you won’t accept a lay minister’s opinion, why not a legal one? Darrell L. Castle could teach both men a thing or two about the Constitution. Let this sample suffice:

Failure of education in the Constitution

But the debate organizers selected a reporter, one even more ignorant of the Constitution than the candidates. And again, that reflects the sorry state of civics education in the United States today. Back when your editor attended junior high school (they call it “upper middle school” today), your editor took civics. The text: Magruder’s American Government. Which at the time told of the formal and informal methods of amending the Constitution. One can only hope its present edition retains the quality of the edition (1971 or earlier) your editor used.

Lack of advice on the Constitution

Turn now to the candidates. Or rather to one candidate: President Donald J. Trump. Forget about Vice-President Biden. Apart from his signs of senile dementia (which might or might not suggest the Alzheimer Type), he has even less respect for the Constitution of the United States than the late Justice Ruth Bader Ginsburg had. One can expect no better of him, by reason of his Democratic Party membership.

But one does expect more of this President. A President who went out of his way to select decent – even brilliant – district and appellate judges. And one having an excellent example to follow, namely Governor Kristi Noem (R-S.D.).

Frankly, this President received bad advice. He had a “physician” under a credible accusation of scientific plagiarism to advise him that so-many people would die if he did not act. But he should have had an adviser on Constitutional law and his Constitutional authority. He had none. I’m sure Governor Noem could recommend one from her own staff.

How to stand up for the Constitution

So that when your opponent dares tell you to lock the country down all over again – when he dares tell you to take care of “the contagion” first – when he dares tell you that you’ll kill millions of people by giving them back their freedoms – when, as I say, he dares say all that, do you not then round on him and say:

Listen, dude. The Constitution does not grant me, nor would it grant you, the authority to do any such thing. Nor does it make any exception for contagions, no matter how deadly. Ask Judge Dever in North Carolina if you don’t believe me. And if you don’t like it, go to the Congress and ask for a Congressional Joint Resolution to amend the Constitution to write in such a “pandemic exception.” Then shop it to the States to get thirty-eight ratifications. But when you can’t – and you won’t be able to in a thousand years, if the people respect their liberty as much as I know they do – then sit down and shut up and don’t ever propose anything so asinine, not to mention tyrannical!

The people must re-learn to respect it

But the President didn’t say any of that. Instead he said, “We tried that and it failed. And from what we know now about the China Virus, it won’t make any difference. Open the country back up!” In other words, the President talked about practice and workability. He did not talk about Constitutional principle. Because he knows, sadly, that the people don’t care. Because they are afraid to care.The Contagion That Must Remain Nameless has all the power to frighten that the phrase “Yellow Jack” once had. So also do phrases like “destitution” and “bankruptcy” and “starvation.”

Thus the Constitution lost that debate. Because nobody cared to stand up for it.