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Rand Paul, the Tea Party, and Our Constitution

May 21, 2010

The Tea Party likes to portray itself as fighting for the Constitution, but more and more evidence makes it clear that the Tea Party only cares about the parts of our original Constitution that limited the powers of the federal government.  In their rush to exalt states’ rights, Tea-Partiers consistently ignore the rest of our Nation’s foundational document, particularly the amendments to the Constitution that made equality and protection of basic civil rights fundamental constitutional values, secured the right to vote and made our system of government more democratic, and gave the federal government the power to protect the liberty and equality of all Americans.  Today we rightly celebrate these amendments as a core part of our Constitution that made our Nation a more perfect Union.  The Tea Party should be celebrating our whole Constitution, not walking away from it.

This week, of course, everyone is talking about Rand Paul, a proud Tea Party candidate and Republican nominee for a U.S Senate seat from Kentucky, fresh off his primary victory.  Paul kicked off his general election run, announcing that he had a “message from the Tea Party” to “take our government back,” which apparently means rolling back established protections to ensure that all Americans are treated as equal citizens.

Hours after his primary victory, Paul started trashing a number of modern federal civil rights laws, including such historic statutes as the Civil Rights Act of 1964 that find support both in Congress’ Article I power to regulate interstate commerce as well as in Congress’ power to enforce the liberty and equality secured by the Fourteenth Amendment.  At a time when African Americans were second-class citizens routinely denied access to the full range of opportunities we now take for granted, the Civil Rights Act was adopted to help fulfill the Fourteenth Amendment’s promise of equal citizenship and equal protection of the laws.  More recent critical protections – like the Americans with Disabilities Act– too have come under fire.  Paul opposes federal laws that ensure that individuals with disabilities have the same right to participate in American life as the rest of the American people.

Paul, like contemporary critics of the Civil Rights Act such as Robert Bork, is apparently more concerned about ensuring protection for business owners who desire to discriminate against African Americans and others than in eradicating discrimination.   In Paul’s vision of the Constitution, Congress has no right to stop business owners – whether they run a luncheonette, bar, or other private establishment – from discriminating on the basis of race when it comes to how they run their business.  If African Americans or other groups are denied opportunities for discriminatory reasons, that’s just too bad for them.  This is a disgraceful argument that has no basis in the text, history or original meaning of the Constitution, something that the Tea-Partiers are supposed to care about.  A report by the Constitutional Accountability Center, The Shield of National Protection: The Text and History of Section 5 of the Fourteenth Amendment, provides a comprehensive account of why Paul and Bork are wrong about Congress’s power to reach and prohibit private discrimination.

Paul has since relented, claiming that he supports the Civil Rights Act of 1964 and does not intend to push its repeal.  He has not, however, disowned his earlier statements that businesses should be free to discriminate.  Given the scorn with which Paul’s comments were met across the ideological spectrum, Paul plainly recognized that a change of tune was in order if he were to have any hope of succeeding at the polls in November.  But no one should be fooled – Paul still does not understand that central to our constitutional order is Congress’ broad authority to ensure equal treatment of all Americans.

Ironically, many Tea Party members seem not to want the opportunity to vote for Rand Paul.  At the  Tea Parties there are loud calls for the repeal of the Seventeenth Amendment, which would strip voters of the right to elect U.S. Senators, and return America to the days when state legislatures, not the people, chose Senators.  Once again, rather than celebrate our constitutional heritage and the ways the American people have improved our Constitution, the Tea Party seems to yearn for the antebellum  Constitution when America was a slaveholder’s democracy, women lacked the right to vote, and only politicians determined who served in the Senate.

It should be painfully obvious to all Americans today why we do not want to return to that America.  While there is a great deal  in our original Constitution we rightly celebrate, the Constitution is what it is today because of the amendments the American people added to the Constitution after the Civil War and during the 20th Century.  Those amendments cut slavery out of the Constitution, wrote equality into it, expanded the powers of the federal government and improved our democracy by expanding the suffrage and ensuring that ours is a government “of the people, for the people, and by the people.”  If the Tea Partiers really wanted to wrap themselves in the Constitution, that’s the vision of our Nation’s Charter that they would be celebrating.