The President and the Constitution How Citizens, Congress, the Courts, and the Media Influence Presidential Power

Senator Mike Lee Senator Patrick Leahy Dr. Matthew Spalding Ken Gormley Julie Silverbrook Elizabeth Wydra

A Special Report by The Washington Times Advocacy Department and The National Constitutional Literacy Campaign The President and the Constitution How Citizens, Congress, the Courts and the Media Influence Presidential Power

CITIZENS, CIVIC KNOWLEDGE AND Presidents and the Supreme Court: Public battles and quiet respect...... 15 PRESIDENTIAL ELECTIONS Ken Gormley Why a call for civic education and constitutional literacy...... 4 Julie Silverbrook The Media and the President The Constitution on the campaign trail in 2016 ...... 16 Student competitions spark optimism, civic involvement...... 4 Julie Silverbrook Julie Silverbrook Preserving the ‘genius’ of the Constitution...... 18 Effective civic education produces informed voters...... 5 David Keene Charles N. Quigley Is the media responsible for the too-powerful presidency? ...... 18 Civic illiteracy and civic disempowerment...... 6 Janine Turner and Andrew Langer Dr. Michael B. Poliakoff How social media gives public opinion wings...... 19 A Democratic or Republican election?...... 7 Shoshana Weissmann Jeff Hymas The Expansion of Presidential Authority ‘Tyranny of the swing states’?...... 8 The ever-expanding power of the presidency...... 20 Kyle Kondik Tim Donner

Get in the game: Empowering America’s next generation to vote...... 9 Unteaching Professor Obama’s constitutional lessons...... 21 Meg Heubeck and Gerard Ferri Josh Blackman t me nt Congress and the President Calvin Coolidge and the ‘two minds’ of the American presidency...... 22 Founders intended ‘tension’ in co-equal branches...... 10 Dr. Jason W. Stevens y D epar c

a George Nethercutt

oc Upholding the right ‘to be let alone’...... 23 Political gridlock, past and present ...... 10 Scott Michelman Dr. Robert J. Spitzer The National Constitutional Literacy Campaign was created in 2015 by Julie Silver- Constitution Day: Protecting our democracy...... 11 brook, executive director of The Constitutional Sources Project, and venture capi- Sen. Patrick Leahy talist and CEO of Essentials in Education Chuck Stetson. Its mission is to increase visibility and financial support for the constellation of organizations educating The battle to ‘keep’ the American Republic...... 12 citizens along the learning spectrum — from kindergarten to adulthood — about the Sen. Mike Lee American Constitution and our nation’s history. Campaign partners include: The Constitutional Sources Project (ConSource), Essentials in Education, The National Congress and the new imperial presidency...... 13 Constitution Center, The Allan P. Kirby, Jr. Center for Constitutional Studies & Citi- Dr. Matthew Spalding zenship at Hillsdale College, The Joe Foss Institute, American Council of Trustees

T i mes A dv T h e Washington BY T PREPARED The Courts and the President and Alumni, Intercollegiate Studies Institute, The Ashbrook Center at Ashland The president, the Constitution and the Supreme Court...... 14 University, The Center for Civic Education, The George Nethercutt Foundation, Elizabeth B. Wydra The Diana Davis Spencer Foundation, Education for All, Institute for American HINGTON TI MES AS HINGTON

CI A L REP O R Constitutional Heritage at The University of Oklahoma, James Madison Program How courts expand presidential power beyond constitutional limits...... 14 in American Ideals and Institutions at Princeton University, Marshall-Brennan A SPE TH E W

| Dr. Louis Fisher Constitutional Literacy Project, One Generation Away, The Constitution Bee, The Washington Times, and The Harlan Institute.

Cheryl Wetzstein Larry T. Beasley David Dadisman Patrick Crofoot ember 13 • 2016 Special SectionS Manager preSident and ceo general Manager SuperviSor, graphicS t Advertising Department: Thomas P. McDevitt Adam VerCammen 202-636-3062 chairMan director of advertiSing & SaleS

Special Sections are multipage tabloid products that run in The Washington Times daily newspaper and are posted online and in PDF form onits website. Sponsors and advertisers collaborate with The Times’ advertising and marketing departments to highlight a variety of issues and events, such as The Power of Prayer, North Korea’s Tuesday • S ep Tuesday Nuclear Threat, Gun Rights Policy Conference and Rolling Thunder Memorial Day Tribute to Veterans. Unless otherwise identified, Special Sections areprepared separately 2 ADVOCACY/SPECIAL SECTIONS and without involvement from the Times’ newsroom and editorial staff. Over the last 11 years, The Constitutional Sources Project (www.ConSource.org) has connected tens of thousands of American citizens of all ages to our nation’s constitutional history by creating a comprehensive, easily searchable, fully-in- dexed, and freely accessible digital library of historical sources related to the creation, ratifi cation, and amendment of the United States Constitution. Our team not only curates important digital collections of historical materials, but also cre- ates research reports and educational resources to meet the specifi c needs of scholars and authors, legal practitioners and government offi cials, educators and students, journalists and the general public.

CURRENT CONSOURCE COLLECTIONS • The Constitution, Bill of Rights, and Amendments 11 – 27 • Precursors to the Constitution (including the Declaration of Independence, Articles of Confederation and Mayfl ower Compact, Magna Carta and English Bill of Rights)

• Colonial charters and state constitutions before 1787 A SPE • The Federalist Papers • Anti-Federalist and Pro-Federalist CI A L REP O R Papers • Constitutional Convention Records, including James Madison’s Notes of T PREPARED BYi ng The Wash the Constitutional Convention and other records of the proceedings in Convention. • Select correspondences between del- egates to the Constitutional Conven- tion • Selections from 10 state ratifying

conventions to n T i mes A dv • The legislative history of the Bill of Rights • 55 infl uential political sermons

• Correspondence and papers of George Mason THE WASHINGTON TIMES oc a

PLANNED CONSOURCE COLLECTIONS c y D epar • Documentary History of Colonial Charters & Early State Constitutions

• Women & the Constitution Collection t men • Early Congressional Records

• Additional materials from state ratifying conventions | Tuesday • S ep • Select correspondence & papers of James Madison, Benjamin Franklin, Alexander Hamilton, Thomas Jefferson, John Adams, James Wilson, Oliver Ellsworth, Elbridge Gerry, Rufus King, John Lansing, Edmund Randolph and George Wythe. • Early Commentaries on the U.S. Constitution. t

• Reconstruction-era Materials ember 13 • 2016

INTERESTEDIN LEARNING MORE? VISIT WWW.CONSOURCE.ORG

3 Citizens, Civic Knowledge and Presidential Elections Why a call for civic education and constitutional literacy? By Julie Silverbrook in the fundamental importance of consti- Constitutional Literacy Campaign’s will read, reflect and learn from the schol- ames Wilson, a Founding Fa- tutional literacy and civics education. efforts is the annual publication of a ars and civic education advocates who ther from Pennsylvania, once We believe that by harnessing the Constitution Day special section in The submitted articles on this timely topic. said that “[l]aw and liberty power of organizations from the right, Washington Times. Newspapers have High-quality, lifelong civics education cannot rationally become the left, and center, we can reach and, ulti- historically been an important part of is essential for the continued health of objects of our love, unless they mately, educate a much broader segment civil society, providing information to cit- the American Republic. It helps ensure first become the objects of our of the national population. izens and serving as a watchdog against that Americans of all ages, in the words knowledge.” And, yet, count- Campaign partners include: The Con- abuses by those in power. Newspapers of Noah Webster, value “the principles of less reports tell us how little American stitutional Sources Project (ConSource), are also the backbone of America’s his- virtue and liberty,” and that we “inspire Jcitizens of all ages know about the Dec- Essentials in Education, The National torical record — The Federalist Papers them with just and liberal ideas of gov- laration of Independence, United States Constitution Center, The Allan P. Kirby, were originally published in a newspa- ernment and with an inviolable attach- Constitution and Bill of Rights. Jr. Center for Constitutional Studies & per, as were most of the Anti-Federalist ment to their own country.” Last year, we launched the National Citizenship at Hillsdale College, The essays; the records of state-ratifying On the eve of a major presidential Constitutional Literacy Campaign in a Joe Foss Institute, American Council conventions were published in local election, there is no better time to pick Constitution Day special section of The of Trustees and Alumni, Intercollegiate newspapers, and in many instances those up a newspaper and invest in your own Washington Times. Studies Institute, The Ashbrook Center newspaper reports are the only extant civic education. The mission of the National Constitu- at Ashland University, The Center for records available of the debates that oc- tional Literacy Campaign is to increase Civic Education, The George Nethercutt curred during the ratification period. Julie Silverbrook is the executive direc- visibility and financial support for the Foundation, The Diana Davis Spencer Newspapers serve as the first draft tor of The Constitutional Sources Project constellation of organizations educating Foundation, Education for All, Institute of American history as it is occurring. (ConSource.org), a nonprofit organization citizens along the learning spectrum — for American Constitutional Heritage Americans newspapers have preserved devoted to increasing understanding, facili- from kindergarten to adulthood — about at The University of Oklahoma, James records and detailed accounts of the peo- tating research, and encouraging discus-

t me nt the American Constitution and our na- Madison Program in American Ideals ple, issues and events that have shaped sion of the U.S. Constitution by connecting tion’s history. and Institutions at Princeton Univer- and will continue to shape our nation. individuals with the documentary history To achieve our goals, we have as- sity, Marshall-Brennan Constitutional Because of Constitution Day’s proxim- of its creation, ratification, and amend- y D epar sembled a broad and diverse group of Literacy Project, One Generation Away, ity to this year’s presidential election, this ment. Julie holds a J.D. from William & c a organizations, including nonpartisan The Constitution Bee, The Washington year’s special section is on “The Presi- Mary Law School. In 2015, she and venture

voc nonprofits, for-profit entities, and groups Times, and The Harlan Institute. dent and the Constitution.” capitalist Chuck Stetson founded the Na- from both the left and right who believe A key aspect of the National We hope citizens across the nation tional Constitutional Literacy Campaign. Student competitions spark optimism, civic involvement

By Julie Silverbrook national essay contest. We interviewed the student winners Every year, thousands of students of these competitions to learn more about across the nation take part in civics and their views of civic engagement, the Con- history competitions. They work tire- stitution and the balance of powers. Not lessly to study the United States Constitu- surprisingly, the views of these young T i mes A d T h e Washington BY T PREPARED tion, American history and government citizens correlate with the views of their so they can answer questions in front of adult counterparts. They share similar panels of esteemed judges or write essays anxieties and concerns about the future evaluated by experts. of the country. HINGTON TI MES AS HINGTON CI A L REP O R The students who participate in these Avery Merill, a 13-year old winner of competitions represent what is best about the Constitution Bee, feels that “[w]e as a A SPE TH E W

| America. They are engaged, informed, country are walking down a very danger- and involved. Many go on to become ous path.” leaders in their respective fields. Similarly, Ryan Premi, a high school National Constitutional Literacy student on the Lincoln High School Campaign partners host several of these (Portland, OR) winning class of the Cen- annual competitions, including the Con- ter for Civic Education’s national We the Source-Harlan Institute Virtual Supreme People competition, feels that “[a]lthough ember 13 • 2016 t Court Competition, the Center for Civic the U.S. views itself as this shining beacon Education’s We the People: The Citizen of freedom, there [are] so many issues and the Constitution Competition, the that we have at such a fundamental level Constitution Bee, the Marshall-Brennan Julie Silverbrook (fourth from right), executive director of The Constitutional Sources Project, [and] there are so many abuses of pow- Constitutional Literacy Project’s Annual and Josh Blackman, president of Harlan Institute (third from right), stand with winners and ers, rights and laws that [have caused] so

Tuesday • S ep Tuesday Moot Court Competition, the Nethercutt judges of ConSource-Harlan Institute Virtual Supreme Court Competition in April 2016. many problems in the USA.” Foundation Citizenship Tournament, and The students had to write appellate briefs on an affirmative-action case, and argue against 4 One Generation Away’s Roots of Liberty other student teams before a panel of attorneys. Image courtesy of ConSource. » see Competition | C8 Effective civic education produces informed voters

peers. (For more information on the research of the Center’s programs, visit www.civiced.org/research.) ⦁ The Project Citizen program complements the We the People pro- gram by helping students learn how to monitor and influence public policy at the local and state government level. Students research a public policy prob- lem in their community, evaluate al- ternative solutions, develop their own solutions in the form of a public policy, and create a political action plan to convince government officials to adopt their proposed policies. Through the By Charles N. Quigley Project Citizen program, which is used in more than 70 other countries, ivic education is the students have influenced laws through- primary way our citizens out the nation, learning how to have a acquire the knowledge voice in government. and skills necessary for ⦁ The Citizens, Not Spectators informed and engaged program focuses on ensuring that young citizenship. While many people acquire the information and institutions, such as the experience they need to be competent family, the church and social orga- and responsible voters. The goal of Cnizations, help forge a person’s civic Citizens, Not Spectators is to increase character and propensity to partici- the voting rate among young Americans pate, civic education in the schools is by providing engaging voter education the one common experience American to students in fourth to 12th grades. A SPE citizens share that helps them acquire To accomplish this goal, the curricu- and learn to use the skills, knowledge lum demystifies the voting process by Students analyze the benefits and costs CI A L REP O R and attitudes that prepare them to be teaching elementary, middle and high of authority, and evaluate and take and competent and responsible citizens school students how to cast a vote, defend positions on the proper scope throughout their lives. how the voting process works, how to and limits of authority. This is the historic civic mission become an informed voter and why it The Center for Civic Education is a T PREPARED BYi ng The Wash of schools — a mission considered so is important to cast an informed vote. nonprofit, nonpartisan educational or- important by those who established a The curriculum focuses on hands- ganization dedicated to promoting an free, universal system of public educa- on, active learning. Using actual voter enlightened and responsible citizenry tion in the United States that they registration forms and ballots, students committed to democratic principles identified civic education as one of the receive instruction in how to register and actively engaged in the practice central purposes of education. and cast a vote in a simulated election. of democracy in the United States and Unfortunately, as the indicators of other countries. civic engagement in our nation are The principal goals of the Center’s dropping, so, too, is the amount of This is the historic civic programs are to help students develop time and attention devoted to civic mission of schools — a (1) an increased understanding of the to n T i mes A dv education in our schools. Without mission considered institutions of American constitu- improving the quality and quantity of tional democracy and the fundamental civic education, we cannot expect that so important by those principles and values upon which they THE WASHINGTON TIMES young people will grow up to become who established a free, are founded, (2) the skills necessary to informed, capable and engaged voters. participate as competent and respon- oc

universal system of a All the Center for Civic Education’s sible citizens, and (3) the willingness c y D epar K — 12 curricular programs focus public education in the to use democratic procedures for mak- upon students’ acquisition of the civic United States that they ⦁ The Center’s Foundations of ing decisions and managing conflict.

knowledge, skills and dispositions nec- identified civic education Democracy series, used in more than To learn more about the Center and its t men essary for competent and responsible as one of the central 40 countries, consists of curricular programs, visit www.civiced.org. citizenship. materials for use with students from Voting, and doing so in an informed

purposes of education. |

⦁ The We the People: The Citizen kindergarten through 12th grade on and thoughtful way, is a fundamental Tuesday • S ep and the Constitution program is na- four concepts fundamental to an right and responsibility of citizens. But tionally acclaimed and focuses on the Citizens, Not Spectators can be taught at understanding of politics and govern- voting during elections is not enough. history and principles of the U.S. Con- any time, but is most effective when the ment: Authority, Privacy, Responsibil- It is also necessary to keep up-to-date stitution. A 2001 survey of We the Peo- course culminates around the time of an ity and Justice. This multidisciplinary on current events, monitor and attempt ple alumni revealed that they are better actual federal, state or local election. curriculum draws upon such fields as to influence public policy, keep our t informed and participate at higher Participation in this curriculum political philosophy, political science, elected officials informed and account- ember 13 • 2016 rates than their peers. The data sug- helps a new generation become ac- law, history, literature and environ- able, and take part in the political and gest that voting rates are significantly tive, informed, and engaged citizens mental studies. The Authority curricu- civic life of the community. higher among alumni than nonpar- prepared to take part in the electoral lum is especially appropriate in giving ticipating peers surveyed in the 2000 process. Citizens, Not Spectators was students the background required to Charles N. Quigley is executive direc- American National Election Study. developed through a cooperative effort make good decisions. It helps stu- tor of the Center for Civic Education. Eighty-two percent of We the People by the Center for Civic Education and dents distinguish between legitimate alumni voted in November 2000, in the Arsalyn Program of the Ludwick authority and power, and learn how to contrast to a 48 percent turnout by Family Foundation. choose people for leadership positions. 5 Civic illiteracy and civic disempowerment

Consider the fact that one-third of value of a U.S. history requirement Institutions should instead require college graduates and nearly half of by allowing such courses as “America a solid, foundational course in U.S. his- the general population can’t identify Through Baseball” (University of Colo- tory or government of all college stu- the Bill of Rights as a name given to a rado at Boulder), “Mad Men and Mad dents. Finally, colleges and universities group of Constitutional amendments. Women” (Middlebury) or “Vampires must rigorously assess the effective- More than one in 10 college gradu- and Other Horrors in Film and Media” ness of their instruction in American ates and nearly a third of the general (University of California–Davis) to history and government. population were unaware that the U.S. suffice. Is it any wonder, then, that, There are universities and uni- Constitution does not need to be reau- nearly 10 percent of college graduates versity leaders who have exercised thorized every four years. think Judith Sheindlin — the television leadership by giving American history These findings are representative of personality better known as Judge Judy and government its rightful due in the an epidemic afflicting American higher — is a member of the Supreme Court? curriculum. Michael Adams, then- education. It’s no accident that stu- So it is indeed a welcome develop- president of the University of Georgia, dents are finishing college with such ment that cultural observers are finally affirmed his school’s commitment to a rudimentary understanding of our beginning to note the dangers of this a core curriculum in 2013 State of the country’s laws, Constitution and politi- erosion in constitutional knowledge. University address, articulating his By Dr. Michael B. Poliakoff cal history. After all, few of their alma What can higher education leaders do belief in the importance of “an under- maters require them to study these to stem the tide of civic illiteracy? standing of the history of this nation onstitution Day provides subjects. First, halt the growth of curricular and some shared vision of where it is a critical opportunity headed.” In 2014, Paul Trible, president for students and citizens of Christopher Newport University, to reflect on the im- celebrated his university’s establish- portance of America’s ment of a requirement in American Founding documents history as “essential preparation for and their relevance to citizenship and career” in a Richmond today’s culture. In a republican form of Times-Dispatch op-ed. Cgovernment, the dangers inherent in Through focus on our history and having an ill-informed electorate are our institutions of government, higher real indeed. America’s leaders, from education can help to restore the broad

t me nt the Founding through modern times, awareness of our political and civic have recognized that in order for our past that is necessary for engaged system of government to function and citizenship. y D epar thrive, it would by definition require Civic illiteracy, on the other hand, c a the dedicated and well-informed par- disempowers young citizens, weak- oc ticipation of American citizens. ening their ability to engage in a Through a core education, wrote democratic government and pass their Thomas Jefferson, a citizen will learn, institutions on to the next generation “to understand his duties to his neigh- intact. bors and country ... to know his rights; One happy result of the unusually to exercise with order and justice those contentious presidential campaign of he retains.” 2016, regardless of one’s party affili- President Kennedy eloquently ation, would be a sober look at what observed, “There is little that is more now passes for political discourse and important for an American citizen to the way that civic illiteracy plays into know than the history and traditions of it. The leadership we get ultimately his country. Without such knowledge, reflects how well prepared we are, to he stands uncertain and defenseless borrow Ben Franklin’s phrase, to keep before the world.” our republic. The populist stirrings of the 2016 Parents, lawmakers, and voters T i mes A dv T h e Washington BY T PREPARED election have the news media suddenly should demand more of the colleges clamoring about the importance of and universities that ought to prepare historical and civic literacy as a vital Americans for citizenship and leader- precondition for participation in the At some point, students and parents should ship. Our students deserve it, and our HINGTON TI MES AS HINGTON CI A L REP O R American system. Leading histori- ask whether courses on reality TV, zombies nation needs it. ans have reasonably suggested that a A SPE TH E W and “the joys of garbage” are more valuable

| council of historians advise the next Michael B. Poliakoff, Ph.D., is president president of the United States. than a basic grasp of the U.S. Constitution of the American Council of Trustees and But, in truth, these wholly appropri- and our three branches of government. Alumni, an independent, nonprofit orga- ate observations and suggestions are nization dedicated to academic freedom, late remedies for problems that have excellence and accountability at Ameri- festered for decades. In fact, the vast majority of colleges bloat. Elective courses with little, if ca’s colleges and universities. In January Recent research from the Ameri- and universities (82 percent) do not any, relevance to the demands of career 2016, ACTA (goacta.org) published a de- ember 13 • 2016 t can Council on Trustees and Alumni require students to complete founda- and citizenship have multiplied, even tailed report on civic illiteracy called, “A documents the civic and historical tional coursework in American history. as universities have cut back on core Crisis in Civic Education,” followed by ignorance of so many of today’s college At many of the most highly ranked curricula. At some point, students and the July release of “No U.S. History? How graduates. There is a growing chasm universities, even a student majoring parents should ask whether courses College History Departments Leave between what the graduates of our in history can receive a degree without on reality TV, zombies and “the joys The United States out of the Major.”

Tuesday • S ep Tuesday colleges and universities actually know taking even one course dedicated to of garbage” are more valuable than a — and what they need to know — to U.S. history. basic grasp of the U.S. Constitution and 6 fulfill their duties as citizens. Many institutions also dilute the our three branches of government. A Democratic or Republican election?

were instituting was republican — not people chose representatives to do democratic (notice, these are terms, They needed a system their work so as to provide a buffer not party titles). In a speech delivered that was by, for and of between the issues and the people; a by Alexander Hamilton at the Consti- system where the necessary amount tutional Convention, he declared, “We the power of the people, of time and effort to arrive at the right are now forming a republican govern- but one that checked decision was built in, instead of being ment. Ideal liberty is neither found in the human nature held hostage by an overzealous indi- despotism or the extremes of democ- vidual or group who insisted things be racy, but in moderate governments.” tendency of people to done their way and that they be done What’s so wrong with a democracy abuse such power. immediately. and why were the Founders so nervous It is no different when it comes to about it? 51 percent of the crowd want it so. In our Electoral College system, which A democracy is direct rule by the a republic, or a rule of law, all such elects the most powerful governmental people. “But that’s what America is all redheads get their day in court, where office in the world. And, contrary to about!” you may contend. laws determine their fate. popular opinion and populist argu- By Jeff Hymas However, many of the Founders, In a republic, reason and justice pre- ments, such a system is not corrupt, including John Adams, shared a low vail. In a democracy, emotion reigns it is not archaic and it is not inferior he question on everyone’s opinion of democracy. He stated, “Re- supreme. to a system that would employ mod- mind during a presidential member, democracy never lasts long. It’s not that the Founders didn’t ern technology to provide for a direct election is, “Will we have a It soon wastes, exhausts, and murders trust the common man. What they national election. This is because Democratic or Republican itself. There never was a democracy trusted was that it was a common folly republicanism is based on principles, president?” Of course, that yet that did not commit suicide.” among all men — no matter their rank and principles don’t change. decision is left to the voters Why is that so? Because the pas- or birth — to be overly swayed by their Consider that nearly everyone ­— or is it? sions of the masses don’t lead to or- passions and to act in ways that lead to in America is fed up with empty If we take a closer look at elections, dered civilization or to calm, reasoned injustice. campaign promises, catchy slogans, Twe can learn some things about the arguments about the best way forward. They needed a system that was by, robocalls and mudslinging, etc. Would process itself, which yields the far dif- Democracy leads to mobocracy, where for and of the power of the people, but direct election of our president cause ferent, fundamental question of, “Will a simple majority is the final — indeed one that checked the human nature those unfavorable elements to increase we have a democratic or republican the only — determining factor. tendency of people to abuse such or to decrease? Would direct elec- A SPE election?” In a democracy, redheads, whom power. tion make campaign finance a bigger The Founding Fathers were very the majority hate and want to kill, They settled on a representative CI A L REP O R clear that the form of government they can be legally disposed of, as long as constitutional republic; a system where » see HYMAS | C9 T PREPARED BYi ng The Wash REDISCOVER AMERICA’S STORY to n T i mes A dv The

PERFECT GIFT THE WASHINGTON TIMES oc a c

for your y D epar

FAVORITE AMERICAN t men www.50CoreDocs.org | Tuesday • S ep t ember 13 • 2016

This collection includes documents such as The Ashbrook Center is an independent center Ronald Reagan’s “A Time for Choosing” speech, at Ashland University, offering programs with a national scope to restore and strengthen Calvin Coolidge’s “Speech on the 150th Anniversary of the the capacities of the American people for Declaration of Independence,” and the Constitution of the United States. constitutional self-government. 7 ‘Tyranny of the swing states’?

all that much direct say in the selection country the choices of just a relatively also true in 1976, when Jimmy Carter nar- of delegates to national conventions, small amount of voters. That’s because, rowly defeated Gerald Ford. even though primaries emerged early in for all practical purposes, most of the Nowadays, the map is more fixed: Just the 20th century. But even though voters states are so uncompetitive politically four of the 50 states were decided by five now greatly control who the delegates that only a handful of states really decide points or less in 2012 (Florida, North Car- to the convention are, and, thus, the who the president is. olina, Ohio and Virginia), and 40 of the nominees as well, the conventions live on As I explore in my new book, “The 50 states have voted the same way in the anyway — an antiquated institution that, Bellwether: Why Ohio Picks the Presi- last four presidential elections. Gener- nonetheless, may eventually revert to its dent,” a truly nationalized election strat- ally speaking, candidates and campaigns traditional role of selecting the nominees egy used to be reasonable in presidential focus almost all of their time, money if the voters fail to produce a clear ver- and staffing on just a handful of states. dict. That’s just like how the House gets (Donald Trump has raised eyebrows by By Kyle Kondik to pick the president if general election But beyond that, the holding campaign events in some reli- voters fail to give any candidate a major- Electoral College, in ably Democratic states like Connecticut, hen the Founding ity of the electoral votes, which hasn’t Maine and Washington, although most Fathers created our happened since 1824. modern times, also observers regard those visits as a curious electoral system, The flaws of the Electoral College are enforces on the country and likely mistaken strategic decision by they might have clear to anyone who lived through the the choices of just a an unconventional campaign.) been surprised 2000 election, where the national popu- relatively small amount Unlike some of the other complaints to discover, more lar vote winner didn’t actually win the about the Electoral College, like the pos- than two centuries election. But there are other problems, of voters. That’s because, sibility of a national vote loser capturing later, that these two things could be true ones that are less obvious. for all practical purposes, its majority or its overrepresentation of Wat the same time: One, that the country For one, the Electoral College over- most of the states are so small states, its empowerment of a small had embraced mass democracy, including represents the small states. Each state group of states that vote close to the giving the franchise to men and women (and the District of Columbia) are guar- uncompetitive politically national average may only be temporary, of all races, incomes and classes; and two, anteed at least three electoral votes, even that only a handful of although it appears the country’s states that despite doing that, the country was if their population doesn’t merit it. That’s states really decide are moving further apart politically. But still using the Electoral College system because the electoral votes represent a who the president is. for now, one can add the “tyranny of the that they had implemented at the dawn state’s members of the House and Senate. swing states” to the list of reasonable

t me nt of the country — a system that was not So even the smallest state, with just a concerns Americans can have about the designed with the intention of promoting single House member, gets three votes elections. In 1960, Richard Nixon fulfilled way we pick presidents. mass democracy. because that state also has two senators. a promise to campaign in every state (his y D epar Grafting the idea of mass democracy That’s why we have 538 electoral votes — opponent, John F. Kennedy, campaigned Kyle Kondik is managing editor of c a onto institutions that may not have been those votes represent 435 House mem- in almost all of them), and while Nixon’s Sabato’s Crystal Ball, a nonpartisan oc originally designed to support them is bers, plus 100 senators, plus three extra strategy might have helped cost him newsletter on U.S. elections produced not limited to the Electoral College. The votes for Washington, D.C., which gets a the election by putting him in sparsely by the University of Virginia Center for way we nominate presidential candidates vote for president but not voting mem- populated Alaska on the eve of Election Politics. He is also the author of “The through conventions is also a somewhat bers of Congress. This equals 538 total. Day, it wasn’t necessarily crazy: 20 of the Bellwether: Why Ohio Picks the Presi- clunky system for this modern age. But beyond that, the Electoral College, 50 states were decided by five points or dent” (2016, Ohio University Press). Up until the 1970s, voters did not have in modern times, also enforces on the less in that very close election. That was

of citizens about our legal system,” dem- have a much richer and deeper apprecia- For them, in the words of 13-year old Competition onstrated to her that “as long as there are tion for the value of civic learning and Avery Merill, the Constitution “provides From page C4 citizens like them, America will continue engagement. for the three branches of government to to hold a bright future.” Joshua Ross, a winner of the Nether- check and balance each other, but it is the Similarly, David Ndiyo, a winner of the cutt Foundation Citizenship Tournament, people’s responsibility to check them all.” Despite expressing deep concerns Marshall-Brennan Constitutional Literacy believes that “civic engagement is a lot We can ensure that citizens are pre- T i mes A dv T h e Washington BY T PREPARED about where the country is headed, Project’s Moot Court competition, shared more than marking bubbles on a ballot pared to fully and ably serve in that role most of the students expressed positive that the experience changed his view of slip. It requires active involvement in by supporting lifelong civics instruction views about the future. They draw this the future of this country substantially. local, state, and national politics. It re- and the many civics competitions offered optimism, in part, from their experi- Before taking part in the project, he said, quires standing up for what [you] believe to young people all over the country. You HINGTON TI MES AS HINGTON CI A L REP O R ences with student competitions, which “I have to admit I was slightly worried in. It requires being ‘anxiously engaged in can learn more about these competitions showed these young citizens how to ef- about how little young people cared or a good cause.’” and the organizations that run them at A SPE TH E W

| fect positive change at the local, state and knew about how this nation works, about Chase Merrill, another Constitu- www.ConstitutionDays.org. national level. the Constitution, and about how they af- tion Bee winner, plans to share what Tanya Reyna, a winner of the Con- fect their day to day lives, but the simple he’s learned with people he knows and Julie Silverbrook is the executive direc- Source-Harlan Institute Virtual Supreme fact that a program such as this exists pledges that when he is old enough to tor of The Constitutional Sources Project Court Competition, noted that while her has given me reason to ease those fears. vote he will “help elect honest, wise, (ConSource.org), a nonprofit organization local community in Texas suffers from [Meeting other] people my age ... that and moral men and women to be our devoted to increasing understanding, facili- “an influx of drugs and criminals” and has are aware and feel so strongly about the representatives.” He believes that a “good tating research, and encouraging discus- ember 13 • 2016 t dampened her views about the future of Constitution and their citizenship fills me citizen studies American history and cur- sion of the U.S. Constitution by connecting her community and the nation, her expe- with hope for the future of our country rent events, is respectful of the rights of individuals with the documentary history rience with the Virtual Supreme Court and now I feel we will be in good hands other citizens, and upholds and defends of its creation, ratification, and amend- Competition “eased [her] apprehension” in the future because we will be led by a the principles of the Constitution.” ment. Julie holds a J.D. from William & about the future. She said that meeting group of thoughtful individuals who work Our hope is that as we enter the final Mary Law School. In 2015, she and venture

Tuesday • S ep Tuesday students, lawyers, professors and judges well in a collaborative environment and leg of the 2016 election, citizens of all ages capitalist Chuck Stetson founded the Na- willing to take time out of their busy care about their communities.” reflect on the views of these incredible tional Constitutional Literacy Campaign. 8 schedules “to inform younger generations Furthermore, these young people young citizens. Get in the game: Empowering America’s next generation to vote

By Meg Heubeck their efforts. and Gerard Ferri “This is all about the kids and the fu- ture of America. We live in an apathetic illennials may be age. We have to change that by taking turned off by the it to the streets!” Ferri said. “Getting current political the kids to vote is a crucial first step in system — but now them becoming good citizens.” there’s a new plat- To register to participate in the Youth form to engage them. Leadership Initiative Mock Election, A recent poll teachers should visit www.youthleader- from Gallup entitled, “How Millennials ship.net and visit the Mock Election MWant to Work and Live” (http://www. page to prepare their students. gallup.com/reports/189830/millennials- For more information about Amer- work-live.aspx), found that Millen- ica’s Mock Election’s Mock Election nials are politically indifferent and Results Program and other exciting, self-identify as politically moderate or election-related incentives, visit www. independent. americasmockelection.org. Moreover, in 2012, only half of 18-to- Following the election, America’s 25-year-olds eligible to vote made it to the talents of many great organizations, On Friday, Oct. 28th, America’s Mock Mock Election promises to continue in- the polls, compared with 72 percent such as The Constitutional Sources Election will meet in Annapolis, Mary- spiring such civic engagement through of the elderly, according to the Center Project, Discovery Education, Envision land, to film the National Mock Election other programs, including celebrity role for Information and Research on Civic Education and the Center for Civic Edu- Results show. Young people will host model-type concerts. Learning and Engagement. cation, America’s Mock Election will the event, which will include specials “It is up to all of us to bring young If Millennials feel disenchanted for the first time put the spotlight on guests from supporting organizations people into the fold. Our future depends about the political system, it might be kids in an exciting new way. Partnering introducing the mock election results on it and I for one am here to make sure A SPE directly related to the fact that they organizations have offered ideas, net- for each state. it happens,” said Ferri. don’t make it to the polls — elected working support and logistical guidance The program will make its way into CI A L REP O R officials are loathe to create policy for throughout the past year. classrooms across the nation the week Meg Heubeck is director of instruction those who have had little influence in The Youth Leadership Initiative’s 2016 prior to Election Day on Nov. 8. for the Youth Leadership Initiative at the electing them. So Millennials’ inaction National Mock Election will open its By releasing the results prior to the University of Virginia Center for Poli- causes disenchantment — and their polls on Monday, Oct. 17. Polls will remain actual election, students will have a tics, and Gerard Ferri is the executive T PREPARED BYi ng The Wash disenchantment feeds their inaction. open through 5 p.m. EST on Oct. 27. chance to be in the spotlight and be director of America’s Mock Election. How to end this vicious cycle? Once polls have closed, the results supported by the general public for America’s Mock Election was cre- will be sent to America’s Mock Election, ated in the summer of 2015 in reaction where they will be used to produce a to this pattern of nonparticipation in nationally broadcast online program primary and caucus systems, each state, federal and local elections (state to be shown in classrooms across the HYMAS of which has its own pros and cons and local elections garner even lower nation. The UVA Center for Politics’ From page C7 in relation to the question of direct youth turnout). Youth Leadership Initiative will provide election.) The mission of America’s Mock curriculum materials, including lesson In short, our republican system Election is to make significant strides plans comparing the candidates, down- or smaller issue? Would direct applied to elections favors those to n T i mes A dv in creating the most comprehensive loadable decorations, and a customiz- election reward reason and logic, who get involved and stay involved and powerful student-voter education able ballot for all registered teachers. or would it instead reward impas- in being an informed and active experiences for presidential and local The ballot will include the offices sioned demagoguery on special member of the electorate. A new- THE WASHINGTON TIMES political races for 2016 and beyond. of president and vice president, U.S. interest platitudes? comer who has sat back and kept America’s Mock Election founder House and Senate, and all gubernatorial A representative system de- his distance from the political pro- oc a

Gerard Ferri is dedicated to creating races. Teachers can add local races and mands that popularity yields to cess has a hard time making a huge c y D epar a dynamic election program that will referenda to make the experience more principles. influence over presidential election ignite an emotional spark and lead complete. The 10th Amendment offers results, whereas an individual who

students towards a lifetime of voting. “It is really important to us that interesting insight into this issue. has worked hard to stay informed t men Ferri has experience with youth and teachers have the most authentic expe- It declares, “The powers not and involved will find that she mock elections, having run a similar rience possible, so that when students delegated to the United States by understands the system and knows |

campaign in 1992 with CNN. get to the polls after turning 18, they the Constitution, nor prohibited what to do and how to do it in Tuesday • S ep This time around, Ferri is partnering are comfortable and ready to exercise by it to the states, are reserved to order to be influential. with the University of Virginia’s Youth their right,” said Meg Heubeck, director the states respectively, or to the Some might call that type of sys- Leadership Initiative. The university’s of instruction for the Youth Leadership people.” tem “rigged.” The Founders would Center for Politics is widely recog- Initiative. Clearly, each state can decide call it “republican.” nized as a leader in political analysis, The initiative’s team contacts each how it votes (as is evident in the t

as well as civic education, and its Youth state’s board of elections to determine Electoral College process, where Jeff Hymas is the founder and ember 13 • 2016 Leadership Initiative boasts over 70,000 the actual ballot order and replicates states get to decide how to bind president of In the Constitution, an registered educators and provides an that on the mock election ballot. “There their Electoral College delegates), organization dedicated to teach- annual mock election that is second to is evidence that mock elections are suc- and the people get to decide for ing the true principles of freedom none. cessful in influencing a young person’s themselves how to choose their found in the U.S. Constitution. Its Ferri also brought in other leading decision to vote upon turning 18,” Heu- nominees (as is evident in the first national, online Constitution civic organizations, as well as philan- beck added. “This is what inspires both ability of political parties — pri- Bee was completed in April with thropist John Herklotz, to build his YLI and AME to make the experience as vate entities — to choose between 725 participants in 42 states. dynamic election program. By pulling accurate as possible.” 9 Congress and the President Founders intended ‘tension’ in co-equal branches

and become law, and it did — without was a master at persuading others. His has been represented at such ceremonies. any Republican votes. support for the Civil Rights Act in 1964, But presidents and members of Con- Some congressional members of the securing votes of previously anti-civil gress are expected to socialize regularly. president’s political party wanted to vote rights senators, made the difference. Pas- Members are routinely invited to the against such government-expanding sage was secured by his using personal White House for its annual Christmas measures, but party leaders exhorted charm and relying on relationships with party and seasonal picnics. At events like them to “support the president,” alleging members of Congress. these, presidents have the opportunity to that it would be a failure for the presi- The Constitution doesn’t mandate mingle with members, and White House dent if they didn’t vote affirmatively. As a such relationships, but any wise presi- staff members get to know congressional former member of Congress, I heard this dent who expects implementation of committee members and vice versa. Oth- argument repeatedly and felt the pressure his legislative agenda must develop a erwise, opportunities for such interac- intended. workable relationship with Congress. tions are more limited. Ideally, members of Congress should Each needs the other, as intended by our Legislating for the good of America vote their conscience, doing what’s right Constitution. isn’t exclusive to one branch of govern- By George Nethercutt for all Americans. The Constitution is Traditionally, Congress and the presi- ment. The Founding Fathers intended silent about a congressional obligation dent have had an antiseptic relationship legislative interaction between the presi- wo of the three branches to a president with the same political with the Supreme Court. Court members dent and Congress. The judicial branch of our government — Con- party affiliation. It doesn’t offer a com- don’t regularly interact or socialize with was intended as an objective arbiter of gress and the White House plete instruction booklet for any of the Congress or the president. the constitutionality of actions taken by and its executive branch — three branches. Its guidelines are broad. That’s because the Supreme Court is the other two. As such, interaction with are used to interacting with Presidents and members of Congress are intended to remain above any perception the judicial branch to avoid the appear- each other. But they don’t accorded great freedom when elected, as of political influence in the decisions it ance of political influence has been routinely interact with the the Constitution intended. I recall being renders — and that’s good for the integ- limited and respected by the other two Supreme Court. told at my freshman orientation, before rity of the American justice system. branches. When the president represents one being sworn in, that no one could control Out of respect, some Supreme Court The Founders were geniuses when it

t me nt T political party and Congress the other, how I represented my constituents. I justices attend the president’s annual came to crafting a workable government. conflict is automatic. The Constitu- was free to be diligent and responsive to State of the Union remarks in the House Limiting the powers of each branch, re- tion, when it made the judicial, execu- their needs or do nothing, though doing Chamber, but that’s a phenomenon only stricting their interactions and being ul-

y D epar tive and legislative branches co-equal, nothing would likely make me a one-term commenced in the last century. For the timately subservient to the Constitution c a assured that tension existed between congressman, unable to be re-elected. first years of the American government, have been the hallmark of the American oc them. But when half or all of Congress Every member of Congress is accorded the president, under the Constitution’s government since 1776. We Americans shares the same political party affiliation such freedom, and so are presidents. Article II, Section 3, delivered the State of can only hope that such principles will be as the president, the tension some- Politically savvy presidents com- the Union in writing to Congress, though upheld in perpetuity. times becomes subservient to political municate regularly with members of the some early presidents addressed Con- self-interest. Senate and House of Representatives, and gress orally. Delivering State of the Union George R. Nethercutt, Jr., (R-Washington) Presidents craft their own legisla- vice versa. Any president who doesn’t remarks in person started under Presi- was a member of the House of Represen- tive agendas. President George W. Bush communicate is letting America down. dent Woodrow Wilson in the early 1900s. tatives (1995-2005). He is an author and wanted prescription drug coverage to Presidents are best equipped to build Even later presidents delivered writ- commentator, as well as founder and chair- be included under Medicare so that personal relationships that can withstand ten remarks, though. In modern times, man of the George Nethercutt Foundation, seniors could better financially manage policy differences. Presidents are special, Supreme Court justices have been invited a nonprofit, nonpartisan organization their health care needs. President Obama and are accorded great respect by federal to the ceremony. Modern presidents have dedicated to fostering civic involvement. wanted “Obamacare” to pass Congress legislators. President Lyndon Johnson upheld the tradition, and the high court

T i mes A dv T h e Washington BY T PREPARED Political gridlock, past and present HINGTON TI MES AS HINGTON CI A L REP O R House of Representatives after having legislator-in-chief. concerning internal improvements: It lost it to the Democrats four years earlier. Many past presidents have faced warned darkly that this veto threat meant A SPE TH E W

| On the night of their triumph, Ohio divided party control between the two that “the Presidential veto would acquire Congressman and soon-to-be Speaker elective branches, including Eisenhower, a force unknown to the Constitution, and of the House John Boehner said, “It’s the Nixon, Reagan, Clinton, and both Bushes. the legislative body would be shorn of its president who sets the agenda for our While the likelihood of presidential powers from a want of confidence in its government.” success in Congress nosedives at such strength.” In the eight years of his popu- Huh? times — for Obama, the rate at which lar presidency, Monroe vetoed exactly Boehner was neither betraying his Congress voted with his preferences was one bill. ember 13 • 2016

t party nor caving in to the wishes of the almost 97 percent in 2009 and almost 86 Or take Sen. Daniel Webster’s vehe- By Dr. Robert J. Spitzer Democratic president, a fact well dem- percent in 2010, dropping to 57 percent in ment exception to a suggestion that onstrated by the inter-branch gridlock to 2011 — Congress still expects a menu of President Andrew Jackson should be Election night 2010 was a smashing come. presidential preferences to help guide its consulted on the drafting of legisla- success for congressional Republicans. Instead, he was acknowledging what agenda. tion in order to avoid a possible later

Tuesday • S ep Tuesday In a reversal of fortunes after Democrat has become the accepted standard for Compare this with a report Congress veto. Such a step, Webster thundered, Barack Obama’s 2008 presidential vic- presidential-congressional relations in issued in 1817 in response to President 10 tory, the GOP recaptured control of the the modern era: that the president is James Monroe’s threat to veto a bill » see SPITZER | C11 Constitution Day: Protecting our democracy

This year, unfortunately, Senate president’s powers is found nowhere no different. We should do our jobs in Republicans decided to shirk that fun- in the Constitution. There is no “elec- the Senate rather than do damage to our damental constitutional duty. Within tion year” exception in Article II. And independent judicial system. hours of the news in February that the history of our country reflects this This summer when the Supreme Justice Antonin Scalia had passed, Senate fact. Vacancies on the Supreme Court Court completed its most recent term, Republican leadership declared that they are rare. Vacancies in even-numbered the damage of Republican obstruction would block any consideration of Presi- years are rarer still. Yet, more than a became clear. In seven cases, the dimin- dent Obama’s nominee to the Supreme dozen Supreme Court justices have been ished high court could not serve as the Court. No hearings. No consideration by confirmed in presidential election years. final arbiter of law when it was unable to the Judiciary Committee or committee Most recently, Justice Anthony M. Ken- garner a majority to issue a final decision vote. No up-or-down confirmation vote nedy was confirmed by a Democratic-led on the merits. In another death penalty in the Senate. Senate during President Reagan’s final appeal — a matter of life and death — This partisan obstruction of a year in office in 1988. the justices also deadlocked. And just Supreme Court nomination is not only last month, the high court deadlocked unprecedented but it is contrary to the on consideration of an election law case By Senator Patrick Leahy constitutional design of the Framers. This partisan obstruction that will impact the constitutional rights Senate Republicans’ shutdown of any of a Supreme Court of millions of voters ahead of this year’s hen the Framers consideration of the Supreme Court nomination is not only election. signed the United nominee diminishes both of the other Next month, the Supreme Court will States Constitu- co-equal branches of government. It unprecedented but start its new term and begin hearing tion, they created imposes a novel time limit on one of the it is contrary to the cases involving pressing constitutional a federal system of most important constitutional roles of constitutional design questions that affect millions of Ameri- government with our president. And it diminishes the role cans. There is still time for the Senate three co-equal that our highest court can play while it of the Framers. Senate to correct its course and consider Chief branches, designed to work cooperatively operates with a long-standing vacancy. Republicans’ shutdown Judge Garland’s nomination. There Wbut also designed to serve as checks and Six months ago, President Obama ful- of any consideration should not be an empty seat on the balances. As we celebrate the 229th anni- filled his constitutional duty by nominat- of the Supreme Court bench when the Supreme Court con- versary of the signing of the Constitution, ing an exceedingly well-qualified jurist venes on the first Monday in October. Americans across this great nation take to serve on the Supreme Court: Chief nominee diminishes both If there is, it will represent the disre- A SPE time to reflect on its enduring legacy and Judge Merrick Garland. He is a dedicated of the other co-equal spect that Senate Republicans have not the many challenges that our constitu- public servant who has served for nearly branches of government. only for the president’s powers under CI A L REP O R tional system of government faces. two decades on the D.C. Circuit Court of the Constitution but for the independent Those of us who took an oath to Appeals — known as the second highest Appointments to the Supreme Court judiciary that the Constitution created. uphold the Constitution — and that court in the land. He has earned biparti- are among the most important and On this Constitution Day, I hope that includes every U.S. senator — have a duty san praise for being an undeniably fair- consequential powers that a president all Americans will take a moment to T PREPARED BYi ng The Wash to ensure that our government — created minded judge. In 2010, Republican Sena- possesses under our Constitution. And consider the damage that this partisan by and sustained by our Constitution — tor Orrin Hatch said Chief Judge Garland the American people have twice voted obstruction is having on our consti- continues to function for the good of the would be “a consensus nominee” and in record numbers to elect President tutional system of government. I take American people. there was “no question” he could be Obama to exercise this power. In doing seriously the oath I took to uphold the The Senate plays a unique role in confirmed to the Supreme Court. so, Americans have granted him the Constitution. I hope that all senators relation to the president and the judiciary. Instead of evaluating his qualifica- same constitutional authorities of all of will commit to making sure that our Article II, Section 2, Clause 2 of the Con- tions and reviewing his record, however, our previous presidents for each year he constitutional system of government stitution provides that the president “with Republicans have blocked his nomina- serves. endures for the next generation. the Advice and Consent of the Senate, tion on the premise that a president Moreover, the American people right- shall appoint … Judges of the Supreme should not be able to appoint a Supreme fully expect their senators — Republi- Sen. Patrick Leahy, Vermont Democrat, to n T i mes A dv Court.” With this language, the Framers Court justice in the final year of the term cans and Democrats alike — to continue is ranking member of the Senate Judi- imposed on the Senate the duty to con- of office. to do their jobs regardless of whether it ciary Committee. Elected in 1974, he sider a president’s judicial nominees. Such a limiting provision on the is an election year. This year should be ranks first in seniority in the Senate. THE WASHINGTON TIMES oc a c y D epar consult with the president first on the to assert that it continues throughout, congratulate their political descendants SPITZER wisdom of legislation as a way to avoid would be doing injustice to the memory for their wisdom in departing from such

From page C10 a veto. “To assist or control Congress in of Judas, who repented, returned the a narrow and wooden view. t men its ordinary legislation could not, I con- money, and hung himself.” The president’s far greater involve- “proceeds to claim for the President, not ceive, have been the motive for confer- The crescendo of anger over Tyler’s ment in legislative matters in the last | the power of approval, but the primary ring the veto power on the President.” vetoes culminated in a vote, unsuccess- century is a sign of effective governance Tuesday • S ep power, the power of originating laws.” Harrison’s successor, John Tyler, pro- ful, on articles of impeachment. Two and political vigor. Sadly, the hyper- Another of the great legislators of the voked congressional fury for using his of the counts included allegations of gridlock of the last few years threat- 19th century, Henry Clay, condemned veto power to block popular legislation abusive veto use. Ironically, much of the ens a throwback to unwelcome past at length the very idea that presidents — not 50 times, but exactly 10 times in anger over the vetoes stemmed from the dysfunction. should be consulted about legislation his four-year term. After Tyler’s second very fact that Tyler, along with many t before it was ready to send to them for veto, Clay complained of Tyler’s “con- at the time, felt it inappropriate for the Robert J. Spitzer, Ph.D., is Distinguished ember 13 • 2016 signature or veto. Such prior consulta- stant encroaching ... on the Legislative president to negotiate with Congress Service Professor and chair of the political tion, Clay warned, was “totally new ... authority.” After his third veto, one con- over legislative language before it science department at SUNY Cortland, and utterly contrary to the theory of the gressman’s extended harangue included reached the president’s desk. and is the author of several books on Government.” a comparison of Tyler to “Judas Iscariot, If those who governed early in our the presidency, including “President and Some presidents of the time shared who sold his Master for thirty pieces history possessed the most direct Congress” and “The Presidential Veto.” this belief. In his inaugural address, of silver. He was both a traitor and knowledge of the intent of the Consti- President William Henry Harrison also an ingrate. Thus the parallel between tution’s Framers regarding executive- rejected any idea that Congress should him and the President starts fair; but legislative relations, then we must 11 The battle to ‘keep’ the American Republic

with making and enforcing the law, accountability — and the public trust believe this crisis of confidence in “this Government cannot last.” that they enable — have been corroded America today is a grave threat to our Lincoln was right. At the heart of the by the Administrative State: the vast ability to preserve our public institu- American Republic is a social compact array of rule-writing departments, tions for the next generation. That’s based on mutual trust between the agencies and bureaus that make up the why, earlier this year, I launched the people and the representatives they federal government’s Executive Branch. Article I Project — a new network elect to administer government on their The “laws” they write — tens of thou- of policymakers working together to behalf. Government officials are given sands of pages of dos and don’ts every develop a legislative agenda that will power to make and enforce the laws year — are not enacted by the people’s reclaim Congress’s constitutional on the condition that they respect and elected representatives in Congress. In- lawmaking powers that today are being remain accountable to the interests and stead, they are imposed unilaterally by improperly exercised by the Executive concerns of the people they represent. bureaucrats who never stand for elec- Branch and thereby restore the demo- The public’s trust in government tion and, in most cases, whose names cratic accountability on which our can’t be blind. It is made possible by the American people will never know. system of government depends. clear lines of accountability that connect What’s worse, much of the lawmak- If we are to “keep” our republic, as By Senator Mike Lee erhaps the most famous words spoken on the day we commemorate this week — September 17, 1787 — were those of Benjamin Franklin. After the Constitution had been signed and the convention Padjourned, Franklin was asked by a group of curious Philadelphians gath- ered outside Independence Hall what type of government the delegates had

t me nt created. “A republic,” he replied, “if you can keep it.” This pithy response — more of

y D epar a challenge than an answer — is so c a memorable and quotable that we tend oc to repeat it more often than we pause to reflect on its meaning. So on the 229th anniversary of Mr. Franklin’s famous proclamation, it’s worth asking ourselves: What exactly does it take to “keep” the American republic? To my mind, one of the best answers to this question was given by Abraham Lincoln in an address he delivered in 1838, at the ripe old age of 28, to the Young Men’s Lyceum of Springfield, Illinois. The subject of the speech Shutterstock was “the perpetuation of our political General George Washington, Major George Ross, Robert Morris, Betsy Ross with the first American flag, approved by Congress institutions,” which he described as the on June 14, 1777. central and perennial task of republi- T i mes A dv T h e Washington BY T PREPARED can citizenship. Lincoln said that every generation the people to policy and policymakers. ing power now exercised by the Execu- Benjamin Franklin challenged us to of Americans has the responsibility Citizens must first be able to identify tive Branch was intentionally given do 229 years ago, we must rebuild the to pass along to its descendants the the government officials responsible for away by members of Congress, over American people’s trust in the nation’s HINGTON TI MES AS HINGTON CI A L REP O R “political edifice of liberty and equal unpopular policies, and then be empow- the course of decades, to escape the public institutions. And the only way rights” that had been established by the ered to change those policies by voting hard work and stringent accountability to do that is by finally making Con- A SPE TH E W

| nation’s Founders — our “hardy, brave, gress responsible again — both in the and patriotic [...] ancestors.” He insisted sense of discharging its constitutional that this process of perpetuation — the What’s worse, much of the lawmaking power now duties and making itself accountable project of “keeping” the republic — exercised by the Executive Branch was intentionally for the consequences. would succeed only if the American given away by members of Congress, over the course people respected the nation’s laws and Sen. Mike Lee, Utah Republican, serves viewed the government with affection, of decades, to escape the hard work and stringent on the Senate Judiciary Committee. ember 13 • 2016 t rather than suspicion or derision. accountability inherent in constitutional lawmaking. In May, he and six other members The “strongest bulwark of any of Congress released a policy brief Government” is “the attachment of the those officials out of office. This is why inherent in constitutional lawmaking. called, “Leashing Leviathan: The People,” Lincoln declared. If “the laws the framers of our Constitution made No wonder only 19 percent of Case for a Congressional Regula- be continually despised and disre- the most powerful branch of the federal Americans say they can trust the gov- tory Budget,” to highlight the need for

Tuesday • S ep Tuesday garded,” and if the people become es- government — Congress — also the ernment always or most of the time — legislative and regulatory reform. tranged from their public institutions, most accountable to the people. meaning that 81 percent don’t! 12 losing trust in the officials charged But today, these lines of Following Abraham Lincoln, I Congress and the new imperial presidency

of the modern state, it imperils our great congressional intent, controls rather appropriated) by Congress. experiment in self-government. than widens executive discretion, and Fully restoring constitutional govern- But Congress is also the key to the insists on rather than undermines judi- ment will require more than this, but solution. cial review of executive agencies. Better these steps will go far in rebuilding Con- It may be a prudent option to assert lawmaking up front will result in real gress and restoring the balance in our checks and balances through litiga- oversight after the fact. Regular legisla- constitutional system. Utah Sen. Mike tion; a successful lawsuit could prevent tive order, especially the day-to-day Lee and Texas Rep. Jeb Hensarling have things from getting worse. But let’s be back-and-forth of authorizing, appropri- launched a project of House and Senate clear: courts are not going to solve this ating and overseeing the operations of conservatives to reclaim Congress’ legis- problem. government, will do more than anything lative powers. The central part of House Resolution will only come when to restore the powers of Congress and Speaker Paul’s Ryan’s policy agenda, A Congress rebuilds itself as a co-equal get control of our unlimited government. Better Way, is a legislative plan for gov- branch of government in our separation The one place where the power of ernment reform — focusing on checking of powers system. This is the solution Congress is not entirely lost — and executive overreach, reining in regula- envisioned by our Founders, and is con- where there is real opportunity for gain- tors, reestablishing budget control, and By Dr. Matthew Spalding sistent with popular government. ing leverage over an unchecked execu- enforcing transparency — that lays out he greatest political revolu- tion in the United States since the establishment of the Constitution has been the shift of power away from the lawmaking institutions of republican government to an oligarchy of unelected Texperts who rule over virtually every aspect of our lives. Congress is a significant cause of A SPE the problem. Under the original design, Congress’s role was to deliberate about CI A L REP O R the common good and pass laws of general applicability. But instead, it built the bureaucratic state by delegating its powers to the innumerable agencies it T PREPARED BYi ng The Wash created with broad power to make rules over individuals, industries and vast aspects of society. The result is that most of the actual decisions of lawmaking — decisions previously the constitutional responsi- bility of elected legislators — are in the hands of administrators whose “rules” have the full force and effect of laws passed by Congress. to n T i mes A dv And as Congress expanded the bureaucracy under executive control — creating and delegating while neglecting THE WASHINGTON TIMES budgeting and relying on after-the-fact oversight — it was also empowering the Shutterstock oc a presidency and fostering the executive c y D epar overreach prominent today. Like never The Constitution is grounded in the tive — is Congress’ power of the purse. the most extensive agenda for constitu- before, the president can direct the bu- principle that governments derive their Done well, it will prevent Congress from tional restoration in decades.

reaucracy — through executive orders, just powers from the consent of the continually getting cornered in large, If Congress does not act to correct t men administrative discretion, creative inter- governed. This means that the first step messy and unacceptable omnibus bud- the growing tilt toward executive-bu- pretations of poorly written legislation, is for Congress to confirm its representa- gets at the end of the year, the settlement reaucratic power, the structure of our | and willful neglect and disregard of the tive legitimacy by ceasing to delegate its of which works to the advantage of the government will be fundamentally, and Tuesday • S ep law — to policy ends, with or without perhaps permanently, altered. But it’s the consent of Congress. not too late. Congress only need find The result is an increasingly unbal- The Constitution is grounded in the principle its atrophied constitutional muscles, anced structural relationship between a that governments derive their just powers think strategically, and once again act powerful executive–bureaucratic branch as the first branch of constitutional

from the consent of the governed. t willing to exert administrative power government, regardless of who is the ember 13 • 2016 and a weak legislative branch unwilling next president. to exercise its constitutional powers to power to unelected bureaucrats and to executive. Strategically controlling and check the executive or rein in a metasta- assert its authority to approve or reject using the budget process will turn the Matthew Spalding, Ph.D., is the as- sizing bureaucracy. any new rules, and reassess and reautho- advantage back to Congress, forcing the sociate vice president and dean of If this becomes the undisputed norm, rize any existing ones. executive to engage with the legisla- Educational Programs for Hillsdale accepted not only among the academic Congress needs to relearn the art tive branch and get back into the habit College in Washington, D.C., oversee- and political elites but also by the Ameri- of lawmaking so that legislative lan- of executing laws (and administering ing the Allan P. Kirby Center for Con- can people, as the defining characteristic guage clarifies rather than confuses programs) enacted (and authorized and stitutional Studies and Citizenship. 13 The Courts and the President The president, the Constitution and the Supreme Court — America’s birth begins with a thunder- Americans, including the right to vote ⦁ Whether women can exercise their clap of democratic sentiment and love free from discrimination. But it took constitutional right to determine for of liberty, creating an enduring constitu- nearly a hundred years of blood, sweat themselves whether or not to have an tional republic. and struggle in the civil rights move- abortion. But these revolutionaries also had the ment to make these constitutional prom- ⦁ Whether the executive power to wisdom to know that they were just be- ises more of a reality. Crucial pieces of ensure our immigration system is both ginning the story — and thus were sure to civil rights legislation, signed into law compassionate and efficient is respected. write Article V, which provides a mecha- by President Lyndon B. Johnson, went ⦁ Whether the reality of racism in By Elizabeth B. Wydra nism for amending the Constitution. a long way to end segregation, eco- America — during a police stop, in the And We the People have done just that: nomic racism, housing discrimination classroom, at the voting booth or in the s we celebrate Constitu- Successive generations have amended and voter suppression, but we still have courtroom — is addressed as a systematic tion Day in the middle of the Constitution to remove the stain of much more work to do to ensure that problem or instead reduced to platitudes a pitched election fight slavery from our Founding document the birthright of equality and liberty de- about stopping discrimination simply by with deep consequences and instead enshrine equal citizenship clared at our founding is a reality for all. wishing it away. for the country, there is for Americans, regardless of color, creed, Any president, at any time in history, The judges nominated by the next no better time to think class or gender; declare that all persons, is crucial to this constitutional narrative president will be a key reflection of that about the president and immigrant or citizen, are entitled to the because of his or her ability to work with president’s vision of the Constitution. (Of the Constitution. While our Founders cre- equal protection of the laws and due pro- the legislative branch to pass laws that course, the third branch of government atedA three co-equal branches of govern- cess; and require that states as well as the enforce our constitutional guarantees and needs to play its constitutional role too ment in a system of checks and balances, federal government respect fundamental take care that those laws are faithfully — hopefully, the current unprecedented the person who holds the office of rights, including the freedom to worship executed. But this particular presidential and irresponsible blockade by Senate Re-

t me nt president is the single most recognizable, as one pleases (or not at all), the right to election may be especially important publicans of President Obama’s Supreme individual protagonist at any moment in impartial and equal justice in our courts because of the impact the next president Court nominee, Chief Judge Merrick our nation’s constitutional story. and the liberty to live, love and learn free is likely to have on the Supreme Court. Garland, will not be a recurring theme in

y D epar The president is the lightning rod for from discrimination. With several of the high court’s jus- our constitutional narrative.) c a our constitutional hopes, dreams and Any president, of any political party, tices likely to retire over the next four to Given all that is at stake, let’s give extra oc criticisms. No doubt many Americans should be faithful to this constitutional eight years, whomever the nation elects attention this Constitution Day to our across the ideological spectrum have at text and history, and embody the values in November will have the power to national charter and ask all the candi- one time or another grown frustrated expressed in our Constitution’s arc of profoundly shape the composition of the dates and our fellow voters Mr. Khan’s with those who hold — or seek to hold — progress. Our Constitution needs the Supreme Court, with consequences that question: Have you read our inspiring the office of president, and have echoed country’s leaders to make sure that its will far outlast that president’s term. Constitution lately, cover to cover? Like the cry of frustration we heard over the promises are not merely promissory Will justices be nominated who are him, I will gladly lend you my copy. summer from Gold Star parent Khizr notes that can’t be cashed, to invoke the faithful to the Constitution’s text, history Khan: “Have you even read the United powerful words of Dr. Martin Luther and values? A look back at the most Elizabeth B. Wydra is president of the States Constitution?” King Jr. recent few Supreme Court terms tells us Constitutional Accountability Center, a To read the Constitution is to read For example, the Reconstruction what is at stake: nonprofit dedicated to the progressive a story of progress and promise. The Amendments — the 13th, 14th and 15th ⦁ Whether the federal government promise of the Constitution’s text and 18th century Constitution was written amendments — officially banished will have the power to provide national history. @ElizabethWydra @MyCon- by revolutionaries who ushered in an all badges and incidents of slavery solutions to national problems such as stitution www.theusconstitution.org unprecedented system of self-government and guaranteed equality to African climate change and health care reform. T i mes A dv T h e Washington BY T PREPARED HINGTON TI MES AS HINGTON CI A L REP O R How courts expand presidential A SPE TH E W

| power beyond constitutional limits

From 1936 to the present time, U.S. presi- conception of presidential power in exter- Writing for the Supreme Court, Justice dents have claimed extensive and often nal affairs that was plenary and exclusive. George Sutherland upheld the delegation exclusive authority over external affairs. The 1936 case itself had nothing to do of legislative power, but in dicta commit- Initially, the Supreme Court rejected with independent presidential power. It ted numerous errors to greatly expand ember 13 • 2016

t such claims as contrary to express lan- arose when Congress in 1934 authorized presidential authority in external affairs. guage in the Constitution, the principle of the president to place an arms embargo Among his many errors, he misrepresented self-government and the system of checks in a region in South America. President a speech that John Marshall gave in 1800 and balances — and that analysis persisted Franklin D. Roosevelt relied entirely on when he served as a member of the House until United States v. Curtiss-Wright Export statutory authority. No one in the lower of Representatives.

Tuesday • S ep Tuesday Corporation (1936). courts or the Justice Department argued for Marshall said during debate: “The By Dr. Louis Fisher But in that year, based on multiple er- inherent, independent, plenary, exclusive 14 rors of history, the high court promoted a or extra-constitutional presidential power. » see FISHER | C15 Presidents and the Supreme Court: Public battles and quiet respect

including Alexander Hamilton, con- arguing that the Africans belonged to that to protected speech under the First sciously left many of the details of this nation and directing his attorney general Amendment. Yet when Congress next unprecedented new office to be filled to convince the Supreme Court of this tried to pass a law making flag-burning in over time. They were gambling that position. Ironically, former president John illegal and punishable by jail time, Bush George Washington — a steady and cau- Quincy Adams — now a member of Con- refused to sign the bill. tious leader — would be selected as the gress and an ardent abolitionist — argued Despite his own distaste for the Su- first president and chart a wise course for the case in the Supreme Court against preme Court’s decision, Bush respected future chief executives. Van Buren’s administration, contend- that institution’s preeminent power to Washington fulfilled that plan in mag- ing that the Africans were free men and interpret the Constitution. He urged Con- nificent fashion. Yet many of his succes- needed to be released. gress to pass a Constitutional amendment sors were left to write on a blank slate, as The Supreme Court agreed with to override the Court’s flag-burning deci- they dealt with fast-moving events, crises Adams, and the Africans were returned to sion if it wished to undo Texas v. Johnson, and historic challenges and forced to flesh Sierra Leone. This was a public embar- but he refused to defy the high court. out the powers of this novel American of- rassment for Van Buren, but he quietly By design, the boundary lines between fice. And when presidents have felt their took his lumps. the presidency and the judicial branch are turf is being threatened, they haven’t been Teddy Roosevelt, former boxer and often unclear. Yet when push has come to By Ken Gormley shy about calling out the Supreme Court. free-swinging Progressive president, shove, most presidents have accepted the Thomas Jefferson was openly skeptical was outraged when the Supreme Court final verdict of the Supreme Court with hroughout our nation’s his- of Chief Justice John Marshall (his distant (and his own appointee Oliver Wendell resignation, and even grace. tory, U.S. presidents have cousin) and loathed Marshall’s landmark Holmes) struck down a key piece of his History suggests that friction and struggled with the Supreme opinion in Marbury v. Madison (1803), Progressive agenda in Lochner v. New sparks will continue to mark the relation- Court, vying for power and establishing the principle of “judicial re- York (1905). TR began a campaign to ship between American presidents and tussling to get the upper view” and giving the Court final say over whittle down the judicial branch, but ran the Supreme Court; yet history also il- hand over the judicial what the Constitution meant. Jefferson out of gas before he left office. Yet TR’s lustrates the durable nature of the system branch. Some presidents railed against this decision long after he distant cousin, Franklin D. Roosevelt, con- constructed by the Framers. It provides A SPE have even relished the fight. left office. tinued the family tradition by trying to reason to hope that the tradition of mu- TIn a testament to the brilliance of the Martin Van Buren, the eighth presi- pack the Supreme Court with additional tual respect between presidents and the CI A L REP O R American system, however, once the high dent, tried to influence the Supreme justices after the Court invalidated key high court, and their practice of working court has issued definitive rulings in im- Court to adopt his strong pro-slavery pieces of his New Deal legislation. When out differences, will continue — even portant cases — even controversial ones position. In the famous Amistad case, the high court did an about-face and in loud, deeply partisan, and seemingly — most chief executives have accepted a group of Africans who’d been seized supported FDR’s New Deal legislation, noncooperative times. T PREPARED BYi ng The Wash their fate with dignity. by Spaniards from their homes in Sierra FDR dropped his court-packing plan and The sparks and tension between the Leone and sold into slavery in Cuba, declared victory. Ken Gormley, J.D., is president of executive and judicial branches should revolted. After killing the ship’s captain In modern time, George H.W. Bush Duquesne University in Pittsburgh and not come as a surprise: The language and ordering the crew to return to Africa, — a decorated World War II Navy pilot an award-winning author. Most recently, spelling out the powers of the presidency they were apprehended in U.S. waters and avowed patriot — bristled when the he is editor of “The Presidents and the in Article II of the Constitution, which outside Connecticut and charged with Supreme Court handed down its decision Constitution: A Living History,” pub- consists of barely a thousand words, mutiny and murder. in Texas v. Johnson (1989), holding that lished by NYU Press (May, 2016). is famously imprecise. The Framers, President Van Buren sided with Spain, burning an American flag could amount to n T i mes A dv

provision in the Jay Treaty. Thus, Adams did presidential actions: Lyndon Johnson’s esca- seeking or obtaining congressional ap- not single-handedly make foreign policy. lation of the Vietnam War, Richard Nixon’s proval. That unconstitutional precedent

FISHER THE WASHINGTON TIMES From page C14 He carried it out. Watergate, Ronald Reagan’s Iran-Contra, was followed by President Bill Clinton in Although Sutherland committed plain and the decision by George W. Bush to go Haiti and Bosnia, and by President Obama oc a

President is the sole organ of the nation in error, the sole-organ doctrine expanded to war against Iraq based on six false claims in Libya. When Clinton could not obtain c y D epar external relations, and its sole representa- presidential power beyond constitutional that Iraqi President Saddam Hussein pos- U.N. authority for military action in Kosovo, tive with foreign nations.” limits from one decade to the next, until sessed weapons of mass destruction. he reached out to NATO allies for support.

The expression “sole organ” meant a partially corrected last year by the Supreme Presidential power also extended beyond Treaties may not shift the Article I t men president who communicates with other Court in Zivotofsky v. Kerry. constitutional boundaries when President authority of Congress to outside bodies, nations after policy has been decided by In its 6-3 decision in Zivotofsky, the high Harry Truman went to war against North whether the U.N. or NATO. Thus, from | both branches, either by statute or treaty. court manufactured a new model that is Korea without first obtaining congressional 1950 forward, presidents have engaged in Tuesday • S ep Yet Sutherland interpreted that sentence to close cousin to the sole-organ doctrine. In authority. During Senate debate on the unconstitutional wars. attribute to the president authority granted upholding for the first time an exclusive U.N. Charter, Truman wired a note to Sen. by the legislature “plus the very delicate, power of the president to recognize foreign Kenneth McKellar on July 27, 1945, pledging Louis Fisher, Ph.D., is scholar-in-residence plenary and exclusive power of the Presi- governments, the high court said that only that if any agreements were negotiated to at The Constitution Project, a think tank dent as the sole organ of the federal govern- the president can speak with “one voice,” require U.S. troops in a U.N. military action, founded in 1997 to foster consensus-based t ment in the field of international relations.” offer “unity” at all times, and speak “for “it will be my purpose to ask Congress for solutions to difficult constitutional chal- ember 13 • 2016 Evidently Sutherland and the justices the Nation.” appropriate legislation to approve them.” lenges. From 1970 to 2010, Dr. Fisher who joined his opinion did not bother to Relying on an essay by Alexander Ham- That precise requirement was included in handled issues of separation of powers read Marshall’s entire speech. It merely ilton, it argued that with “unity comes the the U.N. Participation Act of 1945, which and constitutional law at the Library explained that when President John Adams ability to exercise, to a greater degree, ‘[d] Truman signed without expressing any of Congress. His books include “The transferred to Great Britain an individual ecision, activity, secrecy, and dispatch.’” constitutional or policy objections. Law of the Executive Branch: Presi- charged with murder, he did so not on the The six justices in the majority did not Yet five years later, he committed U.S. dential Power” (paper ed., 2015). basis of some kind of independent presi- understand that those same four qualities troops to Korea solely on the basis of dential power but solely on an extradition can greatly harm the nation, including these Security Council resolutions without ever 15 The Media and the President The Constitution on the campaign trail in 2016

President Obama and the Senate on executive actions on immigration, in in the last several years have made the Supreme Court nominations. Article II, particular, have become a hot button Second Amendment a central talking Section 2 of the United States Consti- issue in the 2016 presidential contest. point for both major political parties. tution states that the president “shall Donald Trump has stated that he Donald Trump’s views are in line with nominate, and by and with the advice “will immediately terminate President those of most Republicans. He believes and consent of the Senate, shall ap- Obama’s illegal executive order on “The Second Amendment is a bed- point ... judges of the Supreme Court.” immigration.” He has also lamented rock, natural right of the individual to On the question of President what he views as the president’s over- defend self, family and property. It is Obama’s nomination of Merrick reliance on executive action, claiming a ridiculous notion to ever repeal it ... Garland, the two major party presi- that “[t]he problem with executive The Second Amendment is [a] right, dential candidates have taken the authority for the president, it’s really not a privilege. The small minority of side of their respective parties in the bad news for this reason. Since he’s anti-everything activists may be vocal, Senate. Donald Trump, the Republican given up on working with Congress, but we have facts — and the Constitu- nominee, has said he is “pretty much he thinks he can impose anything he tion — on our side.” in line with what the Republicans are wants. He’s not a king. He’s a president. Hillary Clinton, on the other hand, By Julie Silverbrook saying.” Hillary Clinton, on the other An executive order should be used thinks the Supreme Court was wrong hand, believes “it’s up to members frankly in consolidation and with con- in District of Columbia v. Heller he United States Con- of the Senate to meet their own, and sulting with the leadership in the — in (2008), which held that the Second stitution establishes the perform the Constitutional duty they the Congress.” Amendment protects an individual’s framework for American swore to undertake. … This Senate Hillary Clinton, on the other hand, right to possess a firearm for tradition- government and reflects has almost a full year to consider has said that she is “going to back and ally lawful purposes, such as self-

t me nt the fundamental principles and confirm Judge Garland. It should support what President Obama has defense within the home. She has said, and values of the nation. begin that work immediately by giving done to protect DREAMers and their “We’ve got to say to the gun lobby, It is, therefore, no surprise Judge Garland a full and fair hearing, families, to use executive action to pre- you know what, there is a constitu-

y D epar that it is often a central part of the followed by a vote.” vent deportation.” She further stated tional right for people to own guns, c a discussion during presidential election The two candidates also differ that, “I have said that if we cannot get but there’s also a constitutional right oc T years. The 2016 election has been no dramatically on the type of justice comprehensive immigration reform as to life, liberty and the pursuit of hap- exception. There is, perhaps, no clearer they would nominate to the Supreme we need, and as we should, with a real piness that enables us to have a safe indicator of just how important the Court. With Donald Trump saying path to citizenship that will actually country, where we are able to protect Constitution is to this election cycle “We want smart, conservative, and grow our economy — then I will go our children and others from this than the fact that shortly following an we want people that are truly in love as far as I can, even beyond President senseless gun violence.” emotional speech by Gold Star parent with the Constitution.” And, Hillary Obama, to make sure law-abiding, Khizr Khan at the Democratic National Clinton, in contrast, stating she would decent, hard-working people in this First Amendment — Convention, “Pocket Constitution” appoint justices that would “protect country are not ripped away from their Religious Liberty surged to the No. 2 best-seller slot on the constitutional principles of liberty families.” Amazon.com, second only to the new and equality for all, regardless of race, Clinton points to congressional There are two central issues related Harry Potter book. gender, sexual orientation or political inaction and obstruction and robust to religious liberty that have been Several constitutional topics have viewpoint; make sure the scales of jus- presidential authority as reasons for raised during the 2016 election. The come to the fore during this election tice aren’t tipped away from individu- presidents to engage in executive first is related to Donald Trump’s year — I will cover in turn how the als toward corporations and special action on their own. And while she proposed ban on Muslim immigrants major candidates view each of these interests; and protect citizens’ right to has acknowledged that the system is to the United States, and the second T i mes A dv T h e Washington BY T PREPARED topics. They include: the United States vote, rather than billionaires’ right to designed to sometimes go slowly and involves state-based Religious Free- Supreme Court, executive power, the buy elections.” deliberately, there must be compro- dom Restoration Acts, several of which Second Amendment, the press and re- mise and the government must pro- were proposed and/or passed into ligion clauses of the First Amendment, Executive Power duce results. She has said, “Our system law after the Supreme Court’s deci- HINGTON TI MES AS HINGTON CI A L REP O R and the 14th Amendment. is set up to make it difficult. Checks sion on marriage equality. These laws, Throughout his eight years in office, and balances. Separation of powers. modeled after a 1993 federal statute, A SPE TH E W

| The United States Supreme Court President Obama used significant acts Our Founders knew if we were going say that states cannot “substantially of executive power. He intervened in to survive as the great democracy that burden a person’s exercise of religion” With the sudden death of U.S. Libya, refused to defend the Defense they were creating, we had to have a unless it is furthering a “compelling Supreme Court Justice Antonin Scalia of Marriage Act (DOMA) before the system that kept the passions at bay. government interest” and acting in the in February 2016, the Supreme Court Supreme Court, enacted new immigra- We had to have people who were will- least restrictive way possible. became a central concern in the 2016 tion policy by choosing not to enforce ing to roll up their sleeves and compro- presidential election. President Barack immigration laws against certain mise. We couldn’t have ideologues who • Muslim Immigration Ban ember 13 • 2016

t Obama nominated Judge Merrick Gar- groups (arguing he has discretion in were just hurling their rhetoric back Donald Trump has called for a ban land, United States Court of Appeals how laws are enforced), promulgated and forth. We had to actually produce on immigration from “areas of the for the D.C. Circuit, to fill the vacancy new climate regulation, made recess results. That hasn’t changed since world where there is a proven history left by Justice Scalia’s passing. appointments (the Supreme Court George Washington.” of terrorism against the United States, Senate Republicans vowed to block ruled these were invalid in NLRB Europe or our allies.” He had earlier

Tuesday • S ep Tuesday any nomination made until after the v. Noel Canning), and took actions The Second Amendment in the election called for an outright presidential election — setting up a related to National Security Agency 16 constitutional confrontation between surveillance, among other things. His A number of high-profile shootings » see SILVERBROOK | C17 I’m going to do if I win, and I hope Clinton has said, for example, “We’re stated that he believes that birthright SILVERBROOK we do, and we’re certainly leading, is going to have to have more support citizenship is not mandated by the From page C16 I’m going to open up our libel laws so from our friends in the technology Constitution, stating “If you read and when they write purposely negative world to deny online space ... Just if you look, and if you go to the real ban on all Muslim immigrants, which and horrible and false articles, we can as we have to destroy their would- scholars, like different people that I can provoked backlash not only amongst sue them and win lots of money. We’re be caliphate, we have to deny them give you, they will tell you. Somebody Democrats, but also from those in his going to open up those libel laws so online space ... You’re going to hear all comes over and they have a baby on own party. He has largely stood by his that when The New York Times writes of the usual complaints — you know, our border and it happens to be on this calls for barring many Muslim immi- a hit piece, which is a total disgrace, ‘freedom of speech,’ etc.,” she said. side of the border, we’re not mandated grants from entering the United States, or when The Washington Post, which “But if we truly are in a war against to take care of that baby. You do not and has maintained that it is about terrorism and not religion. His running mate, Indiana Gov. Mike Pence, prior to his selection as Trump’s vice presi- dential candidate, described the ban as “offensive” and “unconstitutional.” Hillary Clinton feels that Trump’s call for a ban on Muslim immigrants violates core American principles. She has said, “It goes against everything we stand for as a nation founded on religious liberty.” She also feels that Trump’s rhetoric has “turned Ameri- cans against Americans, which is ex- actly what ISIS wants.” • State Religious Freedom Restoration Acts (RFRAs) While Donald Trump’s running mate Mike Pence has been at the center of the controversy over state Religious Freedom Restoration Acts, after dealing with the fallout from A SPE his signing and then scaling back of Indiana’s RFRA late last year, Donald CI A L REP O R Trump himself has been largely silent on the topic. By contrast, other GOP candidates during the primary election were vocal T PREPARED BYi ng The Wash in their support for the Indian RFRA. Ted Cruz, for example, said, “I want to commend Gov. Mike Pence for his sup- port of religious freedom, especially in the face of fierce opposition. There terrorism and we are truly looking for have to change the Constitution.” was a time, not too long ago, when Donald Trump has ways to shut off their funding, shut In response to Trump’s views on defending religious liberty enjoyed unnerved those both off the flow of foreign fighters, then birthright citizenship, Hillary Clinton strong bipartisan support. Alas, today within and outside we’ve got to shut off their means of has said “It’s hard to imagine being we are facing a concerted assault on communicating.” more out of touch or out of date. But the First Amendment, on the right of his political party by Clinton has also called for a rever- all the over-the-top rhetoric does to n T i mes A dv every American to seek out and wor- supporting a broadening sal of the Supreme Court’s decision in throw the choice in this election into ship God, according to the dictates of of libel laws against the Citizens United — a position that some stark relief.” his or her conscience. Gov. Pence is believe will curtail campaign speech, As we enter the final leg of the 2016 THE WASHINGTON TIMES holding the line to protect religious press and proposing while others applaud it as common- presidential election, the Constitution liberty in the Hoosier State. Indiana is censorship on the Internet. sense campaign finance reform. She will continue to be a central feature of oc a giving voice to millions of courageous has vowed to “appoint Supreme Court the debate between Donald Trump and c y D epar conservatives across this country who justices who recognize that Citizens Hillary Clinton. To learn more about are deeply concerned about the ongo- is there for other reasons, writes a hit United is bad for America. And if the history of the constitutional issues

ing attacks upon our personal liberties. piece, we can sue them and win money necessary, I’ll fight for a constitutional the candidates will debate in the weeks t men I’m proud to stand with Mike, and I instead of having no chance of winning amendment that overturns it.” ahead, check out www.ConSource.org. urge Americans to do the same.” because they’re totally protected.” | Hillary Clinton, on the other hand, And regarding censorship on the Fourteenth Amendment Julie Silverbrook is the executive di- Tuesday • S ep has stated that these laws go “beyond Internet he has said “We’re losing a rector of The Constitutional Sources protecting religion, [and] would permit lot of people because of the internet. Section 1 of the 14th Amendment Project (ConSource.org), a nonprofit unfair discrimination against #LGBT We have to see Bill Gates and a lot of reads, “All persons born or naturalized organization devoted to increasing Americans.” different people that really understand in the United States, and subject to the understanding, facilitating research, what’s happening. We have to talk to jurisdiction thereof, are citizens of the and encouraging discussion of the U.S. t First Amendment – Freedom them about, maybe in certain cases, United States and of the state wherein Constitution by connecting individuals ember 13 • 2016 of Speech and Press closing that internet up in some ways. they reside.” Historically, this has been with the documentary history of its cre- Somebody will say, ‘Oh freedom of read as conferring citizenship to all ation, ratification, and amendment. Julie Donald Trump has unnerved those speech, freedom of speech.’ These are persons born in the United States. This holds a J.D. from William & Mary Law both within and outside his political foolish people.” election cycle, Republican candidates, School. In 2015, she and venture capital- party by supporting a broadening of Donald Trump’s remarks were made including Donald Trump, called for an ist Chuck Stetson founded the National libel laws against the press and propos- in response to concerns regarding ISIS. end to birthright citizenship, claiming Constitutional Literacy Campaign. ing censorship on the Internet. He has This is an area in which there is some that “[t]his remains the biggest magnet said as to libel laws: “One of the things overlap between Trump and Clinton. for illegal immigration.” He has also 17 Preserving the ‘genius’ of the Constitution

don’t hold up very well. The average life The men who drafted our Constitu- sacrosanct. The debates over ratification of a constitution is around 19 years, which tion had no illusions about those in were contentious, but once ratified, the in itself makes ours unique. power. They had, after all, lived under the Constitution established the framework New nations craving freedom have absolute power of a hereditary monarch that allowed the new nation to grow and often looked to the work of those 55 and fought a revolution to regain the prosper as the freest nation in history. Americans for guidance, but few have rights they believed were theirs. They It’s been amended since, of course, as looked as closely as the men and women weren’t about to trust their futures to an- those who drafted it expected it would who gathered in the newly free Estonia in other monarch, whether ordained by God be. They also knew, one suspects, that it 1991 to write a new constitution for their or elected by the people. They ascribed to would be attacked by those who found it country. Lord Acton’s observation that “All power cumbersome. Residents from the begin- I attended the final of 30 sessions of tends to corrupt; absolute power corrupts ning have tended to seek more power, the Constitutional Assembly in early 1992. absolutely,” and were convinced that if and intellectuals with a desire to remake By David Keene The delegates ranged from a concert pia- they could prevent future officials of the society have chafed at the constraints the nist to a plumber, and they were working new republic from acquiring such power, Founders placed on those who would THE WASHINGTON TIMES from a draft prepared by a fellow by the they might be able to create a free state. do so. Woodrow Wilson, who favored he success of the American name of Juri Adams, a name as close to It is this belief that led to the constitu- a much stronger executive and a parlia- Republic is directly trace- our own John Adams as one could wish. tional separation and division of powers mentary system, was the first president able to the wisdom and Juri Adams was an intellectual who between the executive and legislative to openly attack it, and since then many work of the 55 men who years before had been demoted and sent branches of the new government and, have tried to rewrite it through reinter- gathered in Philadelphia by the Communist regime to serve as prior to its ratification, to the adoption of pretation of the Founders’ words. in 1787 to draft a constitu- night watchman at a chicken farm. He a Bill of Rights that enumerated things A member of Congress said a few tion designed not so much told me that his understanding of the the new government could not do in years ago that the Constitution only to empower government, but to limit American founding and its importance to pursuing the goals set out for it in the means what the Supreme Court says it Tthat power. Forrest McDonald, perhaps his country was a gift from the Commu- Constitution itself. means, but as the high court itself has the most influential of historians on the nists because “the night watchman at a The compromises that led to the acknowledged, it also means what the intellectual origins of the Constitution, chicken farm has a lot of time to read and adoption of the Constitution were con- Founders meant it to mean. claimed it could not have been written st udy.” troversial at the time they were struck. As long as we, those we elect and the by any other 55 men at any other time in But Adams wasn’t the only attendee at Those involving slavery are the most judges charged with its interpretation history. At fewer than 8,000 words, it’s a the Estonian Assembly familiar with the discussed today, but just as serious were appreciate the genius of the Constitution, short document when compared to the American founding. During the debates, those involving the nature and power of we will be able to preserve and enjoy

t me nt fundamental documents of other nations speaker after speaker cited the comments the new nation’s chief executive and the the freedoms they worked so hard to and it has, in spite of its critics, stood up of Adams and others, and evinced a famil- balance between the power of the new guarantee. remarkably well since its adoption in 1789. iarity with the details of the debates and national government and the states call-

y D epar Various nations have written and compromises struck in Philadelphia so ing it into being. The Bill of Rights was David Keene is Opinion c a adopted more than 900 constitutions many years before that made an Ameri- added as a condition of ratification by editor at The Washington Times. oc since 1789. India’s is perhaps the longest at can proud and underscored the impor- those who believed it essential that cer- something like 146,000 words, and most tance of what went on there. tain fundamental rights be enumerated as Is the media responsible for the too-powerful presidency?

Otherwise, there is a vast wasteland, a default position that Congress refusing generally focusing on the presidency to take action on a particular problem is (and the president). evidence that Congress is somehow fail- But does the focus of Hollywood (and ing to do its job — and that the president T i mes A dv T h e Washington BY T PREPARED the media, more generally) contribute must act — which pushes a narrative to the expansion of federal executive onto the American people that this is the branch power? I think it’s a case that can way things ought to be. be made. Worse, it creates the situation in HINGTON TI MES AS HINGTON CI A L REP O R The presidency is relatively easy to which Congress passes massive pieces By Janine Turner understand, and makes a convenient and of legislation — bills with so many pages A SPE TH E W

| and Andrew Langer simple target — something relished by that members of the House of Repre- both those telling fictional stories in Hol- sentatives don’t understand them, the Once in a blue moon, Hollywood lywood and those purporting to tell true senators don’t understand them, the portrays our American government stories in the news media. Supreme Court justices don’t understand accurately. The ABC educational series, Daniel Day-Lewis, Harrison Ford and them, the media cannot explain them, “Schoolhouse Rock!” a staple memory Michael Douglas cut dashing and heroic and, therefore, we (the people) cannot from the children of the 1970s, showed presidents in “Lincoln,” “Air Force One” Loath to delve deeply into boring pieces possibly understand them. ember 13 • 2016

t American kids just how the nation was and “The American President,” respec- of legislation, there is a near-constant Compounding this is the problem founded — and with catchy cartoons tively. But even the much-celebrated demand for executive branch solutions to that the American people are woefully like the “Three Ring Circus” of govern- Frank Capra classic, “Mr. Smith Goes to public problems — and a championing of ignorant of the Constitution and how to ment and “I’m Just a Bill,” a generation of Washington,” was set against the back- the concept of the president acting uni- defend their rights. young people got a decent glimpse into drop of the passage of an obscure piece laterally when Congress refuses to do so. The American education system,

Tuesday • S ep Tuesday how our government was supposed to of legislation called a “deficiency bill.” In fact, it is this last point that might 18 operate. The news media is no help, either. be the most dangerous, since it assumes » see TURNER | C19 How social media gives public opinion wings

felt about him while meeting them on Never before has so much immediate responsiveness and accountability to the campaign trail or reading articles feedback from so many different people the public. Because candidates are able quoting the average Joe. been possible. to watch public opinion shift quickly, While these methods are still valu- Social media also provides a venue one would think they would simply able, social media has chipped away at for quantitative data. When a candidate adjust their stances in accordance with pollsters’ monopoly on public opinion posts on Facebook, for example, the those changes and flip-flop on issues. data and the wall between the people campaign can see people’s reactions and Fortunately, the internet is searchable and politicians. try to ascertain the reasons for them. If and, when candidates flip-flop on issues, When a presidential candidate people liked what Mitt Romney’s team their old stance is readily available after tweets, his staff can immediately watch posted about immigration, many would a quick Google search. That means it’s the responses roll in from thousands of share the post. If they wanted to learn easier than ever for candidates to be re- people all over America. If a majority of more about President Obama’s view of ceptive to the sentiments of Americans, responses from people belonging to one the economy, they would click the link. while harder for them to get away with group — whether that group be women, If they’re not taking any actions on a changing their stances for political gain. people who are pro-choice, people who post, there may also be a reason. Experts This instant feedback also allows live in Arizona, etc. — share certain are able to dive far deeper into this and candidates to understand the potential By Shoshana Weissmann commonalities, one can learn how that other data, and learn what people are impact of their policies. For example, group feels about the candidate’s stance thinking about the candidate. when President Obama posts on Face- ocial media has provided on an issue or the candidate overall. This isn’t just valuable for candidates book about a new plan, people provide a newer, more direct These qualitative data are often imper- and campaigns, but for the people in frequent and often quite vociferous feed- forum in which politicians fect, but help build a more thorough whose opinions they are interested. back. If someone realizes that a policy talk to people. However, understanding, especially when they Instant feedback increases the would have unintended consequences, social media’s biggest supplement pollsters’ findings. potential of both the candidate’s he’ll comment. While the comments sec- impact on politics argu- tion is best known for vitriolic debates, it ably has less to do with also provides a setting for increased par- politicians talking, and more to do with ticipation by the people in government. them listening. Comments, tweets, and other postings

S A SPE Presidents and presidential candi- can gain traction if they resonate, and dates have long reached people through then will likely come before the cam- national television, rallies and the like. paign’s or president’s eyes. CI A L REP O R But until recently, talking to politicians If a policy has the potential to violate meant writing a letter one could only constitutional liberties, the astute man pray would reach its intended audience, on the street can make it known and attending a rally in hopes of grabbing a spread the word on social media in an T PREPARED BYi ng The Wash moment of the candidate’s time, or being instant. If people agree with the senti- quoted in a news article that the candi- ment, it can be shared and reach an date might see. exponentially increasing audience. Even if one’s words reached the Not long ago, a politician would hope candidate, neither he nor the candi- to have a little birdy inform him of the date would know if he was alone in his public climate. Now anyone can be heard beliefs. with a tweet. Similarly, if a presidential candidate wanted to know how the public viewed Shoshana Weissmann is web producer for him, his campaign would need to hire The Weekly Standard. to n T i mes A dv pollsters, and try to glean how people THE WASHINGTON TIMES

the media’s explanation of politics and anti-liberty, and if one does not recog- and among branches of government pre- oc a

policy are armed only with the worst kind nize that every time government grows, cisely so that we may resist the tempta- c

TURNER y D epar From page C18 of “vapid knowledge,” unable to guard individual rights are diminished, then as tion to concentrate power in one location themselves or their freedoms from the government grows by leaps and bounds, as an expedient solution to the crisis of

strangled by progressives, has turned the predations of the power-hungry. the people will be unable to stop it — and the day… federalism secures to citizens t men Constitution’s precepts on their heads. Much in the same way that those who their freedom will be lost. the liberties that derive from the diffusion Ask most people where their rights come fail to understand history are doomed to Which leaves us where we are today, of sovereign power.” | from and they’ll tell you that rights come repeat it, those who fail to understand the with a massive federal executive branch, By not recognizing this precept, and Tuesday • S ep from government, when any true scholar nature of our Constitution are doomed to virtually impossible to control, and a calling those in power out on it, the media of the Constitution will tell you that lose the guarantees contained therein. In media, having enormous responsibility does the American people a paramount rights come from God (or nature) and bolstering the idea that the president can in its creation, doing virtually nothing disservice. The media needs to be cham- that government exists solely to protect and should act unilaterally, the media pro- to exercise independent scrutiny of the pioning the dilution of federal power, and preserve individual rights. tects the migration of massive amounts goings-on in the federal executive branch. instead of cheerleading for the concentra- t

This is where the media ought to be of power to the federal executive branch, The American people don’t know tion of it. ember 13 • 2016 stepping in and explaining. But instead, arguably one of the greatest threats to when the president is exceeding his in 2016, the media would rather “dumb individual rights today! power because the American people no Janine Turner is an actress, author, and it down” for the American people, and Couple this ignorance with the media’s longer understand the Constitution. founder and co-chair of Constituting give the presidency a pass. Media mirrors propensity for trying to distill issues into In 1992, in a Supreme Court case America. Andrew Langer is the president the limited understanding of the people, sound bites and bumper sticker slogans, called New York v. United States, Justice of the Institute for Liberty and is a resi- reinforcing ignorance in such a danger- and you’re left with a society unable to O’Connor had this to say: The Constitu- dent scholar at Constituting America. ous way as to be ultimately destructive take charge of its own destiny. tion “protects us from our own best inten- of the Republic. Those who tune in to One cannot reconcile liberty with tions: It divides power among sovereigns 19 The Expansion of Presidential Authority The ever-expanding power of the presidency

president can also propose treaties and programs might ultimately pass constitu- But there is also the undeniable effect nominate judges, subject to the advice tional muster. President Lyndon Johnson of the bully pulpit controlled by the pres- and consent of the Senate. continued this dramatic expansion of ident. When a president declares, as this That’s it. Those are the only powers federal power with his championing of president has for example, that health granted to the president. But you would “Great Society” programs. care insurance is a right, and presidential hardly know it by studying the modern During deep recessions, Presidents candidates propose to expand nearly presidency, and the massive and ever- Richard Nixon and Jimmy Carter estab- universal education rights forward from expanding size of the executive branch lished government controls on wages elementary and secondary education to of the federal government. and prices, and started massive new the college level, citizens ungrounded It is crucial to remember how wary agencies regulating occupational safety, in the explicit constitutional limits of the founding generation was of a strong energy and the environment, thus exert- executive power become increasingly executive. After all, they had just fought ing federal control over entire sectors of compliant to the repeated assertion of and won a revolution against a strong the private economy. these newly pronounced rights — which man they thought a tyrant, King George After the Sept. 11 terror attacks, Presi- are not delineated in the Constitution. III of England. And most colonists were dent George W. Bush established the This has had a cumulative effect on the By Tim Donner bound and determined not to allow a Homeland Security Agency with broad electorate and its view of the presidency. similarly powerful president here. That powers that have consistently tested You may approve of the expansion ith the 2016 presiden- opposition to concentrated power is well constitutional limits. He also promoted a of the powers of the presidency, or tial race upon us now reflected in the checks and balances that prescription-drug entitlement to Medi- you may not. But one point is beyond in full force, America define our constitutional republic. care, and significantly increased federal debate: The office has become far more is reaffirming its long- The Founders had a profound under- involvement in education, despite its powerful than ever envisioned by the standing fascination standing of human nature — immutable, being historically a local or state issue. founding generation, or enshrined in our with these quadren- unchangeable as it is — and knew it But it is not always a crisis that Constitution.

t me nt nial elections. would lead to presidents attempting to results in expanded executive power: WIn this age of social media, the prolific concentrate more and more power in Sometimes it is just the president’s belief Timothy E. Donner is founder and presi- amount of ink and html spilled on the one person — the president — despite that the public will accept it. A recent dent of One Generation Away, a nonprofit

y D epar election makes the presidency seems such executive authority being anti- example is President Obama’s executive organization dedicated to preserving the c a more powerful than ever. And there is thetical to the very purpose of “We the actions promising the nonenforcement vision of a free America by applying our oc good reason for that belief: Successive People.” of certain immigration laws. founding principles to the issues of today. generations of Americans have allowed That is why the Framers granted such it to happen. narrow and clearly delineated powers to There has not been a president in the executive branch in the Constitution, memory of either party that escaped but in the fullness of time, those powers the accusation of expanding his power have expanded, bit by bit. beyond the limits of the Constitution. Presidents have often grasped more At the same time, the Congress has power when there’s a national crisis, rea- been most often accused of creating a soning that it is far easier for the nation

Presidents have often grasped more power when there’s a national crisis, reasoning that it is far easier for the nation to follow a single, strong T i mes A dv T h e Washington BY T PREPARED leader than 535 individual members of Congress. American history is replete with examples. HINGTON TI MES AS HINGTON CI A L REP O R power vacuum by failing to sufficiently to follow a single, strong leader than 535 A SPE TH E W

| exert its constitutional powers as the individual members of Congress. Ameri- “people’s house” — that branch of the can history is replete with examples. federal government designed to be clos- During the Civil War, President est to the people. Abraham Lincoln induced the Con- It is a vacuum which many a presi- gress to pass legislation allowing him dent has eagerly filled. to suspend habeas corpus, the explicit In Article II, the Constitution explic- constitutional right to challenge unlaw- ember 13 • 2016

t itly grants the president far fewer powers ful imprisonment. than most people believe. During the Great Depression, Presi- A president is constitutionally dent Franklin D. Roosevelt was able to authorized to sign or veto legislation, expand the executive branch far beyond command the armed forces, ask for the its previous domestic footprint, advanc-

Tuesday • S ep Tuesday written opinion of his cabinet, convene ing expansive “New Deal” programs, and or adjourn Congress, grant reprieves and attempting — unsuccessfully — to pack 20 pardons, and receive ambassadors. The the Supreme Court, so that many of his Unteaching Professor Obama’s constitutional lessons

the Gang of Eight bill would have bill does not become a law.” The bill, gasping for air, climbs benefited. The president’s action A character dressed as a bill stands back up the steps and sings, “We look was a naked effort to work around a on the steps of Capitol Hill and ex- at the midterm elections, and people Congress that did not agree with his plains to a young boy how he would clearly don’t want this” executive agenda. become a law. “Well, first I go to the order. “We’re going to take you to Texas and two dozen other states House and they vote on me. But then court, and we’re going to shut down challenged DAPA in court. In early I need from the Senate a majority. Congress.” 2015, a federal judge ruled that the And if I pass the legislative test, then I Mr. Obama shoves the bill down policy was illegal and put it on hold. wind up on the president’s desk.” the steps one last time. The federal government appealed President Obama appears and The president, himself a former the case to the Supreme Court, but shoves the bill down the steps. The constitutional law lecturer, should be due to the tragic passing of Justice boy shouts, “President Obama, what’s far more careful when he brazenly Antonin Scalia, the short-handed the big idea? That bill was trying to teaches students across the country bench divided 4-4. Currently, the become a law.” The smirking presi- that the separation of powers can be case is still pending, and will likely dent tells the boy, “There’s actually ignored when the ends justify the be resolved based on which president an even easier way to get things done means. Long after DAPA is gone, this appoints the ninth Supreme Court around here, and it’s called an execu- tragic lesson will linger in the hearts By Josh Blackman justice. tive order.” and minds of our citizenry, and our When the president takes actions Another character, dressed as an republic will be worse off for it. resident Obama’s illegal such as DAPA, we should think not executive order, appears. “I’m an ex- executive actions con- only of how it impacts the rule of law ecutive order,” he sings, “and I pretty Josh Blackman is a constitutional law cerning the Affordable in the abstract, but also what lesson it much just happen.” The boy asks, professor at the Houston College of Law Care Act, education and teaches today’s youth. “Don’t you have to go through Con- and author of “Unraveled: Obamacare, immigration have inflicted The Obama approach to gover- gress at some point?” The executive Religious Liberty, and Executive Power.” irreparable damage to the nance was crystalized in a Saturday order, cigarette in hand, dismisses He is also president of the Harlan In- A SPE rule of law. But his dis- Night Live parody of the “School- the boy. “Oh, that’s adorable, you still stitute (http://harlaninstitute.org/). regard of the Constitution has an even house Rock!” classic, titled “How a think that’s how government works.” CI A L REP O R Pmore troubling implication for today’s youth. A generation ago, ABC-TV’s ani-

The president, himself a former constitutional law lecturer, should be T PREPARED BYi ng The Wash mated “Schoolhouse Rock!” taught children that the law is changed when far more careful when he brazenly teaches students across the country the legislature and president agree. that the separation of powers can be ignored when the ends justify the Today, Professor Obama teaches means. Long after DAPA is gone, this tragic lesson will linger in the hearts a different lesson: When Congress and minds of our citizenry, and our Republic will be worse off for it. refuses to enact my agenda, I will use my pen and phone to bypass them. As today’s students become tomor- row’s leaders, the role of civic educa- tion becomes all the more critical to ensure that the checks and balances to n T i mes A dv continue to prevail over the pen and phone. In June 2014, after the House of THE WASHINGTON TIMES Representatives announced it would not vote on comprehensive immigra- oc a

tion reform — the so-called “Gang c y D epar of Eight” bill — President Obama declared that he would act anyway.

“I take executive action only when t men we have a serious problem, a seri- ous issue, and Congress chooses to |

do nothing,” he said. The president Tuesday • S ep promised to “fix as much of our im- migration system as I can on my own, without Congress.” Five months later, after the mid- term election, the president an- t

nounced his executive action on im- ember 13 • 2016 migration known as DAPA (“Deferred Action for Parents of Citizens and Lawful Permanent Residents”). The policy would have halted the deporta- tions of 4 million unlawfully present aliens and provided them with work authorization. These were the exact people 21 Calvin Coolidge and the ‘two minds’ of the American presidency

must make himself familiar with the They have a desire to see that the mind, what Coolidge called “the po- people’s wants, passions and inter- right things are done well, that the litical mind.” ests, which is to say, he must seek to country remains happy and prosper- The political mind includes inti- understand the people as they under- ous, and they are more than willing mate knowledge of the Constitution stand themselves. to pay to place the United States in and the first principles of republican The American people, Coolidge the lead. government under law, especially the doggedly believed, are largely intent But understanding the mind of the separation of powers and federalism. upon ruling themselves, content to country does not mean the president While the day-to-day operations of look after their own personal af- is free to give the people whatever government may oftentimes appear fairs without relying too much on they want or to command them dirty and less than glamorous, they outside support. They do not look to without their consent. If these things are nonetheless ultimately responsible the president, or government more were true, then nothing would distin- for much of mankind’s happiness or generally, for aid and comfort. They guish him from the sordid populists misery. “To live under the American prefer to be left alone to solve their or petty tyrants of the world. And Constitution,” Coolidge said, “is the own problems and for government to because public opinion is always greatest political privilege that was stay out of the way, except in cases changing and changeable, the presi- ever accorded to the human race.” where the public well-being may dent must be mindful to keep at least As the purpose of the first mind By Dr. Jason W. Stevens require it. one finger on the pulse of the nation, is to understand the people as they At the same time, they are willing sometimes leading it, at other times understand themselves, the purpose t is a great misfortune that Cal- to contribute and sacrifice mightily being led by it. of the second mind is to understand vin Coolidge consistently ranks for the public welfare, possessed by a The first mind, therefore, must be the American founders as they un- as one of the worst presidents in certain patriotic pride in the good- checked by something else, and that’s derstood themselves — i.e., to “think American history. ness and justice of their country. how we come to discover the second the thoughts which they thought,” as There are many reasons for Coolidge put it. this reputation, but Coolidge’s For the promotion of good and relative obscurity seems to be chief just government, the president must

t me nt Iamong them. People simply aren’t in- combine both minds in one office. terested or well acquainted with the He must be at once a man of the man who supposedly had so little to people and a student of the found-

y D epar say during his time as president. We ing; he must belong to the present c a Americans prefer our presidents to and to the past. In other words, the oc be loud and boisterous, as clearly evi- president must be in touch with denced by the rise of Donald Trump. what Thomas Jefferson had called But it wasn’t always this way. in 1825 “the American mind,” attach- “Silent Cal” Coolidge — possibly ing public opinion to first principles. America’s most underrated president The American mind is what emerges — actually had a lot to say, especially when the mind of the country meets about the institution of the presi- the political mind, when the people dency under the Constitution. think the thoughts of the founders. Coolidge, who took over the That, according to Coolidge, is presidency following the unexpected what will make for a good president. death of Warren G. Harding in 1923, Coolidge was immensely popular and later won re-election in his in his own time, winning 17 out of 19 own right in 1924, described the of- electoral contests in his lifetime. If fice of president most clearly in his he had chosen to run again in 1928, book, “The Autobiography of Calvin he surely would have had no problem T i mes A dv T h e Washington BY T PREPARED Coolidge.” securing re-election. And although In perhaps the best example of Coolidge seems to be undergoing presidential memoirs, with the prob- a political revival of sorts in recent able exception of Ulysses S. Grant’s, decades, he still remains mostly un- HINGTON TI MES AS HINGTON CI A L REP O R Coolidge emphasized what he called known by average Americans today. the “two minds” of the American But lucky for us, “Silent Cal” A SPE TH E W

| presidency. Coolidge argued that Coolidge still speaks through his these two minds are absolutely many writings. We need only be necessary for responsible executive mindful and avail ourselves of their leadership and are part of the essen- lessons. tial makeup of what goes into a good president. Jason W. Stevens, Ph.D., is a visiting The first mind is “the mind of the assistant professor of political science ember 13 • 2016

t country,” or public opinion. at Ashland University, home of the Long before Nate Silver, or Ashbrook Center and its educational even George Gallup, it was Calvin programs on constitutional self-gov- Coolidge who successfully tapped ernment. Dr. Stevens teaches political directly into the public mind. And thought and history concerning the

Tuesday • S ep Tuesday more impressively, he did it without founding of America, the presidency the help of regular opinion polls. and political parties and conventions. 22 The president, Coolidge believed, Upholding the right ‘to be let alone’

executive power to spy on us without Amendment’s privacy protection does properly be guaranteed if domestic se- a warrant. From bugging civil rights not, however, tie the government’s curity surveillances may be conducted A SPE activists in the 1960s to examining hands in investigating violations of the solely within the discretion of the Ex- individuals’ internet activity under the law or fighting terrorism. The Fourth ecutive Branch” because “unreviewed CI A L REP O R USA Patriot Act, the executive branch Amendment generally requires that executive discretion may yield too has repeatedly tried to extend the when the government seeks to invade readily to pressures to obtain incrimi- nating evidence and overlook potential invasions of privacy and protected T PREPARED BYi ng The Wash speech.” In our data-driven society, the next frontiers of privacy In our data-driven society, the next will be about our information. Can the government frontiers of privacy will be about our use your cell phone signal as a homing device to track information. Can the government use your cell phone signal as a hom- your movements? Compile your prescription records ing device to track your movements? into a database that it can search at will to learn about Compile your prescription records into your medical conditions? Use drones equipped with a database that it can search at will to learn about your medical conditions? By Scott Michelman sophisticated cameras to see inside your home? Use drones equipped with sophisti- to n T i mes A dv cated cameras to see inside your home? hen the Supreme boundaries of its power and shrink our a person’s privacy, it must obtain a All that stands in the way of such Court ruled in perimeter of privacy. warrant that is issued by a neutral invasions is our willingness to stand THE WASHINGTON TIMES 1928 that the gov- Courts have rightly pushed back. magistrate (like a judge), directed at up for our rights by demanding that ernment did not For instance, in the late 1960s, when particular items and places, and based our elected officials respect the Fourth oc a

violate the Fourth the attorney general authorized on a good reason. In plain terms, what Amendment and by advocating for the c y D epar Amendment to electronic surveillance of members the Fourth Amendment prevents is an appointment of judges who will faith- the Constitution of the White Panther party without investigating officer deciding, on his fully apply it when law enforcement

by wiretapping a person’s telephone judicial approval, based on the govern- own, to engage in a fishing expedition, does not. t men Wcalls, legendary Justice Louis Brandeis ment’s fear that they would attempt based on a hunch. Fourth Amendment So on this Constitution Day, among wrote a prescient dissent taking a to “subvert the existing structure of requirements thus interpose a neutral the provisions we should most fer- | more expansive view. Justice Brandeis the Government,” the Supreme Court referee between law enforcement and vently celebrate is the Fourth Amend- Tuesday • S ep argued that the Constitution protects unanimously rejected the government’s individuals, to prevent officers from ment, which provides a check on Americans “in their beliefs, their claim to a vague and unconstrained acting on prejudices or in a scat- executive authority to learn the most thoughts, their emotions and their sen- power to eavesdrop in the name of tershot manner. If the government intimate details about our lives and sations” and “conferred, as against the national security. satisfies these requirements — which thus safeguards that “most comprehen- government, the right to be let alone More recently, courts have rejected it very often does — then its search is sive of rights” — “the right to be let t

— the most comprehensive of rights the government’s claims that it may, constitutional. (The Fourth Amend- alone.” ember 13 • 2016 and the right most valued by civilized without a warrant, collect in bulk ment also has a handful of practical men.” under the USA Patriot Act the tele- exceptions, such as one for emergency Scott Michelman is senior staff attorney Fortunately, Justice Brandeis’ view phone numbers that Americans call, circumstances.) at the American Civil Liberties Union of the Fourth Amendment ultimately or monitor an individual’s movements What the requirements of the of the Nation’s Capital. He teaches con- prevailed in the Supreme Court. by using a device that intercepts the Fourth Amendment obstruct is not stitutional law at American University Today, that provision’s protection person’s mobile phone signals to obtain the use of surveillance, but its abuse. Washington College of Law and civil against “unreasonable searches and location information. As the Supreme Court has explained, rights litigation at Harvard Law School. seizures” provides a vital check on Robust enforcement of the Fourth “Fourth Amendment freedoms cannot 23 t me nt y D epar c a oc T i mes A dv T h e Washington BY T PREPARED HINGTON TI MES AS HINGTON CI A L REP O R NEWS YOU CAN TRUST A SPE TH E W

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