In recent months, though, the party’s devotion to these things has taken on an increasingly, well, novel feel. The most significant examples were the many far-flung attempts to overturn Trump’s 2020 election loss, which were nearly universally rejected by the courts — and which often notably ran afoul of the party’s traditional federalist, states’-rights bent. But even surrounding that effort and the 2020 election, several Republicans have advanced some interesting ideas about the Constitution.
Over the weekend came a few notable ones.
One came from Rep. Lauren Boebert (Colo.), a GOP freshman who declared that, “Protecting and defending the Constitution doesn’t mean trying to rewrite the parts you don’t like.”
That echoed a sentiment in September from a longer-tenured GOP politician, Sen. Marsha Blackburn (Tenn.), who said, “We will never rewrite the Constitution of the United States.”
As many noted when Blackburn tweeted what she did, the Constitution has been amended 27 times. She has personally sponsored a number of potential amendments to it. Boebert, too, has based basically her entire political brand around one of those amendments — the Second — which wasn’t included in the original Constitution.
If we’re being charitable, perhaps they meant “rewrite” to mean make wholesale changes — i.e., not just adding individual rights. But a number of amendments beyond the Bill of Rights have made actual changes to what’s contained in the Constitution, through a process literally prescribed in the Constitution. One of them switched the responsibility for electing senators from state legislatures to the people — in other words, a change that allowed Blackburn to be elected as she was.
Also this weekend, Rep. Madison Cawthorn (R-N.C.) proposed his own change, an amendment that would underline and bold the Second Amendment. “I suspect this will help Democrats who, bless their hearts, seem to skip over it currently,” he said.
This is an obvious effort at trolling from a new lawmaker who has signaled his intention to provoke and build a national brand, but it’s still a rather interesting take on how our nation’s founding document should be treated.
Cawthorn, you might recall, botched a bit of constitutional history at last year’s Republican National Convention. The 25-year-old then-congressional candidate referred in a speech to James Madison — “my personal favorite,” in Cawthorn’s words — as signing the Declaration of Independence at a young age. Madison actually signed the Constitution.
Cawthorn’s opinions on the law in recent days have also extended to the Vatican, which announced it would require vaccinations for its employees unless they have a valid personal excuse. “This doesn’t sound legal,” he said. “… One shouldn’t be forced against their will to be vaccinated.” While it doesn’t appear American employers can require vaccinations that are approved only for emergency use — as the current ones are — the Vatican is an independent state governed by an absolute monarchy, meaning it has broad authority to do what it wants (though the Vatican did walk back its policy somewhat).
Another new lawmaker, Sen. Tommy Tuberville (R-Ala.), has also run into some questionable constitutional territory. Most recently, he was lambasted last month — somewhat unfairly — for suggesting delaying the inauguration of Joe Biden in light of security concerns and the coronavirus outbreak. The Constitution requires a transfer of power on Jan. 20, but Tuberville’s office said he meant that Biden would still be sworn in on that day and just that the festivities, which aren’t addressed in the Constitution, would be delayed. (Tuberville was also initially misquoted.)
Before that, though, Sen.-elect Tuberville in November described the three branches of government as, “you know, the House, the Senate, and the executive.” The three branches are actually the executive, legislative (encompassing the House and Senate) and judicial branches.
The flub called to mind some of Trump’s own comments on the contents of the Constitution, including saying in 2016 that he was in favor of Article XII, despite there only being seven articles. He also suggested the impeachment of Sen. Mitt Romney (R-Utah), even though the Constitution doesn’t provide for impeachment of senators, and suggested his own removal under the 25th Amendment would be unconstitutional, despite the process of that being laid out clearly.
In a book released last year, The Washington Post’s Philip Rucker and Carol D. Leonnig also reported that Trump struggled to read the Constitution for an HBO documentary, declaring it to be like a “foreign language.”
The GOP’s biggest clash with the Constitution in recent months, though, came during Trump’s election challenge. Lawmakers didn’t all endorse Trump’s baseless claims about the election being stolen, but many of them endorsed the idea that states could send electors that weren’t actually chosen by voters. Some decided Congress could tell states how to run their elections, despite that authority being delegated to the states. Others endorsed the idea that one state could sue over another state’s election results, which the courts rejected. And lawmakers even tried to object to laws that were previously upheld in state courts by arguing they violated state constitutions, including in Pennsylvania.
By the end, the argument centered less around alleged fraud than the idea that elections officials had circumvented not just their own constitutions but also the U.S. Constitution — by expanding mail-in balloting rules during the coronavirus pandemic without the approval of state legislatures.
“The Constitution requires that states carry out elections according to the rules established by state legislatures,” said Rep. Steve Scalise (La.), the No. 2 House Republican.
The elections clause of the Constitution does delegate this authority to the “Legislature” of each state, saying, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” But the Supreme Court, including as recently as 2015, has understood the word “Legislature” to broadly refer to any valid lawmaking process in the state — including ballot initiatives and, in some states, high-ranking officials such as secretaries of state who are given the authority by their states — not just a specific body of lawmakers. (The 2015 case, for instance, involved whether voters in Arizona could change their redistricting process via ballot initiative.)
Conservative justices have dissented on this point, including in the 2015 case, but this is the precedent of the court. “The Supreme Court has construed the term ‘Legislature’ extremely broadly to include any entity or procedure that a state’s constitution permits to exercise lawmaking power,” according to the National Constitution Center.
The most pronounced example in recent months came at the end of the election-challenge process, when Trump and some Republicans encouraged Vice President Mike Pence to unilaterally try to prevent Congress from accepting the electors of many states. The overwhelming view of legal experts and eventually the judgment of Pence, though, was that the Constitution and the law gave him no such authority.
This was more a Trump initiative than one spearheaded by members of his party. Some of them, when all was said and done and the Capitol had been stormed, criticized the gambit as epitomizing the false hope Trump’s supporters had been spoon-fed about the election challenge.
But that pushback was mostly absent when the last-minute gambit was launched — and when true fealty to the Constitution might have averted disaster.