It's ironic that those claiming fealty to the constitution habitually thumb their noses at its most sacred principle.
A great irony of our political discourse is that those who describe themselves as “constitutional conservatives” display not only habitual ignorance of what our founding documents proscribe, but also show blatant scorn for the most important principle they enshrine: the separation of powers.
For much of our history, people across the political spectrum laid competing claims to being the true champions of the United States constitution, but in recent years that ground has largely been ceded to the far-right. When the Tea Partiers stormed into Congress, one of their first acts was a bit of political theater arranged by Tea Party caucus leader Michele Bachmann, R-Minnesota: reading the Constitution (with the embarrassing bits edited out) aloud on the floor of the House.
In her book, The Whites of Their Eyes: The Tea Party’s Revolution and the Battle Over American History, historian Jill Lepore writes that the problem with the Tea Partiers’ claimed fealty to the Constitution is that it's a form of religion rather than analysis. “Originalism,” Lepore writes, “looks like history, but it is not; it’s historical fundamentalism, which is to history what astrology is to astronomy, what alchemy is to chemistry, what creationism is to evolution.”
But fundamentalism requires a strict adherence to a sacred document, and that's where today's constitutional conservatives go off the rails. As I wrote back in May, “constitutional conservatives,” once in power, have offered any number of legislative proposals which, on their face, are blatantly unconstitutional.
Bachmann – who is obsessed with lightbulbs --
herself proposed a bill on their regulation that would have required Congress to usurp the executive branch's enumerated powers in obvious violation of settled constitutional law.
The reason these constitutional fundamentalists have such disregard for the constitution is that they refuse to acknowledge the enumerated powers in Article Three, which established the judicial branch and gave it exclusive authority to mediate conflicts that arise between the states, and between the states and the federal government. Here is section two of Article Three:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
What constitutional conservatives are really saying is that they don't like the decisions the court has rendered over the years. The most obvious example is the Supreme Court's “expansive view” of the Commerce Clause, under which a wide variety of federal legislation has been enacted.
It is entirely legitimate to disagree with the Supreme Court's rulings – progressives also find fault with a variety of precedents established by the court over the years (does Citizens United ring a bell?). But it's one thing to disagree with the court's decisions, and something entirely different to pretend that Rush Limbaugh or the most conservative members of Congress, rather than the Supreme Court, is empowered to interpret and adjudicate “cases, in Law and Equity, arising under this Constitution [and] the Laws of the United States” – which is exactly what they're doing.
Let's also be very clear about the intent of the founders. They regarded the separation of powers as a vital bulwark against tyranny. Instead of pitting an all-powerful monarch against the masses, the idea of having independent centers of power check and balance each other was essential to the American project. If you
paid attention to "School House Rock" as a kid, you're familiar with this most basic principle of constitutional government, but those claiming the most fealty to the founding document simply thumb their noses at even those Supreme Court decisions that have been validated in case after case – so-called “super-precedents.”
(This is why the “Oath-Keepers” are domestic terrorists waiting to happen. The group, made up of far-right law enforcement officers and members of the military, has sworn to use force, if necessary, to uphold the Constitution as they interpret it. That last bit is key – the problem is that they serve in the executive branch, which is empowered to execute the law in keeping with the Constitution but not to adjudicate disputes that arise from it. If the executive branch were to issue an unconstitutional order abusing U.S. citizens as they fear, the proper – and constitutional -- response would be to ask the court to stay it.)
Rick Perry recently walked back comments suggesting that Social Security and Medicaid are unconstitutional, even though the court settled that question 75 years ago. Matt Yglesias read Perry's book, Fed Up!: Our Fight to Save America from Washington, and found that the newest Republican presidential candidate regards regulation of banks, consumer protections and federal education policies as unconstitutional. In fact, writes Yglesias, Perry thinks “almost everything is unconstitutional.”
Such claims rarely come with an actual constitutional argument. At the heart of conservative rhetoric these days is the simple assertion that any legislation passed by Democrats is by definition illegitimate and defies the will of the Founders (as channeled by the mystics who lead the Tea Party movement). Or, as Gary Epps, a legal scholar at the University of Baltimore, put it, "Conservative lawmakers increasingly claim that the 'original intent' of the Constitution's framers and the views of the right wing of the Republican Party are one and the same."
Ultimately, that's an appealing way to avoid a debate on the merits of popular government programs. Conservatives can read the polls, and they understand that while abstract talk of “limited government” can be appealing, Americans really like consumer and environmental protections, safety net programs like Social Security and Medicare and federal initiatives like subsidized student loans. In a nominal democracy, they can't get far simply saying that they oppose these things on ideological grounds. So, just as they use deficit hysteria to argue that we simply can't afford those things, they rely on the Constitution – but not the Supreme Court's interpretations of its text over the past century – as a form of political cover from which they can take potshots at the 20th century without having to own up to the regressive nature of their worldview.
August 21, 2011 
