The GOP and the Constitution: The Grotesque Mismatch Between Walk and Talk

This piece is appearing in newspapers in my conservative congressional District (VA-06).

Which party do you think of when you hear the phrase, “defender of the Constitution”? I would wager that members of both parties would immediately think of the Republican Party, because they are the ones who most loudly proclaim their deep allegiance to our founding document.

Yet in recent years, the leaders of the GOP have engaged in an assault on our constitutional system in ways unprecedented in American history:

1) In the torture memos, the George W. Bush administration set a precedent that could enable any future president to shield his or her administration from prosecution for any illegal actions. Just tell your lawyers to draw up a memo declaring a crime to be legal. Such a memo can shield those who commit the illegal action, for they can claim that they relied on the memo. Meanwhile the lawyers who wrote the memo can’t be prosecuted because they did nothing but render an opinion.

2) In commuting the sentence of Scooter Libby, the Bush administration freed the only person tried and convicted of a crime performed in an administration that deliberately flouted several major laws (including warrantless searches, which are felonies under the Foreign Intelligence Surveillance Act, and the torture of prisoners, in violation of both federal law and binding treaties). Even though Libby was prosecuted by an outstanding Republican attorney, and found by a jury to be guilty of perjury and obstruction of justice in the Valerie Plame case, the president snatched him from the grasp of the law with a pardon that was tantamount to a declaration that this Republican administration was above the law.

3) The Republicans decided even before Barack Obama was inaugurated in 2009 to do all they could to prevent him from performing his presidential role by obstructing whatever he sought to accomplish. (“If he was for it, we were supposed to be against it,” a Republican Senator from Ohio, George Voinovich, later said.) They expected the American people to blame the president for his failure and hand power back to the Republican Party. Even if this isn’t a legal violation of the Constitution, it is clearly against the spirit of the Constitution to prevent from doing his job that person whom the American people have hired to perform a function the Constitution treats as of great importance.

4) Never until President Obama’s first term had a Senate minority applied the filibuster – a Senate rule intended for special circumstances, to protect vital concerns of a Senate minority — so that every matter before that body would require 60 votes, rather than a simple majority, to move forward. (Since the Senate gives an equal number of seats to states with few people as to states with many, this meant that for the first six years of this Democratic presidency the representatives of a mere 11% of the nation’s population could thwart the desires of the other 89%.) The Constitution indicates that the Senate shall operate by the principle of “majority rule” – otherwise why have the Vice President empowered to break a tie? In the American system, the Constitution takes precedence over a mere law. But the Senate Republicans used not even a law but a mere Senate rule to override the Constitution.

5) Right now, the Republicans in the Senate are refusing to honor the Constitution’s statement that the president “shall appoint” a justice to fill a vacancy on the Supreme Court. These Senate Republicans have been obstructing presidential appointments — to the courts and otherwise — to an unprecedented degree for some time. But never has this disregard for the presidential role been so blatant as when the Republicans announced within hours of the death of Justice Scalia that they would refuse to consider any nominee this president might put forward. A succession of “justifications” for this conduct all proved hollow, based on misrepresentations of both history and the Constitution’s clear meaning.

All this from the Party that, when it in 2011 it took over the House of Representatives, began the term by reading the Constitution aloud from the House floor.

One form of brokenness in the human world is when people act the opposite of what they loudly claim they stand for, marching off under the most noble of banners to do ignoble things.

Andrew Bard Schmookler — the Democratic nominee for Congress in Virginia’s 6th District in 2012 — is the author of What We’re Up Against: The Destructive Force at Work in Our World—and How We Can Defeat It.