The Constitution, by its own terms, is the “supreme law of the land.” All judges are bound by the words of the Constitution, and all laws made by legislatures within the United States must yield to the Constitution’s provisions. This is the central insight of the American republic — the idea that the structure and limits of government are laid out in a written document, and that document is binding on all government actors subject to its terms.
The Republican Party’s 2016 Platform rejects this concept outright.
The Platform devotes seven of its 66 pages to what it calls “A Rebirth of Constitutional Government.” In these seven pages, it seamlessly weaves together some of the most radical ideas offered by modern day libertarian scholars with the rhetoric of Christian conservatism. It’s a neat trick, and one that will doubtless have broad appeal to key segments of the Republican base. Yet, in doing so, it fundamentally rethinks the role of a written Constitution in American society, and offers a distinctly Republican take on the Constitution we actually do have in the process.
The Plan To Build The Yuugest, Classiest, Most Luxurious Constitution You’ve Ever SeenOur Republican Constitution: Securing the Liberty and Sovereignty of We the People by Randy Barnett * Broadside Books …thinkprogress.orgThe GOP Platform’s section on constitutional law begins with a declaration of principles: “That God bestows certain inalienable rights on every individual, thus producing human equality; that government exists first and foremost to protect those inalienable rights; that man-made law must be consistent with God-given, natural rights; and that if God-given, natural, inalienable rights come in conflict with government, court, or human-granted rights God-given, natural, inalienable rights always prevail.”
Its overt religiosity aside, the broad theory underlying these principles is not especially controversial. The Declaration of Independence refers to “certain unalienable Rights.” Most Americans, regardless of their politics, believe that there are rights that we all enjoy because we are human beings. Slavery was legal for much of American history, but we now recognize it as profoundly wrong. And that wrongness flows from the fact that slavery offends human rights.
Yet, while the idea that there are some rights that preexist government is not especially controversial, there is wide disagreement about what, exactly, these pre-governmental rights are. The GOP Platform claims that “the right of individuals to keep and bear arms” is “a natural inalienable right that predates the Constitution” — a statement that many modern democracies would find absolutely flabbergasting. Many libertarian natural rights theorists believe that there is a natural “right to contract” which trumps minimum wage laws and laws protecting the right to unionize, on the theory that a worker should be free to bind themselves to a contract which pays them very little money to work in deplorable conditions. Most human rights advocates believe that we all have a right to be free from torture. Republican presidential candidate Donald Trump disagrees.
The GOP Platform makes several highly controversial claims about the nature of natural rights. For one thing, it claims to understand what these rights are with a great deal of granularity. Beyond the right to bear arms, the platform names the “right to devote resources to whatever cause or candidate one supports” (i.e. the right to spend money to influence elections), the right of private organizations to “set their own membership standards” free from anti-discrimination laws, and the “freedom of Americans to act in accordance with their religious beliefs” often when those beliefs call for defiance of the law, as examples of rights that are “not given to us by the government but are rights we inherently possess.”
Then comes the Platform’s single most radical line. In addition to claiming that the First Amendment protects natural rights to spend unlimited sums of money on elections and to engage in religiously motivated discrimination, the Platform includes this remarkable statement: “The government cannot use subsequent amendments to limit First Amendment rights.”
This is nothing less than a repudiation of the idea that judges and lawmakers are bound by the Constitution’s written text.
The Platform does not simply interpret the First Amendment in ways that are agreeable to conservatives and anathema to liberals, it proclaims that the Republican interpretation of the First Amendment is impervious even to a new constitutional amendment that repudiates this interpretation! If Congress were to propose, and the states were to ratify, a constitutional amendment overruling the Supreme Court’s campaign finance decision in Citizens United v. FEC, the Republican Party’s position is that this amendment would be null and void. The text of the Constitution itself must yield to the natural rights theory laid out in the Republican Party’s 2016 Platform.
And the Platform also indicates that other rights favored by conservatives should be immune even to the amendments process. It describes the right to bear arms, for example, as “inalienable,” a word meaning “impossible to take away or give up.” Thus, even if the Constitution were amended tomorrow to permit local governments to ban handguns, effectively overruling the Supreme Court’s decision in District of Columbia v. Heller, that amendment would be subservient to a higher law — the Republican Party Platform.
Similarly, the Platform claims that “the unborn child” has an “inalienable right to life” and a “fundamental right to life which cannot be infringed,” thus asserting that abortion cannot be legalized even if a constitutional amendment were ratified which explicitly provides that abortion shall be legal throughout the United States.
This is nothing less than a repudiation of the idea that judges and lawmakers are bound by the Constitution’s written text. The Republican Party isn’t simply claiming authority to interpret the Constitution, it’s claiming authority that is superior even to the Constitution itself.
In case there is any doubt, this idea that there is some other law that is superior to the Constitution was not invented by the drafters of the GOP Platform. The Platform’s theory of natural rights is largely lifted from the work of libertarian scholars such as Georgetown Law Professor Randy Barnett. The idea that libertarian notions of natural rights are superior to the Constitution was advanced by Timothy Sandefur, an attorney Sen. Rand Paul (R-KY) praised in a 2015 speech to the Heritage Foundation. Sen. Tom Coburn (R-OK) confronted Justice Elena Kagan with the Platform’s theory of natural rights during her 2010 confirmation hearing.
Kagan’s response to Coburn is worth pondering, however. After Coburn accused Kagan of rejecting the idea that “we have certain God-given, inalienable rights” which preexist government, the future justice offered the senator a stern warning.
“I’m not saying I do not believe that there are rights pre-existing the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws,” Kagan told Coburn. When he pressed her further on her beliefs about natural rights, she continued. “You should not want me to act in any way on the basis of such a belief,” Kagan said. “I think you should want me to act on the basis of law.”
We view the concept of human rights through a glass darkly, observing the broad contours of these rights but often disagreeing about their details. Elena Kagan’s idea about the exact nature of these rights is different from Tom Coburn’s, which is subtly different from Rand Paul’s, which is subtly different from the GOP Platform’s, which is certainly different from Barack Obama’s. America has a written constitution in no small part because such a document is the only way to adjudicate disputes about the nature of our rights without simply leaving the decision up to whoever happens to hold power at any given moment.
And the Republican Party Platform would scrap this means of resolving such disputes, on the theory that it knows better than the Constitution.