by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Somewhat surprisingly, even in the curious world of the Tea Party, several Tea Party Senate candidates have been asking people to vote for them precisely because they want to take away the people’s right to vote for them.  In other words, they are running on a platform that includes a call to repeal the 17th Amendment to the Constitution, which shifted the selection of U.S. Senators from the state legislatures to direct election by voters.   Such a repeal proposal is foolhardy—and not just because it banks on the rather ridiculous proposition that voters will turn out to vote to support taking away their right to vote.

It seems unlikely that voters will go for it.  “We the People” have passed six amendments expanding the right to vote, and the entire thrust of our constitutional history is toward expanding our democratic process, not taking choices away from voters.  But the movement to repeal the 17th Amendment is serious enough that the New York Times devoted an editorial piece to the issue, noting:

Allowing Americans to choose their own senators seems so obvious that it is hard to remember that the nation’s founders didn’t really trust voters with the job. The people were given the right to elect House members. But senators were supposed to be a check on popular rowdiness and factionalism. They were appointed by state legislatures, filled with men of property and stature.

Under the original Constitution, U.S. Senators were chosen not by the people, but by state legislators. Article 1, Section 3 of the Constitution provided that “the Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.” The 17th Amendment, ratified in 1913, was part of a wave of progressive constitutional reforms that sought to make the Constitution, and our nation, more democratic.  It gave Americans the right to vote directly for their Senators, thereby strengthening the link between citizens and the federal government.  (Whether Senators have been more or less able to serve as a check on “popular rowdiness” since adoption of the 17th Amendment is debatable, but considering that the Tea Party has the rowdiest party on the block right now, it is surprising that they would advocate returning to a more restrained, aristocratic vision of the Senate.)

Proponents of repealing the 17th Amendment argue that returning the selection of U.S. Senators to state legislatures would enhance states’ rights and increase the role of the states in the federal government.  But the Constitution’s strongest protection of federalism lies in the structure of the Senate, which explicitly builds in representation of the states themselves and secures two votes in the Senate for each state.  Those structural protections remain.

It is also worth remembering why the 17th Amendment was ratified in the first place: to prevent corporate corruption in the political process and place the responsibility of electing U.S. Senators directly in the voters’ hands.  The selection of U.S. Senators by state legislatures was viewed as particularly susceptible to corporate corruption because special interests could pay off state lawmakers to vote a certain way in Senate contests.  Supporters of direct election of Senators by the people believed that it would be more difficult for corporate interests to “bribe” a large group of individual voters than a small group of identifiable legislators.

The concern over corporate influence in elections was more pressing after the Civil War and the growth of industry in the United States.  As political leader William Jennings Bryan explained late in the 19th Century, the problem of corporate political influence had grown since the time of the Founding, and required new regulation.  In arguing for direct election of senators, he said:

We all recognize that there is a reason for the election of Senators by a direct vote today that did not exist at the time the constitution was adopted. We know that today great corporations exist in our States, and that these great corporations, different from what they used to be one hundred years ago, are able to compass the election of their tools and their agents through the instrumentality of Legislatures, as they could not if Senators were elected directly by the people.

26 Cong Rec. 7775 (1894).

President Theodore Roosevelt also directly answered the Tea Party’s point about states’ rights, explaining in his 1905 message to Congress that “corporate organizations are now so large” that “supervision can only be effectively exercised by a sovereign whose jurisdiction is coextensive with the field of work of the corporations – that is by the National Government.”

Corporations have grown vastly since Roosevelt spoke these words, and the problem of big-money political influence in senatorial and other election contests is just as pressing, if not more pressing, now than when the 17th Amendment was ratified.  The Supreme Court’s ruling this past January in Citizens United v. FEC has only exacerbated the problem by putting corporate political activities on equal footing with individual Americans’ civic participation and giving the green light to corporations to overwhelm the political process with general treasury funds.  Repealing the 17th Amendment and allowing special interests to target state legislators in order to buy the U.S. Senator of their choice would only make matters worse.

by David Gans, Director of the Human Rights, Civil Rights & Citizenship Program, Constitutional Accountability Center

A rather surprising flash point in the confirmation debate over Supreme Court nominee Elena Kagan has been the argument by Tea Party members and allies that Kagan should not be confirmed because of Kagan’s testimony that her job as a Justice would be to “enforce the Constitution and the laws,” and that she doesn’t have a view about the protection of natural rights “independent of the Constitution.”  Tea-partiers are up in arms because Kagan limited herself to the protections set out in the Constitution, and did not embrace the Declaration of Independence as a source of “God-given inalienable rights” as Republican Senators Tom Coburn and Charles Grassley repeatedly pressed her to.  According to Rush Limbaugh, “She is basically just throwing the whole concept of natural law down the toilet and flushing it.  She is throwing the Declaration of Independence down the toilet.”   A whole host of Tea Party-affiliated websites parrot the identical claim – Kagan cannot be trusted to protect the liberties of Americans because of her “opposition” to the Declaration.

But in fact, Kagan’s basic point is unimpeachable.  A critical aspect of the job of a Supreme Court Justice is to decide cases brought under the Constitution, and that means looking to the Constitution, and not to the Declaration of Independence or natural law.  Justice Scalia and Justice Thomas have both made identical points, and no one has suggested this makes them unfit as Justices.  For example, Justice Scalia wrote in a 2000 dissenting opinion that “The Declaration of Independence . . . is not a legal prescription conferring powers on the courts,” while Justice Thomas told the Judiciary Committee in his 1991 confirmation hearing that he “did not see a role for the use of natural law in constitutional adjudication.”  So Kagan’s testimony is nothing new.

The Tea Party’s attack not only misses this basic difference between the Declaration and the Constitution – the latter is binding law, the former is not – but it also ignores the very critical fact that core promises of the Declaration have actually been written into the Constitution.  Indeed, no part of the Constitution’s text better reflects the Declaration than does the Fourteenth Amendment, which was added to the Constitution after the Civil War to make good on Abraham Lincoln’s promise at Gettysburg “that this nation shall have a new birth of freedom.”  In 1866, Schuyler Colfax, the Speaker of the House of Representatives, called the Fourteenth Amendment “the gem of the Constitution . . . because it is the Declaration of Independence placed immutably and forever in our Constitution.”  While the Founders’ Constitution and the Bill of Rights, added in 1791, explicitly protected a number of substantive fundamental rights, and the Ninth Amendment made clear that the Constitution also secured other, unenumerated, substantive fundamental rights, it was only with the ratification of the Fourteenth Amendment that the Declaration’s twin promises of liberty and equality were written into our Nation’s foundational document, and redeemed from the sin of slavery.

Kagan’s testimony shows that she understands this text and history, and is committed to enforcing both the Constitution’s “substantive protection of liberty,” and the “fundamental American constitutional value” of “equality under law.”   While some conservatives on the Senate Judiciary Committee used the hearing to question the jurisprudence of  Thurgood Marshall – Kagan’s former boss and the lawyer most responsible for breathing life into the Constitution’s Equal Protection Clause – Kagan’s testimony made clear that the Fourteenth Amendment should be interpreted broadly to give effect to the expansive language its framers used to guarantee liberty and equality for all.  There’s no better way to honor the men and women who fought to write the central principles of the Declaration of Independence into the Constitution.

___

by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

As we noted in last week’s post taking on the Tea Party’s constitutional challenges to the “individual mandate,” the greatest rallying point for Tea Party opposition to federal government power is the Patient Protection and Affordable Care Act, the historic health care reform law enacted earlier this year.  The Tea Partiers’ heated rhetoric is reaching a boiling point with the upcoming elections.  Republican Rep. Zach Wamp, running for governor in Tennessee, suggested over the weekend that states should think about seceding from the Union because of the health care law, echoing a similar, earlier call from Texas Governor Rick Perry.  Several state attorneys general and governors have filed lawsuits challenging the Act — including one filed by Virginia Attorney General Ken Cuccinelli, and another by a group of state officials led by Florida Attorney General Bill McCollum — alleging that the Act exceeds Congress’s powers and infringes upon state sovereignty.   Virginia and Idaho have passed, and other states are considering, “nullification” laws that attempt to block implementation of the Act outright, a tactic not seriously pursued since a handful of states tried to block implementation of federal civil rights laws in the 1950s and ’60s.

Tea Party claims that federal health care reform violates the Constitution’s 10th Amendment and “states’ rights” rely on an inaccurate view of the federal government as a weak, sharply limited central government— a claim that CAC recently debunked in the Issue Brief, Setting the Record Straight: The Tea Party and the Constitutional Powers of the Federal Government— and a distorted understanding of federalism.  In reality, our Constitution creates a vibrant system of federalism that gives broad power to the federal government to act in circumstances in which a national approach is necessary or preferable, while reserving a significant role for the states to craft innovative policy solutions reflecting the diversity of America’s people, places, and ideas.  In addition, the Constitution’s Supremacy Clause gives the federal government the authority to enforce these lines of authority, preempting state law when necessary to achieve a national goal.

Faux Federalism Claims Against Health Care Reform

While most Tea Partiers speak generally about how health care reform violates states’ rights, the litigation in Florida provides some specific examples of these arguments — and their obvious flaws.

In the Florida case, the conservative AGs and their co-plaintiffs are arguing that the Affordable Care Act’s expanded Medicaid coverage places an unconstitutional burden on the states, which share the cost of Medicaid with the federal government.  Congress created Medicaid in 1965 to provide financial assistance to states that choose to pay for some costs of medical treatment for low-income state residents.  Since 1965, Congress has provided hundreds of billions of dollars for Medicaid.  State participation in Medicaid is entirely optional—for example, Arizona did not participate in Medicaid until 1982—but if a state does participate and accept federal money, then the state must comply with the requirements set by Congress, such as minimum eligibility requirements.  The Affordable Care Act reduces health care costs and provides insurance to millions of Americans in large part due to an expansion in Medicaid eligibility.  The federal government will pay states 100% of the cost of increased Medicaid benefits until 2016, an amount that declines gradually thereafter to 90%.

Putting aside the obvious point that this seems like a very good deal for the states and a welcome reform for low-income state residents, the argument that the Act’s Medicaid expansion puts an unconstitutional burden on the states is frivolous for a simple reason:  states are free to rid themselves of any burdens imposed by the Act by withdrawing from the wholly voluntary Medicaid program.  Indeed, the AGs in the Florida lawsuit candidly acknowledge this fact in their complaint, but assert that withdrawing from the Medicaid program is infeasible because it is so popular (“Medicaid has, over the more than four decades of its existence become customary and necessary for citizens throughout the United States.”).  In other words, the AGs want to keep the portions of the popular Medicaid program they like, while asking the courts to throw out the new Medicaid requirements they don’t like, which are aimed at reducing medical costs and expanding health insurance coverage.  This is an argument better suited for the halls of Congress than the halls of Justice — seeking a judicial do-over on the health care law seems like just the sort of invitation to “judicial activism” conservatives love to hate.

The Constitution and Supreme Court precedent make clear that Congress has the power of the purse — and strings may be attached.  As the Supreme Court clearly explained in South Dakota v. Dole (1987), it is well-established that “Congress may attach conditions on the receipt of federal funds.”  If the AGs don’t want their states to have to comply with the new Medicaid requirements, they should advocate that their states refuse federal Medicaid money and withdraw from the program.

The irony of “states’ rights” claims that the health care law violates constitutional principles of federalism is that the Act actually reflects the federal-state partnership at its best and works to preserve state policy independence where possible.  For example, the Act gives states the discretion to form their own insurance exchange or join with other states to form a regional exchange, allowing them to choose what health care plans are available to their citizens.  It even allows states to opt out of the system set up by the Act and create their own—with or without an individual mandate, or including a “public option”—so long as the state’s alternative system meets the coverage and cost containment requirements in the Act.  The Act preserves the states’ longstanding role as leaders in policy innovations that better protect their citizens, resources, and environment.  The federal government learned from state experiences with health care reform, and, in turn, the Affordable Care Act preserves the states’ regulatory flexibility in several key ways to come up with tomorrow’s health care solutions.

Attempts to “Nullify” Federal Health Care Reform in the States—and Threats of Secession

More troubling than the legal claims that the Act violates the 10th Amendment are Tea Party suggestions that the Amendment justifies state nullification of the health care law.  For example, underlying the Virginia lawsuit challenging the constitutionality of the Affordable Care Act is a state law passed to “nullify” the Act’s requirement that individuals who can afford to purchase a minimum level of health insurance do so or face a tax penalty.  This is contrary to Article VI of the Constitution, which provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States and of the several states, shall be the Supreme Law of the Land, and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Known as the “Supremacy Clause,” this constitutional provision establishes that duly passed federal laws “shall be the supreme Law of the land” and any conflicting state law will be trumped or “preempted” by federal law.  Advocates who disagree with health care reform—or environmental regulations or civil rights laws—are perfectly entitled to argue that these laws go beyond Congress’s enumerated powers, and even to bring lawsuits asking the courts to so hold.  But when they take the extreme step of advocating for the nullification of federal law—in direct contradiction of the Supremacy Clause—they are dishonoring our Founders and the Constitution itself.

When states attempt to nullify federal action, they pass legislation or take other official action that seeks to block implementation of federal law.  Nullification has been suggested to aid noble causes—such as resisting the Alien and Sedition Acts and the Fugitive Slave Act—but the tactic was most aggressively advocated for in the 1820s and ’30s by pro-slavery politician John C. Calhoun (who started the short-lived Nullifier Party), extended by the Confederate secessionists in the 1850s and ’60s, and then reinvigorated by segregationists in the 1950s and ’60s.

For example, after the Supreme Court’s 1954 decision in Brown v. Board of Education, a number of southern state legislatures passed “Resolutions of Interposition” vowing not to abide by the Supreme Court’s ruling that the Constitution required desegregated schools.  In Cooper v. Aaron (1958), in a unanimous opinion in the name of all nine Justices, the Supreme Court repudiated the Little Rock, Arkansas school board’s plan to prevent African-American students from attending the formerly all-white Central High School and strongly reaffirmed that states have no power to nullify federal law.  Quoting the Supremacy and Oath of Office Clauses and discussing precedents dating back to the birth of the Republic, the Court held flatly unconstitutional Arkansas’ refusal to obey the mandate of the Equal Protection Clause.  “[N]o state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”

As this history suggests, while supporters of nullification efforts claim that they are upholding the Constitution, Virginia’s nullification law and a similar act in Idaho are in fact attacks on our Nation’s charter.  States can use the political process as well as the courts to raise constitutional objections to federal action, but they cannot claim a unilateral right to nullify federal law.  Even if nullification efforts are simply symbolic protest, states should think twice about adopting such a charged motif — state efforts to block implementation of federal law are part of a dark chapter in our Nation’s history that none of us should want to reopen.

Speaking of dark historical chapters, secession threats by politicians like Governor Perry and Rep. Wamp not only hearken back to low points in American history but are also blatantly unconstitutional.  As acclaimed constitutional historian Akhil Amar definitively demonstrated in America’s Constitution: A Biography, once states ratified the Constitution, secession was no longer an option — the Constitution allowed for amendments if the people became dissatisfied, but the Constitution in Articles V and VI also “extinguished the right and power of unilateral secession for each state populace that joined the Constitution’s new, more perfect union.”  Not to mention the fact that we fought a bloody civil war over President Lincoln’s vision of this more perfect union — and the Union prevailed.

Nullification and secession might have been reasonable ways to express opposition to federal health care reform, if our country had continued under the fundamentally flawed Articles of Confederation.  But under our enduring Constitution — the real one, not the Constitution According to the Tea Party — such efforts are not just unwise, but unconstitutional.

by Doug Kendall, President & Founder, Constitutional Accountability Center

Perhaps the single most disturbing thing about the rise of the Tea Party as a growing force in American politics is the frequency with which the movement’s most notable figures have rallied the faithful with talk of armed rebellion or revolution, often invoking the Framers in support of this call to political violence:

• Former Alaska Governor Sarah Palin has said “America is ready for another revolution and you and I are a part of this,” and told her supporters after the passage of the health care bill: “Don’t Retreat, Instead ‐ RELOAD!”
• Representative Michele Bachmann of Minnesota has claimed “it was Thomas Jefferson who said, a revolution every now and then is a good thing.  What do you think?”
• Senate candidate Sharron Angle of Nevada took the Jefferson analogy one step further, telling conservative talk radio host Lars Larson,  “In fact, Thomas Jefferson said it’s good for a country to have a revolution every 20 years,  I hope that’s not where we’re going. But, you know, if this Congress keeps going the way it is, people are really looking toward those Second Amendment remedies.”
• Rick Barber, an Alabama candidate for Congress, wins the “craziest Tea Party candidate ever” award for this ad featuring an actor dressed as George Washington rallying Tea Partiers to “gather your armies,” as a response to progressive taxation.

With anger high in this country in response to the worst economic downturn since the Great Depression, and with the rise of armed extremist groups since President Obama took office, these comments are just about as smart as throwing a lighted match into a powder keg.   As Michael Gerson, a former speechwriter for President George W. Bush wrote in a column for the Washington Post, comments like Angle’s lack “the seriousness of genuine sedition,” but should, nonetheless, be “disqualifying for public office.”

More important for present purposes, these comments get our constitutional history fundamentally wrong.  As Gerson puts it, they are “so far from the moral weightiness of the Founders that it mocks their memory.”  Demonstrating the disconnect between Tea Party rhetoric invoking Founding principles and our actual constitutional history is the point of Constitutional Accountability Center’s ongoing series, Strange Brew: The Constitution According to the Tea Party, so this article will pick things up from there.

Thomas Jefferson, our third president and the principal author of the Declaration of Independence, was indeed one of the more radical members of our Founding generation in terms of his tolerance for political violence.  As Bachmann and Angle both extol, Jefferson, in a letter from France in 1787, expressed his sympathy with the cause of Shays’ Rebellion –- an armed uprising by farmers in western Massachusetts in 1786-87 — saying “God forbid we should ever be twenty years without such a rebellion.”  We’ll return to Jefferson momentarily, but for now suffice it to say that when Jefferson was expressing sympathy for Shays’ Rebellion, he was doing so from the comfort of his Ambassador’s quarters in Paris.

Shays’ Rebellion had a profoundly different impact on the draftsmen of the U.S. Constitution, who were actually in America at that time.  For the leaders assembled in Philadelphia in the summer of 1787, Shays’ Rebellion, and the difficulty Massachusetts had in quashing it, were what James Madison called one of the “ripening incidents” that led the Founders to propose a “more perfect union” capable of securing the “common defense.”  In the preface to his Notes of Debates in the Federal Convention of 1787, Madison wrote:

As the public mind has been ripened for a salutary reform of the political system . . .  among the ripening incidents was the Insurrection of Shays, in Massachusetts against her Government; which was with difficulty suppressed. ..

This concern over insurrection and rebellion within the states is reflected in some of the Constitution’s most muscular language, such as the federal government’s power to “provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions. . .”  and to suspend habeas corpus “in cases of rebellion.”  As Alexander Hamilton explained in Federalist 21, a “palpable defect” in the Articles of Confederation was “total want of a sanction to [the Confederation’s] laws.”  Specifically referencing Shays’ Rebellion, Hamilton explained that the “liberties of the people” can only be protected if the federal government has the power to quash insurrections.

After ratification of the Constitution, the powers of the new federal government were quickly tested in the early 1790s with the Whiskey Rebellion.  Like the Tea Partiers, the whiskey rebels of the late 18th Century believed the federal government had overreached and had unfairly imposed taxes upon them. As recounted in Ron Chernow’s brilliant biography of Alexander Hamilton, President George Washington determined the rebellion must be crushed, stating that if “a minority is to dictate to the majority, there is an end put at one stroke to republican government.”  Then, the 62-year-old Father of our Country joined Alexander Hamilton and the federal army on a westward journey that put the rebellion to rest.

As Washington’s actions and statements support, in the American republic, we express our disagreement about policy through speeches, petitions, assemblies, and elections, not by taking up arms against our government, other than in the unlikely instance of a coup d’etat by the national military.  George Washington, who led the colonies in a successful revolution against the tyrannical rule of England, which dictated to the colonies without giving them representation in the British Parliament, had no mercy for the whiskey rebels—a key difference between the heroic American Revolution and the Whiskey Rebellion was that the whiskey rebels had a vote in a representative government and nonetheless turned to violence and rebellion to press their agenda.

Even Jefferson ultimately came to see the idea of revolution in a different light.  After serving in Washington’s Administration, Jefferson became the strongest critic and rival of John Adams, Washington’s Vice President and successor as President.  When Jefferson defeated Adams in the momentous election of 1800, Jefferson hailed the election as the “Revolution of 1800,” but as Jefferson explained to a friend, it was a revolution “forged not ‘by the sword,’ but by the ‘suffrage of the people.’”

If the Tea Partiers want to change our country, they are free to try, but they need to do so the American way: by winning elections.  Their saber-rattling about armed rebellion and Second Amendment remedies mocks the framers they profess to revere, and undermines the democracy the framers bequeathed to all Americans.

Matt Cagle, a legal intern for CAC this summer, provided invaluable research assistance for this piece.

by David Gans, Director of the Human Rights, Civil Rights & Citizenship Program, Constitutional Accountability Center

Given the anti-tax fervor in the Tea Party set, it’s not surprising that repeal of the Sixteenth Amendment is high on the Tea Party’s constitutional agenda.  The Amendment, after all, was added to the Constitution in 1913 to make clear that Congress has the “power to lay and collect taxes on incomes, from whatever source derived . . . .”  Tea Party luminaries like Senate candidate Sharron Angle of Nevada, and a host of other Tea Party activists, have called for repeal of the Sixteenth Amendment, making the claim that this grant of taxing power was a harmful addition to the Constitution that increased the size and power of the federal government at the expense of the people.

Once again, the Tea Party’s vision of the Constitution is exactly backward.  The power to tax, including the power to impose a tax on income, was a power of the federal government since the Founding.  The Sixteenth Amendment was enacted to restore this power after the Supreme Court ‘s 1896  decision in Pollock v. Farmers’ Loan & Trust Co. overturned a federal income tax, disregarding clear constitutional history and a century of the Court’s precedents to reach its desired result.  In trying to forbid Congress from imposing an income tax, the Tea Party is trying to repeal a power given by the Founders they purport to revere.  Doing so would be a serious constitutional mistake.

Article I, Section 8 of the Founders’ Constitution begins by giving to Congress the “Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . . .” This provision was necessary to overcome one of the great problems that hindered the federal government under the Articles of Confederation – its inability to raise money to support the federal government.  As Akhil Amar’s splendid history of the Constitution shows, in the aftermath of the abject failure of the Articles of Confederation, Americans chose to “authorize a sweeping regime of continental taxes . . . .”  The Founders recognized a “decisive difference” between the imperial taxes they had protested at the Boston Tea Party, and the new taxes they authorized in the Constitution, “decided on by public servants chosen by the American people themselves – taxation with representation.”  While the Boston Tea Partiers had objected to imperial taxes imposed by a legislature in which Americans had no voice, the Founders recognized that taxation approved by the people’s representatives in Congress was necessary to ensure the federal government could fulfill its constitutional responsibilities.

The Constitution contains very few limitations on Congress’ power to tax.  The only one relevant for current purposes is the part of Article I, Section 9 that forbids a “Capitation, or other direct, Tax” unless “in proportion to the Census or Enumeration.”  According to Black’s Law Dictionary, a capitation tax is  “[a] tax or imposition upon the person,” a direct tax is “[o]ne that is imposed directly upon property, according to its value.”  The Capitation Clause was written in order to prevent Congress from imposing a head tax on slaves and to limit taxes on land, due to what Alexander Hamilton, in Federalist 21, called the “herculean task to obtain a valuation of the land.”  Neither of those limitations in any way prevented Congress from collecting an income tax.

In 1796, the Founding-era Supreme Court unanimously read the Capitation Clause according to its narrow, original meaning in Hylton v. United States, holding that a tax on carriages was not a direct tax, and questioning whether anything other than a tax on slaves or land could qualify as a direct tax.  Ninety years later, in 1881, the Supreme Court in Springer v. United States faithfully applied the principles of Hylton in unanimously upholding a federal income tax passed by Congress at the end of the Civil War, noting both the judgment of the framers and the Hylton Court ruling that direct taxes related to slaves or land.

Then, in 1896, a conservative majority on the Supreme Court in Pollock threw the Constitution’s text and the rulings in Hylton and Springer to the side in a 5-4 decision that a 2% flat tax on individual and corporate income was an unconstitutional Direct Tax.  The Justices saw the tax as an “assault on capital,” and bent the Constitution to strike it down.  As Akhil Amar has explained, “it was the very fact that the federal income tax . . . had targeted those most able to pay that rankled . . . the Pollock Court’s conservative defenders.”  The Court’s dissenters rightly charged that the ruling “cripples the just powers of the government in the essential matter of taxation.”

In the Sixteenth Amendment – ratified 17 years later – the American people rejected Pollock’s newly-minted limitation on Congress’ express power to tax, restoring the original understanding of both the taxing power and the Capitation Clause.  “The Congress shall have the power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to enumeration.”  Supported alike by Republican Presidents Howard Taft and Theodore Roosevelt and Democratic President Woodrow Wilson, the Amendment sailed through Congress, and was easily ratified by the States.  The American people recognized that a progressive income tax was essential to the effective functioning of the federal government and to ensure that all Americans, including wealthy persons and the big corporations they ran, contribute a proportionate share to the running of the government.

The arguments put forth in support of the Tea Party’s campaign to repeal the Sixteenth Amendment find no basis in the history of our Nation or our Constitution. To the contrary, they run directly counter to the judgment of the  Founders of our Nation as well as the framers of the Sixteenth Amendment that Congress needs a broad power to impose taxes so that the federal government can live up to its expansive constitutional mandate to  “provide for the common Defence and general Welfare of the United States . . . .”  While the Tea Party surely has the right to advocate stripping the federal government of the broad taxing power it has had since the Founding, the American people should understand the actual history of that power and resoundingly reject such a harmful change.

by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Though the legal battle over Arizona’s controversial new immigration law is only just heating up, state legislators affiliated with the Arizona Tea Party are reportedly working on yet another piece of tough legislation aimed at stemming illegal immigration, this one intended to prevent the children of undocumented immigrants from obtaining “birthright citizenship.”  Buoyed by anti-immigrant sentiment and general frustration in the state, these Arizona legislators are undeterred by the fact that such citizenship is guaranteed by our Constitution, in the strikingly clear language of the Fourteenth Amendment that reads:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Some, like State Senator Russell Pearce in Arizona, refuse to accept that this language covers children of undocumented immigrants.  Other prominent Tea Party allies – including Rand Paul (of Kentucky) and Rep. Duncan Hunter (of San Diego) – have called for an outright repeal of this portion of the Fourteenth Amendment.  But Tea Partiers who want to read the Amendment’s citizenship clause narrowly to allow discrimination against U.S.-born children of undocumented immigrants are simply wrong as a matter of constitutional text and history.  And those who want to repeal the Fourteenth Amendment’s guarantee of equal citizenship threaten core constitutional values and ignore the reasons why the framers of the Amendment enshrined birthright citizenship in the Constitution in the first place.

Contrary to claims made by the Tea Party and other conservatives, the 19th century framers of the Fourteenth Amendment unambiguously intended to grant equal citizenship to children born in the United States without regard to the status or origins of their parents.  It was clear at the time the Amendment was drafted and ratified that the birthright citizenship clause would apply to a child whose parents were uninvited immigrants or a child born to parents brought to the United States as part of illegal slave trafficking, just as it would to a child whose parents were descended from English pilgrims who came over on the Mayflower.

While the immigration laws at the time were not as restrictive as they are now, much of the 19th century hostility toward immigrants, mostly Chinese and Roma or gypsies, was similar to the resentment and distrust leveled at illegal immigrants today: concern that immigrants would take away good jobs from U.S. citizens (coupled with a willingness to allow immigrants to take jobs perceived as undesirable); fear of waves of immigrants “invading” or overtaking existing American communities; and distrust of different cultures and languages.  These fears were expressed by some members of the Reconstruction Congress — who noted that birthright citizenship might expand the numbers of immigrants who would come to America, even those who committed “trespass” within the United States — but were not allowed to influence the requirements for citizenship written into the Fourteenth Amendment.

Drafted and ratified against this backdrop of prejudice against newly freed slaves and various immigrant communities, the Fourteenth Amendment provides that citizenship is granted automatically to anyone, regardless of race or ancestry, born within the jurisdiction of the United States.  The “subject to the jurisdiction of the United States” requirement was meant to exclude children born to parents who were technically on U.S. soil, such as diplomats or occupying armies, but were, by operation of certain legal principles like diplomatic immunity, considered not to really be within the United States.  As explained in an exchange on the Senate floor, Senator Benjamin Wade acknowledged a colleague’s suggestion that some persons born on U.S. soil might not be automatically granted citizenship, stating “I know that is so in one instance, in the case of the children of foreign ministers who reside ‘near’ the United States, in the diplomatic language.”  He went on to explain that children of foreign ministers were exempt not because of an “allegiance” or consent reason, but because there is a legal fiction that they do not actually reside on U.S. soil (which is why diplomats and their families residing in the U.S. generally cannot be arrested or prosecuted in our courts).  This has nothing to do with undocumented immigrants who are on U.S. soil and fully subject to prosecution in our courts if they are apprehended for criminal activity.

Case law immediately following the ratification of the Fourteenth Amendment confirms this straightforward reading of the Citizenship Clause.  In the 1886 case of Look Tin Sing, the court held that a child of Chinese parents—who still retained their status as Chinese citizens, despite their presence in the United States—was a U.S. citizen under the Citizenship Clause because he was born on U.S. soil.  As the court stated plainly, “It is enough that he was born here, whatever was the status of his parents.”  The Supreme Court affirmed this understanding of the Amendment in United States v. Wong Kim Ark (1897), ruling that a person born in the United States, whatever the immigration status of his or her parents, is a U.S. citizen under the Fourteenth Amendment.

Fixing the conditions of birthright citizenship in the Constitution, rather than leaving them up to constant revision or debate, befits the inherent dignity of citizenship, which should not be granted according to the politics or prejudices of the day. The idea that the states may legislate away birthright citizenship for children born to undocumented immigrants would have been anathema to the Reconstruction Framers.

The provision of citizenship by right of birth was constitutionalized to place the question of who should be a citizen beyond the mere consent of politicians and the sentiments of the day, and logically so.  After cataloguing the discriminatory enactments of the slaveholding states, it would have made no sense for the Reconstruction Framers to have made the citizenship of freed slaves open to easy revocation if these states regained legislative power.  Congressman Giles Hotchkiss specifically raised this fear when discussing the Fourteenth Amendment, noting the possibility that “rebel states” could gain power in the Congress and strip away the rights envisioned by the Reconstruction Framers, unless these rights were “secured by a constitutional amendment that legislation cannot override.”  The wisdom of the Reconstruction Framers in placing the conditions of citizenship above majority action was confirmed when exclusionary immigration laws were passed just after the Fourteenth Amendment was ratified. Had the racial animus of the Chinese Exclusion Laws, passed in the 1880s, been incorporated into the text of the Citizenship Clause, the Amendment would be a source of shame rather than an emblem of equality.  The current situation in Arizona—where the politicians behind the state’s recent law directing police to check the immigration status of anyone they suspect is in the country illegally are now setting their sights on passing a law that would prevent children of non-U.S., mostly Hispanic, citizens from obtaining birth certificates—is exactly what the Fourteenth Amendment was meant to avoid.

The principles motivating the Framers of the Reconstruction Amendments, of which the Citizenship Clause is a part, also demonstrate that the call to repeal the Citizenship Clause threatens core constitutional values.  The Supreme Court’s infamous Dred Scott decision—which was specifically overruled through the Citizenship Clause—demonstrates why the Reconstruction Framers drafted the Clause to place the class of persons eligible for citizenship beyond debate. Dissenting from the Dred Scott majority’s opinion that, under its view of the Constitution, “citizenship at that time was perfectly understood to be confined to the white race,” Justice Benjamin Curtis noted the potential dangers if Congress were empowered to enact at will “what free persons, born within the several States, shall or shall not be citizens of the United States.”  Curtis observed that if the Constitution did not fix limitations of discretion, Congress could “select classes of persons within the several States” who could alone be entitled to the privileges of citizenship, and, in so doing, turn the democratic republic into an oligarchy.

The framers of the Fourteenth Amendment believed that providing citizenship to persons born in the United States without regard to race or color was a long-overdue fulfillment of the promise of inalienable freedom and liberty in the Declaration of Independence. Inalienable rights are not put to a vote, and thus, as explained by the Supreme Court in the late 1800s, the Fourteenth Amendment “conferred no authority upon congress to restrict the effect of birth, declared by the constitution to constitute a sufficient and complete right to citizenship.”

Tea Partiers should not be allowed to claim that they take the Constitution seriously while at the same time twisting the document’s meaning and calling for repeal of some of the charter’s most meaningful provisions.  Everyone recognizes that there are problems in our immigration system in this country, but the answer to these problems is most assuredly not to turn our back on the Constitution’s fundamental promise of birthright citizenship.  The Citizenship Clause is our best hope for preserving equality, security and the American Dream.

(For a more detailed analysis and a thorough refutation of these claims, and others, please see our ACS Issue Brief “Birthright Citizenship: A Constitutional Guarantee.”)

A recurring theme within the Tea Party movement is that the Constitution provides no, or extremely limited, authority for the federal government to interfere with private discrimination.  Kentucky Senate candidate Rand Paul caused a small firestorm earlier this year by suggesting that he opposed the portions of the Civil Rights Act of 1964 that prohibit racial discrimination by private businesses providing public accommodations.  The outrage following his comments quickly forced Paul to backtrack at least somewhat, though he has still not said, unequivocally, that he supports federal laws banning discrimination by privately-owned establishments and believes these laws are constitutional.  Paul’s views are part of a larger Tea Party campaign to roll back federal regulation of private businesses – a leading Tea Party website TeaPartyPatriots.org flatly “oppose[s] government intervention into the operations of private business” – and to strictly limit, if not outright repeal, the protections available under the constitutional amendments added after the Civil War to guarantee liberty and equality for all Americans.  At the outer fringes of the Tea Party, Mark Williams, one of the leaders of the Tea Party Express, went so far as to suggest, in a racist “satirical” diatribe, the repeal of the Thirteenth and Fourteenth Amendments, and that the slaves would have been better off remaining in bondage.

While the Tea Party likes to wrap itself in the mantle of the Founders’ Constitution – as in this photo of Mark Williams speaking with the Constitution’s Preamble as his backdrop – it consistently gets the text and history of the Constitution wrong.  Both the Commerce Clause contained in Article I of the Founders’ Constitution as well as Section 5 of the Fourteenth Amendment plainly give Congress the power to ban racial discrimination by private businesses that run public accommodations.

As this Issue Brief by CAC documents, at the Founding, “We the People” created a federal government of defined but substantial powers, including the power to strike out at local commercial practices that jeopardize free trade.  The Commerce Clause is unquestionably a broad power, expressly giving Congress the power to regulate interstate commerce, traffic, and intercourse.  In 1964, in the landmark case of Heart of Atlanta Motel v. United States, the Supreme Court unanimously upheld the public accommodations provision of the 1964 Civil Rights Act under the Commerce Clause, pointing out that racial barriers thrown up by Jim Crow were hampering the free flow of interstate commerce.   No Justice of the Supreme Court has ever questioned the correctness of Heart of Atlanta’s holding, including Justice Thomas, who has long urged the Court to dramatically cut back on the recognized reach of the Commerce Clause.  For good reason, Heart of Atlanta is a foundational part of our law.  Congress must have substantial power to forbid commercial practices – such as racial discrimination – that hinder free trade of goods and services.

Just as important, Heart of Atlanta’s holding that Congress has the power to prohibit racial discrimination by businesses that operate places of public accommodation finds deep support in the text and history of the Fourteenth Amendment.  In fact, two Justices in Heart of Atlanta specifically concurred to explain that the Fourteenth Amendment gave Congress the power to enact the public accommodation provisions of the Civil Rights Act of 1964.

Constitutional Accountability Center’s report entitled The Shield of National Protection: The Text & History of Section 5 of the Fourteenth Amendment, available here, shows why the power of Congress to legislate against private actors who engage in invidious discrimination is firmly rooted in the text and history of the Constitution.

The framers of the Fourteenth Amendment wrote Section 5 to give Congress authority to regulate the actions of state officials and private actors to protect the liberty and equality of the newly freed slaves and their allies.  Acting against the backdrop of efforts to re-establish slavery, as well merciless violence perpetrated by former rebels and white terrorist groups against the freed slaves and their Union allies in the South, the framers sought to ensure that Congress would have broad legislative authority to protect civil rights, whether under attack by private actors or government officials.  In fact, Congress’ very first piece of civil rights legislation, the Civil Rights Act of 1866, applied to both state actors and private actors, and it is universally recognized that the Fourteenth Amendment was written to ensure that Congress had the power to pass the 1866 Act.  Nothing in this history gave private businesses a free pass to discriminate.

The basic premise of the Fourteenth Amendment – reflected in the text of the Equal Protection Clause – was that the states have a constitutional obligation to protect all persons, citizens and noncitizens alike, an obligation that Congress could enforce.  States could not turn a blind eye to criminal or discriminatory acts committed against a disfavored group.  As the framers recognized, “[a] State denies equal protection whenever it fails to give it.  Denying includes inaction as well as action.”  Thus, when states sat idly by while the freedmen and their allies were murdered, or otherwise had their rights trampled, the Fourteenth Amendment ensured Congress had clear constitutional authority to intervene.

Sadly, the Reconstruction-era Supreme Court – brimming with hostility to the Fourteenth Amendment’s protection of racial equality – refused to follow this text and history, and set the stage for the Jim Crow era in America through a series of rulings that sharply limited congressional power and effectively left blacks without any protection against Klan violence, or from assaults on their civil rights by other private actors. One of the most important of these rulings was the 1883 decision in the Civil Rights Cases, in which the Court struck down a part of the Civil Rights Act of 1875, reasoning that because the Fourteenth Amendment only limits state action, Congress could only legislate to fix constitutional violations by the states.  Only Justice Harlan, who argued in dissent that the Fourteenth Amendment gave Congress the power to prohibit racial discrimination by business owners operating public accommodations, was faithful to the Constitution’s text and history.

The Civil Rights Cases stood as the leading precedent on the subject until 1964, when Heart of Atlanta Motel unanimously upheld the public accommodations provision of the 1964 Civil Rights Act under the Commerce Clause.   Although the Court did not correct its grievous error committed in the Civil Rights Cases, the Court’s unanimous opinion in Heart of Atlanta Motel left no doubt that Congress has broad authority to require private persons and businesses to respect the civil rights of all Americans.  The result was to bring the Constitution back into line with text and history.

There are a range of fair disputes about the powers of the federal government, but the authority of Congress to enact the Civil Rights Act of 1964 and the validity of the Heart of Atlanta Motel ruling are not properly within that range.   In 2010, it is surprising and disturbing to find a national party candidate for Senate such as Rand Paul questioning the settled and unquestionably correct conclusion of the Supreme Court that the federal government may enact and enforce civil rights legislation applying to private businesses. Both the Commerce Clause and Section 5 of the Fourteenth Amendment plainly give Congress the power to insist that business owners do not discriminate on the basis of race.

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by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Without a doubt, the greatest rallying point for Tea Party opposition to federal government power is the Patient Protection and Affordable Care Act, the historic health care reform law enacted earlier this year.  Reflecting Tea Partiers’ outrage, several state attorneys general and governors have filed lawsuits challenging the Act — including one filed by Virginia Attorney General Ken Cuccinelli, and another by a group of state officials led by Florida Attorney General Bill McCollum — alleging that the Act exceeds Congress’s powers and infringes upon state sovereignty.   Similarly, Virginia and Idaho have passed “nullification” laws that attempt to block implementation of the Act outright.  Every Republican on the Senate Judiciary Committee recently echoed the Tea Party’s concerns in Washington, joining a letter designed to prevent Supreme Court nominee Elena Kagan from hearing any challenges to the health care bill if they came before the Supreme Court.  Senator John Cornyn (R-TX) stated in his questions to Kagan that if the health care reform legislation is upheld “it seems to me there is no limit to the federal government’s authority and we’ve come a long, long way from what our founders intended.”

Yet such attacks on the Patient Protection and Affordable Care Act are entirely without merit. Contrary to Tea Party rhetoric, Congress’s authority to pass legislation to fix problems in the health care industry, which comprises approximately 20 percent of the U.S. economy, is firmly rooted in the Constitution, in particular through the provisions in Article I, section 8 authorizing Congress to regulate interstate commerce and to tax and spend for the general welfare, as well as to enact laws that are necessary and proper in exercising its other powers.

This post will address the Tea Party’s constitutional claims regarding the individual mandate.  Later in our Strange Brew series, we will take on the arguments that the Affordable Care Act is a violation of state sovereignty and the Tenth Amendment; we will also demonstrate that state efforts to block the health care reform bill –through local “nullification” efforts – run squarely into the Constitution’s Supremacy Clause and the lessons learned in the Civil War and, more recently, the Civil Rights Era, when nullification efforts were last seriously attempted by the states.

The Individual Mandate

Opponents of the health care law have aimed their harshest criticism at the so-called “individual mandate,” arguing that Congress’s constitutional powers do not include the power to require individuals to buy health insurance or pay a tax penalty.  Critics argue that it is “unprecedented” for the government to force individuals to purchase an actual product.  This is doubly wrong.  First, as pointed out below, the Act actually does not force the purchase of anything; it simply imposes a tax penalty on individuals who choose to self-insure.  Second, as Professor Adam Winkler points out, as early as in the second 1792 Militia Act, Congress required male citizens to obtain certain weapons and other items, such as a “knapsack,” ammunition, and, in some cases, “a serviceable horse.”

The Individual Mandate Is Constitutional under Congress’s Power to Regulate Commerce and Enact “Necessary and Proper” Laws

More fundamentally, the Affordable Care Act’s critics miss the point entirely when they argue that choosing to remain uninsured cannot be regulated because it is not “economic” activity.  Choosing to self-insure is an economic act—one that imposes enormous cost on taxpayers.  Many young people, for example, have calculated that it is in their economic best interest not to buy insurance and just receive emergency medical attention if needed.  When these uninsured fall seriously ill or get into an accident, they go to the emergency room, where they often run up medical bills that they cannot afford to pay, leaving this bill for other Americans to pay as taxpayers and in the form of higher insurance premiums.  Uninsured medical costs are enormous in this country.  According to statistics compiled by Families USA, in 2005, 48 million Americans were uninsured and they incurred $43 billion in medical costs that they could not pay, an average of nearly $900 per uninsured individual.  This is considerably more per person than the tax penalty that the Act imposes on individuals who choose not to obtain insurance.

The Affordable Care Act generally, and the individual mandate specifically, are plainly constitutional under the Supreme Court’s most recent Commerce Clause ruling, the 2005 case of Gonzales v. Raich.  In both the Court’s majority opinion, and a separate concurring opinion written by Justice Antonin Scalia, the Supreme Court ruled that Congress, as part of its regulation of interstate commerce in illegal drugs, could prohibit a person from growing marijuana in her own backyard for personal, medicinal use (in a state where doing so was legal under local law).  Certainly if backyard, medicinal marijuana cultivation falls under Congress’s Commerce Clause power, Congress can regulate the decision to be uninsured.

Congress’s choice of the individual mandate as a mechanism to reform health care and regulate health insurance is a constitutional exercise of Congress’s sweeping power under Article I, section 8 to enact laws that are “necessary and proper” to carry out its other powers, such as the power to regulate commerce.  It is hard to imagine anything more “necessary” and more “proper” than the individual mandate as part of a comprehensive congressional effort to fix the country’s health care crisis, particularly because the incentives to remain uninsured would otherwise increase under popular and important parts of the Act, such as the ban on the refusal by insurance companies to cover individuals with pre-existing conditions.  Without the mandate, this ban would further encourage young adults, who constitute the greatest percentage of uninsured Americans, to forgo purchasing health insurance until they get sick, leaving the healthiest individuals out of the insurance market and driving up the cost of premiums and care even more.

Congress’s power to determine whether a particular legislative provision is “necessary and proper” is broad.  As the great Chief Justice John Marshall explained in McCulloch v. Maryland (1817), Congress should be shown significant deference regarding what laws it considered to be appropriate in carrying out its constitutional duties.  As the Supreme Court recently affirmed this Term in United States v. Comstock, “[i]f it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduct to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.”

The Individual Mandate Is Constitutional under Congress’s Power to Tax and Spend for the “General Welfare” of the United States

As noted above, the penalty imposed to enforce the individual mandate is also firmly grounded in Congress’s authority to tax and spend to promote the general welfare of the United States.  The Act does not, in fact, force individuals to purchase insurance.  Rather, if individuals choose to remain uninsured, they must simply pay a “shared responsibility payment,” a tax penalty that is paid to the Internal Revenue Service.  This tax penalty is set at a level below the average cost imposed by the uninsured, but is an attempt to at least recover some of the costs the uninsured impose on the rest of Americans.

Congress is well within its power to determine that such a requirement is in the interest of the country’s welfare, given the cost-savings that come from expanding the pool of insured individuals and reducing the uncovered costs of emergency room care, which would lead to an overall decrease in the total cost of health care borne by individual Americans.  Congress’s Article I, section 8 power to “lay and collect Taxes” to provide for the “general Welfare of the United States” has long been recognized as “extensive.”  License Tax Cases, 72 U.S. (5 Wall.) 462, 471 (1867).  In upholding the Social Security Act in Helvering v. Davis (1937), the Supreme Court recognized that it is within Congress’s “wide range of discretion” to determine what constitutes the “general welfare,” and to tax accordingly.

Some critics are skeptical that the individual mandate is truly a “tax.”  But it certainly behaves like a tax: if the penalty applies, it must be reported on your tax return, and the penalty is assessed and collected just like other penalties imposed under the Internal Revenue Code.  And the Congressional Joint Committee on Taxation analyzed the provision as a “tax,” “excise tax,” and a “penalty.”  If it walks like a duck, talks like a duck—and has a big name tag on that says “Duck”—well, you know.

Conclusion

Tea Partiers and other critics are free to continue asserting that the Act is unwise policy and an endeavor better left to the states, but they should really leave the Constitution out of these arguments.  Since the health care industry constitutes almost 20% of our Nation’s economy, no one can genuinely dispute that Congress has the authority to regulate health care and the health insurance industries under its Commerce Clause power.  Congress determined that the health care reform law, including the penalty for self-insuring, was the appropriate means of regulating the health care and insurance markets.  Since the Act does not run afoul of any other constitutional provision—there is no constitutional right to inflict uninsured health care costs on the American taxpayers—health care reform, including the “individual mandate,” falls squarely within Congress’s power to enact necessary and proper legislation to carry out its powers to regulate commerce and tax and spend for the general welfare.

To mark this year’s Independence Day, the Tea Party went back to school to study the Constitution as part of a growing effort to use the document to wage political battle—particularly over the confirmation of Elena Kagan to the Supreme Court—and to elect leaders who will remain faithful to the Constitution and its principles. As an organization dedicated to the text and history of the Constitution, Constitutional Accountability Center salutes this effort, at least in the abstract. We think the Constitution should frame our political debates and should be followed by our leaders, whatever their political stripe. But if the Tea Party wants to be taken seriously—and if it wants the media to continue fawning over it for its purported love for the Constitution—it should at least be required to make plausible claims about the words and meaning of our Nation’s charter. A close look at the Tea Party’s version of the Constitution shows that it bears little resemblance to our actual Constitution and could in fact threaten the constitutional values Americans cherish most.

At the risk of taking too seriously what appear to be political arguments dressed up as constitutional claims, Constitutional Accountability Center has launched a series of articles, here at Text & History, which examines claims made by the Tea Party and its most prominent allies about the Constitution and put them to the test against the Constitution’s text and history. The series, entitled Strange Brew: The Constitution According to the Tea Party, draws upon the words of our nation’s charter, constitutional debates and other legislative history, and the best constitutional scholarship available. The goal of the series is to ensure that, as Americans engage in conversations and debates about the Constitution, we are all on the same page about what our Constitution says and what it doesn’t.

Our Strange Brew series was launched with the release of a new CAC Issue Brief entitled “Setting the Record Straight: The Tea Party and the Constitutional Powers of the Federal Government.” This Issue Brief, written by CAC’s Chief Counsel Elizabeth Wydra and CAC’s Human and Civil Rights Director David Gans, takes on the Tea Partiers’ central claim: that our country’s Founders established a sharply limited, weak national government, incapable of addressing national problems like the health care crisis in America. Our Issue Brief documents first that the Founders established the federal government to act whenever the states were “separately incompetent” and granted the federal government broad power to, among other things, regulate interstate commerce and tax and spend to promote the general welfare. The Tea Party’s principal claim of a weak national government fits more with the failed, discarded Articles of Confederation than with the Founders’ second and lasting attempt to craft a national charter, our Constitution.

Second, putting aside the correctness of the Tea Party claims regarding the Constitution as it was written in 1787, we chronicle how 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.

Leading up to the floor debate over the confirmation of Elena Kagan, CAC is building on the work of the Issue Brief in a series of posts on our flagship blog, Text & History. Our Strange Brew blog series takes on the various and sometimes repugnant specific claims about the Constitution being made by Tea Party candidates such as Rand Paul and Sharron Angle, by Senators opposing the confirmation of Elena Kagan, and by other elected officials such as Virginia Attorney General Ken Cuccinelli. Here are some of the topics we cover in the Strange Brew series:

• The persistent and heated claims in the courts, Congress, and the media that the Patient Protection and Affordable Care Act — and particular its “individual mandate” –  is unconstitutional, and the suggestion by Senate Republicans that General Kagan should not be confirmed as a Supreme Court Justice because she might uphold the Act.  (Read Part 1 here, and Part 2 here.)
• The long-discredited assertion by Kentucky Senate Rand Paul, Tea Party Express leader Mark Williams, and others that the federal government does not have the power to root out “private” discrimination under the Civil Rights Act of 1964, one of the most important pieces of legislation passed pursuant to Congress’s constitutional authority to enforce the 14^th Amendment’s guarantee of equality.  (Read this post here.)
• The call by Rand Paul, Rep. Duncan Hunter and others for the repeal of the 14^th Amendment’s guarantee of citizenship at birth for all children born in the United States, and the efforts in states such as Arizona to interfere with the Amendment’s guarantee of equal citizenship.  (Read this post here.)
• Nevada Senate candidate Sharron Angle’s suggestion that Americans should repeal the 16^th Amendment, which allows for a federal income tax.  (Read this post here.)
• Disturbing Tea Party rhetoric suggesting that perceived unconstitutional actions by the federal government are cause for armed rebellion—and the claim that the Founders would cheer such violence. (Read this post here.)
• The argument by Senator Tom Coburn and others that Kagan should not be confirmed because she, in their view, would not commit during her Judiciary Committee testimony to enforcing “God-given” natural or inalienable rights mentioned in the Declaration of Independence. (Read this post here.)
• The call by Tea Party activists for repeal of the 17^th Amendment, in order to take the power to elect U.S. Senators away from individual voters and give it back to state legislators.
• Utah Senate candidate Mike Lee’s argument that his state can use the Constitution’s “Enclave Clause” to take land from the federal government in Utah.

As the Senate begins to debate Elena Kagan’s nomination to the Supreme Court and the Tea Party continues to focus Americans’ attention on the U.S. Constitution, it is important that this national conversation engage the real Constitution and not the Tea Party’s Constitution. There are plenty of good faith disagreements to be had over our Constitution’s text, history and meaning—but we’ve all got to be reading the same document. With our Issue Brief and the Strange Brew blog series, Constitutional Accountability Center hopes to set the record straight on the Constitution.

This weekend, Senator Orrin Hatch (R-UT), a member and former Chair of the Senate Judiciary Committee, published an op-ed setting out his “case” against the confirmation of Supreme Court nominee Elena Kagan, who currently serves as Solicitor General of the United States.  The Senator’s op-ed was mostly unremarkable, pretty much hitting all of the conservatives’ talking points against General Kagan, including the beaten-to-death claim that Kagan is hostile to the military.  Such distortions of a nominee’s record have, sadly, become standard fare in judicial confirmation battles, and so we will leave them to the side for now and make only the observation that Senator Daniel Patrick Moynihan famously made, which is that Senator Hatch is “entitled to his own opinion, but not to his own facts.”

Specifically, we were bowled over by one aspect of Senator Hatch’s “case” against General Kagan – his claim that Elena Kagan “has little legal experience of any kind,” and his related charge that Kagan has had only two years of “legal practice.”  Has Orrin Hatch been looking at the same Kagan employment history we’ve reviewed?

It’s right here on the Judiciary Committee’s web site, contained in Kagan’s answers to the Committee’s questionnaire.   Let’s take a look . . .

After Kagan graduated from Harvard Law School, she served for a year as a law clerk to Judge Abner Mikva on the U.S. Court of Appeals for the D.C. Circuit, and then for another year as a law clerk to Supreme Court Justice Thurgood Marshall.  Most lawyers would give their eye teeth to have clerked for these two distinguished jurists, and certainly helping judges research and write opinions meets just about anyone’s definition of legal experience if not legal practice.

After her clerkships, Kagan spent two years in private practice at Williams & Connolly, one of the country’s pre-eminent law firms.  Those two years seems to be the only legal practice that Senate Hatch gives Kagan credit for.  But how can that be?

After a stint as a law professor at the University of Chicago (broken up by service as a lawyer on the staff of the Senate Judiciary Committee), Kagan spent approximately two years as Associate Counsel to the President during the Clinton Administration.  Not legal experience or legal practice?  That assertion would undoubtedly come as a great surprise to everyone – Republican and Democrat alike — who has had the privilege of serving as a lawyer to the President of the United States.

Finally, Senator Hatch also seems to have ignored the fact that, since 2009, Elena Kagan has practiced law as this country’s Solicitor General, a position in which she represents the United States government before the Supreme Court.   Not legal experience or legal practice?  We’d call it legal practice at the very highest level there is.

Added to all this experience, of course, is Kagan’s record as a law professor at the University of Chicago Law School (noted above) and at Harvard Law School, her service as a high-level policy advisor to President Clinton, and her highly-praised tenure as Dean of Harvard Law School.  While one could quibble about whether these positions constitute “legal practice,” they are certainly impressive credentials any lawyer would be proud to have on her resume.

It’s one thing for Senator Hatch to parrot a list of conservative talking points about Kagan’s substantive record.  But for Senator Hatch to claim that Kagan has a “lack of experience,” and to thoroughly discount as legal experience her clerkships and her service in the White House Counsel’s Office and as Solicitor General, is a shameful insult to General Kagan.  That this is the Senator’s opening salvo in his “case” against Kagan’s confirmation underscores how lacking in merit that “case” really is.