Tea-ing Up the Constitution


WASHINGTON — Brash and young though it is, the Tea Party movement has already added something distinctive to contemporary political discourse. It has made the Constitution central to the national conversation.

The content of the movement’s understanding of the Constitution is not always easy to nail down, and it is almost always arguable. But it certainly includes particular attention to the Constitution’s constraints on federal power (as reflected in the limited list of powers granted to Congress in Article I and reserved to the states and the people the 10th Amendment) and on government power generally (the Second Amendment’s protection of gun rights, the Fifth Amendment’s limits on the government’s taking of private property).

Not a few constitutional scholars say that it is possible to quarrel with the particulars while welcoming the discussion. And not just because it is nice to know that people read and care about the nation’s sacred text. The larger point, these scholars say, is that the Supreme Court should have no more monopoly on the meaning of the Constitution than the pope has on the meaning of the Bible.

“It really is open to interpretation by anybody, in what I sometimes call the lawyerhood of all citizens,” said Sanford Levinson, a law professor at the University of Texas. “Anybody in a bar can get into a shouting argument over what equal protection means, or the right to free speech.”

Those arguments can and should have consequences, according to scholars who endorse what they call “popular constitutionalism.” “Basically, it’s the idea that final authority to control the interpretation and implementation of constitutional law resides at all times in the community in an active sense,” Larry D. Kramer, the dean of Stanford Law School, wrote in The Valparaiso University Law Review in 2006.

Popular movements have often appealed to the Constitution in making their cases, and from time to time their views have altered the conventional understanding of the meaning of the constitutional text. Abolitionists and secessionists both invoked the Constitution before the Civil War; a century later, civil rights leaders appealed to principles of equal protection, and their opponents to states’ rights. Supporters and opponents of the New Deal pointed, respectively, to the reach of the Constitution’s commerce clause or to the Constitution’s protection of private contracts.

The Supreme Court’s 2008 ruling that the Second Amendment protects an individual right to own guns, as opposed to one tied to militias, is another example of a transformation of a conventional understanding, Professor Levinson said, this one based on a view of the Constitution pressed by the National Rifle Association and its politically engaged supporters.

But the best example of the force of a shifting popular understanding of the Constitution can probably be found in the arguments for and against President Franklin Delano Roosevelt’s efforts to expand federal power in reaction to the Great Depression.

“What determined the New Deal shift was a dramatic change in the popular understanding of the constitutional role of the federal government,” said Barry Friedman, a law professor at New York University and the author of “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution”

A government lawyer of that era, Charles Wyzanski Jr., demurred when offered congratulations on a big Supreme Court victory. “It was not really Mr. Wyzanski who won,” he said, “but Mr. Zeitgeist.”

Judging by the rhetoric at many political rallies these days, the spirit of the current moment may be heading in the opposite direction on the question of federal power.

“The Tea Party movement is interesting in that there is a combination of localism, nativism and populism that we’ve seen at various points in America,” said Nathaniel Persily, a law professor at Columbia and an editor of “Public Opinion and Constitutional Controversy.” “It’s coalescing at a time when the government is growing to an unprecedented size.”

It is, of course, hard to say anything definitive about the Tea Party movement, a loose confederation of groups with no central leadership. But if there is a central theme to its understanding of the Constitution, it is that the nation’s founders knew what they were doing and that their work must be protected. “I think it’s some loose, ill-informed version of originalism, but it’s plausible,” said Professor Kramer, the author of “The People Themselves: Popular Constitutionalism and Judicial Review.”

“Originalism” has many flavors and levels of specificity, but in essence it says the constitutional text should be applied as it was understood at the time it was adopted.

Surveys conducted by Quinnipiac University indicate that some 40 percent of Americans say the Supreme Court should employ originalism in interpreting the Constitution; slightly more say the court should take account of changing conditions.

“You might think that questions about constitutional theory are an elite-driven idea,” Professor Persily said, “but people have opinions about this.”

A new study from Professor Persily and two colleagues, Jamal Greene and Stephen Ansolabehere, explored the political and cultural values of those who identified themselves as originalists. Such people “appear more likely than non-originalists to be white, male, older, less educated, Southern and religious,” the study found. “They are less likely to favor abortion rights, affirmative action and marriage rights for same-sex couples, and more likely to favor torture and military detention of terrorism suspects and the death penalty. They are more likely to express morally traditionalist, hierarchical and libertarian cultural values.”

The mechanisms for translating such popular understanding into actual constitutional law are varied. Over time, the Supreme Court’s personnel shifts with new appointments, and so may its thinking. Public opinion, many scholars say, cannot help but affect which cases the court accepts and how it decides them.

The other two branches of government have independent constitutional responsibilities and are built to respond to the popular will. And some court decisions are simply circumvented given a strongly held popular view of what the Constitution allows or requires. One example, legal scholars said, is school prayer.

Some liberals say there is a lesson to be learned from conservative engagement with constitutional interpretation.

“There is an imbalance between the left and right in the claims we are making on the Constitution,” said Doug Kendall, president of the Constitutional Accountability Center, a law firm and advocacy group that says it is “dedicated to fulfilling the progressive promise of our Constitution’s text and history.

“Progressives do need a more simple and compelling constitutional narrative,” Mr. Kendall said, “to answer the right’s constitutional narrative.”

Read the original article here.


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