Andrew Romano of Newsweek published a thought provoking analysis of the beliefs supposedly held by Tea Party adherents in an essay entitled “America’s Holy Writ.” While I disagree with much of what he writes, he makes some criticisms which have some validity and reaches some conclusions which are not obviously false and therefore are worthy of being addressed and rebutted. Let me first suggest to people who are Tea Partiers and those sympathetic with their ideas that they read Romano’s essay. Be advised, you will need to disengage your emotions in order to remain open to any valid self criticism which is generated by Romano’s thoughts, but this exercise is worth your time.
The main point I take from Romano’s essay is that Tea Party patriots are wrong to believe that the Constitution is “. . . a holy instruction manual that was lost, but now, thanks to them, is found.” In this I believe Romano’s criticism is enough on the mark that it should be the cause of some self examination on the part of Tea Party patriots themselves. While this initial 
criticism has some validity, Romano also fully intends to suggest by his use of the term “holy instruction manual” that Tea Partiers are intent on the creation of some form of Christian theocracy, and in this idea I think he’s utterly wrong. Although there is some evidence that many Tea Partiers see the constitution as a divinely inspired document, there is no evidence whatever that they seek to use government’s power to control all men and women in the legal application of religious doctrine. They want more freedom, not less. Romano should understand that Glenn Beck, the Mormon, would be the first guy under the bus in a Protestant Christian orthodox theocratic nation. The idea of limited government, espoused by Tea Partiers and Glenn Beck, in the land of the free is the exact opposite of a noxious and invasive exercise of government power to enforce religious conformity. The Tea Partiers are nearly militant in their quest for freedom, not more orthodoxy and regimentation in health care, energy use or even religious observance. Unwarranted and excessive governmental regulation of their lives is anathema to them.
When Tea Partiers are off base it is when they see themselves as bringing the “constitution” itself back to the country. It has never left. What has been lost over two centuries is the spirit underlying the constitution. The spirit that Americans are capable people who can and should govern themselves and their affairs without directives from Washington. Why have they conflated these two separate ideas?
I believe that this is the thought process. It begins with a recognition of the well founded historical fact that the constitution was intended to be a very strictly limited grant of power to the federal government. The tenth amendment enshrines the principle that the grant is a limited one.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
To the extent that some ambiguity or incompleteness existed in the constitution the Partiers believe that the constitution should be interpreted as any agreement (covenant) between people is interpreted. That is, the constitution should be interpreted in light of the original intendment of the people who adopted it for “themselves and for their posterity.” The Partiers conclude that in light of the original intent of the constitution as a grant of only limited power, and with the added effect of the adoption of the tenth amendment in the first year of the republic, that this limited federal government they created would persist until there were constitutional amendments providing the agreement of a supermajority that a more expansive scope was authorized. Partiers are not unreasonable in believing that the constitution, although being subject to change by consent of the people, must only be changed as provided for in the constitution itself. It is as simple as that.
Where they err, when they err, it is in believing that the constitution leaves no room to argue that strict limits on federal power per se may have implied powers attached to them. Such specificity is just lacking. The constitution is short and cannot have physically contained all that was necessarily implied by its words. In fact, as Romano accurately states, in our first Congress the father of the constitution, James Madison, successfully objected to a motion
James Madison
seeking to add the word “expressly” to the phrase “powers delegated to the United States” contained in the bill of rights’ tenth amendment. It should be noted by all, including the Partiers, that within three months of the formation of the first constitutional government, Treasury Secretary Alexander Hamilton proposed the chartering of a “Bank of the United States” for the handling of government business. Provision for neither the bank nor even for any corporate chartering was expressed in the constitution. Nevertheless, by a vote of the Congress, obviously made up of many who had participated in the original federalist debates, the bank was created. Furthermore, the bank bill was signed (albeit with constitutional reservations) by President George Washington. Hence, Hamilton had successfully argued to the nation’s first legislature and it’s first president that a “Bank of the United States” was necessarily “implied” by the other financial provisions contained in the constitution. This is not something new. Chief Justice, John Marshall, the longest serving Chief Justice in history, observed in his 1819 opinion in McCulloch v. Maryland that in leaving the word “expressly” out of the tenth amendment the framers intended to leave the question of whether a given power was granted to one level of government and denied to another, “. . . to depend on a fair construction of the whole instrument.” So much for the argument that only those things expressly and minutely provided for in the words of the constitution are authorized to the federal government.
On the other hand, the Partiers see and are shocked by the fact that over the last six or seven decades fundamental and permanent change has occurred in the course of this country without there having been constitutional amendments adopting these changes. The Partiers understand that the 16th amendment permits taxation of incomes but they are aware that there is absolutely no constitutional source for the creation of the numerous permanent financial entitlements (the equivalent of perpetual debts) which have so altered the financial landscape of the country and the federal treasury. The framers, Partiers say, would obviously not have permitted such an extension and abuse of the federal government because it is the very antithesis of a limited federal government. Yet no amendment to the constitution permitting permanent entitlements has ever been enacted. Likewise the Partiers are aware that the 14th Amendment gave the Congress the mandate to extend civil rights protection to former slaves and their progeny, but they are thoroughly confused by use of this amendment, solely through Supreme Court edict, to eradicate spiritual and religious demonstrations from non-federal but nevertheless public facilities and properties. They are similarly confused as to how a fair understanding of the enumerated power permitting the federal government to “regulate” interstate commerce has been extended to include federal ‘commandments’ touching upon each and every act of commerce occurring in the entire country. It is mind boggling to Partiers that federal court rulings prohibit individual state actions touching upon gay rights, abortion rights, contraception rights and many more rights without the necessity of creating a consensus and amending the constitution. Certainly the framers of the 14th Amendment did not contemplate direct federal court involvement in any of these issues, especially without adoption of enabling legislation by Congress as contemplated by Section 5 of the 14th Amendment itself. These permament ‘rights’ have, in this way, been shoved down the throats of the people without their even being asked what they think. They might have said yes, they just were never asked.
Romano believes that Partiers are required to view the constitution in the same way he does, pretty much only as a symbol “that suppl[ies] an overarching sense of unity even in a society otherwise riddled with conflict.” He believes that constitutionality is somehow wrapped up in the arcane sociological reasoning used by the Supreme Court for the last six or seven decades to advance the power of the federal courts and government at the expense of everyone else. His implied argument is that Partiers can argue for restricting the federal government’s power but to do so they must acknowledge the power of the Court to legitimate “under the constitution” the extended scope of the government. This, of course, is a losing proposition for the Partiers because the Supreme Court, under the doctrine of stare decisis, usually treats its precedents as settled law even if, in hindsight, they were clearly wrongly decided. It is probably harder to fundamentally change a Supreme Court precedent than to enact a popular constitutional amendment. Hence, Romano would have us believe that there is no going back except by amending the constitution to put the genie back in the bottle. Of course, the difficulty of amending the constitution and changing enshrined Supreme Court precedent is the very reason that the progressives did not seek to amend it order to gain the extension of federal power they sought. The constitution was intended to be hard to change and those bearing the burden of changing are very likely to lose.
If Romano is correct, though, and the constitution is truly only a symbol, then the Supreme Court is the actual source of federal power in our society. This doesn’t seem right to me, does it to you? The Partiers, contrary to Romano, believe that the Constitution is the sole source of real and actual power for the federal government over the American people and the states. If the Partiers are correct constitutionally, then a super majority of the states is needed to create “permanent” rules for the power and conduct of the federal government, i.e. a constitutional amendment. A mere five to four vote of Supreme Court justices is not and should not be enough.
I can only speculate what Romano’s counter argument would be to this idea. I imagine it would be something along the lines of, if not the Supreme Court, then whom should decide? This is an interesting question. It has been answered by the likes of Abraham Lincoln and Andrew Jackson, among others. Lincoln’s government just ignored court decisions which it did not agree with. Lincoln’s government even suspended the right to habeus corpus. Likewise people like Justice Kagan believe that the first amendment’s language, “Congress shall make no law . . . abridging the freedom of speech, . . . ” is insufficiently clear and creates an option for the government to deter speech if the government’s motives (as opposed to the effects) are innocent. Who, then, protects the constitution? THE PEOPLE DO!!!!! And they must and will be heard.
Federal power vis-a-vis both the states and the people has vastly increased in the last century placing control of their government farther and farther away from the people. This is precisely the problem. Fundamental change in the country has been flowing from the top down. Often, if not always, the people haven’t been convinced it is a good idea to massively empower the federal government, they’ve just been forced to accept it as a fact of life. An activist Supreme Court’s extensive use, beginning in the 1930’s, of the 14th Amendment enacted in 1868 but not used in this way for nearly 70 years, is a part of it. The New Dealer’s use of the constitution’s power to regulate “interstate commerce” as a license to stick the federal government’s long nose into every aspect of commercial life in this country has eroded the power of citizens to correct their government when it is abusive. Taken together with other “constitutional trends” these mechanisms have swamped the balance of power created by the constitution with its formerly limited federal government presumption. The elitist idea that constitutional lawyers know the constitution better than the people is a recipe for disaster because it attempts to permanently draw a distinction between what happens under the authority of the federal government and what a majority or at least a substantial minority of the people would have willingly allowed if they had had a voice. In following this constitutional strategy the legal “scholars” are close to defining themselves as tyrants who believe their “scholarship” allows them to control the people even when a large portion of the people refuse their consent to such meddling. This, among other factors, is precisely the reason that ‘jamming’ the permanent health entitlement through Congress without even attempting to amend the constitution to permit it has triggered the Tea Party backlash.
There is still more meat on the bones of how insidious constitutional change has been accomplished. Rather than amending the constitution to provide for the permanent intergenerational transfer of power that is the social security entitlement, FDR created a link between social security taxes as they were paid and the benefits which could be expected after retirement. In so doing FDR created a politically permanent system without the benefit of a constitutional amendment or the requirement of a supermajority giving consent. Said FDR:
Those payroll taxes were placed in there so that no damn politician could ever tamper with this program.
A similar link was created by LBJ in enacting the medicare program. LBJ effectively permanently changed health care in the United States and effectively amended the constitution by structuring it as a permanent entitlement. Of Medicare he said:
And through this new law, Mr. President [referring to Harry Truman], every citizen will be able, in his productive years when he is earning, to insure himself against the ravages of illness in his old age.
These changes in the financial structure of America have wrought permanent change in the power balance among and between all wage
President Johnson
earners and all former wage earning retirees. These were created without having engaged in the rigorousness of amending the constitution to enshrine those fundamental changes as the province of the federal government. As contemplated by FDR and LBJ, these programs admit to little control by the present generation of taxpayers while the beneficiaries, retirees, still live (vote) and in the meantime each new generation become beneficiaries themselves by just paying their taxes. Therefore, the working citizenry are bound, semi-permanently, to pay the bills of retirees until they too impose this burden upon the working generation behind them. Not constitutional perhaps, but certainly permanent.
In his last paragraph, Romano glowingly quotes from Jefferson’s letter to Samuel Kercheval in 1816. Romano quotes Jefferson as supporting the idea that a constitution should not be beyond amendment and that each generation should be accorded the deference to handle its own affairs. Romano, without even acknowledging the lack of amendments supporting his view of the extraordinary increase in federal power in recent years, concludes his recitation of Jefferson’s observation with the term, “Amen.” One could take from this quotation, and it’s rather emphatic adoption, that Romano thought the Kercheval letter an example of excellent insight and public spiritedness. I suspect that Romano agrees with only a narrow slice of Jefferson’s ideas because most of the letter contains insights of great comfort to the Partiers. For instance, Jefferson rails against a generation of leaders who would bind a succeeding generation with “perpetual debt” exhorting each generation creating a debt to work as hard as necessary to discharge it. Social Security, Medicare, Medicare Part D and Obamacare are all examples of permanent entitlements which resemble the permanent debt so decried by Jefferson. And these entitlements by design will never to be “paid off.” In fact in the Kercheval letter Jefferson expressed his private belief that amendments should be made every twenty years or so to permit each generation, “. . . a right to choose for itself the form of government it believes most promotive of its own happiness, . . . .” This is exactly the opposite of the burdens represented by these entitlements, as well as the $13.5 Trillion national debt itself, which have been bequeathed upon the current and future generations. Is Romano even aware of the irony of using Jefferson’s letter as support for his view of a malleable constitution?
Finally and most importantly for Partiers to remember is another section from the Kercheval letter. Jefferson clearly values the “republican” spirit of the people over the republican form of government which the constitution created. Said the third president,
Where then is our republicanism to be found? Not in our constitution certainly, but merely in the spirit of our people. That would oblige even a despot to govern us republicanly. Owing to this spirit, and to nothing in the form of our constitution, all things have gone well. But this fact, so triumphantly misquoted by the enemies of reformation, is not the fruit of our constitution, but has prevailed in spite of it. Our functionaries have done well, because generally honest men. If any were not so, they feared to show it.
It is this spirit which Jefferson believes defends the concept of liberty and limited government. And whether the Partiers are consciously aware of it or not, it is the revival of this spirit which will defend our liberties. Partiers would no doubt prefer it if “a return” to the Constitution were possible which, once accomplished, would permit them to rest easy with their liberties. Unfortunately, as Jefferson believed, this will never be the case. The price of freedom is constant vigilance. It is of this Tea Party-type constitutional spirit rather than of the explicit terms of an ancient document which the current crop of politicians ought to be concerned as the primary threat to political business as usual.
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