The Republicans' Selective Reading of the Constitution

The 2012 Republican platform, released today, promises "A Restoration of Constitutional Government." If that sounds good to you, you may not want to spoil the warm feelings by delving into the disturbing details.

The Republicans insist, for example, that every act of Congress "cite the provision of the Constitution which permits its introduction," but they still manage to support all sorts of constitutionally unauthorized programs, including subsidies for farming, education, adoption, and home ownership. The Republicans love federalism, except when it comes to physician-assisted suicide, which they want to prevent via the Controlled Substances Act, and marriage law, where they insist on the one man, one woman definition enshrined in the Defense of Marriage Act—which, according to its author, "has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions." Republicans are very big on limits to executive power, except when the president claims to be protecting national security, an area where he is "the lead instrument of the American people." They are keen on freedom of speech, as long as it does not involve sex or flag desecration. They like the Fourth Amendment insofar as it might be relevant to unmanned surveillance aircraft (except near the border, of course); otherwise (as it pertains to warrantless interception of email and phone calls, say, or to collection of third-party records such as geolocation data), not so much. They are fans of the Fifth Amendment's Takings Clause but cannot spare a word for due process, perhaps because it might raise uncomfortable questions about their support for indefinite detention and summary execution in the name of fighting terrorism. To be fair (if that is the right word), the fact that Republicans favor such policies even when a Democrat occupies the White House suggests their authoritarianism is even stronger than their partisanship. 

Perhaps the Republicans should get credit simply for mentioning the Ninth Amendment, except that they claim it "codifies the concept that our government derives its power from the people and all powers not delegated to the government are retained by the people." That is closer to the meaning of the 10th Amendment, which says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The Ninth Amendment, by contrast, says, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." In other words, people have certain rights that must be respected even if they are not explicitly mentioned in the Constitution—a concept Republicans might accept as long as they never have to identify any.