Democrats, Republicans, and the Constitution

In July 2017, after President Donald Trump had been in office for less than six months, Congressmen Al Green (D-Calif.) and Brad Sherman (D-Tex.) introduced in the Republican-controlled U.S. House of Representatives an article of impeachment (H. Res. 438) against the president for “High Crimes and Misdemeanors.” Said Green, “I am introducing Articles of Impeachment to begin a long process to protect our country from abuse of power, obstruction of justice, and impulsive, ignorant incompetence.” The impeachment article concluded with the charge that “Donald John Trump has acted in a manner contrary to his trust as President and subversive of constitutional government.” Naturally, the article of impeachment went nowhere, since the Republicans controlled the House.

The Democrats regained control of the House in the 2018 election. On January 3, 2019 — the first day of the new 116th Congress — Sherman and Green reintroduced their article of impeachment. Later that day, freshman Democrat Rashida Tlaib of Michigan — who later said that the tenor of her language was just how people in Detroit talk — announced that Democrats would “impeach the ****.” Although House Speaker Nancy Pelosi initially sought to stifle calls by Democrats for Trump’s impeachment, by September she announced the beginning of a formal impeachment inquiry, citing Trump’s “breach of his constitutional responsibilities.”

On December 9, House Democrats unveiled two articles of impeachment (H.R.755) against President Trump for “abuse of power” and “obstruction of Congress.” Each article of impeachment concludes with the words, “Wherefore, President Trump, by such conduct, has demonstrated that he will remain a threat to the Constitution if allowed to remain in office.” On December 13, the House Judiciary Committee recommended that the House ratify two articles of impeachment against the president by a party-line vote of 23 to 17 on each article. The Committee released its official Report on the impeachment on December 16. The introduction concludes with the statement, “The Committee now transmits these articles of impeachment to the full House. By his actions, President Trump betrayed his office. His high crimes and misdemeanors undermine the Constitution.”

Trump became the third U.S. president to be impeached on December 18, 2019, after a mostly party-line vote in the House of 230-197 on the first article of impeachment and 229-198 on the second. On January 16, 2020, the House’s articles of impeachment were presented to the Senate. The Trial Memorandum of the House impeachment managers concluded, “President Trump has betrayed the American people and the ideals on which the Nation was founded. Unless he is removed from office, he will continue to endanger our national security, jeopardize the integrity of our elections, and undermine our core constitutional principles.” A trial was then held in the Senate from January 22 to February 5. All 100 senators affirmed an oath read by Chief Justice John Roberts: “Do you solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump, president of the United States now pending, you will do impartial justice according to the Constitution and laws, so help you God?” Both sides had 24 hours over three days to make their case for or against impeachment, after which senators had 16 hours over two days to submit questions in writing to be read by the chief justice. That was followed by two hours of closing arguments by each side. Before the final vote, senators took to the Senate floor to make their individual cases for or against impeachment. On February 5, Trump was acquitted in his Senate trial by a party-line vote of 52-48 on the first article of impeachment and a near party-line vote of 53-47 on the second article of impeachment.

The Democrats

In the Democratic party platform, adopted at the Democratic National Convention in Philadelphia in 2016, Democrats don’t have much to say about the Constitution. It is, in fact, mentioned only four times:

We will finally enshrine the rights of women in the Constitution by passing the Equal Rights Amendment (p. 17).

The Democratic Party will fulfill, honor, and strengthen to the highest extent possible the United States’ fundamental trust responsibility, grounded in the Constitution, treaties, and case law to American Indian and Alaska Native tribes (p. 19).

The people of Puerto Rico should determine their ultimate political status from permanent options that do not conflict with the Constitution, laws, and policies of the United States (p. 21).

[We] believe the Constitution protects not only the powerful, but also the disadvantaged and powerless (p. 23).

The Democratic Party platform also speaks of freedom of expression as “a fundamental constitutional principle” (p. 16), support for “a constitutional amendment to overturn the Supreme Court’s decisions in Citizens United and Buckley v. Valeo” (p. 23), and “the constitutional principles of liberty and equality for all” (p. 23).

Democrats have never talked about the Constitution as much as they did during the impeachment hearings. Almost every Democrat who spoke about the need for Democrats to vote to impeach President Trump said that the president violated or betrayed the Constitution and that he had to vote in favor of impeachment because of the oath he took to support and defend the Constitution. On December 18, before the vote was taken in the House of Representatives on the articles of impeachment, members of Congress debated the articles prior to the vote. The comments of these House members are typical of the Democrats:

• We in Congress, Article One, the legislative branch, must stand up and make clear to the American people and to all people, that this body still stands by the principles enshrined in the Constitution and defended by generations of Americans (Nancy Pelosi, Calif.).
• President Trump has broken his oath of office. His conduct continues to undermine our Constitution and threaten our next election (Jerry Nadler, N.Y.).
• I ask all of my colleagues to search their souls before casting their votes. I ask them all to stand up for our democracy, to stand up for our Constitution (James McGovern, Mass.).
• The Constitution is the highest law of the land. The president breached and violated the Constitution of the United States of America.… The truth is that abusive power does violate the Constitution.… The Constitution must be preserved…. The bright light of this constitutional democracy has been dimmed because of his acts (Sheila Lee, Tex.).
• Article Two of the Constitution does not authorize a president to do whatever he wants. The reason we have a Constitution is to keep government officials from doing whatever they want (Jamie Raskin, Md.).
• President Trump’s actions force us to protect our elections and the Constitution. I urge my colleagues to defend the Constitution, support these articles of impeachment and remind the world that in America, no one is above the law (Ted Deutch, Fla.).
• Every member of this body has a responsibility to uphold our Constitution, to defend our republic, and when necessary to hold the executive branch accountable. And we are exercising that responsibility today. So with that, and therefore, I will vote yes on both articles because it is what the Constitution requires, demands (Joe Neguse, Colo.).
• For the sake of our democracy, our Constitution, and our country, we must do the right thing and vote to impeach President Trump (Don Beyer, Va.).
• Impeachment is a constitutional remedy for these actions. Trump betrayed his oath, betrayed the Constitution, and undermined the integrity of our elections. Those who are against the impeachment inquiry are willing to turn a blind eye to constitutional violations by the President. As a nation, we have no other alternative. We must protect our Constitution and the United States of America (Bennie Thompson, Miss.).
• I will uphold my oath to protect and defend the Constitution of the United States in favor of impeachment (Donald Norcross, N.J.).

Republicans likewise refer to the Constitution in their party platform and cited it during the impeachment hearings.

The Republicans

In recent years, Republicans have maintained that they are “the party of the Constitution.” The most recent Republican Party platform was adopted at the party’s convention in Cleveland in 2016. The Constitution is frequently mentioned in their platform as the Republicans’ authority:

We believe in the Constitution as our founding document.

We believe the Constitution was written not as a flexible document, but as our enduring covenant.

We reaffirm the Constitution’s fundamental principles: limited government, separation of powers, individual liberty, and the rule of law.

We affirm that all legislation, regulation, and official actions must conform to the Constitution’s original meaning as understood at the time the language was adopted.

The words Constitution, constitutional, constitutionally, unconstitutional, unconstitutionally, and constitutionality occur in the Republican Party platform a total of 80 times.

Before the vote was taken in the House of Representatives on the articles of impeachment, Republican members of Congress invoked the Constitution just as the Democrats did, but in this case in order to justify voting to not impeach the president:

• This is a sad day for our nation. When one political party, along with their cohorts, and the deep state and the mainstream media, try to hijack our Constitution (Mike Rogers, Ala.).
• Today’s articles of impeachment against President Trump are an assault on our Constitution and the American people (Peter King, N.Y.).
• I want to thank my Republican colleagues who have toiled honorably in defense of the Constitution and the rule of law under difficult circumstances (Gus Bilirakis, Fla.).
• In defense of the Constitution, I urge all members to oppose both articles of impeachment (Fred Keller, Pa.).
• I will proudly vote no today, a vote that upholds our Constitution, defends our president, and preserves the pillars of our nation’s democracy (Tim Walberg, Mich.).
• This impeachment betrays the nation, the Constitution, and the American people (Kevin Brady, Tex.).
• I want my statement to be in the record for the end of time to show I was on the side of the Constitution (Donald Bacon, Neb.).
• This process has been an embarrassment to our country, an insult to our Constitution, and a distraction from the real work we should be accomplishing for the American people (John Rose, Tenn.).
• Madam Speaker, think of our republic, think of the Constitution, think of the oath that we all swore to protect and defend that Constitution, and vote against these partisan, reckless, and dangerous articles of impeachment (Liz Cheney, Wyo.).

Some Republicans recognized the hypocrisy of Democrats’ talking about the Constitution:

• My colleagues speak eloquent about the constitutions they found under mothballs. Where’s respect for the Constitution when the people’s House daily refuses to do its actual job while shredding federalism and limited government (Chip Roy, Tex.)?
• ? It’s very interesting to hear the socialistic left Democrats that have a newfound appreciation for the Constitution and our founders’ principles (Randy Weber, Tex.).
• All of a sudden what we have is these strict constitutionalists on the other side of the aisle. Listen, this has nothing to do with the Constitution. It has nothing to do with anything but raw politics (Mark Meadows, N.C.).
• Democrats won’t be able to hide behind a pretend veneer of caring about the Constitution. History will record the Democrats’ legacy as a betrayal of the Constitution (John Ratcliffe, Tex.).

How can Democrats who wanted to impeach the president and Republicans who didn’t both appeal to the Constitution as the basis for their decision?

The Constitution

The United States was set up as a federal system of government where the states, through the Constitution, granted a limited number of powers to a central government. As James Madison so eloquently explained in Federalist No. 45,

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

There are about thirty enumerated congressional powers listed throughout the Constitution. Most of those powers are found in the eighteen paragraphs of Article I, Section 8. Six of them concern the militia and the military. Four of them concern taxes and money. The rest relate to commerce, naturalization, bankruptcies, post offices and post roads, copyrights and patents, the federal courts, maritime crimes, and the governance of the District of Columbia. The last paragraph gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

Elsewhere in the Constitution, Congress is given the power to
admit new states into the Union, propose amendments to the Constitution, regulate national elections, establish courts inferior to the Supreme Court, direct the location of the place for the trial of a crime not committed within a state, declare the punishment for treason, provide the manner in which the public acts and records in each state are accepted by other states, dispose of and regulate the territory or other property of the United States, give the states consent to lay imposts or duties on imports or exports, and provide for the case of the removal, death, resignation, or inability of the president or vice president. Everything else is reserved to the states — even without the addition of the Bill of Rights and its Tenth Amendment.

Members of Congress swear to uphold the Constitution. Article VI, Section 3, of the Constitution requires that senators and representatives “be bound by oath or affirmation, to support this Constitution.” U.S. law requires that members of Congress be sworn in before they can take their seats. The language of the congressional oath has changed (it is set by statute) several times since it was first administered in 1789. It now reads,

I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

To hear the Constitution referred to over and over again in the impeachment hearings and Senate trial, one would think that Democrats and Republicans both follow the Constitution when they introduce new legislation or continue to fund the agencies and programs of the federal government established by previous legislation.

The reality, of course, is that nothing could be further from the truth. Democrats and Republicans in Congress violate the Constitution on a regular basis. Indeed, practically every bill that is introduced makes a mockery of the Constitution. It is a myth that Democrats appeal to the Constitution only when it suits them but Republicans are consistently the party of the Constitution. The fact that Republicans mention the Constitution in their platform, refer to it in their conservative mantra, and express their allegiance to it means only that they are bigger hypocrites than the Democrats.

All it takes to prove my thesis is to shine the light of the Constitution on some key agencies and programs of the federal government and see if they are authorized by the Constitution.

Education. Does the Constitution authorize the federal government to have anything to do with education? Of course not.

The drug war. Does the Constitution authorize the federal government to regulate or prohibit the manufacturing, buying, selling, or using of any drug? Of course not.

Gun-control laws. Does the Constitution authorize the federal government to pass any legislation related to guns, ammunition, or magazines? Of course not.

Minimum-wage laws. Does the Constitution authorize the federal government to establish a minimum wage? Of course not.

Foreign aid. Does the Constitution authorize the federal government to take money from Americans and give it to foreigners and their governments? Of course not.

AMTRAK. Does the Constitution authorize the federal government to operate a rail service? Of course not.

Medicare and Medicaid. Does the Constitution authorize the federal government to pay for any American’s health care? Of course not.

Social Security. Does the Constitution authorize the federal government to have a retirement or disability program? Of course not.

Food stamps. Does the Constitution authorize the federal government to feed anyone? Of course not.

Subsidies. Does the Constitution authorize the federal government to subsidize art, culture, agriculture, or scientific and medical research? Of course not.

Anti-discrimination laws. Does the Constitution authorize the federal government to have an Equal Employment Opportunity Commission (EEOC) and prevent or prosecute acts of discrimination? Of course not.

Welfare programs. Does the Constitution authorize the federal government to fight poverty, establish a safety net, or give cash to the poor? Of course not.

Organ sales. Does the Constitution authorize the federal government to regulate the buying and selling of human organs for transplants? Of course not.

NASA. Does the Constitution authorize the federal government to explore outer space? Of course not.

Housing. Does the Constitution authorize the federal government to make home loans, give out housing vouchers, or even have a Department of Housing and Urban Development? Of course not.

Democrats and Republicans in Congress support all of these things. They may disagree on particulars,  such as the amount of foreign aid a certain country should be given, the work requirements for welfare programs, what the federal minimum wage should be, or how much farmers should be subsidized, but neither party opposes the existence or mission of any of these plainly unconstitutional agencies and programs of the federal government.

It is clear that no matter how many times the Constitution was referred to during the whole process of the investigation, impeachment, and trial of President Trump, members of Congress — Democrat and Republican alike — invoke it only to suit their own political purposes.

This article was originally published in the May 2020 edition of Future of Freedom.