Debates 2020

Will Joe Biden Challenge Elizabeth Warren's Constitution-Shredding Proposals?

Unfortunately, rather than challenging Warren on the constitutionality of her plans, Biden is imitating them, at least when it comes to the assault on the First Amendment.


Joe Biden recently called for the impeachment of President Trump, explaining, "He is shooting holes in our Constitution. We cannot let him get away with it."

Biden's concern for the Constitution is touching. But so long as he is on the topic of our nation's basic law, let him also direct his attention to the senator from Massachusetts who is emerging as his most formidable rival for the Democratic presidential nomination, Elizabeth Warren. Warren's presidential campaign isn't just shooting holes in the Constitution—it's ripping the document into little pieces, throwing them into the air, and stomping all over them when they fall to the floor.

Warren has at least two main lines of attack against the Constitution—lobbying reform and the wealth tax.

She has been out on the campaign trail promising to, as she puts it, "end lobbying as we know it."

"The right of every person in this country to petition their government does not protect a multi-billion-dollar influence industry whose sole purpose is to undermine democracy and tilt every decision in favor of those who can pay," is the way she put it at one recent rally. It's great to see Warren acknowledge the First Amendment's right to petition the government for redress of grievances. But if she's so dismissive of the right of petition, imagine how she feels about the First Amendment rights of speech, of the press, and of assembly—all of which would be similarly trampled by her series of proposals to curtail political speech.

Warren's proposal to strip from Americans the rights of petition, speech, press, and assembly that are enshrined in the First Amendment is closely related to her proposal to infringe on property rights. Some might see the lobbying reform and the wealth tax as unrelated. Actually, the two policy initiatives go hand in hand. Once Warren restricts the political speech rights of wealthy Americans, it will make it easier for her to take away their property.

Warren's proposed wealth tax arguably violates several different provisions of the constitution, including the bill of attainder clause in Article I, the takings clause of the Fifth Amendment, and the "direct taxes" clause in Article I, which the Sixteenth Amendment revised only in terms of an income tax, not a wealth tax. The wealth tax proposed by Sen. Bernie Sanders (I–Vt.) faces similar challenges. Warren trots out letters from left-leaning law professors attesting to the constitutionality of her plan. If the plan weren't so constitutionally illegal to start with, though, there'd be no need to produce lawyer letters insisting on the legality of it. This is the tax version of Warren's insistence that the First Amendment's right of petition doesn't make it illegal to ban lobbying. When a politician's first hurdle is convincing voters that her plan isn't unconstitutional, it doesn't exactly inspire confidence.

As for Biden, his own professed concern about the Constitution is welcome. But if he limits his defense of it to attacks on Trump, people may reasonably wonder whether his concern is principled or merely partisan. If Biden starts to make constitutional arguments against Warren, though, it could be a way for him to boost his own credibility while also putting her on defense.

Unfortunately, rather than challenging Warren on the constitutionality of her plans, Biden is imitating them, at least when it comes to the assault on the First Amendment. This week, Biden announced an effort to amend the Constitution "to entirely eliminate private dollars from our federal elections." Biden served for 36 years in the Senate without enacting such an amendment. His campaign did offer as precedent that he had backed a failed constitutional amendment that said, "Congress shall have power to set reasonable limits on the amount of contributions that may be accepted by, and the amount of expenditures that may be made by, in support of, or in opposition to, a candidate for nomination for election to, or for election to, Federal office."

Trump is accused of shooting holes in the Constitution. Warren and Biden, though, are openly promising to feed the document through a cross-cut paper-shredder. It makes it harder to take their criticism of Trump seriously, at least on the constitutional front.

NEXT: LeBron James Is Getting Roasted for Criticizing Daryl Morey's Hong Kong Tweet

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  1. I have a feeling Biden will be too busy defending himself tonight. He’s hurting, and there’s a bunch of folks who see tonight as a “make it or break it” event

    1. People will tune in to see which of Biden’s body parts will malfunction.

      1. I mean, I plan to. I want to watch these trainwrecks because I don’t trust any of the media, left or right, to give me a straight story on them.

  2. No. Next question.

  3. It’s great to see Warren acknowledge the First Amendment’s right to petition the government for redress of grievances.

    I’m guessing she added that hand-wave after reading some heretofore un-focus-grouped analysis of the constitutionality of her campaign policy proposals.

    1. The fact that she thinks there should be any limits at all on HOW you petition the government would indicate she doesn’t actually understand (or more cynically, outright disagrees with) that part of the Constitution.

      If I want to pay someone to go to DC and petition for me because I’m too busy doing other shit, why should that be illegal?

  4. Is this campaign thing STILL happening?

  5. It’s not “shredding the Constitution”, it’s merely “interpreting it correctly”. Look, our Founding Fathers couldn’t have foreseen modern-day high-speed internet connections and mass-spamming capabilities that allow anybody with a phone to reach millions of people in nanoseconds, so surely they couldn’t have meant for free speech and freedom of the press to apply to such things. All we’re asking for is reasonable, common-sense speech control laws that will in no way affect the average law-abiding speaker but merely take words out of the hands of those bad actors who would use such weapons to harm people with their lies and distortions and wrong opinions. Is that so much to ask?

    1. That’s some fine parody there. Of course they are only targeting “weaponized” speech of the assault variety.

    1. Gotta admit I laughed, but still, that’s just so wrong and I hope those fuckers get the same treatment in gen pop. How’s it feel to know your life’s worth half a pack of cigarettes?

  6. Who knew that Open Kimono by Seymour Hair was investigative journalism?

    1. When Seymour Butts wrote Under the Grandstand?

  7. “Warren’s proposed wealth tax arguably violates several different provisions of the constitution”

    Believe me, as a Koch / Reason libertarian I know our philosophy is fundamentally about making the richest people on the planet even richer. So if I honestly believed a Warren Administration would be bad for Charles Koch, I wouldn’t be supporting her.

    You see this a lot with Democrats — they’ll talk about how disturbed they are by economic inequality, but they don’t really mean it. Didn’t Obama say “At some point you’ve made enough money”? And we all know his Presidency was fantastic for billionaires. I promise a Warren Presidency would be equally Koch-friendly.

    1. I see that you are having a good day.

    2. ” I promise a Warren Presidency would be equally Koch-friendly.”

      Lieawatha has been given a ton of money from billionaires already.
      I’m sure she’ll give it all back once she loses to Trump next year since she’s so honest that she would never lie about her heritage in order to get into a prestigious Ivy League university.

  8. Of course such interpretations [taking note of names like Tribe and Chemerinsky on her letters of support] require a “living constitution” that can evolve over time to mean whatever you need, or want, it to.

    Now just give us one more Gorsuch and we can be done with much of this nonsense, at least for another 30 years.

    1. Yeah I was disappointed by the choice of Kavanaugh, to be honest. There were definitely some stronger civil libertarians on the short list, as well as stronger originalists, and after picking Gorsuch I was really hoping for another.

  9. For all of the talk of Trump being a fascist Liz of the Fauxhicans seems to be the only one of the two familiar with the actual textbook.

    1. The first rule of Fascist Club is that you never stop accusing other people of being in Fascist Club.

  10. Money isn’t speech!

    1. And how dare you think voluntarily joining and paying dues to a terrorist organization like the NRA is protected by the right of assembly. And that you then expect them to petition the government on your behalf. The audacity of some people!

  11. Joe Biden is suffering from senility, affluenza, incompetence, corruption, and delusions of grandeur. He’s lucky if he can slink off the stage without too much embarrassment. He’s too feeble to take on anybody.

    1. All well and good, but he is also a democrat. They are all tied for last place in the human race.

  12. “Unfortunately, rather than challenging Warren on the constitutionality of her plans, Biden is imitating them, at least when it comes to the assault on the First Amendment.”

    Gee, what a shock!
    A couple of socialist shitheads assaulting the Bill of Rights.
    Who would’ve thought that?

  13. “It makes it harder to take their criticism of Trump seriously, at least on the constitutional front.” This is a tu quoque logical fallacy.

    1. No it isn’t.

  14. I’m not a fan of any of these democratic tools or their socialist policies, but saying these policies are unconstitutional may be a stretch. Biden asking for a constitutional amendment thereby amending the constitution (duh!) is exactly how the constitution was designed to work. Prior to the 16th amendment, income tax was declared unconstitutional until the amendment was passed. I’m not fully sure what Warren’s stance on lobbying is, but if it’s to prevent lobbyists from lining the coffers of politicians, I’m all for it. Petitioning the government is different than bribing it. I’m tired of seeing politicians that make a $180K/yr salary becoming millionaires within a few years in office due to lobbying money. That’s not petitioning, that’s bribery! As for the wealth tax, I’m not sure how you connected that with a bill of attainder. A bill of attainder is declaring a person or group guilty of a crime or series of crimes without due process (such as declaring a group with the right to assembly a “domestic terrorist group”. ) Gangs are frequently targeted unconstitutionally with a bill of attainder. I’m not sure who wrote this article, but you need to study constitutional law a little better.

    1. The rhetoric about the evil rich makes it seem disturbingly close to a bill of attainder. It’s not just “give us money you already paid taxes on so we can spend it”. It’s “you are evil and we are good so we are taking your wealth from you, see this crowd cheering my words, evil people?”

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