The Whole Constitution Pledge

Tea Party activists claim to love the Constitution, except for all the parts of our nation’s foundational document that they would prefer to ignore or repeal outright. Dismissing the full story of our Constitution, including the 27 Amendments ratified by the American people over the last 220 years, these self-professed “constitutional conservatives” have distorted the Constitution beyond all recognition, cherrypicking the parts of the document they like, and jettisoning the rest. To take back the America’s charter from the Tea Party, Constitutional Progressives – an initiative launched by the Constitutional Accountability Center and supported by numerous other organizations concerned with protecting the constitutional rights of all Americans – have urged all Americans to pledge to support the whole Constitution.

To flesh out the ideas animating the pledge, the Constitutional Progressives website contains a wealth of information on the Tea Party’s warped vision of our Constitution, linking to all of the blog posts contained in CAC’s series, Strange Brew: The Constitution According to the Tea Party as well as many of the legal briefs and scholarly reports produced by CAC over the past three years. As fleshed out in these materials, our substantive beef with the Tea Party is two-fold: (1) they fundamentally misread our 1787 Constitution, particularly in the assertion that the Framers intended to create a federal government without the power to solve national problems like health care, environmental protection and retirement security, and (2) they underread or seek outright repeal of the Amendments passed over the past 220 years that have made our nation the “more perfect union” it is today.

We are pleased that, over the last week, a number of prominent and well-respected conservatives have taken the time to weigh in on the merits of the “Whole Constitution” pledge. For example, Ed Whalen and Eugene Volokh, have pointed out that calling for repeal of constitutional amendments is not proof of lack of fidelity to the Constitution, noting that Article V gives all Americans the right to call for the repeal of aspects of the Constitution they think are inconsistent with fundamental constitutional principles. Likewise, Ilya Somin has noted that even, after 27 Amendments enacted over 220 years, the long running struggle for a better, fairer, and just system of government still continues. Notably, and to their credit, neither Ed Whalen, Eugene Volokh, nor Ilya Somin show any interest in making the case that the Tea Party’s vision of the Constitution is the correct one, or that their call for repeal of numerous, deeply-rooted parts of our constitutional order should prevail. In fact, Ilya Somin agrees that Seventeenth Amendment – high on the Tea Party hit list – is an important and enduring part of our constitutional order.

These are all important and correct points. Article V is incredibly important to our constitutional story. Because the Framers recognized that the Constitution they created was not infallilble, generations of Americans have been able to change the Constitution in fundamental ways, ending slavery, guaranteeing equality, and ensuring a vibrant democracy that respects the right to vote free from discrimination. But none of these points, in fact, cut against the Pledge. On the contrary, with the Tea Party seizing on Article V to demand repeal of numerous Amendments ratified by the American people over the full sweep of our history, it is critical for the American people to understand the full arc of our constitutional story and to take our Constitution back. Now more than ever is the time for all Americans to affirm that the Constitution’s greatest achievements – protection of birthright citizenship, protection for the full range of civil and human rights, and a system of government capable of solving national problems – must be celebrated, not rolled back.

On the other end of the spectrum, Carrie Severino on Bench Memos resorts to the silliest form of guilt-by-association imaginable, suggesting that because Constitutional Accountability Center – the organizing force behind the pledge – includes on its staff individuals that – horrors! – have worked for progressive organizations in the past, the Pledge is somehow suspect. Severino’s post, which makes no attempt to engage in the substantive account of the Constitution’s text and history recounted in the materials collected on the Constitutional Progressives website, and which offers caustic rhetoric without any substance, warrants no further response.  Jonathan Adler, on other hand, makes a substantive critique of the Pledge, but one that is demonstrably false. Adler suggests that there is good reason to suspect that CAC won’t be faithful to important aspects of the Constitution, such as the Second Amendment or the Privileges or Immunities Clause. As Adler should well aware, CAC has been at the forefront of efforts to revitalize the Privileges or Immunities Clause. In 2008, CAC issued a report, entitled The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment, calling for the Supreme Court to breathe new life into the Privileges or Immunities Clause and overrule the 1872 Supreme Court decision that gutted it. Building off that report, CAC filed an amicus brief in McDonald v. City of Chicago on behalf of leading constitutional scholars across the ideological spectrum, including Randy Barnett and Stephen Calabresi, urging the Supreme Court to hold that the right to bear arms is a privilege and immunity of national citizenship protected by state infringement by the Privileges or Immunities Clause. Adler’s suggestion that CAC won’t honor these parts of the Constitution is pure fiction.

As the Pledge itself makes clear, Constitutional Progressives are urging Americans across the political spectrum to honor the whole Constitution, all of it.

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