The Tea Party Movement and Constitutionalism—Its Questionable Commitment, Despite Its Libertarian Professions
American historian Jill Lepore is certainly right that, whatever its precise political philosophy, the Tea Party Movement has advocated “historical fundamentalism” in its approach to American revolutionary and founding era thought. See Jill Lepore’s Book, the Tea Party and Originalism; Tea Party, Constitution and Historical Fundamentalism, both from this blog. The problem is that the result is bad American history and fundamental errors in ascertaining the original understanding of the Constitution. Even so, the movement has sought to wrap itself in “the flag” of the founding generation’s commitment to our system of federalism and the protection of individual liberty. See, e.g., Judge Vinson: Individual Mandate and Boston Tea Party, in this blog. An important question is thus whether the movement has shown real fidelity to the original meaning of the Constitution. My conclusion is that it has not.
The movement’s neo-conservatives are not even close to genuine commitment to the Constitution’s original meaning. Their views are closely associated with those advocated and implemented by Vice President Cheney—who believes in a scope of executive authority that defies the framers’ commitment to separation of powers, and whose devotion to “liberty” is totally undercut by his stronger commitment to practices of “enhanced interrogation” and the practices authorized by the Patriot Act. See Tea Party: Neo-Conservative or Libertarian? (linking tea party views of Representative Michele Bachmann with those of Bush/Cheney and the practice of torturing and rendering prisoners to countries that would torture), in this blog. The Bush administration also insisted that the President held the authority unilaterally to take the nation to war, contradicting the views of American revolutionaries (and in particular one who became President, Thomas Jefferson). These sorts of views are emblematic of those held by modern conservatives, going back at least to the Reagan administration—and they are the views that gave us the Iran-Contra affair, the most serious abuse of presidential power in the modern era. See Some Constitutional Reflections on the Ronald Reagan Centennial, in this blog.
The strong libertarians in the Tea Party ranks have picked up the founding generation’s emphasis on “liberty,” but seem capable only of discerning the threats to liberty presented by the prospect of government regulation. James Madison once famously wrote that “[i]n framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable government to control the governed; and in the next place, oblige it to controul itself.” Federalist No. 51, at 349 (Jacob Cooke ed., 1961). It is certainly true that important features of the Constitution are designed to “oblige [government] to control itself.” But the most significant contributor to the nation’s current mess, and especially the worst recession since the Great Depression, was the sheer failure of the American system of government “to control the governed”--a fruit of the anti-regulatory mentality that has been an important feature of conservative/libertarian political thought at least since President Reagan. As important as the notion of freedom was in the Lockean thinking that undergirded the American Revolution, America’s constitutionalists were deeply committed to the written Constitution and the assumption that “only such natural liberty as was reserved by a constitution would be a constitutional right.” Nathan Frost, Rachel Beth Klein-Levine, &Thomas B. McAffee, Courts Over Constitutions Revisited: Unwritten Constitutionalism in the States, 2004 Utah L. Rev. 333, 338-39 [hereinafter Courts Over Constitutions].
Libertarian political thinkers all too often embody a naïve optimism in the “progressive achievement of virtue in history, by reason of the progressive extension of intelligence.” Reinhold Niebuhr, Reinhold Niebuhr on Politics: His Political Philosophy and its Application to Our Age as Expressed in His Writings 19 (1960). See Tea Party, Constitution and Historical Fundamentalism, here in the blog. A consequence is the confident assertion that constitutional thinkers, and in particular judges, are competent to discover and enforce implied fundamental rights—implied from the very idea that people are appropriately viewed as holding basic rights. Courts Over Constitutions, supra, at 341. But this supposed role for the Supreme Court is precisely the opposite one from the one advocated by America’s founders, not to mention one that contradicts the views of modern originalists on the Supreme Court, such as Justice Scalia. It moves courts away from merely “interpreting” the text of the Constitution to the role of deciding the basic elements of the political philosophy by which we should be governed. Such a view is the product of a strand of genuine idealism, but is rooted in greater confidence in the capacities of judges than they are entitled to receive. The result would likely be a form of judicial activism, hardly the judicial restraint that modern proponents of a restrained judicial role have long advocated.