Just as the Left tried unsuccessfully to tar the Tea Party as racist, it is now using distortion and ridicule to attack the Tea Party’s contention that Congress should follow the Constitution. One of the most recent efforts is radical activist Lincoln Caplan’s op-ed in the “All the News That Fits” Times, entitled “Exploring the Meaning of ‘Constitutional Conservatism.’” Although the whole piece is basically just a jumbled screed, the thrust of his criticism seems to be that constitutionalists are not clear about what they believe. As is the Left’s habit, it is obvious that he is criticizing the position of those who respect the Constitution without actually having read any originalist constitutional writing. Since it is highly unlikely that he will do so, let me try to help Mr. Caplan by laying it out as simply as I can.
In order to have the rule of law, those charged with power in a polity must respect the original written text of the laws. If they are allowed a very broad discretion in the interpretation of the text, you quickly are reduced to the rule of men, where legal power is based on what the rulers can get away with rather than some pre-agreed foundational understanding. Since the 16th and 17th amendments were passed in 1913, the US federal government has expanded its power far beyond the original constitutional scheme, all without any further authorization by the document’s own amendment process. Instead the Supreme Court has arrogated to itself the power to effectively amend the document through progressive acts of judicial interpretation. The effect of this judicial usurpation of the amendment process has been a century of unlimited expansion of federal power.
Tea partiers, conservatives, originalists, or whatever you call them, have a twofold criticism of this phenomenon. First, it is fundamentally illegitimate on both constitutional and democratic grounds. It has replaced the requirement of democratic super-majorities to change the Constitution with the vote of five unelected and unaccountable elitist justices of the Supreme Court. Second, in fact this judicially authorized expansion of federal power has produced an overly centralized, inefficient, corrupt, corporate-dominated, debt-ridden government which acts with little democratic constraint.
For the Tea Party and its many conservative and libertarian predecessors and allies, an obvious solution to this runaway federal government is a return to the more decentralized government originally provided by the Constitution. This solution has the additional appeal of bringing us back to respect for the original written text, a return to the rule of law over our current rule by the men (and women) of a Washington-based federal elite of life-tenured Supreme Court justices and members of Congress reelected term after term due to gerrymandering and incumbency advantages they vote themselves.
Thus, what the Tea Party wants do is restore the original constitutional framework. They often focus on the 16th and 17th amendments because they see those as the beginning of the expansion in federal power. However, it is the expansive usurpative jurisprudence of the Supreme Court that is the real source of the problem, and it may require actual amendment of the Constitution to reverse that jurisprudence. It may be necessary to change the Constitution in order to restore it.
The Real Constitutional Conservatism
Just as the Left tried unsuccessfully to tar the Tea Party as racist, it is now using distortion and ridicule to attack the Tea Party’s contention that Congress should follow the Constitution. One of the most recent efforts is radical activist Lincoln Caplan’s op-ed in the “All the News That Fits” Times, entitled “Exploring the Meaning of ‘Constitutional Conservatism.’” Although the whole piece is basically just a jumbled screed, the thrust of his criticism seems to be that constitutionalists are not clear about what they believe. As is the Left’s habit, it is obvious that he is criticizing the position of those who respect the Constitution without actually having read any originalist constitutional writing. Since it is highly unlikely that he will do so, let me try to help Mr. Caplan by laying it out as simply as I can.
In order to have the rule of law, those charged with power in a polity must respect the original written text of the laws. If they are allowed a very broad discretion in the interpretation of the text, you quickly are reduced to the rule of men, where legal power is based on what the rulers can get away with rather than some pre-agreed foundational understanding. Since the 16th and 17th amendments were passed in 1913, the US federal government has expanded its power far beyond the original constitutional scheme, all without any further authorization by the document’s own amendment process. Instead the Supreme Court has arrogated to itself the power to effectively amend the document through progressive acts of judicial interpretation. The effect of this judicial usurpation of the amendment process has been a century of unlimited expansion of federal power.
Tea partiers, conservatives, originalists, or whatever you call them, have a twofold criticism of this phenomenon. First, it is fundamentally illegitimate on both constitutional and democratic grounds. It has replaced the requirement of democratic super-majorities to change the Constitution with the vote of five unelected and unaccountable elitist justices of the Supreme Court. Second, in fact this judicially authorized expansion of federal power has produced an overly centralized, inefficient, corrupt, corporate-dominated, debt-ridden government which acts with little democratic constraint.
For the Tea Party and its many conservative and libertarian predecessors and allies, an obvious solution to this runaway federal government is a return to the more decentralized government originally provided by the Constitution. This solution has the additional appeal of bringing us back to respect for the original written text, a return to the rule of law over our current rule by the men (and women) of a Washington-based federal elite of life-tenured Supreme Court justices and members of Congress reelected term after term due to gerrymandering and incumbency advantages they vote themselves.
Thus, what the Tea Party wants do is restore the original constitutional framework. They often focus on the 16th and 17th amendments because they see those as the beginning of the expansion in federal power. However, it is the expansive usurpative jurisprudence of the Supreme Court that is the real source of the problem, and it may require actual amendment of the Constitution to reverse that jurisprudence. It may be necessary to change the Constitution in order to restore it.