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Menachem Rosensaft Headshot

Memo to Governor Romney: The Constitution Is Not a Conservative Document

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A comment by Governor Mitt Romney during his Meet the Press interview caught my attention. Asked by David Gregory whether he was "the moderate from Massachusetts who championed Universal Health Care, who at one time was for abortion rights" or "a severe conservative," the Republican presidential nominee answered that "I'm as conservative as the Constitution."

This one sentence helps to explain why Governor Romney continues to struggle to connect with many of us on the issue of civil and human rights. In the words of John Podesta, White House Chief of Staff under President Clinton, and John Halpin, a senior fellow at the Center for American Progress, Governor Romney has embraced "the conservative interpretation of the Constitution as an unchangeable document that endorses laissez-faire capitalism and prohibits government efforts to provide a better existence for all Americans."

Others view the Constitution through a different prism. Justice Louis D. Brandeis once wrote that it "is not a strait-jacket. It is a living organism capable of growth -- of expansion and of adaptation to new conditions. Growth implies changes, political, economic and social. Growth which is significant manifests itself rather in intellectual and moral conceptions than in material things. Because our Constitution possesses the capacity of adaptation, it has endured as the fundamental law of an ever-developing people."

Professor Geoffrey R. Stone, former law school dean and provost at the University of Chicago, has eloquently described the Constitution as "the vehicle through which generations of Americans have made and remade their nation ... Almost without exception, our constitutional amendments have been progressive in nature, expanding both individual freedoms and the opportunity for individual Americans to participate more fully in the political and economic life of the nation ... As understood by the American people, by our elected officials and by our Supreme Court, the Constitution has enabled the national government to enact laws that helped us through the devastation of the Great Depression; prohibited private discrimination on the basis of race, religion, gender, national origin and disability; promoted workplace safety and the environment; and provided a critical safety net for the aged, the infirm and the needy."

This ideological clash is nowhere more evident than in the debate over whether a woman has a constitutional right to determine whether or not to terminate a pregnancy in accordance with her religious and moral beliefs, or whether the government can impose draconian restrictions on that right. In his Meet the Press appearance, Governor Romney reiterated that his priority, his focus as it were, is "preserving and protecting the life of the unborn child. And I recognize there are two lives involved: the mom and the unborn child. And I believe that people of good conscience have chosen different paths in this regard. But I am pro-life and will intend [sic], if I'm president of the United States, to encourage pro-life policies."

Governor Romney proceeded to expand on his "pro-life" philosophy: "I'll reverse the president's decision on using U.S. funds to pay for abortion outside this country. I don't think also the taxpayers here should have to pay for abortion in this country. Those things I think are consistent with my pro-life position. And I hope to appoint justices to the Supreme Court that will follow the law and the constitution. And it would be my preference that they reverse Roe v. Wade and therefore they return to the people and their elected representatives the decisions with regard to this important issue."

Governor Romney's stated position has enormous constitutional implications in and of itself. According to his website, mittromney.com, "Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito." This was clearly written before Chief Justice John Roberts joined with the four more liberal members of the Supreme Court in upholding the constitutionality of the Affordable Care Act's individual mandate. Following that landmark decision, Governor Romney sharply criticized Chief Justice Roberts for reaching "a conclusion I think that was not accurate and not an appropriate conclusion."

Asked by Jan Crawford of CBS News whether "knowing what we know now" he would still nominate someone like Chief Justice Roberts to the Supreme Court, Governor Romney replied that, "I certainly wouldn't nominate someone who I knew was gonna come out with a decision I violently disagreed with or vehemently, rather, disagreed with."

One can safely assume, therefore, that a President Romney would go to great pains to appoint federal judges and Supreme Court justices in the mold of Justices Antonin Scalia and Clarence Thomas who have never surprised or disappointed conservatives by deviating from their originalist judicial ideology.

There is no question that Governor Romney is a decent man who is guided by his religious and moral beliefs. The same is true of Representative Paul Ryan. Unfortunately, they both seem intent on imposing their beliefs on the rest of us even when these clash with our religious and moral convictions.

In this context, incidentally, Governor Romney's willingness to allow abortions to save the mother's life or where the pregnancy resulted from a rape is not a sign of moderation but rather an adherence on his part to the tenets of his Mormon Church which "opposes abortion and counsels its members not to submit to or perform an abortion except in the rare cases where, in the opinion of competent medical counsel, the life or good health of the mother is seriously endangered or where the pregnancy was caused by rape and produces serious emotional trauma in the mother."

Governor Romney also advocates a constitutional amendment that would "define marriage as a relationship between a man and a woman." While such rhetoric is red meat to conservative evangelicals and other doctrinal fundamentalists, it utterly ignores those no less devout Christian, Jewish and other faith communities that have integrated same-sex marriage into their respective theologies. In essence, what Governor Romney and his GOP colleagues seek to accomplish is the denial of freedoms of religion and conscience to those individuals and groups who believe same-sex marriage to be both a religious and a civil right.

President Obama's two Supreme Court appointments, Justices Sonia Sotomayor and Elena Kagan are very much part of the judicial mainstream. Romney appointees, on the other hand, would certainly be chosen for their willingness to turn back the clock on the constitutional protections of women's reproductive rights, a litmus test as it were. And there can be little doubt how they would rule in a case involving same-sex marriage.

While the stewardship of the U.S. economy, jobs, health care, immigration, and foreign policy are all important considerations in this year's election, the safeguarding of constitutional rights for all Americans is at least as critical. The prospect of Governor Romney appointing Supreme Court justices who share his social world view is reason enough to vote for President Obama.

Menachem Z. Rosensaft teaches about the law of genocide and World War II war crimes trials at the law schools of Columbia, Cornell and Syracuse universities.