No Celebration of Constitutional Principles

WASHINGTON -- It was a coincidence, but a jarring one, that the second Republican presidential debate took place the day before Constitution Day. The GOP candidates' remarks betrayed the need for a remedial course -- or maybe any course at all -- in constitutional law, judicial independence and the rule of law.

That the presidential candidates, like other conservatives, are frustrated with the Supreme Court is hardly surprising. Last term, the court recognized a constitutional right to same-sex marriage (thanks to one Republican nominee, Anthony Kennedy, appointed by Ronald Reagan) and turned back a deadly challenge to Obamacare (thanks to Kennedy and, for a second time on the health care law, Chief Justice John Roberts, named by George W. Bush).

What was notable, and unsettling, was the vehemence of some candidates' resistance to the court's decrees; the fury unleashed on Roberts; and their fundamental cluelessness about constitutional guarantees. This crowd didn't engage in the usual, polite ritual of disclaiming litmus tests -- it vowed to impose them, at long last.

"If the court can just make a decision and we just all surrender to it, we have what Jefferson said was judicial tyranny," former Arkansas Gov. Mike Huckabee said of the court's same-sex marriage ruling.

Former Pennsylvania Sen. Rick Santorum made a similarly ill-informed point in the earlier, junior varsity debate. "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," he said.

Um, hello, Marbury v. Madison anyone?

Turns out having gone to a fancy law school and clerked for the Supreme Court offers no protection against such bombast. "We have an out-of-control court, and I give you my word, if I'm elected president, every single Supreme Court justice will faithfully follow the law and will not act like philosopher kings imposing their liberal policies on millions of Americans," thundered Texas Sen. Ted Cruz. Seriously, President Cruz, how are you going to enforce that one? Drones?

Cruz, so sputteringly angry over Roberts that he incorrectly blamed the chief justice for the same-sex marriage ruling, said it was "a mistake" to have supported his confirmation.

Even more interesting, Jeb Bush, while asserting that Roberts "has made some really good decisions," said the chief justice had been too much of a stealth nominee, with an insufficient track record when nominated. That's not accurate about Roberts -- former Justice David Souter is another story -- but it's instructive about how Republicans intend to approach future Supreme Court nominations.

"Going forward, what we need to do is to have someone that has a long-standing set of rulings that consistently makes it clear that he is focused exclusively on upholding the Constitution," Bush said. "You can't do it the politically expedient way anymore."

Speaking of politically expedient, I can't let the moment pass without dissenting from the assertion by Justices Donald Trump and Rand Paul that the 14th Amendment does not guarantee birthright citizenship to the children of illegal immigrants.

"The 14th Amendment says very, very clearly to a lot of great legal scholars -- not television scholars, but legal scholars -- that [the argument for birthright citizenship] is wrong," Trump said. "It can be corrected with an act of Congress, probably doesn't even need that."

Paul concurred. "Donald Trump has a bit of a point here," he said. "There's never been a direct Supreme Court case on people who were here illegally, whether or not their kids are citizens."

Try Plyler v. Doe, the 1982 case guaranteeing the right to education for the children of illegal immigrants. The outcome divided the justices but all nine agreed that the fact of parents' immigration status was immaterial to their children's citizenship. "The Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically 'within the jurisdiction' of a state," the dissenters wrote.

So much for television scholars.

The candidates' consternation over the court makes sense. By Election Day 2016, three justices -- Ruth Bader Ginsburg, Antonin Scalia and Anthony Kennedy -- will be 80 or over.

Given the likelihood of vacancies, a Democratic president would have the chance to maintain or, with a Scalia retirement, slightly enhance the ideological status quo. A Republican president would have the prospect of transforming it, for decades to come.

This demographic reality raises the stakes, and therefore the temperature. It explains the vehemence of the debate, but not the disregard, whether willful or ignorant, of fundamental constitutional principles. Hope you had a happy Constitution Day, everyone.

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Ruth Marcus' email address is ruthmarcus@washpost.com.