SETH LIPSKY: LET’S HAVE A DEBATE ON THE CONSTITUTION

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Let’s Have a Televised Debate on the Constitution What guidance do the GOP candidates draw from the document they revere?

Watching the early clashes among the Republican presidential field leaves me hungering for a televised debate on the Constitution. America’s fundamental law, raised as a flag in this campaign by the tea party, has been eddying in and out of the debates. So why limit it to glancing references?

Why not make at least one of these televised debates about the Constitution itself. Let the candidates really get it on over how they understand the document that whoever wins the presidency will swear to preserve, protect and defend. How would the Constitution guide them should they become president of America?

Take the question of treason. This word is being thrown around in the debates like confetti. Gov. Rick Perry has suggested that using the Federal Reserve for political purposes would be “almost treasonous,” and Gov. Jon Huntsman has asserted that Mr. Perry’s suggestion that we can’t control the southern border was a “treasonous comment.”

How do these candidates comprehend the prohibition in the Constitution on defining treason as anything other than levying war against the United States or adhering to their enemies, giving them aid and comfort? Do they really believe that treason is a context in which they want to talk about immigration and money?

And what counsel from the Constitution would the candidates draw on immigration? What kind of responsibility do they feel is imposed on the federal government by the fact that the Constitution parcels the power to establish a uniform rule of naturalization not to the states but to the federal government? Does the word “uniform” lock the states out of making policy on immigration?

How about talking of the Federal Reserve and Ben Bernanke not in terms of treason but in terms of the Constitution? One of the candidates, Ron Paul, reckons the Federal Reserve Act is unconstitutional on its face. Do the other candidates agree? Where do they feel Congress gets the power to delegate monetary authority to the Fed?

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When Mr. Bernanke was sworn in as chairman, he spoke of how Congress had created the Fed acting under the grant of power to coin money and regulate its value. But neither the Federal Reserve Act nor the case law that gave the federal government the power to establish a national bank cites the coinage power, which, more than a century before the Fed was created, Congress gave to the United States Mint.

Mr. Perry is coming under attack for suggesting that not only is Social Security a Ponzi scheme but it is unconstitutional. Why might it be unconstitutional? There are several Supreme Court cases saying that it is constitutional, but one of them was decided by a vote of five to four. It would be illuminating to hear where in the dissents Mr. Perry might find his standing.

The fact is that our presidents have had views about the Constitution. Franklin Delano Roosevelt, announcing his plan to pack the Supreme Court after losing key court cases regarding the New Deal, expressed the view that the Constitution “like the Bible” ought “to be read and read again.”

He noted that the Constitution itself “was called into being” because the Articles of Confederation “under which the original thirteen states tried to operate after the Revolution showed the need of a national government with power enough to handle national problems.” He spoke of Marbury v. Madison (1803), in which the Court asserted the power to override legislation it deemed in conflict with the Constitution.

But Roosevelt went on to quote a subsequent case in which Justice Bushrod Washington characterized such power as limited. “It is,” Roosevelt quoted Justice Washington as writing, “but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt.”

FDR groused that the court was vetoing New Deal legislation in “complete disregard” of such a limit. Hence his plan to pack the court. The plan died in the Senate. Whatever one thinks of Roosevelt’s view of the Constitution, at least he had one.

So what about the current generation? There is so much to debate about the Constitution—war powers, gay marriage, birthright citizenship, the gold standard, the role of the vice president, campaign funding. One could go on. Holding a debate centered on the Constitution could bring a coherence to the campaign.

And also some fun. One of the big issues this year is the Commerce Clause, one of the grounds on which the Obama administration is claiming the right to have passed ObamaCare. The clause gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Do the candidates who reckon that Congress can use this clause to reach into a state to regulate economic activity there also reckon that they can reach into foreign nations and the Indian tribes and regulate their commerce, too?

Mr. Lipsky is the author of “The Citizen’s Constitution: An Annotated Guide” (Basic Books, 2009).

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