Constitution Day Debate: Rewrites for religious freedom and birthright citizenship

At the Republican debate on Wednesday night, some 228 years after the Founding Fathers made the Constitution the supreme law of the land, candidates vying to be the next president of the United States appeared to be little shaky on their knowledge of civics and American history.

The candidates took the stage just hours before the start of Constitution Day and Citizenship Day — two national holidays commemorating the signing of the Constitution and the contributions of naturalized citizens — creating some irony in just how much the GOP’s rhetoric has been at odds with core American values and norms.

Rewrites for religious freedom

Though LGBT issues received relatively little air time during Wednesday night’s back-to-back debates, several Republican presidential candidates found time to express support for Kim Davis, the Kentucky clerk jailed for defying a federal order that she issue marriage licenses to same-sex couples. Louisiana Gov. Bobby Jindal, for example, bemoaned the “discrimination” taking place against Christian business owners who want to turn away gay and lesbian customers. Former Florida Gov. Jeb Bush, meanwhile, called for an “accommodation” to allow people like Davis to opt out of their professional duties when doing so conflicts with their religious convictions.


But two candidates — former Arkansas Gov. Mike Huckabee and former Pennsylvania Sen. Rick Santorum — went further than any of their competitors in condemning the recent Supreme Court decision that found state same-sex marriage bans unconstitutional. They were so appalled by the justices’ actions, in fact, that the socially conservative White House hopefuls advocated for all Americans, lawmakers, and even the president to stand up against the high court’s “judicial tyranny” in a way that raises some questions about their understanding of the U.S. Constitution.


Noting that the 5-4 ruling in the landmark case of Obergefell v. Hodges was “very, very divided,” Huckabee accused the justices of redefining marriage “out of thin air.”

“I thought that everybody here passed ninth-grade civics,” said Huckabee. “The courts can’t make law. They can interpret one. They can review one. They can’t implement it. They can’t force it.”

Setting aside the fact that the Obergefell decision was actually decades in the making — as opposed to created out of nothing, as Huckabee suggested — the justices actually did exactly what the former Baptist pastor said was within their powers. They reviewed four states’ same-sex marriage bans — including Kentucky’s — and interpreted those laws to be in conflict with the 14th Amendment’s guarantee to equal protection. They did not “legislate,” as Huckabee accused them of doing, but rather exercised their power under Article Three to review the constitutionality of laws — in this case, same-sex marriage bans.

That the decision was “very, very divided” has no bearing on its legitimacy. Consider, for instance, the controversial rulings in Bush v. Gore, which awarded the presidency to George W. Bush, and Citizens United v. FEC, which blew the lid off campaign finance regulations.



n the earlier “happy hour” debate, Santorum made arguments that were similar to Huckabee’s, though he faced more pushback from his rivals onstage.

“We need a president who’s going to fight a court that is abusive, that has superseded their authority,” said Santorum. “Judicial supremacy is not in the Constitution, and we need a president and a Congress to stand up to a court when it exceeds its constitutional authority.”

“Wow,” responded former New York Gov. George Pataki. “We’re going to have a president who defies the Supreme Court because they don’t agree?”

“I hope so!” said Santorum.
“Wow. We’re going to have a president who defies the Supreme Court because they don’t agree?” New York Gov. George Pataki South Carolina Sen. Lindsey Graham similarly cast doubt on Santorum’s constitutional know-how.

“I wasn’t the best law student,” joked Graham. “But on the first day in law school — it’s called Marbury v. Madison. The group in our constitutional democracy that interprets the Constitution as to what it means is the Supreme Court. In a 5-4 decision by the Supreme Court, they have ruled that same-sex marriage bans at the state level violate the 14th Amendment to the United States Constitution equal protection clause.”

“I don’t agree with it,” he continued, “but that is the law of the land.”

Later, in a post-debate conversation with MSNBC’s Chris Matthews, Santorum elaborated on his understanding of judicial review, citing the Dred Scott decision as evidence that the courts can “get it wrong” every now and again. It wasn’t the first time Santorum has brought up the 1857 ruling that denied African-Americans any protection under the Constitution. (Huckabee has also referenced that decision, which is regarded as one of the worst in American history.) But repetition doesn’t make the argument any more true.

In Santorum’s mind, Davis’ actions were similar to President Abraham Lincoln’s signing of the Emancipation Proclamation six years after Dred — that is, both were courageous acts of defiance. However, as Todd Brewster recently pointed out in The Daily Beast, Lincoln did not write the Emancipation Proclamation in contradiction to Dred, but rather rooted it — rather ironically — in the Supreme Court’s logic.

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