06/24/2008 05:12 am ET | Updated May 25, 2011

A True Litmus Test For Reelection

In less than five months, scores of incumbent Republican members of Congress will face voters throughout the United States, asking to be re-elected. One can only marvel at the incredible gall it will take for many of them to make that request.

On the first day of each new Congress, members both newly elected and returning take an oath of office. In that oath, they swear to "support and defend the Constitution of the United States" and to do so "against all enemies foreign and domestic." They swear to "bear true faith and allegiance" to the Constitution.

It is important to note what it is they are swearing to "support and defend." Not the President. Not a political party. It is also important to note against whom they are vowing to protect the Constitution: its -- that is, the Constitution's -- enemies, no matter whether they live in caves in Afghanistan or in mansions on Pennsylvania Avenue. The importance of this very specific declaration of allegiance cannot be overstated. The very essence of the United States, that which makes it "exceptional," is the document -- the nation's supreme law -- that protects individual liberties and deliberately prevents the accumulation of decisionmaking power in a few hands. Upholding that document and its rules is what members of Congress are swearing to, under oath, the very day they become our Representatives.

This, then, is the ultimate question to ask of any member of Congress seeking re-election. Did they adhere to that oath? If not, they do not deserve to again be entrusted with the task of safeguarding the rights of the citizens against those who would ignore the Constitution to assert powers which more properly delineate the authority of a king than of an American President.

This question comes to the fore once more in the decision by the United States Supreme Court invalidating the Bush Administration's attempt to deny prisoners at Guantanamo Bay the most basic of all legal rights, the ability to be informed of the charges against them and to have an opportunity to defend themselves. On its surface, the decision was a slap at the administration, which placed prisoners in that facility, denied them basic legal rights, and then, when blocked by the courts, went to the Congress to get these procedures "legalized." But it was the Congress -- under the control of the President's Republican Party -- that went along with this evasion of a clear constitutional provision (the right of habeas corpus shall not be suspended except in the case of rebellion or insurrection).

What is disturbing, and makes Republican requests for re-election so problematic, is that this cavalier disregard for the clear language of the Constitution has become a habit. Even before the Supreme Court's decision on Thursday, it had struck down three previous "war on terror" provisions passed by the Republican legislature. And long before that, it had struck down Republican-passed laws establishing term limits for members of Congress and giving the President ultimate control over spending decisions by means of a line-item veto. These were not merely policy questions, over which people of good intent may honestly differ: in each of these cases, it was necessary for members of Congress, having taken the oath to "defend the Constitution," to then ignore specific and clear constitutional provisions.

To uphold the Constitution, it is not necessary to "worship" at the feet of long-dead plutocrats nor to believe them to have been flawless in their reasoning or their actions. Aware both of their own shortcomings and the transitory nature of cultural and social norms, they provided the opportunity for we of later generations to alter their work, and that we have done. But if we are to live as a single nation, there must be a common set of rules setting parameters understood by and adhered to by all. And to be the "exceptional" nation most Americans believe us to be, those commonly understood rules must have at their heart provisions as explicit, and as basic, as that which says the government of the United States may not copy the old European monarchies in which governments seized people, threw them into cells, and tossed away the key. Just as we don't torture, just as we don't prohibit speech with which we may disagree, neither do we establish our own Tower of London, in Guantanamo or elsewhere, and hold prisoners there in perpetuity.

The conversation between candidates and voters is not one-sided. When members of Congress ask to be re-elected, voters should ask them if they are among those who have consistently voted for provisions that have subsequently had to be overturned because they were unconstitutional. If the answer is "yes," then the voter's answer should be "no."