Constitutional issues and rhetoric have played an important role
in politics and government throughout American history.
Contrary to the assumption by many contemporary Americans that the
Supreme Court is the sole arbiter of constitutional meaning,
the elected branches have numerous powers and duties that give them
the opportunity to shape constitutional interpretation and
For instance, Congress can pass legislation that affects
individual rights as well as the scope of the federal
government and the vitality of federalism. It can initiate
constitutional amendments and confirm (or refuse to confirm)
presidential appointments of federal judges and executive branch
officials charged with interpreting or applying the Constitution,
such as the Attorney General. It can, by statute, limit the
appellate jurisdiction of the Supreme Court. And it can (indeed,
must) define the grounds for impeachment and removal.
The President, for his part, swears an oath written into the
Constitution itself to preserve, protect, and defend the
Constitution. He can use his veto against legislation he deems
unconstitutional. He appoints judges and executive branch
officials. And he enforces the law and is the first to put forward
an interpretation of presidential powers in the gray zones where
the Constitution itself is vague.
The result is that the elected branches can and should have a
major influence on our constitutional understanding. Hence,
constitutional issues can and should be an important part of
election campaign rhetoric and of governing discourse after the
campaign is over.
A key question, then, is how constitutional rhetoric has fared
over the years. When it comes to campaign rhetoric, this
question is important for at least three reasons.
- As incredible as it may seem to many Americans, politicians
usually take their campaign promises seriously, so what they
say on the campaign trail matters.
- Additionally, a great deal of voter education takes place
through the medium of campaigns.
- In the other direction, what campaigns talk about can also be
seen as a barometer of public sentiment.
Constitutional rhetoric in the process of governing likewise
educates citizens and serves as a barometer of what is on the
national mind. Most important, that rhetoric in the White House and
on the floor of Congress gives us an imperfect but useful
indication of whether the nation's leaders are actually taking into
consideration the nation's highest law. Is the Constitution a
vibrant reality shaping policy debates, or is it a dead letter to
our public officials?
Is a High Number of References to the
Constitution a Good Sign?
Consequently, the following analysis is based on three
assumptions. The first is that, under normal conditions, more
constitutional discussion in campaigns and in governing is better
than less. Second, more open discussion of the Constitution is
better than opaque discussion. Finally, broader discussion is
better than discussion that is narrowly focused on only a few
One might object, in response to the first assumption, that too
much constitutional debate is symptomatic of a constitutional
system in distress. James Madison, it might be recalled, clearly
hoped for a stable Constitution, the provisions and boundaries of
which were generally understood and accepted, not part of the
struggle of day-to-day politics. So why should we not want as
little debate about the Constitution as possible? Debate involving
the Constitution would imply some question about its
legitimacy. It would be preferable to have no mention of the
Constitution during policy debates, according to this view,
because all sides agree on the Constitution's general parameters
and argue from within those boundaries.
At the extreme, there is some merit to this objection. The peak
volume of constitutional discourse in American politics came in and
around the Civil War as constitutional controversy spun out of
control. While some of this talk itself contributed to civil
strife, for the most part the rhetoric about the Constitution was a
symptom that was produced by a greater struggle. The basis of
the conflict itself lay not in the world of rhetoric but in real
Herein lies an answer to the criticism as well. As Madison also
pointed out forcefully, it is inevitable that free societies will
be rife with contests involving both rival interests and competing
principles. The only question is whether those conflicts will be
discussed in light of the nation's highest law and guiding
principles or only in mundane terms divorced from its highest
law and principles.
A close look at the peaks and valleys of constitutional
discourse in American politics shows no rigid pattern in regard to
constitutional distress: Some such moments (such as 1860 and the
1930s) show increased discussion of the Constitution, while others
(such as the war years of the Wilson Administration) do not. The
widely told story of a Constitution under assault since 2001 has
corresponded with less rather than more discussion of the
Constitution, as did the political-social crisis of 1968. Some
moments of greater discussion of the Constitution, like the 1980s,
were not moments of appreciably greater conflict.
The lesson would seem to be that much depends on the political
and rhetorical choices made by political leaders in each era. These
facts also suggest that an increase in discussion of the
Constitution can occur in a healthy way that serves to bring our
people and their representatives back to first principles.
Ultimately, constitutional government requires a constitutional
conversation that includes the people and their representatives.
Failure to sustain such a conversation will not lead to social
peace, nor will it serve as the marker of a healthy Constitution.
Rather, it will contribute to the constitutional illiteracy of the
nation. When candidates and elected officials stop talking about
the Constitution, it will not be because the Constitution is
secure; it will be because the Constitution is irrelevant.
Constitutional Rhetoric in Election
Since the 1790s, constitutional issues have been a part of
- In the early years of the two-party system, starting with the
first major party platform offered by the Democrats in 1840, the
enumeration of powers, federalism, executive powers, and the
overall philosophy of constitutional interpretation were
widely discussed, as was, increasingly, the subject of
- The Civil War and Reconstruction (1865-1876) brought a heated
conversation centered on the character of the federal union,
the use of executive power by Lincoln and Grant, and civil
liberties during wartime or post-war occupation.
- The Populist era (1890s) saw an upsurge in debate about the
federal courts and proposals for constitutional change, as did
the Progressive era (1900-1920) that followed.
- The aftermath of World War I provoked considerable campaign
discourse about wartime powers exercised by the Wilson
Administration and allegations that Wilson had compromised the
sovereignty of the United States by agreeing to the League of
- The New Deal in the 1930s brought a constitutional debate over
the scope and powers of the federal government, the independence of
the judiciary, and what Republicans liked to call Franklin
Roosevelt's "one man rule."
- Since the 1960s, a large number of constitutional issues
including civil rights, abortion, the parameters of the federal
system, and the proposed Balanced Budget Amendment have appeared
with considerable frequency.
Although constitutional issues were part of the campaign
discourse in every era, many fear that there has been, on balance,
a general "deconstitutionalization" of politics over the past
century or more. There is considerable evidence to support such
For example, major party platforms since 1840 have experienced a
serious decline of constitutional rhetoric as measured by total
references to the Constitution, controlled for the size of the
platform. In 1840, there were 20 constitutional references per
thousand words of the Democratic platform; although the platform
was short, nearly every paragraph made at least one reference to
the Constitution. In 2004, by contrast, both major parties'
platforms contained approximately three constitutional
references per thousand words. (See Chart 1.)
In addition, a smaller proportion of constitutional discussion
is explicitly constitutional in character today. In the 1800s,
platforms were more likely to refer to the constitutional rights of
the states or First Amendment rights; today, they are more likely
to refer to federalism or freedom of speech. From 1840 through
1864, about 75 percent of constitutional references in party
platforms could be considered explicit. In every election since
1948, a majority of platform references have been implicit, usually
by a wide margin.
In a related vein, one sign of the deconstitutionalization of
American campaigns over the long run has been the severe decline in
the use of what one might call "perfunctory" references to the
Constitution; that is, references not to a concrete constitutional
issue but to the Constitution itself in a sort of hortatory or
purely symbolic way. Such references, which are always explicit,
used to be a very common component of political rhetoric in
America. Today, they stand out as unusual and perhaps a bit
old-fashioned. Like a dying canary in a mineshaft, the loss of this
art of constitutional praise in campaigns might be considered the
sign of a broader distress in the American polity.
Evidence also shows that the constitutional discussion that does
occur now is narrower and less balanced among different types of
issues than it used to be. An examination of 15 different
categories of constitutional discourse reveals that a broad range
of constitutional concerns has largely been supplanted by a
narrower interest in individual rights, though of course other
issues continue to be raised.
Finally, the mode of campaign communication makes a significant
difference. Party platforms are consistently more likely to address
constitutional questions, to address those questions explicitly,
and to address a broad range of those issues than are television
advertisements. Platforms typically contain two or three times as
many constitutional references per thousand words as do
television advertisements run the same year by the same party. And
if party platforms deal seriously with a narrower range of issues
than they used to, they remain superior on that score to television
ads, which are even more heavily skewed toward rights and away from
substantive discussions of the constitutional structure of American
All in all, the type of communication most important for
reaching the mass electorate in modern campaigns- television
advertising-is also usually the one with the least constitutional
A Modest Resurgence?
However, drawing a direct line from 1840 to 2004 masks a number
of ups and downs in between, including a modest upward trend in
constitutional discourse in campaigns since the late 1960s. Also,
it is surely not insignificant that the total number of
constitutional references in platforms-as opposed to references per
thousand words-has increased. In other words, there has actually
been a partial resurgence of constitutional discourse since the
While modest, this resurgence has been broadly based. It has
occurred in both parties, though among Republicans more than
Democrats. It has also occurred across different types of campaign
communication, including party platforms, presidential debates, and
even television ads, despite their low absolute levels of
constitutional content. While Democrats have been
disproportionately concerned with rights during this period of
recovery, Republicans have tended to place greater emphasis on
structural issues (mostly federalism) and questions having to do
with constitutional interpretation.
The overall increase in constitutional discussion since the
1960s has been driven by the rising prominence of a number of
issues. For example, presidential campaigns since 1968 have given
much greater attention to judicial powers (by Republicans) and
judicial appointments (by both parties). Likewise, judicial
decisions have become a more common topic of conversation, as have
constitutional amendments, many (though not all) of which have been
proposed with the intention of overturning controversial court
Many of those judicial decisions have also driven increased
discussion of several individual rights issues in the social arena.
In particular, civil rights, abortion, school prayer, and same-sex
marriage were either brand-new issues or, in the case of civil
rights, old but dormant issues that attained new prominence during
the recent era of increased constitutional rhetoric.
Finally, some of the surge of constitutional discourse since
1968 has been driven by an issue that one might call constitutional
sovereignty: the degree to which the United States should be
subject to international agreements and organizations. Although
this issue became prominent for the first time in the 1920
election, it has resurfaced in the 1990s and in this decade. Much
of the 2004 presidential contest revolved around the question of
whether the United States should be bound by the preferences of the
United Nations in devising its security policy.
Altogether, although it is accurate to refer to a
deconstitutionalization of politics since the mid-1800s, such a
description does not capture the full picture. Candidates and
parties are actually talking more about the Constitution today than
they did 40 years ago.
A Recent Backslide
If too much pessimism is unwarranted, though, so is too much
optimism. For one thing, the uptick in constitutional
discussion since 1960 has come nowhere close to restoring all of
the ground lost since the mid-1800s. For another, since 2000 we
have witnessed another falloff in the constitutional content of
party platforms, especially because of a decline in Republican
references to structural issues. As a topic of discussion,
federalism, which was found in nearly every domestic corner of the
1996 Republican platform, was greatly diminished in 2000 and
Even so, the 2004 presidential debates saw a record number of
constitutional references, and the campaigns as a whole dealt at
some length with issues such as constitutional sovereignty, the
Federal Marriage Amendment, and civil liberties in wartime. Since
the level of constitutional discourse in 2004 was still about the
same as in 1992 and higher than 40 years ago, it is not yet clear
whether the post-1996 dip is the beginning of a bigger decline or
simply a reversion to conditions before an unusual spike in 1996.
It may also be that the dip will prove to be particular to the
politics of the current era.
Constitutional Discourse in
As one might expect, rhetorical trends in campaigns find a
parallel in governing. A study of inaugural addresses and State of
the Union messages-two venues that are relatively ceremonial and
hence might be expected to have more constitutional references than
other types of presidential communication-shows that constitutional
discussion has declined there as well.
Inaugural addresses have experienced a sharp decline in
constitutional references, especially since 1929. Inaugural
addresses from 1953-2005 in both parties have average rates of
constitutional references comparable to the very low levels found
in television advertising. Recent inaugural addresses have also
been characterized by the dominance of implicit over explicit
The constitutional subjects found in inaugural addresses are
relatively constricted. Since 1841, individual rights have been
mentioned in about three out of every five inaugural addresses in
both major parties; about half of Democratic inaugurals had at
least one perfunctory mention of the Constitution; about half of
Whig or Republican inaugurals mentioned federalism, executive
powers, or enforcement of the law. Federalism and executive powers
on the Democratic side and perfunctory mentions of enumeration of
powers on the Whig/Republican side found their way into around four
in 10 inaugurals. Other topics received much more sporadic
For most of the 20th century, as in campaigns, Democratic
Presidents were more likely to focus on rights and Republican
Presidents on structure and constitutional interpretation in their
inaugural addresses. However, the last three Republican
inaugurals-by George H. W. Bush and current President George W.
Bush-contained only references to rights, marking a sharp
break with their party's previous tradition.
State of the Union messages also provide a forum for Presidents
to articulate their vision of politics, both grand and petite. If
they are inclined, Presidents can find in State of the Union
messages multiple opportunities to draw a connection between policy
questions of the day and constitutional principles. Indeed, there
is a clear link between the inaugural address and the State of the
Union message. As Karlyn Kohrs Campbell and Kathleen Hall Jameison
pointed out in their book Deeds Done in Words:
[Each State of the Union message is] rooted in a president's
most recent inaugural. The inaugural lays down the principles that
will govern a presidency while demonstrating presidential
commitment to the country's most basic principles. In State of
the Union addresses, presidents revive the principles to which they
committed their presidencies and show how those principles will be
reflected in their legislative program.
The modern State of the Union message owes its form to Woodrow
Wilson, who restored the message to its original form (an
address delivered to a joint session of Congress) and saw it as a
means of aggressively advancing the President's legislative
It is consequently troubling, but perhaps not surprising, to
note a decline in constitutional rhetoric in State of the Union
messages that parallels the decline found in other forms of
presidential communication. In this venue, the absolute decline in
discussion of the Constitution after 1913 is partly traceable to
the change in form of the message itself. When messages became
speeches rather than written reports, Presidents cut their length
In general, though, State of the Union messages have exhibited a
broader and richer discussion of the Constitution than have
inaugural addresses. For example, State of the Union addresses
since 1948 have been much more likely than inaugurals to contain
explicit discussion of constitutional issues.
Likewise, State of the Union messages have tended to discuss a
broader range of constitutional issues than have inaugurals.
Individual rights were mentioned in around four of every five State
of the Union messages from 1841 through 2006 in both major parties.
Four topics (rights, federalism, executive powers, and enumeration
of powers) were mentioned in more than half of Whig/Republican
messages. In both major parties, 10 categories of
constitutional issues were mentioned in at least 15 percent of
State of the Union messages; in contrast, in inaugurals, only six
topics met that standard on the Democratic side and nine on the
Republican side. Fourteen categories were mentioned in at least one
Democratic State of the Union message and all 15 categories were
mentioned in at least one Whig/Republican message; in contrast,
five topics were not mentioned in even one Democratic
inaugural, and two were not mentioned in any Republican
From the first term of Franklin Roosevelt's Administration
through 2006, Republican Presidents were significantly more
likely to raise constitutional issues in State of the Union
addresses than Democrats were. Overall, Republican Presidents
during that period exceeded Democratic Presidents by about 44
percent in absolute constitutional references and by about 87
percent in the rate of references per thousand words. Only three
Presidents averaged more than 10 constitutional references in
each of their State of the Union addresses: Republicans Dwight D.
Eisenhower, Gerald Ford, and Ronald Reagan. Reagan led the group
with an average of about 16 constitutional references per
address. (See Table 1.)
Examples of presidential discussion of constitutional issues in
State of the Union addresses since Franklin Roosevelt include the
- Several references by Roosevelt defending himself against
charges of executive usurpation and discussing federalism and
enumeration of powers while advancing his program of federal
- Repeated (and sometimes dominant) concerns by Harry Truman,
Dwight Eisenhower, John F. Kennedy, and Lyndon Johnson regarding
civil rights, including voting rights.
- Expressions of fear about the prospect of excessive
centralization of power and devotion of considerable rhetorical
effort to a defense of federalism by Eisenhower, Richard Nixon, and
Ronald Reagan. In particular, federalism was a dominant theme
of Nixon's 1971 address and Reagan's 1982 address.
- A vigorous defense of executive power by Nixon and Gerald
- Promotion of constitutional amendments on topics including
abortion, a balanced budget, and marriage by Reagan, George H. W.
Bush, and George W. Bush.
- Calls for the U.S. Senate to confirm stalled judicial
appointments by Bill Clinton and George W. Bush, coupled with
broader opposition to the imperial judiciary by Bush.
Although George W. Bush made some notable constitutional
references in these governing speeches, his overall record in this
regard has been as disappointing while serving as President as it
was while campaigning. His two inaugural addresses show a
substantial dip from the rhetorical attention given to the
Constitution in the 1980s (or even 1997). In a similar fashion,
Bush's State of the Union addresses from 2002-2006 had the least
constitutional content of any President's since 1934. Here, he
averaged only three constitutional references per speech, the
lowest of any modern President, and a rate of references per
thousand words that was tied with Bill Clinton for the lowest of
any modern President. Clearly, Bush's relative lack of interest in
articulating a constitutional vision on the campaign trail has
extended deep into his presidency.
Constitutional Debate on the Floor of
As in the White House, constitutional rhetoric in Congress has a
long history. Debates in Congress throughout the 1800s were
often filled with constitutional arguments and rationales. However,
by the early 1960s, Harvard scholar Donald Morgan expressed
concern that Congress was not taking its role as constitutional
guardian as seriously as it once did. Morgan pointed to an incident
in 1935 as one key moment in the evolution of Congress's
Morgan noted that while grappling with the Guffey Coal Act
(otherwise known as the Bituminous Coal Conservation Act),
Congress received a written message from President Roosevelt that
urged it to refrain from concerning itself with the act's
constitutionality. Congress, argued FDR, should simply pass the
bill if it thought the legislation was good policy and let the
Supreme Court sort out its constitutionality. This message
represented the first known instance of a President calling on
Congress to ignore the question of whether a piece of legislation
was constitutional. Today, it is probably safe to assume that this
approach is used by Congress more often than not.
After examining the course of constitutional debate since that
crucial moment, Morgan concluded his study by contending that
Congress was losing its capacity to engage in constitutional
dialogue. Even so, 203 Members of Congress responded to a
survey that Morgan distributed to Members in 1958-1959. Most said
they believed that constitutional arguments, when they were
raised in Congress, were raised sincerely more often than not. Most
also indicated that they believed that Congress, not just the
Supreme Court, played a legitimate role in constitutional
Scholars attempting to replicate Morgan's survey since 2000 have
obtained similar answers. However, they received only 80, 20, and
12 responses, perhaps implying that Members of Congress (or their
staffs) are less interested in the topic than they used to
As with campaign rhetoric and presidential rhetoric, it is
possible to obtain a rough measurement of how often constitutional
rhetoric is used on the floor of Congress. The Congressional
Record has been digitized going back to the 101st Congress
(1989-1890), and some conclusions can be reached from that period.
Those conclusions include the following:
- In total, the Constitution is mentioned in Congress with
substantial frequency. Every Congress from 1989 through 2006
contained at least 2,000 statements by Members that included use of
the word "constitution." A cursory review shows that a few
such references are not to the American Constitution (for example,
statements commemorating the first Polish constitution), but most
are. In contrast with campaign rhetoric, a large proportion of
such references seem to be perfunctory in character. (The 110th
Congress, with several months still remaining, was up to 1,876
articles mentioning "constitution" as of June 17, 2008).
- Individual rights issues receive considerably more attention
than other kinds of constitutional issues. The phrase "civil
rights" was mentioned in between 1,166 and 1,586 congressional
statements in every Congress except the 102nd (1991-1992), which
was occupied with debate over the Civil Rights Restoration Act
of 1991 and saw 2,000-plus statements. "Civil liberties" was almost
always the next most frequently used term.
- In comparison, structural issues like "federalism" or
"separation of powers" were mentioned in a non-negligible but much
smaller number of congressional statements. Since 1989, the peak
number of federalism statements in any particular Congress was
277 (1995-1996), and the peak number of separation of powers
statements was 245 (1991-1992). Most Congresses recorded
significantly fewer such statements.
- Members of Congress rarely address the core principle of
constitutionally limited federal authority. In no Congress did more
than 33 statements refer to "enumeration of powers" or "enumerated
powers." Members of Congress are a bit more likely to use the
more generic phrase "limited government," but this principle is
still overshadowed by other topics.
- Congressional concern with judicial philosophy and
controversial court cases ebbs and flows depending on the salience
of those issues at the moment. At their most engaged, Members of
Congress discuss "judicial activism," "independent judiciary," or
"Roe v. Wade" as much as or more than limited
government, but always less than rights and almost always less
than even federalism or separation of powers.
- Recent presidential trends are also reflected in congressional
discourse. In the period since 1989, the use of the terms
"federalism," "limited government," or "enumerated powers" peaked
during the 104th Congress (1995-1996). During the presidency
of George H. W. Bush, the frequency of congressional
statements using those terms reached or approached lows. In
some cases, deterioration had already advanced in the late 1990s;
then the discussion of federalism and enumerated powers fell by
half again from the 106th Congress (1999-2000) to the 107th
Congress (2001-2002). (See Table 2.)
In sum, although there continues to be persistent discussion of
the Constitution in Congress, it is striking how rarely some topics
are brought into the debate. Through mid-June 2008, Members of the
110th Congress had made 104 statements referring to federalism and
108 statements including a mention of separation of powers out of
what must be many thousands or even tens of thousands of statements
included in the Congressional Record. Yet nearly every
domestic policy of the federal government contains implications for
federalism, and the President and Congress during this period
found themselves locked in a number of disputes that bore on the
principle of separation of powers. Only 13 or 14 statements in a
year and a half raised the issue of enumerated powers, even though
they are (or ought to be) the font of every federal law-and this
was a number double that of the previous Congress.
Factors Contributing to the Current
A natural question is why constitutional discourse in elections
and governing stands where it does today.
Clearly, there has been a broad trend of politicians and parties
giving lower priority to the Constitution in their public
arguments. That broad trend since the mid-1800s can be traceable to
the end of the great debate over slavery and union, the rise of a
pragmatic commercialism in the late 1800s, and the ascent of
Progressive and New Deal philosophies that systematically
downplayed the importance of strict adherence to the Constitution.
This overarching atmosphere of American politics, in which
"excessive" concern with the Constitution is often seen as archaic,
is undoubtedly the most critical contributor to the
deconstitutionalization of political rhetoric.
The evolution of communications technology may also have played
a role in this decline. As the primary means of political
communication have shifted from written missives to audiovisual
media, it is possible that constitutional argumentation has lost
out to more emotive and visual themes. If this is true, the rise of
the blogosphere may offer some hope for a return of written
argument as a means of reaching the mass public.
The proclivities of individual political figures have, of
course, been important. Ronald Reagan's commitment to a philosophy
of constitutionalism and his evident understanding of the
importance of articulating a constitutional vision explain the high
level of constitutional discourse that he used when governing. The
recent slippage of constitutional discourse on the Republican
side is traceable to George W. Bush's decision to disavow the
decentralizing preferences of his party in order to pursue an
agenda of "compassionate conservatism."
There are, of course, a number of other actors who influence the
electoral environment. They are "inputs" that help to determine the
"output" of constitutional rhetoric (among many other things).
For example, few of the most influential interest groups are
concerned with the Constitution. Of the top 20 political
action committees, no more than two or three (the National Rifle
Association and the American Trial Lawyers Association) can be
considered primarily or even substantially interested in
constitutional issues. Those organizations that do tackle
constitutional issues focus almost exclusively on rights. These
would include the NRA and Trial Lawyers, pro- and
anti-abortion groups, People for the American Way, civil rights
groups, the American Civil Liberties Union, and groups on the
religious right (such as the Christian Coalition and Concerned
Women for America) that are generally mobilized around
controversial rights issues like school prayer, abortion, or
There are virtually no advocacy groups that take a serious
interest in federalism, enumeration of powers, or separation
of powers. Some think tanks such as The Heritage Foundation, the
American Enterprise Institute, and the Cato Institute maintain a
serious interest in constitutional issues generally and in
structural questions in particular, but they can only offer good
ideas-not election resources-to advance their principles.
Similarly, the major news media are clearly much more interested
in rights than in structural questions. A Lexis/ Nexis search of
newspaper articles six months prior to April 2006 using 33 key
search words across a broad range of constitutional issues had the
- Civil rights, civil liberties, and abortion pulled up
1,000-plus articles (the search was stopped at 1,000).
- Gay marriage or same-sex marriage produced 500 hits.
- Constitutional amendments and Supreme Court appointments were
each cited in 426 articles (clearly because this six-month period
included the confirmations of Chief Justice John Roberts and
Associate Justice Samuel Alito).
- The First Amendment appeared in 326 articles, Roe v.
Wade in 241, and the International Criminal Court (a proxy for
the issue of constitutional sovereignty) in 134.
- Federalism, one of the most important constitutional structures
of the American Republic, was mentioned in only 116 articles,
and many of those actually concerned federalism in Canada.
- No other searches produced more than 100 hits in a six-month
period, including "war powers," "Kelo" (the notorious property
rights case), "Electoral College amendments," "original intent," or
"Supreme Court appellate jurisdiction."
Further illuminating this tendency, no journalist has asked a
question about federalism in a presidential debate since 1960.
Much evidence points to a cohort of party activists who are more
ideological and more polarized today than in 1960. This trend helps
to explain both the increase in constitutional discourse in
elections since 1960 and why it is that party platforms have more
such discourse than alternative forms of campaign communication.
Activists write the platforms-and are almost the only ones who read
Of course, public sentiment ultimately serves as the foundation
for politics in America, and it also establishes its parameters. If
a long history of polling data is to be believed, public opinion
combines a high abstract veneration of the Constitution with
relatively low levels of knowledge. Polls routinely show seven or
eight out of every 10 Americans expressing admiration for the
Constitution and attributing much of America's success to that
document. At the same time, only around three in five know that
there are three branches in the federal government.
To the extent that voters demonstrate detailed knowledge about
the Constitution, they do so in questions about rights much more
than any other sorts of issues. This, too, helps to explain both
the long-term decline of constitutional discussion in
campaigns and the relative prominence of rights in the discussion
Of course, there may also be an effect in the other direction:
Diminished discussion in high-level campaigns may reduce the
constitutional literacy of voters. By neglecting to advance a
serious discussion of the Constitution in campaigns and in
governing, politicians may be contributing to this decline in
The 2008 Election and Prospects for
Thus far in the 2008 presidential election, the Constitution has
continued to be an important part of campaign rhetoric. However,
the future prospects for constitutional discourse remain
A number of also-rans in both parties attempted to elevate
constitutional issues to an important part of their campaigns. On
the Republican side, Fred Thompson attempted to restore federalism
to a prominent place in his party's rhetoric. Rudy Giuliani
likewise attempted to mitigate his pro-choice position on abortion
by calling for a revitalization of federalism on that issue. And
the inimitable Ron Paul made a broad constitutional argument for
limited government, a limited executive, and civil liberties.
In doing so, he consistently garnered 10 percent to 15 percent
of the vote in Republican primaries long after the nomination had
been secured by John McCain.
On the Democratic side, Dennis Kucinich employed the
Constitution in railing against what he considered to be George W.
Bush's abuses of executive power. Hillary Clinton championed "a
woman's right to choose," criticized a number of recent Supreme
Court decisions and George W. Bush's two Supreme Court
appointments, and emphasized the protection of voting rights.
Senator Clinton more generally charged Bush with having shredded
the Constitution and contended that the genius of our
Constitution is that it was "crafted to expand as our hearts do,
allowing each generation to lead us closer to that more perfect
union." In a speech to the American Constitution Society, Clinton
also defended constitutional rights to privacy as applied to
national security and extolled the protections offered by the
American system of checks and balances.
The two main contenders for the presidency, John McCain and
Barack Obama, also returned to constitutional themes throughout the
nominating season. Obama, a former lecturer on constitutional law,
emphasized civil rights, repeatedly criticized the Bush White House
for excessive executive reliance on secrecy, promised to "restore
habeas corpus" and provide better executive-legislative
coordination, and called for some flexibility for the states within
the framework of his health care plan.
Obama's notable Philadelphia speech on race (entitled "A More
Perfect Union") contained a perfunctory reference to the
Constitution and discussed equal citizenship under law and civil
rights laws. In a speech on "Renewing the American Economy," the
Illinois Senator conducted an extended discourse on the political
economy of Jefferson and Hamilton, saying that "The great task
before our Founders that day was putting into practice the ideal
that government could simultaneously serve liberty and advance
the common good." Like Clinton, Obama offered a version of the
"Living Constitution," contending in his announcement speech that
"The genius of our founders is that they designed a system of
government that can be changed." However, about three-fourths of
the issue papers on his Web site lacked any constitutional
reference, as did speeches entitled "Keeping America's Promise,"
"Reclaiming the American Dream," and "The Great Need of the Hour,"
which one could imagine containing such references.
For his part, McCain also called for state flexibility to
experiment with different approaches to health care, which might be
considered to be an allusion to federalism. He described Roe v.
Wade as a flawed decision that should be overturned, promised
to nominate judges who do not legislate from the bench, and
declared that "In their wisdom, our Founding Fathers reserved for
the states the authority and responsibility to protect and
strengthen the vital institutions of our civil society."
Addressing the Second Amendment, McCain proclaimed that the "right
of law-abiding citizens to keep and bear arms is a fundamental,
individual Constitutional right."
In campaign speeches in early 2008, McCain also laid out a
broader constitutional vision, arguing that the purpose of
government is to "protect the liberty and property of its citizens"
and that government must "respect the rights, property, and
opportunities of the people to whom we are accountable." At the
Values Voter Summit, McCain argued for freedom of religious
expression, saying that "Judges should not legislate from the bench
and actually restrict religious freedom by banning its expression
in the public square." He went on to offer advice to judges: "Don't
federalize issues not addressed in the Constitution. Don't
constitutionalize issues where federalism has a chance to
In a speech to the Federalist Society, the Arizona Senator
expounded on Madison's view of human nature, limited
government, the rule of law, individual rights, the enumeration of
powers, the separation of powers, federalism, executive vs.
congressional war powers, and judicial restraint and original
intent. Conversely, about two-thirds of the issue papers on
McCain's Web site did not include any constitutional
What all of this would mean in the event of an Obama or a McCain
victory cannot be known with certainty, but both of the 2008 major
party nominees held forth the possibility that the Bush years would
prove to be an aberration and that the parties would revert to
their pre-Bush relationship. The putative Republican nominee was
more focused on questions of structure and interpretation; the
Democrat was more focused on rights. However, the campaign also may
have illuminated the limits of this reversion; federalism in
education was a non-issue for both candidates, in contrast with
2000 when both Bush and Albert Gore advanced centralizing education
plans but nevertheless felt compelled to promise "local control of
education." Neither major party nominee seized on the Constitution
as a general theme of his campaign, but the general election
campaign seemed to promise considerable debate over judicial
appointments, judicial philosophy, and controversial court
decisions. As in the past, the out-of-power party was more
interested in executive power controversies than was the party in
the White House.
Restoring Our Constitutional
Since 1840, the frequency and breadth of constitutional
discourse, both in American elections and in governing, has
declined noticeably. While some recovery has taken place since a
trough in the 1960s, the recovery itself has suffered some
reversal in the past eight years.
The current Administration's relative lack of attention to
constitutional concerns in campaigning has been mirrored by an
equal lack of concern in rhetoric while governing, at least as
measured in inaugural and State of the Union addresses. Indeed, in
these rhetorical venues, President Bush has made less of an effort
to expound on constitutional themes than any other President
in modern times. Congress as an institution has almost certainly
also suffered a loss of concern with constitutional argument,
as has been noted by several scholars. Nevertheless, as in the
presidency, conversation about the Constitution remains part of the
political discourse of Congress.
It is not difficult to argue-and, indeed, many have argued-that
President Bush's troubles and the troubles of Republicans more
generally are partially due to their loss of constitutional vision.
To be sure, public perception about the war in Iraq and perceptions
of corruption hurt the party badly in 2006, but Republicans were
also hurt by a growing perception that they had come to see power
as an end in itself. By November 2006, it was no longer clear to
many voters what Republicans stood for or why they should be
entrusted with power.
Arguably, the Democratic Party is able to function perfectly
well without a coherent philosophy of government. It is a party
whose main task is to hold together its political coalition of
identity groups by distributing public resources to them.
Republicans, on the other hand, have long depended on a philosophy
to hold them together and motivate them. If they fail to articulate
a public argument on behalf of that philosophy, they are reduced to
a bidding war with Democrats that they cannot win.
It is almost certainly no mere coincidence that the years of
Republican electoral ascendancy were years when Republicans led a
broad resurgence of constitutional discourse in American politics.
It can also be no coincidence that the Republican "brand" has
suffered considerable damage during years when a Republican
President backed away precipitously from that approach, aided and
abetted by a Republican Congress that had long lost the
constitutional perspective that catapulted it to ascendance in
For the moment, there is a vacuum left by the current
President's inattention to constitutional principles.
Democrats might fill it with Obama's high-altitude rhetoric
about rights. Libertarians in the form of Ron Paul and Bob Barr
seek to fill it with an alternative conception of the proper role
of government. A long-term GOP comeback will depend partly on the
ability of Republicans to fill that vacuum themselves by
reconnecting specific issues with a broader constitutional
For instance, it will be easier to advance a free-market health
care plan (or to block a big-government one) if the debate is
elevated to a matter of constitutional principles. Americans want
certain problems in the health care system solved, but it is
doubtful that they want those problems "solved" in a way that does
violence to key foundational principles of American political life.
At the very least, some in the American public would pause before
pursuing an immediate policy wish at the expense of the
Likewise, Americans have come increasingly to value
environmental protection. There will be little obstacle to massive
new economic regulation and political centralization if Republicans
fail to redefine the question as one of finding the best way to
provide that protection without trampling on constitutional
liberty. Indeed, Republicans will find themselves on stronger
terrain on virtually every domestic policy issue if they insist on
examining and protecting first principles as part of the
It is clear that presidential leadership is crucial to restoring
a discourse of constitutionalism. As was shown in the mid-1990s,
such a transformation cannot be led from Congress if the President
is determined to prevent it. After 2000, Congress became more
apathetic, and the President did nothing to revive the effort.
Throughout, presidential leadership was lacking. This is not to say
that Congress should throw up its hands and abandon discussion of
the Constitution unless the President is actively supporting it,
but it does mean that there are real limits to how far a revival of
constitutional rhetoric (and action) can go in the absence of
presidential leadership in setting the tone.
In any event, it is clear that in modern American politics,
there are not many politicians in either party or in either elected
branch of government who are naturally suited to thinking or
talking in constitutional terms. In an earlier era, that
conversation came naturally to those who inhabited the political
world. After a century of progressivism and technocratic
liberalism, the thinking and rhetoric of most American political
figures is not naturally inclined in that direction. Reagan was an
exception, but we have come to see how extraordinary he was and how
difficult to imitate. And even Reagan was well-read and
influenced by serious thinkers. He devoted time and attention to
equipping himself for the task of rhetorical leadership on behalf
of constitutional principles.
This means that conservatives who strive for the restoration of
constitutional discourse must maintain an institutional
capacity to inform and influence political figures. All of this
renders The Heritage Foundation and similar institutions quite
important. Heritage devotes no small commitment of energy and
resources to developing the intellectual framework that
policymakers need first to understand and then to expound upon the
links between seemingly mundane policy questions and broad
constitutional principles. Perhaps our constitutional discourse
today, in both campaigns and governing, is not what it should be,
but without The Heritage Foundation it would almost certainly be
much worse. If America experiences a new surge of such discourse,
it will almost certainly be thanks to Heritage and other
institutions like it.
Andrew E. Busch, Ph.D., is an Associate Professor of
Political Science at Claremont McKenna College, where he
specializes in American government and politics. He is the author
of Ronald Reagan and the Politics of Freedom (Rowman &
Littlefield, 2001) and co-author, with James Ceaser, of The Perfect
Tie: The True Story of the 2000 Presidential Election (Rowman &
Littlefield, 2001). Much of this essay is based on data and
analysis in Dr. Busch's The Constitution on the Campaign Trail: The
Surprising Political Career of America's Founding Document (Rowman
& Littlefield, 2007).