Dereliction Of Duty: The Constitutional Record of President Clinton
by Timothy Lynch
Timothy Lynch is assistant director of the Cato Institute's Center for Constitutional Studies.
President Clinton recently put his hand on the Bible and swore an oath to "preserve, protect and defend the Constitution of the United States." He took the same oath in January 1993. As the president embarks on his second term in office, it is an appropriate time to review his record thus far to see how well he has defended our Constitution.
Although President Clinton has expressed support for an "expansive" view of the Constitution and the Bill of Rights, he has actually weakened a number of fundamental guarantees, including those of free speech and the right to trial by jury and that against double jeopardy. He has also supported retroactive taxes, gun control, and warrantless searches and seizures. The president's legal team is constantly pushing for judicial rulings that will sanction expansions of federal power. The Clinton White House has, for example, supported the federalization of health care, crime fighting, environmental protection, and education. Clinton also claims constitutional authority to order military attacks against other countries whenever he deems it appropriate. President Clinton's record is, in a word, deplorable. If constitutional report cards were handed out to presidents, he would receive an F.
It is to be hoped that President Clinton will resolve to be more conscientious about his constitutional responsibilities in his second term. But should his dereliction of duty continue, Congress and the Supreme Court should stand fast against any constitutional transgression. In the present climate, it is vitally important for all Americans to understand that the Constitution is incapable of enforcing itself. That task ultimately rests with the citizenry. If the American people demand adherence to the Constitution, government officials, including President Clinton, will respect the limitations that were wisely placed on their power.
I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
--Oath of office, taken by
William Jefferson Clinton, January 20, 1997
President Clinton recently put his hand on the Bible and swore an oath to "preserve, protect and defend the Constitution of the United States." He took the same oath when he assumed office in January 1993. As the president embarks on his second term in office, it is an appropriate time to appraise his record thus far to see how well he has defended our Constitution.
Contrary to popular belief, the Supreme Court holds no monopoly on constitutional matters. The Framers of the Constitution created three separate and equal branches of government. Each branch was expected to "check" the others on the basis of its own understanding of the Constitution. Supreme Court justices are obligated, of course, to void unconstitutional laws and to issue writs of habeas corpus to free illegally detained prisoners. Similarly, legislators are obligated to vote against unconstitutional bills, repeal unconstitutional laws, and scrutinize judicial nominees for the federal bench. And the president is obligated to veto unconstitutional bills, refrain from executing unconstitutional laws signed by previous presidents, and nominate judicial candidates who are committed to the Constitution.
Supreme Court pronouncements about the Constitution are not necessarily binding on the president or legislators. [1] As Justice Felix Frankfurter once observed, "The ultimate touchstone of constitutionality is the Constitution itself and not what [the Court] has said about it." [2] No one, for example, would dispute the proposition that a legislator can vote against a bill because of perceived constitutional infirmities even if it is clear that the judiciary will uphold the law as constitutional. Similarly, the president can veto bills on the basis of his own constitutional convictions.
Our third president, Thomas Jefferson, acted on his own understanding of the Constitution when, after taking the oath of office, he immediately pardoned all prisoners who had been prosecuted under the Alien and Sedition Act, which he believed was in violation of the First Amendment to the Constitution. When some of his contemporaries criticized him for not deferring to the constitutional opinions of the courts, Jefferson's response was that the three branches were made "co-equal and co-sovereign within themselves." [3] Just as the Supreme Court is entitled to make an independent judgment on the merits of a case, so too is the president entitled to make an independent judgment about his official duties. The Framers' design might be faulted by modern political scientists as being a formula for "gridlock," but such criticism would miss the point. The primary purpose of the Constitution is to safeguard the freedom of the American people, not to facilitate the lawmaking process. As Judge Frank Easterbrook noted, "Separation of powers--the inability of any one person or branch to have its way--was thought to be an essential component of a free republic, not a hindrance to good government." [4]
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