Tea-ing Up the Constitution
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....
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 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.”...
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.”...
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