Constitutional Fact Check

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Presidential candidates will sometimes make claims about the meaning of the constitution or the intent of the Founding Fathers. Robert McWhirter, supervising attorney for the Arizona State University Alumni Law Group and expert on the history of the constitution, will fact-check statements made by candidates from both parties.

TED SIMONS: Interpreting the Constitution and what the Founding Fathers intended for this country is often a major theme on the campaign trail, and this year's presidential race is no exception. Here to fact check some candidate statements is Robert McWhirter, supervising attorney for ASU's Alumni Law Group and the author of a recent book on the Constitution. We had you on for that one. Great read. We wanted to get you back here because we're hearing a lot of stuff. Ben Carson, candidate on the Republican side has written a book on the Constitution in general. How often do these folks get this right and how often do they get it wrong?

ROBERT MCWHIRTER: They almost never get it right. And they usually get it wrong. And you've got to put in that context. Things in the Constitution develop, ideas about the Constitution develop so they have certain trends that they go forward with. But all of them are self-serving in their reading of the Constitution.

TED SIMONS: Which a lot of folks are, though. That's one of the beauties of the Constitution, isn't it?

ROBERT MCWHIRTER: And we have a process that the Constitution itself gives us to work all that out. Sow bring your argument, I bring my argument and there's a process to get an answer.

TED SIMONS: Let's start with ben Carson. He's written a book regarding the Constitution as he sees it and there's no debating the 13th amendment ended slavery correct?

ROBERT MCWHIRTER: That's correct.

TED SIMONS: No debate that the 22nd amendment ended what was considered a pretty bad precedent by F.D.R.

ROBERT MCWHIRTER: That is correct, which was he was getting reelected.

TED SIMONS: So a couple of terms and that's the ballgame.

ROBERT MCWHIRTER: Yeah.

TED SIMONS: He also writes that the Constitution forbids taxation. Is he right?

ROBERT MCWHIRTER: He is absolutely, 100% wrong. There's the 16th amendment which says that the federal government can have a federal income tax. If you want to say that people like James Madison and maybe even George Washington didn't believe there should be a federal income tax well you're correct but the framers of the 16th amendment which provided for a federal income tax, said yes. And just one comment on that. Each amendment reshuffles the deck of what the Constitution means for the subject of that amendment. So the deck got reshuffled with the 16thiment.

TED SIMONS: Can it be argued that we've forgotten what the original cards looked like?

ROBERT MCWHIRTER: You sure can but you're stuck with what we've changed. If people come in and put in another amendment, the original intent the framers of the Constitution now are the framers of the 16th amendment. And that's the new framers that matter, not the framers back in 1789.

TED SIMONS: So when he sees that the Constitution says that the government cannot take money from one group to aid another, you say...

ROBERT MCWHIRTER: Of course, they can. And the government has always done that. The federal government has over time done that. The greatest example of that is the 13th, 14th and 15th amendments, which took property, human beings, away from one group and gave them freedom. That is the greatest example of social engineering in the history of the United States.

TED SIMONS: He also writes that abortion is forbidden by the Constitution. The Constitution doesn't secure the blessings of liberty to ourselves and our posterity. The idea being that because of that securing of the blessings, the unborn are included. Does we have a point?

ROBERT MCWHIRTER: It's an argument and the idea that posterity are the people that have a right to life and that would harken back to the Declaration of Independence that everyone has a right to life, liberty and the pursuit of happiness and the right to life. That is the argument that gets made and you can make a plausible argument about that. The trouble with that is it shows and I'm not speaking about the moral question of abortion, but the fundamental understanding of the Constitution is what is the right of a private person's decision versus the role of government? And the constitutional decisions, roe versus wade and Casey versus planned parenthood are based on the idea that an individual makes that decision, not government. Many times the very people who want less government in their lives actually want more government in people's lives when it comes to the abortion issue. Now, again I'm not speaking one part or the other on right to life versus right to choose. I am only saying that the constitutional interpretation people like to ride different horses when it comes to their argument.

TED SIMONS: On the democratic side, Hillary Clinton wants to fix the second amendment by holding gun makers liable.

ROBERT MCWHIRTER: Well, you can certainly do that. What happened was Congress passed some statutes which excluded gun makers from liability. The Constitution at least as it was originally written in the second amendment really doesn't speak one way or another to that. What it says is that the right of gun owners will not be infringed or the right to possess firearms and if you argue that the infringements includes some government coming in and allowing you to sue a gun owner, you can say the second amendment does that.

TD SIMONS: And Clinton also says that she would use an executive order to mandate background checks. Could she do that?

ROBERT MCWHIRTER: She could probably do that. The president probably could do that unless, of course, Congress came in and passed a specific statute that said the president couldn't. So there may be enough legislation under the act on the statutes to allow the president to do that.

TED SIMONS: So when she rejects the argument that the right to bear arms is fundamental and others say no, no, it is pre-political, it is fundamental, who has the advantage there?

ROBERT MCWHIRTER: The answer to that question is yes, and I'm sorry, you can make constitutional arguments each way on that question. If you want to go back to the original understanding of the second amendment, their world is so far different than ours and what you're dealing with is a huge change in technology. The original framers of the second amendment never talked about a personal right to bear arms because arms were not particularly personal. It took a long time to load a flintlock. So personal protection arguments today. Now, the argument back then was we need the right to bear arms to withstand government tyranny. They understood that as the tyranny of the federal government and they thought the way to withstand that with the state militias. If you go back to that, there's a good historical argument for that. The trouble with that argument today is to mount an effective fight against government tyranny you would have to let everybody buy a tank. And we don't want, most of us don't want anybody to buy a tank assuming that we could scrape together $22 million to buy an Abrahams battle tank. I don't think we want street gangs to have the power to buy tanks. So to really resist government tyranny, you need to give everybody the right to buy arms that I don't think we want them to buy.

TED SIMONS: So many other things, we'll get you back here because Donald Trump oddly enough has said a couple of things that I think might be worth a second look. Good to have you here, thanks for joining us. Tuesday on "Arizona Horizon," we'll look into the increasing concerns over student debt. And Phoenix is recognized as a top digital city for technology use. That's it for now, I'm Ted Simons, thanks for joining us. You have a great evening.
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Robert McWhirter:Supervising attorney for the Arizona State University Alumni Law Group

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