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Strange Brew: Tea Partiers’ Vision of the Constitution Says More About Their Policy Views Than It Does About the Constitution

January 19, 2011

By Neil Weare, Litigation and Policy Counsel

With House Republicans set to begin their attempt to repeal the Affordable Care Act, Dick Armey, the Republican former House Majority Leader and current chair of FreedomWorks, has “some advice for the tea party Congress as its members arrive in Washington . . .. Look to the Constitution to govern your policy.”

The problem is, when Tea Party conservatives gaze into constitutional waters, what they see is a reflection of themselves.  As constitutional scholar Akhil Reed Amar said in a recent Washington Post article, “when we actually read the Constitution as a whole, it doesn’t say what the tea party folks think it says.”   The constitutional myths held dear by Tea Partiers and their conservative allies simply cannot stand next to the reality of the text and history of the Constitution.

As Congress debates repeal of health care reform, it is important to understand that the constitutional mythology promoted by Tea Party conservatives says more about their policy views than it does about the Constitution.

Tea Party Constitutional Myth #1:  The Constitution was designed to limit the powers of the national government.

Reality: After the failure of the Articles of Confederation, the Constitution established a strong national government with broad powers, which subsequent Amendments have further expanded.

In his advice to “the tea party Congress,” Dick Armey asserts that “[t]he Constitution was designed to limit government power, so make sure your votes go only to bills that are right and necessary.”

The problem is that the Tea Party’s view of what is “right and necessary” has led to a gross distortion of the text and history of the Constitution.  The Constitution is not, as Tea Party conservatives like Senator Jim DeMint have asserted, “overwhelmingly a document of limits” – the historical reality is that the Constitution was ratified specifically to expand the powers of the national government, not contract them.  Under the failed Articles of Confederation, the national government was impotent to respond to national crises and emergencies in international affairs.  The newly strengthened “United States” established by the Constitution would, as explained in its Preamble, “provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”

The constitutional powers of the national government are enumerated, but broad.  And, towards these broad ends, the Constitution gives Congress the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution [its enumerated powers] and all other Powers vested by this Constitution in the Government of the United States.”  Early attempts by opponents of congressional power to give a narrow reading to this expansive language were properly rejected by the Supreme Court, with Chief Justice John Marshall famously upholding  Congress’s broad powers in McCulloch v. Maryland.  Moreover, congressional power has been greatly expanded by Amendments ratified over the past two centuries, particularly the 13th, 14th, and 15th Amendments – the Civil War Amendments.  As Constitutional Accountability Center has explained elsewhere, while Tea Partiers and their conservative allies  may disagree politically with health care reform, civil rights laws, or the historic Voting Rights Act, the scope of Congress’ power under the Constitution is not defined by the Tea Party’s policy preferences.

Tea Party Constitutional Myth #2: The Constitution, first and foremost, is a states’ rights document.

Reality:  Ours is a government of, by, and for “We the People of the United States,” not “We the States.”

Tea Party conservatives like Utah State Representative Chris Herrod – who, after helping pass a Utah resolution recognizing the “inviolable sovereignty of the state of Utah under the Tenth Amendment,” rhetorically asked, “Who is the sovereign, the state or the federal government?” – should find their guidance in the opening words of the Constitution, “We the People of the United States,” and the Civil War Amendments rather than the Tenth Amendment.

Herrod’s rhetoric evokes the losing side of history – states’ rights supporters opposed ratification of the Constitution and the Civil War Amendments.  And his question finds an answer from Justice Joseph Story in Martin v. Hunter’s Lessee:  “[t]he constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by ‘the people of the United States.’ ”  The Civil War Amendments – ending slavery, guaranteeing liberty and equality, and establishing a right to vote free of racial discrimination – once again rejected claims of states’ rights in favor of President Lincoln’s reaffirmation at Gettysburg that “ours is a government of the people, by the people, and for the people.”  Tea Party conservatives’ denial of what the Constitution actually says about states’ rights extends even where the Constitution’s text explicitly places states’ rights as subordinate to the powers of the national government, such as immigration and the supremacy of federal law.

Tea Party Constitutional Myth #3: The Constitution was better off before its original design was tinkered with by Amendments.

Reality: Generations of Americans have formed a still more perfect union by amending the Constitution 27 times. Tea Partiers love the Constitution, that is, except for the many parts of it they want to cut out.

The Framers ensured that future generations of Americans could, through the amendment process, form a still more perfect Union, and “We the People” have done just that, amending the Constitution over the last two centuries to expand individual rights and democracy.  But Tea Partiers seem intent on rolling back the progress we have made as a Nation. Whether it is calls to repeal the 17th Amendment providing for the direct election of Senators, the 16th Amendment restoring the original understanding of Congress’ power to tax, or the 14th Amendment recognizing birthright citizenship, Tea Partiers seem happy to reject any part of the Constitution they disagree with in the same breath they declare fealty to it.

Tea Partiers and their conservative allies in Congress  would do well to follow Dick Armey’s advice that “[y]ou do not swear an oath to the Republican Party or the tea party — your pledge is to defend the Constitution.”  But in doing so they should follow the text and history of the actual Constitution, not the myths about the Constitution that Tea Party conservatives have created in order to promote their policy agenda.

As the 112th Congress moves forward, Constitutional Accountability Center will continue to hold Tea Party conservatives in Congress publicly accountable to the text and history of the Constitution, including through our series, Strange Brew: How the Tea Party Distorts the Constitution.