The Constitutional Remnant

How a 229-year-old document disrupted both major-party conventions


Rand Paul had the relaxed, casual glow of someone who had recently spent some significant time on a beach somewhere decompressing. It was July 15 in Las Vegas at the libertarian gathering FreedomFest, three days before the start of the Republican National Convention (RNC) in Cleveland, and the Kentucky senator was strolling across the stage in white pants and white shoes, delivering a confident, off-the-cuff spiel about how Congress needs to stop abdicating its constitutional responsibility to trim the sails of presidential power. He didn't mention Donald Trump or Hillary Clinton by name, but he didn't have to.

"Have you heard any of the candidates saying…that there is too much power that has gravitated to the presidency?" the 2016 presidential flameout asked. "I'm hearing the opposite. I'm hearing people say 'Give me more power, and I'll fix it! We'll be great again if you can give me power! By the sheer might of my will we will make things better!'

"But really there's a lesson of history that we don't want to forget," Paul continued. "The lesson of history is that power corrupts, that absolute power corrupts absolutely, and we don't want to fool ourselves into thinking it just means we've got to give the power to our guy, or our girl."

Paul, who spent convention week 560 miles away in Paducah, Kentucky, performing pro bono surgeries to restore sight in blind patients, clearly did not seek to be the face of the opposition to the Republican Party's power-hungry, anti-trade standard-bearer. As he said in Vegas, "I don't see it as my job now" to endorse Libertarian Party nominee Gary Johnson, particularly after having signed a pledge as presidential candidate to eschew third parties and support the eventual nominee. But in a year where the GOP's bewildered, perpetually outmaneuvered #NeverTrump bloc was most represented in the media by the likes of Weekly Standard editor Bill Kristol, it was the Paulite faction of constitutional conservatives, not the old guard of neoconservatives or disaffected social cons, that emerged as Trump's in-your-face opposition.

Four days later in Cleveland, I stumbled on a hotbed of Rand Paul and Ron Paul fans. This wasn't at an explicitly ideological gathering. Instead, it was a meeting of the Republican Youth Caucus, in which the only qualification for membership was being born after 1980. Delegate after delegate volunteered their politics as "libertarian," said openly they preferred Gary Johnson to Donald Trump, and were fired up about issues such as rolling back foreign intervention, legalizing medical marijuana, eliminating workplace licensure, and blocking gun control measures.

"I think one of the concerns that a lot of libertarians have with Donald Trump is, of all the candidates we had out there, I don't know that there's anyone who looks more authoritarian," said 34-year-old Vermont State Rep. Paul Dane.

Speaking that day to this cadre of GOP youth was Sen. Mike Lee (R–Utah), who 24 hours earlier had become the opening-day focal point of Trump opposition at the RNC, when he loudly shouted "Noooooo!" from the Utah delegation during a controversial voice vote. (It's a complicated story, but basically Utah and eight other states wanted a full roll-call vote on changes to the convention rules. Pro-Trump RNC operatives then went around twisting arms to make sure such a vote never took place, for fear of showcasing dissension in the ranks to the viewers back home.)

Lee's talk to the GOP millennials was striking in its frank pessimism about the youth vote ("We could go the way of MySpace," he warned), but also in its 100 percent true assumption that any gathering of under-35 Republicans would be interested and fluent in the "liberty message" and in the kind of microscopic constitutional wonkery that mostly law professors could love. The future of the party, in other words, is filled with openly libertarian kids who speak Constitutional Conservatese.

"Look, I'm a Republican," Sen. Lee told me after his remarks, when I asked him whether he was voting for Gary Johnson. "I have always voted for Republicans, I have never anticipated voting for anyone who is not a Republican, particularly in a presidential contest…I've made no…secret about the fact that I have concerns with Mr. Trump, he has yet to win me over. I'd love to be won over, and there are a whole lot of people like me who would like to be won over, but I'm not there yet."

The next day Lee's close personal friend Sen. Ted Cruz (R–Texas), the Republican primary runner-up, created the convention's biggest stir by declining to endorse Trump during a masterful speech that drew boos for urging voters to back candidates who support the Constitution.

"We deserve leaders who stand for principle, who unite us all behind shared values, who cast aside anger for love," Cruz said. "That is the standard we should expect from everybody. And, to those listening, please don't stay home in November. If you love our country and love our children as much as you do, stand, and speak, and vote your conscience, vote for candidates up and down the ticket who you trust to defend our freedom, and to be faithful to the Constitution."

As Atlantic senior editor and committed #NeverTrumper David Frum told me the next day, Trump could have chosen that moment to lead applause, rather than orchestrate boos, under the argument that, hey, he's the guy you can trust to defend our freedom and be faithful to first principles! But instead Trump's chorus chose to interpret a robust defense of the Constitution as an ad hominem attack.

Encouragingly, the same can be said, if in a less consistent way, about the Democratic National Convention (DNC). There, though it wasn't particularly visible or audible to viewers back home, there was a four-day push and pull between DNC organizers and a rump bloc of Bernie Sanders delegates who were infuriated over their inability to express support for Sanders' ideas or their opposition to Hillary Clinton's. At one point they walked out about 300 strong with duct tape and American flags over their mouths.

Delegates I talked to were incensed by threats of having their signs confiscated, being escorted out, or even getting arrested if they showed too much Bernie enthusiasm or Hillary antagonism to the folks back home. "People doing these chants have a First Amendment right!" an exasperated North Dakota delegate, Mike Lopez, told me. "That was kind of the tipping point for me, where you claim to be a party of inclusion, you claim to value the values of the Constitution—as I do—and you can't have political dissent, which of course is crucial to the functioning of democracy!"

Sadly, that reverence for the Constitution doesn't include the Supreme Court's current First Amendment jurisprudence; Bernie delegates even more than the convention as a whole despised the 2010 Citizens United decision, which they saw as enabling corporations rather than unshackling political speech. The current interpretation of the Second Amendment as protecting individual rights was equally unpopular in Philadelphia.

And yet it matters that the DNC's signature moment came when Khizr Khan, father of the slain immigrant Army Capt. Humayun Khan, looked into the camera, addressed Donald Trump, and pulled out his pocket Constitution. "Let me ask you: Have you even read the United States Constitution?" Khan said. "I will gladly lend you my copy. In this document, look for the words 'liberty' and 'equal protection of law.'"

In a political season marked by authoritarianism from both major parties, it's at least some small comfort to see opposition anchored in the Constitution. It may be the Republicans' and Democrats' last, best hope.