The candidates and the Constitution

October 20, 2016

(Reuters) – Do you remember Saul Steinberg’s famous 1976 New Yorker cover, A View of the World from 9th Avenue? The drawing depicted with great wit the skewed perspective of New Yorkers who see the world beyond the Hudson River as an essentially undifferentiated nowhere land, with scattered markers for Chicago and Los Angeles, dotted lines for the Canadian and Mexican borders and a strip of light blue for the Pacific Ocean.

I thought of the Steinberg map when I heard presidential candidates Donald Trump and Hillary Clinton talk about the U.S. Supreme Court at Wednesday night’s debate. The discussion was dominated by just two issues, guns and abortion rights, as if the rest of the court’s business – now and in history – were no more than a blur in the distance. As depicted by the candidates, the U.S. Constitution exists mainly to protect the rights of gun owners and the Supreme Court’s primary task is to decide whether women ought to be allowed to terminate pregnancies.

Obviously, these debates devote only minutes to issues too complex to reduce to easily digestible arguments. And superficiality is inevitable when you are trying to reach tens of millions of people who couldn’t care less about separation of powers or the intersection of state and federal law. It was still disheartening that when debate moderator Chris Wallace of Fox News offered the candidates a chance to outline their interpretation of the Constitution, we got Trump reveling in Justice Ruth Bader Ginsburg’s apology to him and ranting about babies being ripped from women’s bodies.

Wallace had announced ahead of time that the Supreme Court would be one of the six topic areas of the debate, yet Trump could not speak coherently about the single case he named, 2008’s District of Columbia v. Heller, in which the justices ruled that the 2nd Amendment grants ordinary people a right to own handguns. That’s a simple enough holding on a topic of apparently overwhelming interest to Trump supporters. Here was the candidate’s insight: “Well the D.C. versus Heller decision was very strongly … and she was extremely angry about it. I watched. I mean, she was very, very angry when upheld. And Justice Scalia was so involved and it was a well-crafted decision. But Hillary was extremely upset.”

Clinton was criticized on Twitter for describing the District of Columbia gun control law at issue in the Heller case as a way to protect toddlers from loaded guns in the home, but safe gun storage was, in fact, one of the requirements in the law stricken down by the Supreme Court.

Clinton was not especially inspiring when she talked about the Supreme Court or the Constitution, but she was much better informed than her opponent (as you would expect, since she’s a Yale-trained lawyer and he isn’t). Clinton used Wallace’s broad opening question about constitutional interpretation and the role of the court to endorse civil rights victories at the Supreme Court and to criticize Citizens United, the court’s 2010 ruling on corporate political donations. Clinton also called on the Senate to fulfill its constitutional responsibilities and hold hearings on President Obama’s nominee for the ninth seat on the court. Otherwise, guided by Wallace’s questions, Clinton spent the rest of the time allotted to the topic of the Supreme Court on guns and abortion rights.

Politically, both candidates probably had good reasons to pivot toward the 2nd Amendment and Roe v. Wade. Clinton’s defense of Planned Parenthood, which came during the Supreme Court portion of the debate, scored well, for example, with both men and women, according to post-debate focus groups. I’m sure Trump backers would argue that their candidate scored by emphasizing Clinton’s criticism of the Heller ruling when it came out.

So why am I bothered by the woefully circumscribed boundaries of the candidates’ discussion of the Constitution? Because of what happened later in the debate, when Wallace asked Trump if he would accept the results of the election.

Trump, as everyone knows, refused to commit. He said he would “look at it at the time.” After an incredulous Wallace pointed out this country’s long tradition of peaceful transitions of power, Trump reiterated, “What I’m saying is that I will tell you at the time. I’ll keep you in suspense, okay?”

Clinton called that answer “horrifying” and “not the way our democracy works.” By implying that he will not respect the election results, she said, Trump is “denigrating, he is talking down our democracy. And I, for one, am appalled that somebody who is the nominee of one of our two major parties would take that kind of position.”

I am too, especially because a handful of Trump supporters have been quoted talking about violent rebellion if their candidate is not elected. (The Trump campaign has said it does not support such violence.)

Because of the Constitution, this country is not ruled by mob violence. The rule of law has, for the most part, prevailed in the United States because of the Constitution’s wise decision to divide power among the branches of government.

It’s easy to forget during presidential elections that in our constitutional democracy, the candidates can’t really govern on their own. In this particular election, the system of checks and balances has never seemed wiser or more relevant.

It’s too bad no one said so at the debate.

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