How Tea Partiers Get the Constitution Wrong

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Tea Partiers hold up the Constitution on Tax Day in Washington. Win McNamee / Getty Images

Since winning the Republican senate primary in Delaware last month, Christine O’Donnell has not had trouble getting noticed. When the Tea Party icon admitted to “dabbl[ing] into witchcraft” as a youngster, the press went wild. When she revealed that she was “not a witch” after all, the response was rabid. O’Donnell has fudged her academic credentials, defaulted on her mortgage, sued a former employer, and campaigned against masturbation, and her efforts have been rewarded with round-the-clock coverage. Yet few observers seem to have given her views on the United States Constitution the same level of consideration. Which is too bad, because O’Donnell’s Tea Party take on our founding text is as unusual as her stance on autoeroticism. Except that it could actually have consequences.

tea-party-tentacles-tease Inside the Tea Party Win McNamee / Getty Images

Last month, the candidate spoke to 2,000 right-wing activists at the annual Values Voter Summit in Washington, D.C. She wore a black suit and pearls, and swept on stage to the sound of Journey’s “Don’t Stop Believin’.” Most of the speech was unremarkable: a laundry list of conservative platitudes. But near the end she veered into stranger—and more revealing—territory. O’Donnell once told voters that her “No. 1” qualification for the Senate is an eight-day course she took at a conservative think tank in 2002. Now she was revisiting its subject: the Constitution.

The Founders’ masterpiece, O’Donnell said, isn’t just a legal document; it’s a “covenant” based on “divine principles.” For decades, she continued, the agents of “anti-Americanism” who dominate “the D.C. cocktail crowd” have disrespected the hallowed document. But now, finally, in the “darker days” of the Obama administration, “the Constitution is making a comeback.” Like the “chosen people of Israel,” who “cycle[d] through periods of blessing and suffering,” the Tea Party has rediscovered America’s version of “the Hebrew Scriptures” and led the country into “a season of constitutional repentance.” Going forward, O’Donnell declared, Republicans must champion the “American values” enshrined in our sacred text. “There are more of us than there are of them,” she concluded.

By now, O’Donnell’s rhetoric should sound familiar. In part that’s because her fellow Tea Party patriots—Glenn Beck, Sarah Palin, the guy at the rally in the tricorn hat—also refer to the Constitution as if it were a holy instruction manual that was lost, but now, thanks to them, is found. And yet the reverberations go further back than Beck. The last time America elected a new Democratic president, in 1992, the Republican Party’s then-dominant insurgent group used identical language to describe the altogether different document that defined their cause and divided them from the heretics in charge: the Bible. The echoes of the religious right in O’Donnell’s speech—the Christian framework, the resurrection narrative, the “us vs. them” motif, the fixation on “values”—aren’t coincidental.

From a legal perspective, there’s a case to be made that O’Donnell’s argument is inaccurate. The Constitution is a relentlessly secular document that never once mentions God or Jesus. And nothing in recent jurisprudence suggests that the past few decades of governing have been any less constitutional than the decades that preceded them. But the Tea Party’s language isn’t legal, and neither is its logic. It’s moral: right vs. wrong. What O’Donnell & Co. are really talking about is culture war.

When Barack Obama took office, experts rushed to declare an end to the old battles over race, religion, and reproductive rights—whether because of Obama’s alleged healing powers, or the Great Recession, or both. But these analyses ignored an important reality: at heart, the culture wars were really never about anything as specific as abortion or gay marriage. Instead, as James Davison Hunter wrote in Culture Wars, the book that popularized the term, the conflicts of the 1990s represented something bigger: “a struggle over…who we have been...who we are now, and...who we, as a nation, will aspire” to be. Such conflicts, Hunter explained, pit “orthodox” Americans, who like the way things were, against their more “progressive” peers, who are comfortable with the way things are becoming.

tea-party PHOTOS: A History of America's Conservative Movements Shane Bevel / AP

For the forces of orthodoxy, the election of a black, urban, liberal Democrat with a Muslim name wasn’t a panacea at all; it was a provocation. So when the recession hit, and new economic anxieties displaced the lingering social concerns of the Clinton era, political fundamentalists sought refuge in a more relevant scripture—one that could still be made to accommodate the simpler, surer past they longed for but happened to dwell on taxes and government instead of sinning and being saved.

The Constitution was waiting. Today, Tea Party activists gather to recite the entire document to each other. They demand that a wayward America return to its Constitutional roots. They even travel to Colonial Williamsburg and ask the actor playing George Washington how to topple a tyrannical government. In short, they take their Constitution worship very, very seriously. The question now is whether the rest of us should as well.

Contemporary Constitution worshipers claim that they’ve distilled their entire political platform—lower taxes, less regulation, minimal federal government—directly from the original text of the founding document. Any overlap with mainstream conservatism is incidental, they say; they’re simply following the Framers’ precise instructions. If this were true, it would be quite the political coup: oppose us, the Tea Party could claim, and you’re opposing James Madison. But the reality is that Tea Partiers engage with the Constitution in such a selective manner, and for such nakedly political purposes, that they’re clearly relying on it more as an instrument of self-affirmation and cultural division than a source of policy inspiration.

In legal circles, constitutional fundamentalism is nothing new. For decades, scholars and judges have debated how the founding document should factor into contemporary legal proceedings. Some experts believe in a so-called living Constitution—a set of principles that, while admirable and enduring, must be interpreted in light of present-day social developments in order to be properly upheld. Others adhere to originalism, which is the idea that the ratifiers’ original meaning is fixed, knowable, and clearly articulated in the text of the Constitution itself.

While conservatives generally prefer the second approach, many disagree over how it should be implemented—including the Supreme Court’s most committed originalists, Antonin Scalia and Clarence Thomas. Thomas sympathizes with a radical version of originalism known as the Constitution in Exile. In his view, the Supreme Court of the 1930s unwisely discarded the 19th-century’s strict judicial limits on Federal power, and the only way to resurrect the “original” Constitution—and regain our unalienable rights—is by rolling back the welfare state, repealing regulations, and perhaps even putting an end to progressive taxation. In contrast, Scalia is willing to respect precedent—even though it sometimes departs from his understanding of the Constitution’s original meaning. His caution reflects a simple reality: that upending post-1937 case law and reversing settled principles would prove extremely disruptive, both in the courts and society at large. As Cass Sunstein, a centrist legal scholar at the University of Chicago who now serves in the Obama administration, has explained, “many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration, and possibly the National Labor Relations Board would be [ruled] unconstitutional” if Thomas got his way. Social Security could be eliminated. Same goes for the Securities and Exchange Commission and the Federal Reserve. Individual states might be allowed to establish official religions. Even minimum-wage and maximum-hour laws would be jeopardized.

Tea Partiers tend to sound more like Thomas than Scalia. Every weekday on Fox News, Glenn Beck—“the most highly regarded individual among Tea Party supporters,” according to a recent poll—takes to his schoolroom chalkboard to rail against progressives like Woodrow Wilson and Franklin D. Roosevelt. “They knew they had to separate us from our history,” he says, “to be able to separate us from our Constitution and God.” In Beck’s view, progressives forsook the faithful Christian Founders and forced the country to adopt a slew of unconstitutional measures that triggered our long decline into Obama-era totalitarianism: the Federal Reserve System, Social Security, the graduated federal income tax. True patriots, according to Beck, favor a pre-progressive vision of the United States. When Nevada Senate nominee Sharron Angle says we need to “phase out” Social Security and Medicare; when Alaska Senate nominee Joe Miller asserts that unemployment benefits are “unconstitutional”; when West Virginia Senate nominee John Raese declares that the minimum wage should “absolutely” be abolished; when Kentucky Senate nominee Rand Paul questions the legality of the Civil Rights Act of 1964; when Minnesota Rep. Michele Bachmann claims that Obama’s new health-insurance law violates the Constitution; and when various Tea Party candidates say they want to repeal the amendments that triggered the federal income tax and the direct election of senators—this is the vision they’re promoting. At times, the Tea Party can seem like a popularized, politicized offshoot of the Constitution in Exile movement.

Over the years critics have lodged dozens of objections to originalism—the disagreements among the Founders; the preservation of slavery in the final product; the inclusion of an amendment process—and they apply to the Tea Party’s interpretation of the Constitution, too. But at least originalism is a rational, consistent philosophy. The real problem with the Tea Party’s brand of Constitution worship isn’t that it’s too dogmatic. It’s that it isn’t dogmatic enough. In recent months, Tea Party candidates have behaved in ways that belie their public commitment to combating progressivism. They’ve backed measures that blatantly contradict their originalist mission. And they’ve frequently misunderstood or misrepresented the Constitution itself. In May, for example, Paul told a Russian television station that America “should stop” automatically granting citizenship to the native-born children of illegal immigrants. Turns out his suggestion would be unconstitutional, at least according to the 14th Amendment (1868) and a pair of subsequent Supreme Court decisions. A few weeks later, Paul said he’d like to prevent federal contractors from lobbying Congress—a likely violation of their First Amendment right to redress. In July, Alaska’s Miller told ABC News that unemployment benefits are not “constitutionally authorized.” Reports later revealed that his wife claimed unemployment in 2002.

The list goes on. Most Tea Partiers claim that the 10th Amendment, which says “the powers not delegated” to the federal government are “reserved to the states,” is proof that the Framers would’ve balked at today’s bureaucracy. What they don’t mention is that James Madison refused a motion to add the word “expressly” before “delegated” because “there must necessarily be admitted powers by implication.” In last week’s Delaware Senate debate, O’Donnell was asked to name a recent Supreme Court case she disagreed with. “Oh, gosh,” she stammered, unable to cite a single piece of evidence to support her Constitution in Exile talking points. “I know that there are a lot, but, uh, I’ll put it up on my Web site, I promise you.” Angle has said that “government isn’t what our Founding Fathers put into the Constitution”—even though establishing a federal government with the “Power To lay and collect Taxes” to “provide for the common Defence and general Welfare” is one of the main reasons the Founders created a Constitution to replace the weak, decentralized Articles of Confederation. In 2008 Palin told Katie Couric that the Constitution does, in fact, guarantee “an inherent right to privacy,” à la Roe v. Wade, but added that “individual states…can handle an issue like that.” Unfortunately, Palin’s hypothesis would only be viable in a world without the Fourteenth Amendment, which gave Washington sole responsibility for safeguarding all constitutional rights. Then there are the proposed amendments. In the current Congress, conservatives like Michele Bachmann have suggested more than 40 additions to the Constitution: a flag-desecration amendment; a balanced-budget amendment; a “parental rights” amendment; a supermajority-to-raise-taxes amendment; anti-abortion amendment; an anti-gay-marriage amendment; and so on. None of these revisions has anything to do with the document’s original meaning.

The truth is that for all their talk of purity, politicians like Palin, Angle, and Miller don’t seem to be particularly concerned with matching their actual positions to the Constitution they profess to worship. For them, the sacred text serves a higher purpose—and in the end, that purpose isn’t hard to pinpoint.

Since the earliest days of the republic, Americans have, like the Tea Partiers, spoken of the Constitution in religious terms. In 1792, Madison wrote that “common reverence…should guarantee, with a holy zeal, these political scriptures from every attempt to add to or diminish from them.” George Washington’s Farewell Address included a plea that the Constitution “be sacredly maintained.” In his Lyceum speech of 1838, Abraham Lincoln cited the document as the source of “the political religion of the nation” and demanded that its laws be “religiously observed.” In 1968, Supreme Court Justice Hugo Black called the Constitution his “legal bible,” and a few years later, during Richard Nixon’s impeachment hearings, Texas Rep. Barbara Jordan testified that her “faith in the Constitution is whole.” But the similarity between these figures and the Tea Partiers ends at the level of language. For leaders like Lincoln and Jordan, the Constitution is a symbol “that suppl[ies] an overarching sense of unity even in a society otherwise riddled with conflict,” as sociologist Robin Williams once wrote. It is an integrative force—the cornerstone of our civil religion.

The Tea Partiers belong to a different tradition—a tradition of divisive fundamentalism. Like other fundamentalists, they seek refuge from the complexity and confusion of modern life in the comforting embrace of an authoritarian scripture and the imagined past it supposedly represents. Like other fundamentalists, they see in their good book only what they want to see: confirmation of their preexisting beliefs. Like other fundamentalists, they don’t sweat the details, and they ignore all ambiguities. And like other fundamentalists, they make enemies or evildoers of those who disagree with their doctrine. In the 1930s, the American Liberty League opposed FDR’s New Deal by flogging its version of the Constitution with what historian Frederick Rudolph once described as “a worshipful intensity.” In the 1960s, the John Birch Society imagined a vast communist conspiracy in similar terms. In 1992 conservative activists formed what came to be known as the Constitution Party—Sharron Angle was once a member—in order to “restore American jurisprudence to its Biblical foundations and to limit the federal government to its Constitutional boundaries.” Today, Angle asserts that “separation of church and state is an unconstitutional doctrine,” and Palin claims that “the Constitution…essentially acknowledg[es] that our unalienable rights…come from God.” The point is always the same: to suggest that the Constitution, like the Bible, decrees what’s right and wrong (rather than what’s legal and illegal), and to insist that only the fundamentalists and their ilk can access its truths. We are moral, you are not; we represent America, you do not. Theirs is the rallying cry of culture war.

The Tea Partiers are right to revere the Constitution. It’s a remarkable, even miraculous document. But there are many Constitutions: the Constitution of 1789, of 1864, of 1925, of 1936, of 1970, of today. Where O’Donnell & Co. go wrong is in insisting that their idealized document is the country’s one true Constitution, and that dissenters are somehow un-American. By putting the Constitution front and center, the Tea Party has reinvigorated a long-simmering argument over who we are and who we want to be. That’s great. But to truly honor the Founders’ spirit, they have to make room for actual debate. As usual, Thomas Jefferson put it best. In a letter to a friend in 1816, he mocked “men [who] look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched”; “who ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.” “Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs,” he concluded. “Each generation is as independent as the one preceding, as that was of all which had gone before.” Amen.

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