Tipsy at the Tea Party: A Sober Look at Proposals to Repeal Portions of the Constitution

by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

It seems that Tea Partiers’ recent political victories may have gone to their heads faster than bubbles in a glass of champagne.  Flush from this electoral success, the Tea Party movement is turning its attention to the Constitution with renewed fervor.  The result has been some proposals that are at turns wacky, unwise, and even dangerous to our constitutional values.

The Tea Party’s sights appear to be set on constitutional amendments ratified after the Civil War.  Rand Paul, recent winner of Kentucky’s Republican senatorial primary, and Rep. Duncan Hunter of San Diego have called for repeal of the 14th Amendment’s guarantee of citizenship at birth for all children born in the United States—not to mention Paul’s much-publicized criticism of the Civil Rights Act, legislation passed pursuant to the power given to Congress by the 14th Amendment to enforce its guarantees of equal protection, due process of law, and the rights of citizenship.  Sharron Angle, the Tea Party-endorsed candidate who appears poised to win today’s Republican senatorial race in Nevada, has called for repeal of the 16th Amendment, which allows for a federal progressive income tax.  And many Tea Party activists are pushing for repeal of the 17th Amendment, which shifted the selection of U.S. Senators from state legislatures to the state’s voters.

To repeal these hard-won parts of our Constitution would be pure folly.  The constitutional changes made in the aftermath of the Civil War and the abolition of slavery wrote into the Constitution the promises of equality made in the Declaration of Independence, and gave the federal government the power to ensure that these promises were kept.  The pursuit of equality and greater democracy in the 14th and 15th Amendments—the 15th Amendment secured the right to vote free from racial discrimination—continued in the 16th Amendment, which corrected a Supreme Court ruling that allowed wage income of poorer day laborers to be subject to federal tax but exempted dividend and rental income of the wealthy, and the 17th Amendment, which provided for direct election of U.S. Senators to give more power to the people and lessen the influence of corporate interests.

To be sure, all of these amendments shifted some power from the states to Washington.  But is that a bad thing?  Tea Partiers appear to assume that when it comes to government, the more local the better.  History tells us that this is not always so—certainly the federal government was honoring rather than denigrating our constitutional values when it finally stepped in to stop systematic racial discrimination in the South.  The Constitution, as amended, maintains our vibrant federalism, with state and local governments continuing to make decisions that reflect the particular preferences of their communities.  But our amended Constitution sets a national minimum guarantee of fundamental rights like liberty and equality.  States may decide to give even greater protection to these rights, but if they give less, the federal government may step in.

Perhaps even more than the Tea Party’s challenges to the federalism changes ushered in by the post-Civil War constitutional amendments, Tea Party opposition to the 14th Amendment’s promise of equal citizenship deserves close scrutiny.  The objections to the Constitution’s guarantee of equal citizenship raised by Tea Party darlings like Rand Paul and Congressman Hunter have included justifications both odd and outrageous.  There is Paul’s suggestion that the 14th Amendment’s guarantee that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States” is simply a ploy by the Democratic Party to grant citizenship to the children of Mexican immigrants to get votes.  Then there is Congressman Hunter’s claim that the “souls” of children of undocumented immigrants are not “American” enough to qualify them for citizenship at birth.  But the citizenship clause of the 14th Amendment was added to the Constitution in 1868 to ensure that regardless of the origins of one’s parents—whether they were slave or free, poor or rich, welcomed ancestors or shunned immigrants—American citizenship would be based on the objective measure of place of birth, not blood line or the state of one’s soul.

It is encouraging that so many Americans are now discussing and debating the Constitution.  It is, after all, the People’s document.  But before Tea Party repeal efforts gather steam, “We the People” should take a sober look at the text, history, and principles behind the amendments the Tea Party would like to do away with.  Amending the Constitution is not an easy task, and generations of Americans poured blood, sweat, and treasure into adopting the amendments that Tea Party activists would now like to repeal.

If we don’t take the time to remember and understand the reasons for these changes to our Founding document, Americans could be left with a gutted Constitution—and one nasty Tea Party hangover.