While Sen. Rand Paul (R-Ky.) seems to have avoided the worst of the damage from the shutdown debacle — an effort in which he engaged and disengaged depending on the way Republican sentiment was blowing — he nevertheless continues to demonstrate a lack of seriousness and understanding of the Constitution, despite his claim to be a “Constitutional conservative.”
Being a “Constitutional conservative” is a serious business. For example, the Constitution’s structure requires cooperation and compromise, neither of which is favored by Paul and the other shutdown squad members. In any case, Constitutional conservatism should at the very least require you understand what’s in it (the Constitution, that is) and take it seriously. Paul does neither. As we saw in the National Security Agency and Syria debates, Paul’s understanding of the Fourth Amendment is weak and faulty, while his view of the executive is not supported by history or text.
Even worse, I would argue, is his latest effort to meddle with the Constitution. He’s come up with an amendment (never a good sign) that proposes:
Section 1. Congress shall make no law applicable to a citizen of the United States that is not equally applicable to Congress.
Section 2. Congress shall make no law applicable to a citizen of the United States that is not equally applicable to the executive branch of Government, including the President, Vice President, ambassadors, other public ministers and consuls, and all other officers of the United States, including those provided for under this Constitution and by law, and inferior officers to the President established by law.
Section 3. Congress shall make no law applicable to a citizen of the United States that is not equally applicable to judges of the Supreme Court of the United States, including the Chief Justice, and judges of such inferior courts as Congress may from time to time ordain and establish.
Section 4. Nothing in this article shall preempt any specific provision of this Constitution.
This is nonsensical in its intention and incoherent in its expression.
As a starting point, Paul is apparently miffed that the so-called Vitter amendment didn’t get through Congress. But of course the problem started with Obamacare itself when Republicans prohibited Congress from making an employer contribution for health care like ordinary employers do. The unfairness and differential treatment started there; if Paul wants to level the playing field, he should simply propose a statutory fix to Obamacare itself. Why not propose and vote on it?
In the big picture, resorting to constitutional amendments to solve run-of-the-mill issues is both unrealistic and dangerous. The chance of passing amendments is slight, and the notion that we can solve problems of governance by amendment prevents lawmakers and the executive branch from doing their job, that is, governing well. Hoover fellow Peter Berkowitz recently wrote of a slew of constitutional amendments proposed by hard-line conservative talk show host Mark Levin that, “There is little chance of assembling the super- and super-super majorities needed to pass even one of the amendments Levin puts forward, let alone several or all. The bad blood among the political elites flows too forcefully, the differences of opinion between left and right loom too large — and the resistance to dramatic change shared by ordinary people on both the left and the right runs too deep.” Berkowitz warned, “It is urgent for would-be reformers of the right to take these realities to heart. But not only them. It is also crucial that reformers of the left devise public laws and craft public policies that advance their political goals in a manner consistent with the presence of significant numbers of their fellow citizens who disagree with them about how individual freedom and political equality are best achieved.”
Proposing a constitutional amendment is typical of Paul. He is uninterested or incapable of making concrete gains and building consensus on achievable ends. He prefers to shoot so high and so far to the right that his ideas land beyond the realm of legislative reality. He is at heart a rhetorician and not a true lawmaker.
As to the specifics of the amendment, it is a shoddy and sloppy piece of work, as if written on the back of a napkin. It surely isn’t the product of concentrated thought and careful draftsmanship. Here are just a few problems any well-informed citizen would spot:
If Congress is to make no law not applicable to Congress, is Congress itself going to pay income tax? (He confuses the entity with its members.)
Do we really want Supreme Court justices to loose immunity for the content of their work and remarks on the bench? (He forgets judges need to be allowed to function free from popular opinion and without regard to aggrieved citizens.)
Does he want congressmen to be subject to lawsuits or criminal prosecution for their votes? To have their personal papers and deliberations with staff subject to Freedom of Information Act requests? (He doesn’t appreciate that in material respects, Congress and its member do have to operate without the ordinary civil and criminal restrictions that affect ordinary citizens.)
What does he mean by “specific provision” of the Constitution? Are there non-specific provisions?
Who’s to judge whether a branch has violated one of his amendment’s amorphous provisions?
Well, his defenders might say, all that is just “nitpicking” — the specific language is not to be taken as gospel. If that is the case, perhaps Paul should spend more time on putting to paper what he means and thinking through the consequences of his proposals. He might send out fewer half-baked ideas and discover there is value in the art of legislating and turning notions into actual laws.
Paul doesn’t seem to take his day job all that seriously. Don’t the people of Kentucky deserve to be represented by someone interested in actually governing rather than simply spouting whatever comes into his head?