Tea Party evangelists claim the Constitution as their sacred text. Why that’s wrong.
By Andrew Romano
In legal circles, constitutional fundamentalism is nothing new. For decades, scholars and judges have debated how the founding document should factor into contemporary legal proceedings. Some experts believe in a so-called living Constitution—a set of principles that, while admirable and enduring, must be interpreted in light of present-day social developments in order to be properly upheld. Others adhere to originalism, which is the idea that the ratifiers’ original meaning is fixed, knowable, and clearly articulated in the text of the Constitution itself.
While conservatives generally prefer the second approach, many disagree over how it should be implemented—including the Supreme Court’s most committed originalists, Antonin Scalia and Clarence Thomas. Thomas sympathizes with a radical version of originalism known as the Constitution in Exile. In his view, the Supreme Court of the 1930s unwisely discarded the 19th-century’s strict judicial limits on Federal power, and the only way to resurrect the “original” Constitution—and regain our unalienable rights—is by rolling back the welfare state, repealing regulations, and perhaps even putting an end to progressive taxation. In contrast, Scalia is willing to respect precedent—even though it sometimes departs from his understanding of the Constitution’s original meaning.
Here's how to tell if teabaggers are sincere about wanting to return to the original Constitution. Tell them the following:
The American purchase of the Louisiana territory was not accomplished without domestic opposition. Jefferson's philosophical consistency was in question because of his strict interpretation of the Constitution. Many people believed he was being hypocritical by doing something he surely would have argued against with Alexander Hamilton. The Federalists strongly opposed the purchase, favoring close relations with Britain over closer ties to Napoleon, believing the purchase to be unconstitutional, and concerned that the U.S. had paid a large sum of money just to declare war on Spain. The United States House of Representatives also opposed the purchase.
More decisions to invalidate
Heck, the Marshall trilogy of Supreme Court cases are the essence of overreaching judicial activism. These cases fabricated the concept of Indian tribes as "domestic protected nations" rather than foreign nations. This fabrication was based on another fabrication, the Doctrine of Discovery, which said Indians didn't own the land they owned.
So believing in a limited Constitution also means restoring full sovereignty to Indian tribes, treating them as foreign nations, and permitting them to negotiate treaties with the US again. Am I right, Con Law experts? Yes, I think I am.
When the first teabagger says he's willing to return to an 18th-century view of the Constitution--which would mean invalidating the Marshall trilogy, the Louisiana Purchase, and other anti-Indian decisions--then I'll believe he's sincere. Until then, every teabagger who claims to believe in a "limited" Constitution is some combination of liar, hypocrite, and idiot.
For more on the subject, see Tea Party Guide to American History and What "I Want My Country Back" Means.
Below: The unconstitutional expansion of US borders.