A good friend of mine is extremely sympathetic to the Tea Party movement. She urged me to read the book, The Five Thousand Year Leap: 28 Great Ideas That Changed the World (Ann. Ed. 2009). Its author, Cleon Skousen, has been described, by Jeff Rosen of George Washington University Law School, as “the constitutional guru of the Tea Party movement.” His work has been endorsed and promoted by none other than Glenn Beck. See Wickipedia, Willard Cleon Skousen (January 20, 1913 – January 9, 2006). The work is certainly a historical review of the founding era that attempts as well to provide something like an intellectual history of the political thought underlying the American constitutional order. Without question, however, it approaches constitutionalism from the perspective of a modern proponent of right wing political philosophy. It also fits rather nicely into the model of thought suggested by Jill Lepore, a revolutionary era historian, in that it “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.” See Jill Lepore, The Whites of Their Eyes: The Tea Party’s Revolution and the Battle Over American History 16 (2010). See also Tea Party, Constitution and Historical Fundamentalism, elsewhere in this blog.
Skousen argues that the founding generation divided the political world quite differently than we do—trying to avoid totalitarianism, on the left, as well as anarchism, on the right. They sought a center where the people ruled and there was “enough government to maintain security, justice, and good order, but not enough government to abuse the people.” (12) So the left is “Ruler’s Law,” while the right is “No law,” even as the center is “People’s Law.” (Id.) The left extreme is “established by force, violence, and conquest,” and the people “are not equal.” (12-13) Instead they are “divided into classes” and considered “subjects of the king.” (13) Government operates “from the top down,” and the people “have no unalienable rights.” (13) Law is the edicts of the “Ruler,” and autocratic rules maintain “tyrannical control over the people.” (13) Hence: “Freedom is never looked upon as a viable solution to anything.” (Id.)
In the process, he identifies the people’s law, in turn, with the common law, since its originators, says Skousen, “considered themselves to be a commonwealth of freemen.” (14) But the common law was basically judge-made law, frequently enough altered through the years by republican legislatures. True enough that some common law judges considered common law rules to be “natural laws given by divined dispensation,” and hence Skousen says there was no need to write them down. But one of our best Supreme Court justices, Oliver Wendell Holmes, Jr., once expressed doubt as to whether common law rules were really “a brooding omnipresence in the sky,” rather than simply a set of man-made rules. In any event, even popularly-based law, such as the Constitution’s “slavery compromise,” often enough embodied mankind’s inherent frailties, such that even if “unalienable rights” being violated sadly risked “popular wrath,” even popularly-based law could, and did sometimes, violate these very rights (as with the Constitution’s “slavery compromise”).
Skousen refers to “freedom” and “freeman,” and yet, having criticized “ruler-based” legal orders as not perceiving freedom “as a viable solution to anything,” he manages to list among the “crimes against ‘the whole people’”—along with treason, cowardice, and desertion—the crime of “homosexuality.” (14) (Subsequently he refers to “one alarmed American,” who expressed dismay that “‘Elegance, luxury, and effeminacy began to be established.’”) (p. 44 (emphasis added), referring to David Ramsay) But if freedom of conscience is to mean very much—a right one scholar, Professor Lutz, says was the almost single right universally recognized as “unalienable”—it is difficult to see how it might be that homosexuality is properly viewed as a crime against the people rather than as the exercise of one’s freedom of conscience. That is certainly the view held by the recently retired Justice Sandra Day O’Connor, a conservative modern jurist. Justice O’Connor contended that anti-sodomy laws that single out same-sex conduct for criminal prohibition denied the Fourteenth Amendment’s guarantee of “equal protection” of the law to all gay people. So much for unalienable rights. As with many on the right, Skousen is deeply opposed to strong and invasive government—unless it is invading the interests and behavior of those of which Skousen disapproves. In today’s world especially, Skousen is advocating a form of “Ruler’s Law” rather than “People’s Law.”
Among modern political principles that Skousen would attribute to the founding generation is opposition to “the drift toward the collectivist left welfare state.” (27) He surely is right that some of the founding generation were opposed to what they described as “leveling.” (90) And he is right that the history does not show that the founding generation had any interest in “utopian schemes” or “leveling.” But it is equally clear that the founding generation’s only task was to devise an effective national Constitution, under which no one would have advocated such a task—redistribution of wealth, or “leveling”—in 1787.
If anything is clear, though, it was that governments like those in the states—what were called governments of “general legislative powers”—held sufficient constitutional authority to impose graduated income taxes (even if one labeled them “leveling”) to ensure that the poorest would be enabled to “climb the ‘appreciation ladder’” that Skousen elaborates and defends. (91) The states could enact whatever legislation the assembly thought helpful provided the law did not violate a prohibition contained in the constitution’s bill of rights. Skousen’s own treatment acknowledges that there are appropriate occasions for government action to promote the “scale of responsibility,” and sometimes that power is appropriately lodged in the county or state. (91) So even if his description of federal power under the United States Constitution is generally accurate, the states, not to mention the counties, surely hold the constitutional authority to do what is necessary to contribute help where appropriate and needed. Even Mitt Romney—no flaming liberal or “redistributionist”—defends the existence of a societal “safety net,” implemented by government, to assure help that is needed by those who are impoverished, which he promises to “fix” to the extent it is broken.
Indeed, elsewhere Skousen states that the right of equality before the law is appropriately understood to include the right to a public education—and, indeed, “equal educational opportunities.” But this necessarily means that property “rights” are at least qualified sufficiently so that taxes to finance such equal educational opportunities do not invade natural rights or violate the nation’s constitutions. Skousen is equally insistent that “[t]he founders believed in the “equal protection of ‘rights,’” but not the “equal distribution of ‘things.’” (28) Even so, included among Skousen’s appropriate rights was the commitment of the founders to “a strong program of widespread education.” (28)
If the philosophy underlying the original Constitution meant that every person holds the right to a public education, a view Skousen endorses—and government holds authority to tax and finance such education—surely this means that the “equal protection of the laws” required that states not create well-financed schools for white children and ill-financed schools for African Americans. Indeed, if equal citizenship means that there is a “right” to an education, and if equal citizenship means “equal rights,” one wonders how it is that states continue to have some schools that are well funded and others that are ill-funded. It is true that state law no longer “requires” that there be “white” schools and “black” schools; but the evidence is overwhelming that the public schools that happen to exist in poorer neighborhoods remain substantially ill-funded and are often predominantly made up of children from racial minorities.
Thus even if the federal government does not hold the primary role in ensuring the American children receive an equal education, surely it is significant that, as Skousen freely acknowledges, it is clear that Congress’s power to legislate to enforce the reconstruction-era Fourteenth Amendment, includes authority to dismantle deliberately unequal systems established by the states. As Skousen fully acknowledges, the history of slavery and Jim Crowism—actions that, even after the Thirteenth Amendment’s rejection of slavery, treated blacks as “less than first class citizens” —reflects that “[p]roviding equality for blacks has never been approached with any degree of consensus.” (83) And the historical treatment of “the Japanese and Chinese” was “an embarrassment to modern Americans.” (82) In the long run, Congress itself made reparations to the Japanese for the very World War II relocation from the West Coast that Skousen describes. The states, along similar lines, surely hold authority to take actions to ensure equality before the law—including equal educational opportunity—to African Americans. Hence it was surely legitimate for Congress in 1964 to prohibit private discrimination in places of public accommodations. And in light of this history, states are surely constitutionally empowered to do what they deem necessary to assure that African Americans remain equal citizens in the future.
Moreover, Skousen also recounts how the Constitution itself was amended to assure equal citizenship. Acts of Congress to implement the Fourteenth Amendment intervene when states fail to act so as to apply the equal protection of the laws. In the exercise of considerable judicial self-restraint, courts have deferred to state legislatures to make decisions about funding education. Dean Erwin Chemerinsky offers this perspective on equal education:
Studies have shown that across the United States significantly more is spent on the average white child’s education compared with the average black child’s schooling. Moreover, disproportionately more white children than minority children attend private schools, with their greater resources and better student-faculty ratios. According the most recent national statistics, private elementary schools are 86 percent white and private high schools are 87 percent white.
The Conservative Assault on the Constitution 39 (2010) [hereinafter Assault]. Skousen contends that our goal should be “equal educational opportunities,” but “not equal grades.” (85) But Dean Chemerinsky’s observations show that educational opportunities in this country are hardly equal, even for those who attend schools financed by the public. Even if we are convinced that courts should defer to the other branches of government in applying the “law” of the Constitution, could Skousen really insist when there are such significant disparities in educational funding that “no classes are created or recognized by law”? (79)
If our goal is to be more than bare compliance with the strict requirements of the law of the Constitution—if our purpose is to comply with “natural law” and preserve each citizen’s right to equal educational opportunity—one might imagine that we would not be interested in mere “de-segregation,” that would end the period of required black and white schools, but we might seek the end of de facto segregation and pursue the goal of fully integrated public schools. Gary Orfield wrote a study, Schools More Separate: Consequences of a Decade of Resegregation. He reported that the major cities in the nation have gradually come to have a substantially segregated population of students again, following a period in the 1970’s and 80’s where there was significant progress in de-segregating American schools. Chemerinsky, Assault, supra, at 37.
In a recent Supreme Court opinion, Justice Breyer summarized research showing the advantages of integration:
[O]ne study documented that “black and white students in desegregated schools are less racially prejudiced than those in segregated schools,” and that “interracial contact in desegregated schools leads to an increase in interracial sociability and friendship.” Other studies have found that both black and white students who attend integrated schools are more likely to work in desegregated companies after graduation than students who attended racially isolated schools. Further research has shown that the desegregation of schools can help bring adult communities together by reducing segregated housing. Cities that have implemented successful school desegregation plans have witnessed increased interracial contact and neighborhoods that tend to become less racially segregated.
Chemerinsky, Assault, supra, at 40.
Skousen says that by “excluding the national government from intervening in the local affairs of the people, the Founders felt they were protecting the unalienable rights of the people from abuse by an over-aggressive government.” (91) True enough. But we should never forget the history of American slavery and racial discrimination. Moreover, even going back to the founding, it is true that many in the founding generation, and especially those who opposed the adoption of the Constitution, believed that representative government could only be truly legitimate in a locality that was relatively homogenuous, where the people shared the same basic values and goals. But Madison, for one, contended in the ratification debates that the peoples’ rights would be enhanced when secured as part of an “extended republic,” since a more extended sphere would lend itself to the kind of pluralism that would yield the freedom that comes from a jealous regard for self-protection. This was the view that had prompted Madison to support granting the national government the power to veto state laws that might reflect factional impositions on less popular groups or individuals.
Madison and Jefferson did eventually embrace the idea that the states might play a critical and legitimate role in preserving rights against overzealous assertions of national power. But their arguments in favor of state nullification of abusive national legislation led us down the path that led eventually to secession and civil war. After the Civil War, the reconstruction amendments embodied the view that “states’ rights” could too readily be invoked to defend “states’ wrongs.” Most emphatically with respect to securing the basic civil rights of minority group members, American experience then, and ever since, confirms that the tactic of opposing assertions of federal power is often used by those who want to be protected in efforts to run roughshod over the rights of others. See Religious Liberty—the Freedom to Rule and the Freedom to be an Individual: The Letter and the Spirit. My own hope is that members of tea party groups who devour books like Professor Skousen’s will deeply consider what it means to have equality before the law; the goal of implementing the American dream presupposes that all Americans will be equal citizens and that government will do its part to ensure equality before the law.