Brannon's not-so-firm foundation

by Taylor Batten, Editorial page Editor, Charlotte Observer, April 26, 2014.

Greg Brannon sure seemed knowledgeable about the U.S. Constitution at North Carolina’s first Republican U.S. Senate debate last week. He wielded it like a pair of nunchuks, pummeling nearly every question with the Founders’ vision.

The answer to illegal immigration? Article IV, Section 4! How Republicans should govern? Article I, Section 8 and Article 6, Section 2! How to fix Obamacare? Article I, Section 8, Clause 3!

And on and on. Brannon cited the Constitution or the Founders in answering nine of the 11 questions that journalists and voters posed Tuesday at the debate co-sponsored by the Observer at Davidson College. His strategy for upsetting front-runner Thom Tillis is to galvanize conservative voters with a vision of shrinking the federal government down to just those powers enumerated in the Constitution.

One problem: He employs the founding document in a way that is selective, simplistic, convenient and, sometimes, plain goofy.

Asked what should be done about people living in the United States illegally, Brannon cited Article IV, Section 4. In case you haven’t memorized that one, it says in relevant part: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion.”

So immigrants are a national invasion? Tell that to a Constitutional Law professor, and he’d probably flunk you.

Asked what single biggest issue he would tackle in his first term, Brannon said legislation that establishes that life begins at conception. “That’d be something that I think would solidify itself in the Fifth Amendment, (which) says no person should be tried for life, liberty or property.”

Not exactly. The Fifth Amendment is better known for protecting people from self-incrimination and double jeopardy. Brannon, apparently, was referring to the due process clause, which ensures that people not “be deprived of life, liberty or property, without due process of law.”

That clause is precisely what protects the right to choose in Roe v. Wade. Using it to outlaw all abortion? That’s upside down.

The part of the Constitution Brannon most used to bludgeon questions was Article I, Section 8, which enumerates Congress’s powers. He portrayed much of the federal government as being unconstitutional for violating that section. Citing those 18 enumerated powers, Brannon said he would abolish the IRS, the Federal Reserve, the Health and Human Services Department and the Department of Education.

The flaw with Brannon’s argument is that it ignores 200 years of Supreme Court rulings. Yes, Article I, Section 8 enumerates Congress’s powers. But one of those powers is the Commerce Clause and another is the Necessary and Proper Clause. The high court has repeatedly interpreted those broadly worded clauses as giving Congress permission to do what it believes is in the best interest of the United States.

“When you put the two together, that’s a ton of regulatory space,” Duke Law professor Joseph Blocher told me.

Blocher points out that the whole reason we have the Constitution is because the original Articles of Confederation created a federal government that was too weak. The Founders wrote the Constitution in an effort to increase federal power, not decrease it. Their brilliance let them craft a document just six pages long yet flexible enough to adapt to centuries of change.

Brannon doesn’t always cite the very limited power he thinks the Constitution gives Congress. That talking point seems to vanish when he advocates protecting Social Security and Medicare, or when he opposes same-sex marriage or legalization of marijuana. It seems Brannon knows Republican politics at least as well as he knows the Constitution.

In his closing statement Tuesday, Brannon said, “I don’t believe you can lead without knowing the Constitution.” I couldn’t agree more.