Photo courtesy of Mark Udall website

Udall Against All?
| published November 2, 2014 |

By John T. Herndon
Thursday Review contributor

Colorado Sen. Mark Udall's immediate reaction this past summer to the Supreme Court's ruling involving Hobby Lobby and the requirements of the Affordable Care Act highlights what may well be a deeper conviction he holds regarding the rights of citizens and a reluctance to actively defend them. Combined with his silence as a response to a letter I sent him in 2013, Sen. Udall may well doubt the very notion of constitutional rights as things which are held by citizens, preferring to view us as subjects of governmental authority, relying on that authority for any and all actions that we are allowed to engage in.

Last August, I wrote to Senators Bennett and Udall strongly urging them to sponsor a constitutional amendment that would bar the U.S. Government from concluding any treaty with any power or powers which would contradict the Constitution of the United States or the constitutions of the states. This was inspired by a discussion with my students of proposed amendments from the time of the ratification of the Constitution in the 1787-1788 period, one of which would have forbidden such treaties that could restrict or obviate our fundamental civil rights. This particular amendment was not adopted into the original Bill of Rights, probably because the people of the founding period did not see this as necessary: why would the national government make an agreement with another sovereign power undermining the rights held by its own people? But much has changed since that time. With the concerns over the introduction of legal traditions from outside the American experience (think of Sharia law) into American jurisprudence, the time may have finally arrived to directly state the obvious. If actually implemented, the introduction of such legal traditions from entirely outside the American experience could on point after point directly contradict the accomplishments of figures ranging from James Madison to Dr. Martin Luther King, Jr., departing from the notion of equal civil rights which men and women have sacrificed for and struggled to achieve through more than two centuries of our history. The national government should not make deals with foreign powers that reduce or injure our constitutional rights. It would seem to be an obvious point of agreement for people across the political spectrum, left and right, liberal and conservative, men and women, those active in political parties and those who act as independents--in short, all whose civil liberties are protected by the constitutional tradition of our nation. One would think that we could all agree that our common heritage of liberty, as given form in the Constitution, would be worth protecting. But neither Colorado senator has seen fit to even acknowledge my letter. (In contrast, the representative in the House responded with not one, but two letters.) How might this connect to Sen. Udall's reaction to the Supreme Court's decision involving Hobby Lobby?

While the media, across the political spectrum, focused on the religious aspect of the case, with Hobby Lobby's owners arguing that being forced to pay for medical procedures which required their financial participation in acts contrary to the convictions of their faith, there was in fact a much deeper issue at stake, one which also reaches back to that same period of American History during which the Constitution was created and debated and ratified. More than any other member of that founding generation, it was a central concern of James Madison, and the issue is that of individual conscience. For Madison, the right of conscience was the most important right a citizen possessed. The individual conscience was inviolable; no power of government should compel a person to act against their most deeply held beliefs. Any person reviewing the discussions around the period of the Founding will encounter the seriousness with which they took the issue of conscience, and how it features in the guarantees of civil rights central to our liberties protected by the Constitution.

Sen. Udall's readiness to seek a way to set aside the Supreme Court's ruling in favor of protecting what is in effect a right to conscience and his absolute silence on a constituent's request to strengthen the protection of our civil rights reflects what appears to be a consistent disregard for the importance of those fundamental guarantees which all citizens are due. The established process of judicial review is disrespected. The key founding document of our political system under which rights are protected - ranging from women's access to family planning services, to keep and bear arms, of all Americans regardless of race to have equal access to the ballot box, to speak and express their most important opinions to fellow citizens – seems to Mr. Udall to not be worth trying to preserve with an amendment as a bulwark to protect Americans as Americans, without regard to their political party or philosophical stance on public policy. Indeed, he does not even want to engage in a discussion of such a course of action. Seemingly unwilling to take a strong stance in protecting the constitutional guarantees of all Americans of whatever political stripe, Sen. Udall should be repudiated at the ballot box by all.


Related Thursdsay Review articles:

Jeb Bush: Business, Politics, or Both; R. Alan Clanton; Thursday Review; July 18, 2014.

GOP: Not in Kansas Anymore; R. Alan Clanton; Thursday Review; May 3, 2014.