Tea Party, Constitutionalism and Historical Fundamentalism

The Tea Party movement has renewed an interest—indeed, a commitment—to the Constitution as it was conceived by the Founding Fathers.  One of several groundings for what is clearly a worshipful view of the American Constitution is the idea expressed by President Warren G. Harding:  “I must utter my belief in the divine inspiration of the founding fathers.”  Quoted in Jill Lepore, The Whites of Their Eyes:  The Tea Party’s Revolution and the Battle Over American History 16 (2010).  In Lepore’s mind, this tea party view presents to us “historical fundamentalism” that is “marked by the belief that a particular and quite narrowly defined past—‘the founding’—is ageless and sacred and to be worshiped; that certain historical texts—the ‘founding documents’—are to be read in the same spirit with which religious fundamentalists read, for instance the Ten Commandments.”  Id. This is the result of subscribing “to a set of assumptions about the relationship between the past and the present stricter, even, than the strictest form of constitutional originalism, a set of assumptions that, conflating originalism, evangelicism, and heritage tourism, amounts to a variety of fundamentalism.” Id. at 15-16.  Lepore’s book, briefly reviewed last week on this blog, is fairly read as “an argument against historical fundamentalism,” a view based on “measuring the distance between the past and the present.”  Id. at 19.

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The Notion of an Inspired Constitution

- Transcript of a talk delivered to an LDS congregation; by Thomas McAffee

In a document regarded by modern Latter day Saints as revelation, even scripture, it was confirmed to Joseph Smith, the Mormon Prophet, that “laws of the land which [are] constitutional,” laws designed to support “that principle of freedom in maintaining rights and privileges,” not only belong “to all mankind,” but are also “justifiable before me.”  (D&C 98:  5-6.)  And elsewhere the Lord stated emphatically that He had “suffered to be established”  “the laws and constitution of the people,” and therefore they “should be maintained for the rights and protection of all flesh, according to just and holy principles.”  (D&C 101: 77.)   The laws and constitution should be maintained, “[t]hat every man may act in doctrine and principle pertaining to futurity, according to the moral agency which I have given unto him, that every man may be accountable for his own sins in the day of judgment.”  (Id. at v. 78.)

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Jill Lepore's Book, the Tea Party and Originalism

CONTEMPORARY DEBATE OVER THE (LATEST) TEA PARTY—OF “ORIGINALISM,” RHETORIC, AND TAKING THE CONSTITUTION SERIOUSLY

Jill Lepore, author of The Whites of Their Eyes: The Tea Party’s Revolution and the Battle Over American History (2010), addresses the perplexity presented when some thinkers quite earnestly, even passionately, rely on political thought from the American revolutionary period, and the American founding, to resolve controversial political issues in the present. Though Lepore’s work has been characterized as a simple effort to “make fun of” the current Tea Party movement, and perhaps of “the right” in American politics more generally, even the critic in question correctly observes that Lepore concedes that “the American Revolution is everyone’s favorite event.” (Gordon S. Wood, reviewing Lepore, N.Y. Times Review of Books, Jan. 13, 2011, 2 of 6.) As stated in Lepore’s book: “When in doubt, in American politics, left, right, or center, deploy the Founding Fathers.” (The Tea Party’s Revolution, supra, at 14.) And Lepore underscores that the famous historical events, the Boston tea party and the American Revolution, have almost always “been put to wildly varying political purposes.” (Id. at 23.)

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Do More Guns Equal Less Crime?

Another Bloggingheads video.  Here Glenn Loury from Brown University debates with Ann Althouse from Wisconsin University Law School about the issue of guns and violent crime.

http://bloggingheads.tv/videos/21996 


INCORPORATION OF THE BILL OF RIGHTS AND THE NOTION OF IMPLIED FUNDAMENTAL RIGHTS

Even educated Americans often do not know that the most important source of America's protection of fundamental human rights, the federal Bill of Rights, was not written to secure rights by limiting the powers of  state government.  Our most fundamental rights serve to limit state  governmental power only because they have been "incorporated" by the  Fourteenth Amendment, an amendment centrally designed to protect the  freedmen (the emancipated former slaves) against abusive state laws.   The development of the "incorporation doctrine" provides a complicated,  and even somewhat murky, history and ultimately ties us directly to the  basic question whether the legal enforcement of fundamental rights  requires that such rights be enumerated in the text of the Constitution  or might be implied from the very idea of the moral claims of rights  (what are sometimes called "natural rights").

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Randy Barnett and Sandy Levinson Bloggingheads

Here's an interesting discussion between Randy Barnett and Sandy Levinson on Bloggingheads about the Constitution, the Tea Party, and Barnett's Repeal Amendment. Tip of the hat to Balkinization for the video link.

http://bloggingheads.tv/videos/2844



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