The Tea Party and the Constitution

A fascinating recent phenomenon has been the increasing attention paid by the Tea Party to the alleged disregard for constitutional obligations by the Obama Administration. NPR did an excellent overview of the situation in which it discussed the motivation for and significance of this movement. I share many Tea Party concerns about the administration playing fast and loose with its obligations and exalting expedience and said so in the Washington Times.

Overall, it's a positive development for our democracy when people become engaged with current events and responsibly evaluate and criticize government action. This makes for better choices at the polls and real accountability for elected officials. However, what I have seen and heard about this effort causes me to sound a few cautionary notes about the best way for it to be carried out.

Need for a Holistic View. The Constitution covers a lot of ground, from the mundane - must be age 25 to be in the House, 30 to be in the Senate and 35 to be President; can only be elected to two presidential terms - to the majestic - freedom of speech and equal protection of the laws. It seems as though many Tea Partiers fixate on a particular section of the Constitution that is of most interest to them, especially the Second Amendment dealing with the right to bear arms, without considering the significance of many other provisions. For example, many Tea Partiers are conservative, yet in their zeal to apply provisions which support the conservative agenda, they overlook those which support the opposite. Witness the First Amendment being used by the courts to permit offensive, obscene speech, the Fourth Amendment being used to dictate many police procedures, the Fourteenth Amendment being used to promote equality, and ultimately the Interstate Commerce Clause being used to justify many major government actions, such as civil rights legislation and now ObamaCare. The Constitution in many different way guides and protects all of the American people - not just those of one persuasion.

Just the Beginning ... Cases Matter a Lot. Since Marbury v. Madison in 1803 legitimized judicial review of legislation, the Supreme Court has given us a great deal of guidance about the meaning of the Constitution. In order to fully appreciate what a particular provision is meant to do or avoid, one should have at least a rudimentary understanding of what the Court has said about the issue and not rely only upon the often cryptic text.

Look at the Commerce Clause. Those concerned with encroaching federal power should focus on Commerce Clause issues, especially the challenges to ObamaCare which are inexorably wending their way through the courts and are virtually certain to reach the Supreme Court. Going back to at least the 1930's New Deal legislation, every major expansion of federal power has been supported by the power to regulate interstate commerce, even in areas where commerce did not seem to be the principal issue. In the last 15 years or so, starting with its Lopez case, the Court has started taking a stricter view of whether legislation actually pertains to interstate commerce. The Super Bowl for such analysis will be the decision about ObamaCare. This may also involve consideration of other topics such as the significance of the Ninth and Tenth Amendments which also set limits on federal power, but the Commerce Clause analysis will be the key topic.

Constitutional Legislation Isn't Necessarily Good Legislation. In seeking to restrain federal power, the constitutionality of legislation is not the end of the story. Something may be terrible public policy but still permissible under the Constitution. An example is the pending tax increases as Bush-era tax cuts expire at the end of this year. That is why Tea Partiers and others who are interested in reining in the government need to address (and when necessary object to) the full universe of legal authorities - state and federal statutes, administrative regulations - IRS, SEC, EPA, DOL, etc. - and case law in which the courts construe all of this.

Be Polite ... Don't Stick It in Someone's Face. As NPR indicates, many devotees of this movement carry a copy of the Constitution in their pocket or purse for ready reference. It's great that people are this concerned about supporting their arguments with real authority, but waving a document under someone's nose at a social function doesn't bolster the argument.

The Tea Party is clearly a rising force in American politics to at least the same extent as the Ross Perot movement in the early '90's and the George Wallace movement in the '60's. It's much needed in the face of an inexperienced administration which is losing its moorings in many respects. The constitutional foundation is excellent and greatly enhances its credibility, but can stand some refinement in order to maximize its effectiveness.