July 19, 2010

Private: Strange Brew: The Constitution According to the Tea Party

Articles of Confederation, Elizabeth Wydra, Tea Party

By Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Cross-posted at The Huffington Post 

The emergence of the Tea Party movement as an increasingly persistent presence in the media and in politics has focused national attention on the Constitution, as Tea Party members invoke our Nation's Founding in their rhetoric and claim to root their agenda in the Constitution. In the abstract, such an effort is commendable: the Constitution should frame our political debates and should be followed by our leaders, whatever their political stripe. But just because you keep a copy of the Constitution in your purse or go to a Tea Party book club does not mean that your claims about the words and meaning of our Nation's charter are plausible. As Americans engage in conversations and debates about the Constitution, it is important we are all on the same page about what our Constitution says--and what it doesn't.

A close look at the Tea Party's version of the Constitution shows that it bears little resemblance to our actual Constitution. Constitutional Accountability Center put to the test the Tea Party's central argument--that our country's Founders established a sharply limited, weak national government--in an Issue Brief released today entitled Setting the Record Straight: The Tea Party and the Constitutional Powers of the Federal Government. Turns out this claim doesn't stand up to the test of text and history.

In fact, while the Tea Partiers declare that they want to go to back to the ideas of the Constitution, it seems that they really want to return to the Articles of Confederation, the failed experiment with a weak central government that was such a disaster George Washington once suggested that it nearly cost Americans victory in the Revolutionary War. The Tea Party's idea that the federal government has no power to act in key areas such as health care, environmental protection and civil rights fits more with the discarded Articles than with the Founders' second and lasting attempt to craft a national charter, our Constitution.

As a history refresher, the Articles of Confederation, adopted by the Second Continental Congress in 1777 and ratified in 1781, established a confederacy built merely on a "firm league of friendship" between thirteen independent states. There was only a single branch of national government, the Congress, which was made up of state delegations. Congress under the Articles of Confederation had some powers, but was given no means to execute those powers. Congress could not directly tax individuals or enact legislation that directly affected citizens; it could raise money only by making requests to the states.

By the time our Founders took up the task of drafting the Constitution in 1787, they had lived under the dysfunctional Articles for a decade and were focused on creating a new, better form of government with a sufficiently strong federal power. This is exactly what our Constitution establishes, giving Congress the power to, among other things, regulate interstate commerce and tax and spend for the general welfare.

The Tea Party story about our sharply limited national government is not only inconsistent with the words and intentions of our Founding generation, but it also requires a form of selective amnesia about the important changes made to the Constitution by successive generations of Americans. Since the Founding, the American people, at critical moments in our country's history, have amended the Constitution to ensure that Congress has all the tools it needs to address national problems and protect the constitutional rights of all Americans. Eight separate amendments expanded the enumerated powers of the federal government, giving vast powers to the government to protect equality, civil rights, and voting rights and to raise funds through taxes on income. Amendments such as the 17th Amendment, which took the power of electing U.S. senators away from state legislators and gave it to the people by popular vote, structurally increased the power of the federal government, vis-à-vis the states.

As the Senate debates Elena Kagan's Supreme Court nomination and the Tea Party continues to focus the Nation's attention on the Constitution, Constitutional Accountability Center will publish a series of posts taking up the various claims about the Constitution being made by Tea Party candidates such as Rand Paul and Sharron Angle, by Senators opposing Kagan's confirmation, and by other elected officials such as Virginia Attorney General Ken Cuccinelli. At the risk of taking too seriously what may simply be political arguments dressed up as constitutional claims, CAC will put these claims to the test, drawing upon the words of our Nation's charter, constitutional debates and other legislative history, and the best constitutional scholarship available. It is important that our national conversation engage the real Constitution and not the "Constitution According to the Tea Party."

To be sure, there are plenty of good faith disagreements to be had over our Constitution's meaning--but we've all got to be reading the same document. When the Tea Partiers' constitutional claims do not stand up to the test of the Constitution's text and history, Americans should not hesitate to speak up and prevent such potentially dangerous distortions of our Nation's charter. It's past time to set the record straight on the Constitution.


Constitutional Interpretation