A New Series Dedicated to Setting the Record Straight on the Constitution

To mark this year’s Independence Day, the Tea Party went back to school to study the Constitution as part of a growing effort to use the document to wage political battle—particularly over the confirmation of Elena Kagan to the Supreme Court—and to elect leaders who will remain faithful to the Constitution and its principles. As an organization dedicated to the text and history of the Constitution, Constitutional Accountability Center salutes this effort, at least in the abstract. We think the Constitution should frame our political debates and should be followed by our leaders, whatever their political stripe. But if the Tea Party wants to be taken seriously—and if it wants the media to continue fawning over it for its purported love for the Constitution—it should at least be required to make plausible claims about the words and meaning of our Nation’s charter. A close look at the Tea Party’s version of the Constitution shows that it bears little resemblance to our actual Constitution and could in fact threaten the constitutional values Americans cherish most. At the risk of taking too seriously what appear to be political arguments dressed up as constitutional claims, Constitutional Accountability Center has launched a series of articles, here at Text & History, which examines claims made by the Tea Party and its most prominent allies about the Constitution and put them to the test against the Constitution’s text and history. The series, entitled Strange Brew: The Constitution According to the Tea Party, draws upon the words of our nation’s charter, constitutional debates and other legislative history, and the best constitutional scholarship available. The goal of the series is to ensure that, as Americans engage in conversations and debates about the Constitution, we are all on the same page about what our Constitution says and what it doesn’t. Our Strange Brew series was launched with the release of a new CAC Issue Brief entitled “Setting the Record Straight: The Tea Party and the Constitutional Powers of the Federal Government.” This Issue Brief, written by CAC’s Chief Counsel Elizabeth Wydra and CAC’s Human and Civil Rights Director David Gans, takes on the Tea Partiers’ central claim: that our country’s Founders established a sharply limited, weak national government, incapable of addressing national problems like the health care crisis in America. Our Issue Brief documents first that the Founders established the federal government to act whenever the states were “separately incompetent” and granted the federal government broad power to, among other things, regulate interstate commerce and tax and spend to promote the general welfare. The Tea Party’s principal claim of a weak national government fits more with the failed, discarded Articles of Confederation than with the Founders’ second and lasting attempt to craft a national charter, our Constitution. Second, putting aside the correctness of the Tea Party claims regarding the Constitution as it was written in 1787, we chronicle how eight separate amendments expanded the enumerated powers of the federal government, giving vast powers to the government to protect equality, civil rights, and voting rights and to raise funds through taxes on income. Amendments such as the 17th Amendment, which took the power of electing U.S. senators away from state legislators and gave it to the people by popular vote, structurally increased the power of the federal government, vis-à-vis the states. Leading up to the floor debate over the confirmation of Elena Kagan, CAC is building on the work of the Issue Brief in a series of posts on our flagship blog, Text & History. Our Strange Brew blog series takes on the various and sometimes repugnant specific claims about the Constitution being made by Tea Party candidates such as Rand Paul and Sharron Angle, by Senators opposing the confirmation of Elena Kagan, and by other elected officials such as Virginia Attorney General Ken Cuccinelli. Here are some of the topics we cover in the Strange Brew series:

• The persistent and heated claims in the courts, Congress, and the media that the Patient Protection and Affordable Care Act — and particular its “individual mandate” —  is unconstitutional, and the suggestion by Senate Republicans that General Kagan should not be confirmed as a Supreme Court Justice because she might uphold the Act.  (Read Part 1 here, and Part 2 here.)
• The long-discredited assertion by Kentucky Senate Rand Paul, Tea Party Express leader Mark Williams, and others that the federal government does not have the power to root out “private” discrimination under the Civil Rights Act of 1964, one of the most important pieces of legislation passed pursuant to Congress’s constitutional authority to enforce the 14th Amendment’s guarantee of equality.  (Read this post here.)
• The call by Rand Paul, Rep. Duncan Hunter and others for the repeal of the 14th Amendment’s guarantee of citizenship at birth for all children born in the United States, and the efforts in states such as Arizona to interfere with the Amendment’s guarantee of equal citizenship.  (Read this post here.)
• Nevada Senate candidate Sharron Angle’s suggestion that Americans should repeal the 16th Amendment, which allows for a federal income tax.  (Read this post here.)
• Disturbing Tea Party rhetoric suggesting that perceived unconstitutional actions by the federal government are cause for armed rebellion—and the claim that the Founders would cheer such violence. (Read this post here.)
• The argument by Senator Tom Coburn and others that Kagan should not be confirmed because she, in their view, would not commit during her Judiciary Committee testimony to enforcing “God-given” natural or inalienable rights mentioned in the Declaration of Independence. (Read this post here.)
• The call by Tea Party activists for repeal of the 17th Amendment, in order to take the power to elect U.S. Senators away from individual voters and give it back to state legislators. (Read this post here.)
• Utah Senate candidate Mike Lee’s argument that his state can use the Constitution’s “Enclave Clause” to take land from the federal government in Utah. (Read this post here.)

As the Senate begins to debate Elena Kagan’s nomination to the Supreme Court and the Tea Party continues to focus Americans’ attention on the U.S. Constitution, it is important that this national conversation engage the real Constitution and not the Tea Party’s Constitution. There are plenty of good faith disagreements to be had over our Constitution’s text, history and meaning—but we’ve all got to be reading the same document. With our Issue Brief and the Strange Brew blog series, Constitutional Accountability Center hopes to set the record straight on the Constitution.