In a presidential campaign where politics, America’s favorite spectator sport, seems to be losing its appeal, it is hard to find bright spots. There was, however, at least one in the second presidential debate.
For partisans on both sides, the extraordinarily direct and bitter exchanges between Hillary Clinton and Donald Trump offered lots of red meat. She high-mindedly deplored the base tone introduced to the heart of our national life by her opponent’s crude sexual comments and, referring to his policy of vetting Muslim immigrants, suggested that he rejected our cherished freedom of religion. He, on the other hand, silenced her with the charge that she had grown rich in government service and had criminally mishandled top-secret government information.
But as important as these points may be, no one would call this sort of argument a bright spot. The point I have in mind came toward the end of the debate when a woman in the audience asked what each candidate would prioritize in Supreme Court appointments.
Clinton’s reply would, I suspect, seem perfectly unobjectionable to many. It is not that everyone agrees that the Court should reverse Citizens United or stick with Roe v. Wade or marriage equality, all of which Mrs. Clinton said she favored. What is important is not this or that particular decision; it is the idea, which Mrs. Clinton and others seem to embrace, that a President, when nominating Supreme Court justices, should look to particular cases, opinions, or results.
It was in this context that Donald Trump spoke the best line of the night: I would appoint people, he said, who “will respect the Constitution of the United States.” True, he didn’t elaborate that point and quickly veered onto another topic, but that simple statement is very significant.
Why? Because the office of the President of the United States is not in the deepest sense a means of advancing partisan political positions, though it sometimes seems to be evolving into that. Rather, in addition to executing the laws and protecting citizens against foreign and domestic enemies, the President’s supreme task is to protect the system that created and legitimizes the office he holds. That is why the Constitution requires that before entering this office a person must “solemnly swear (or affirm) that I will … to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
The President’s powers arise from the office he holds under the Constitution. He does not have those powers because he won an election, but because he prevailed in a process that is outlined in the fundamental law of the land. And if that law, the Constitution, were weakened, the office would correspondingly lose legitimacy and authority.
The Constitution is worthy of such great respect because of the way in which it was created and adopted. Some of the best political minds in history deliberated carefully and calmly to produce a proposal, which was then placed before the People of the United States, who, after examination and debate, chose it in a sober, deliberate fashion.
Nothing else in our political life combines to such a high degree wisdom and virtue with the deliberate consent of the whole people. The Constitution was certainly the product of much more serious reflection than any vote for any member of Congress, Senator, President, or law ever is.
An abbreviated version of that process abolished slavery in the United States and gave women the right to vote. And it is in large part because those measures were deliberated upon and adopted by the whole country in a Constitutional manner that they have the extraordinary support they have today.
Thus, as wonderful as the Thirteenth and Nineteenth (and other) Amendments are, they don’t come close to the treasure that is the Constitution itself. The structure of government which it delineates is more important than any of the Amendments that depend upon it; it is certainly more important than any particular decision by the Court. And that is why the pledge to appoint Justices who respect the Constitution is so important.
Both candidates claimed that they wanted to be president for the whole American people. It is impossible to do that by advancing this or that particular set of policies, which will always offend some.
But the candidates could come close if they aimed to preserve, protect, and defend the only “policy” that has ever been spoken for by whole country. And by so doing they would demonstrate that they understood the highest function of the office they are seeking.
David Foster, chairman, Department of Political Science and History at Ashland University in Ohio, serves on the faculty of Ashland’s Ashbrook Scholar and Master of Arts in American History and Government programs.