2020 Election Promises To Be Tough on the Constitution

by Ray Keating

The Keating Files – April 15, 2020

Just in case you somehow forgot amidst a pandemic and related economic shutdown, there’s a presidential election in about seven-and-a-half months. Unfortunately, no matter how it turns out, this promises to be a rough one on the U.S. Constitution.

Once again this week, it became clear that President Donald Trump has failed to read and/or understand the Constitution. Meanwhile, former Vice President Joe Biden likely has read one of this nation’s two essential founding documents, but he really doesn’t care what it says.

During this past Monday’s briefing on the coronavirus, Trump said, “I'm going to put it very simply: the president of the United States has the authority to do what the president has the authority to do, which is very powerful. The president of the United States calls the shots. When somebody’s the president of the U.S., the authority is total, and that’s the way it’s gotta be.”

Um, excuse me? But there’s more.

Consider this deeply disturbing claim of total authority on top of a couple of comments in July and June of last year. In June 2019, Trump said, “Article II allows me to do whatever I want.” And the following month, he declared, “Then I have an Article 2, where I have the right to do whatever I want as president.”

Of course, Article II of the Constitution does not grant total authority to a president or give a president the right to do whatever he wants. In fact, the powers of the president are rather limited by Article II, such as executing laws, commander in chief of the armed forces, and negotiating treaties that must be approved by two-thirds of the Senate. In fact, the U.S. Constitution, through its checks and balances, and enumerated powers, seeks to guarantee limited government, and that the purpose of such limited government is to protect the liberties and rights of all men and women – liberties and rights, by the way, that are not granted by government but pre-existed government. That is, our natural rights.

Declaring that for a president “authority is total” explicitly goes against the Constitution, and effectively violates the oath taken by presidents, who say, “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

And given the importance of the Constitution to the foundational principles and ideas of conservatism and this country, my fellow conservatives particularly should be outraged over this authoritarian, anti-Constitution proclamation of President Trump. Indeed, they would have been screaming their outrage if someone like President Obama had said such a thing.

But many Republicans and some conservatives will counter that Trump has appointed and will appoint judges who understand and abide by the Constitution. Perhaps, but how would he know? Well, Trump in effect cut a deal with conservatives during the 2016 election to appoint Supreme Court justices who have received the seal of approval from the Federalist Society and the Heritage Foundation. Thank goodness for that list because no one knows who would be appointed without it. Let’s hope it holds if Trump gets a second term.

As for Biden, in response to Trump’s comments, he said, “I am not running for office to be King of America. I respect the Constitution. I’ve read the Constitution. I’ve sworn an oath to it many times.”

Well, good for Biden, I guess? The problem is that his reading the Constitution doesn’t mean that the Constitution’s purpose and meaning have sunk in or taken hold. After all, Biden pledged in late December, “The people that I would appoint to the Court, are people who have a view of the Constitution as a living document...”

“Living document”? That’s the nice label the Left has adopted for a pernicious judicial philosophy known as judicial activism. The “living document” principle means replacing what the Constitution says with the latest preferences of the Left. Judicial activism violates the Constitution by having judges – especially U.S. Supreme Court justices – claim legislative powers, ignoring what’s actually written in and the intentions of the authors of the document. 

For good measure, the “living document” view of the Constitution rejects the idea of limited government protecting natural rights. Instead, it serves up the notion that government decides the rights that are granted to the people. That, too, points to an authoritarian, anti-Constitution streak.

Rather than interpreting and applying the Constitution and the law, the “living document” crowd, including Biden, believes that a majority on the Supreme Court gets to re-write the Constitution as it sees fit.

So, the depressing choice in November comes down to two men who have little or no regard for the Constitution. That’s deeply troubling, to say the least, for our republic right now, and in terms of political precedents set for the future.

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Ray Keating is a columnist, economist, podcaster and entrepreneur.  You can order his new book Behind Enemy Lines: Conservative Communiques from Left-Wing New York  from Amazon or signed books at RayKeatingOnline.com. His other recent nonfiction book is Free Trade Rocks! 10 Points on International Trade Everyone Should Know. Keating also is a novelist. His latest novels are  The Traitor: A Pastor Stephen Grant Novel, which is the 12^thbook in the series, and the second edition of Root of All Evil? A Pastor Stephen Grant Novel with a new Author Introduction. The views expressed here are his own.