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.)

Lepore is also accused of dismissing “originalism” as “historical fundamentalism, which is to history what astrology is to astronomy, what alchemy is to chemistry, what creationism is to evolution.” (Wood, supra, at 4 of 6, quoting Lepore, supra, at 124.) And, of course, she clearly does suggest that originalists—at least Tea Party advocates who so identify themselves--offer us what is “generally, lousy history.” (Lepore, supra, at 123.) But these words are not part of a general critique of an originalist theory of constitutional interpretation. Lepore’s book is about the use of American history in modern politics, and in particular by voices on the right of contemporary politics; it is not a work on American constitutional law or theory. Thus her reference is only to “the banner of originalism” that is “taken up by evangelicals.” (Id. at 120.) The “historical fundamentalism” that is decried in Lepore’s work, is the use of history that is “[s]et loose in the culture, tangled with fanaticism,” and designed to look “like history, but it’s not.” (Id. at 123-24.) A careful reading should convince the reader that Lepore’s critique is on the mark.

Without doubt Lepore’s central charge against the Tea Party movement is that it draws on the revolutionary and founding periods not just to analogize to present circumstances or issues, but with the confident assertion that Tea Partiers know how Jefferson or Washington would resolve political issues faced today. Even one historian critic of Lepore’s book freely acknowledges that many modern Americans want to know how specific framers would treat modern issues. (Indeed, Lepore’s comparison of Tea Party inquiries to the evangelical query of, “what would Jesus do?” is a bit startling but virtually undeniable.) This is not a matter of determining the originally intended meaning of constitutional texts; it is confidently believing that if the founders could only “see us now, they would be rolling over in their graves.” (Id. at 125.)

Exemplary is her reference to Tea Partier Patrick Humphries, who contended that the “government takeover of the economy,” undertaken by the Obama administration, unquestionably will “represent a loss of freedom.” (Id. at 111-12.) The threat to liberty, according to Humphries, stemmed directly from the personal loss of the power that “he was supposed to get from the Tenth Amendment.” (Id. at 112.) The new national health care system directly contradicted the very goal of the Constitution: “Ours was meant to be a very simple, straightforward government. The more power and money that goes to Washington, the less that’s available to the states and the people.” (Id.)

As a co-author of a work on the legal and constitutional history of our federal system--Powers Reserved for the People and the States: A History of the Ninth and Tenth Amendments, co-authored with Jay S. Bybee and A. Christopher Bryant (Praeger Publishing, 2006)—I can say confidently that the new national health care system does not produce a “government take over” of the health care system, let alone of the entire economy. Its very attempt to rely on market forces, rejecting proposals for a “single payer” system, reflects that at least one purpose was to avoid the feared government takeover.

If Congress was not empowered to pass national health care reform, it is difficult to conceive how it could have been empowered to enact the law establishing Medicare. The strongest advocate of originalism presently on the Supreme Court, Justice Scalia, has written opinions recognizing the validity of the exercise of federal power that is at least as expansive as the enacted national health care reform law. If you spent a minute looking through the blog, “Balkinization,” you would encounter Andrew Koppelman’s Health Care Reform: The Broccoli Objection. Koppelman summarizes sound reasons to view the federalism objection to health reform with real skepticism.

Other leading historians who have read Lepore’s book have found its historical analysis compelling. Eric Foner said that the book “offers a lesson in what history actually is and how it seems constantly used and abused.” And Jack Rakove concludes that the book shows “the ways contemporary references to the Revolution ignore, distort, run roughshod over, yet somehow attempt seriously to evoke the events of the past.” Amen.

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