MARY LOUISE KELLY, host:
Many candidates have invoked the Constitution this campaign season, though it's easy to trip over it. Consider Delaware's Senate campaign. As she debated Democrat Chris Coons, Republican Christine O'Donnell questioned the separation of church and state.
Ms. CHRISTINE O'DONNELL (Republican candidate, U.S. Senate): Where in the Constitution is separation of church and state?
KELLY: The law school audience laughed.
Ms. O'DONNELL: Let me just clarify.
Unidentified Man: Please go right ahead.
Ms. O'CONNELL: You're telling me that the separation of church and state is found in the First Amendment.
Mr. CHRIS COONS (Democratic candidate, U.S. Senate): Government shall make no establishment of religion.
Ms. O'DONNELL: That's in the First Amendment?
KELLY: It is. At least the words Coons said at the end there about an establishment of religion.
INSKEEP: People mocked O'Donnell for not knowing better, but it's likely that many of us have not mastered the Constitution. So we called in two men who served as solicitor general - in effect, the U.S. government's lawyer. Paul Clement served under President George W. Bush. Walter Dellinger served under President Clinton and starts us with that First Amendment.
Mr. WALTER DELLINGER (Former solicitor general, President Bill Clinton): What it says literally, is, Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. Paul, take it from there.
Mr. PAUL CLEMENT: Well, I think where the confusion comes is that - especially the establishment clause, as we lawyers like to call it - does embody a principle that there are limits as to what the government can do vis-a-vis religion. And that's been referred to, generally, as a requirement that there be some separation of church and state.
Now, that phrase, separation of church and state, is not in the text of the First Amendment.
INSKEEP: How did it become something that we repeat all the time, as something that's enshrined in the Constitution?
Mr. CLEMENT: Wells, it's a metaphor that Thomas Jefferson came up with. And it's something that's been repeatedly referenced in Supreme Court decisions.
INSKEEP: Let me make sure I understand this. Everybody agrees that you can't have an official church, like the Anglican Church in England, but conservatives have made the argument that there may be some room for prayer in schools and that sort of thing. Is that what you're talking about here?
Mr. CLEMENT: That's exactly what we're talking about. If there's one thing the establishment clause prohibits it's an official state church. That's one thing I think everyone can agree on. That's about where the agreement ends.
INSKEEP: Let's move on to another amendment that's been discussed a lot. Couple of Republican Senators, Lindsey Graham and Jon Kyl, have at least talked about the possibility of changing the language of the Fourteenth Amendment. Few candidates who are running for office this year - a few - have also talked about that. This is a matter for them that's about immigration and who gets to be a citizen. What does the Fourteenth Amendment say about that?
Mr. CLEMENT: Well, I can start this time with a little dramatic reading of the Fourteenth Amendment.
INSKEEP: You've got the Constitution in your hand.
Mr. CLEMENT: Section 1 says all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. It goes on to say no state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States. Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
INSKEEP: If I'm born here I'm a citizen, end of story.
Mr. DELLINGER: This provision was adopted in reaction to the Dred Scott decision that said no person of African descent could ever be a citizen of the United States of America.
INSKEEP: This in the time of slavery. Yeah.
Mr. DELLINGER: Just excluded by the fact of their racial origin. So they wanted a simple test. If you're born here, you're a citizen.
INSKEEP: If you're an immigrant, or even an illegal immigrant, and you have a kid in the United States, right now, that kid is a citizen - no question about it. Is that right?
Mr. CLEMENT: That's the way that the amendment has been interpreted and that's why it really would require a Constitutional amendment to revisit that.
INSKEEP: So we're not talking about interpreting the law here. We're talking about rewriting it. Is there a way to somehow write illegal immigrants out of the part of the Constitution without affecting everybody else's rights?
Mr. DELLINGER: Well, you could change the Constitution by amendment, but it's an awfully steep route to go.
INSKEEP: Paul Clement.
Mr. CLEMENT: I do think, as Walter says, you're talking about a provision put in as an amendment to overturn the Dred Scott decision. And so that may not be the part of the Constitution you really want to tinker with.
INSKEEP: Let's go back to interpreting the law as it exists. President Obama's Health Care Law has been called unconstitutional by some of its opponents. And let's talk about one part of this immensely complicated law.
The health care mandate, eventually everyone is required to buy health insurance, this has been called unconstitutional. What is the underlying clause that is brought in here and what are the arguments here?
Mr. CLEMENT: Well, I can start, Walter. I mean I think the underlying clause is, probably, that our issues here are the Commerce Clause and the Necessary and Proper Clause.
INSKEEP: Commerce Clause is Congress has the power to regulate commerce. Necessary and Proper is they have the power to make such laws as are necessary and proper for the good of the country.
Mr. CLEMENT: That's right.
INSKEEP: So what do you think? Is there ground for a constitutional challenge to a health care mandate?
Mr. DELLINGER: Well, I don't think so, because no one doubts a regulation which says that insurance companies are forbidden from denying coverage to people because of their of current medical condition, because their child has a birth defect, that's one of the most popular provisions of the law. And you cannot have that provision unless you also have a provision that encourages people to have insurance coverage; because otherwise, everybody would buy their insurance when they're in the ambulance on the way to the hospital.
INSKEEP: Paul Clement, if you were arguing the other side before the Supreme Court, could you do it?
Mr. CLEMENT: Certainly, I could. And I think that, you know, you're not really used to federal laws that get down to the level of individual citizens and essentially force them to engage in commercial activity, of buying a policy that they otherwise don't want.
INSKEEP: Yeah. Well, if the Commerce Clause is there, though, how do you challenge that?
Mr. CLEMENT: Well, the constitutional challenge would be, that the one thing that I think everyone would agree on, is that the Constitution does not give the Federal Congress plenary power. So they can't do anything they want.
I think there's a strong argument that the health care mandate is pretty far removed from the Framers' original conception of what Congress's Commerce Clause power would be.
INSKEEP: I feel like there's been more discussion and debate of the Constitution this year than in an ordinary election year. You feel that way?
Mr. DELLINGER: I think that's right. One thing that seems somewhat odd to me, is that the Tea Party movement has sort of made the Constitution a centerpiece; though often their particular views sound more like the views of those who oppose the Constitution.
Now, that doesn't make them illegitimate - there were patriots who opposed the Constitution. Patrick Henry, for example, I think reflected a lot of the sentiment of the present Tea Party movement, of being hostile to a national government. He argued vociferously against the ratification of the Constitution.
INSKEEP: Paul Clement.
Mr. CLEMENT: Well, I think there's obviously a lot of unrest out there. And I think at times when there's unrest and dissatisfaction with the status quo, it's natural people resort to first principles and revisit the Constitution.
I personally think it's a healthy thing, getting people engaged in what the Constitution means. Getting them back to read the text of the Constitution really is a health thing.
INSKEEP: Paul Clement was solicitor general of the United States under President George W. Bush, thanks very much.
Mr. CLEMENT: My pleasure.
INSKEEP: Walter Dellinger was solicitor general under President Bill Clinton, thank you.
Mr. DELLINGER: Thank you.
INSKEEP: And you can test your own constitutional knowledge at NPR.org/itsallpolitics.
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