Countering the Constitutional Crazies

By Garrett Epps, Professor of Law, University of Baltimore School of Law. Epps is also a contributing editor at The American Prospect.

When future generations write the history of our time, I think they'll be struck by the way that vocal minorities in early 21st American culture succeeded in convincing their fellow citizens that there is doubt about obvious truths. The unquestionable reality of climate change is now discussed (only in America) as if it were a doubtful surmise; so, too, in much of the country is the demonstrable fact of evolution through natural selection. Human reproductive biology is now being targeted for dumbing down (see recent claims made by Sen. Todd Akin), as is public health.  I daily expect to read that we must all act as if there’s some question that pi equals three, because I Kings 7:23 implies that it does.

That same sort of dumbing-down has been directed, over the past four years and more, at the United States Constitution. Any citizen's ears are daily assaulted by insistent claims that the "purpose" of the Constitution was to cripple Congress; that the First Amendment does not separate church and state; that the Second Amendment was passed so that citizens may defy federal law; that states are "sovereign" and may expel federal officials at their pleasure; and that federal environmental, social welfare, and worker-safety programs are illegitimate uses of the Commerce Power. If you don't believe me, just turn on Fox News, listen to AM talk radio, or read the letters columns of your hometown newspaper.

And it's not just the public dialogue that is coming unhinged; extremists on the lower federal bench have begun using libertarian rhetoric as part of a crusade to cripple government. As one example, just consider the recent decision by the D.C. Circuit that new health warnings on cigarette packs are unconstitutional because efforts to discourage smoking are an "ideological," not a public health, matter.

Two years ago, I became concerned about the toxic effects of this ideological sludge. The result is my new book, published this week, Wrong and Dangerous: Ten Right Wing Myths About Our Constitution. 

The book was born out of a session of Tea Party-style "Constitution school" in a church basement, in which our instructor solemnly informed us that the Constitution is the law of Moses, brought to England by the Lost Tribes of Israel, and "intended" to restore the tallow-candle world of fifth-century Saxon England.

I am not making this up. These seminars are going on every weekend across the country.

Wrong and Dangerous is written for lawyers and non-lawyers alike. I did my best to make it a short, punchy, and often funny read, while at the same time not muffling my outrage at the sheer gall of the far right in assaulting our basic guarantees of civil liberty and self-government.

The book is not aimed at converting the Bachmanns and Becks; instead, it tries to be a toolbox for citizens who hear the nonsense being preached at them and suspect that there's something wrong about it. Here in one volume is a list of the far right’s biggest lies about the Constitution and here are clear answers--drawing on the text, the thought of the Framers of the document and its Amendments, and the facts of American history to explain that the "original intent" of the Constitution was to provide us, the people, with the tools that we need to govern ourselves and form "a more perfect union." One reader recently let me know that he'd read it during two plane flights and laughed all the way. 

That's what I was aiming for. The best tool we have to rout the constitutional crazies is what the late Charles Black once called "the sovereign prerogative of philosophers – the prerogative of laughter."