Sherman DeBrosse : The Historical Fiction of 'Conservative Constitutionalism'
Historical fiction:
Understanding 'Conservative Constitutionalism'
The Tea Bag wing of the Republican Party has a constitutional philosophy that essentially spits in the face of decades of settled law.By Sherman DeBrosse / The Rag Blog / December 7, 2010
Recently, Lincoln Caplan wrote on the The New York Times editorial page that we need to get a handle on what “constitutional conservatism” means. The term is used by the Tea Baggers, Speaker-designate John Boehner, and many others. Eight out of 10 Republican voters said they wanted to return government to the Constitution.
It is an effective rallying cry because we all want to honor the Constitution, our sacred document. Americans have always called things they did not like “unconstitutional.” The growing popularity of so-called conservative constitutionalism is worrisome because the courts do have a way of following election returns, and much of what the constitutional conservatives advocate is anything but in line with accepted interpretations of the Constitution of the United States.
The problem is that what the Tea Bag conservatives are saying about our constitution betrays, in the words of historian Fritz Stern, nothing less than “stupefying ignorance.”
In November 2009 the Hoover Institution published a paper using the term constitutional conservatism, by which it meant the policies of Ronald Reagan. The document added that it “teaches the indisputableness of moderation” and a reverence for “order.”
That definition leaves out the way the term was used in the 2010 elections. Last winter, 80 conservative thinkers put out the Mount Vernon Statement, which was an attempt to update William Buckley Jr.’s 1960 manifesto to fit the term “constitutional conservatism.” The document was little more than an anti-Obama polemic and laid out no constitutional doctrine.
Going back a bit in history, two legal scholars used the term: William Rehnquist and Robert Bork. Both encouraged Ronald Reagan to defend South African apartheid. That, of course, has nothing to do with U.S. constitutional law, but it reflects an outlook. Rehnquist opposed the Brown v. School Board of Topeka, Kansas decision.
Of course, conservative constitutionalism means support for limited government, individual freedom, and opposition to big government. Everyone who employs the term can agree on those points. Those who used the term in 2010 also use Conservative Constitutionalism to support their insistence that society should not be using public money to help the vulnerable and victims of misfortune. It is a legal doctrine intended to support the policies of Social Darwinism and moral indifference.
Tea Baggers and right-wing Republicans have a lot to say about the constitution, often display it, and think they are experts in interpreting it. The parts of the Constitution they do not discuss are the Supremacy Clause, the Commerce Clause, or the words about “We the People,” wanting to “form a more perfect union,” and providing for the “general welfare.”
Right-wing Republicans are united by an intense resentment of government and authority, and this strain of right-wing anarchism often includes talk about using arms against the government. Some insist that the income tax and unemployment assistance are unconstitutional. Tea Baggers want to repeal the Sixteenth Amendment, passed in 1913, which authorizes the income tax.
Tea Baggers cite the Constitution as their reason for wanting to close down the Department of Education. For the most part, they make pronouncement about the law, but they refrain from explaining their views in depth or disposing of standing constitutional interpretations and doctrine which has been in place for decades.
The Tea Bag wing of the Republican Party has a constitutional philosophy that essentially spits in the face of decades of settled law. It is based upon the discredited legal theories that led the South to leave the federal union. They are “Tenthers,” relying on the Tenth Amendment to assert state sovereignty and the right of states to leave the union. Their goal is to establish the supremacy of the states.
Their quarrel is with the Supremacy Clause of the U.S. Constitution and all the constitutional law that defines it, and they usually do not reference it directly. Instead, they mount many arguments that would lead the listener to believe that the founders could never have envisioned the Supremacy Clause.
Much of the theoretical spadework was done for them by the Constitutionalist Party, a far-right group that has been around for quite a while. It is allied with white supremacists, Christian Restorationists, militias, and Christian Identity.
In Alaska, there is a very similar movement, the Alaska Independence Party, which seeks independence and has a large following. Todd Palin was a member, and Governor Sarah Palin attended its gatherings and spoke to its convention. The party’s founder blew himself up by playing around with a bomb. The size of the Alaska Independence Party should have prepared us for the mushrooming of a similar movement on the national scene.
Militias were in sharp decline in the late 1990s, but the presence of an African American with an Islamic middle name in the White House changed all that. Now, these fringe groups are experiencing phenomenal growth, and sales of weapons and ammunition have skyrocketed. President Barack Obama’s presence in the Oval Office galvanized the members of right-wing fringe groups, and they became leaders of the Tea Bag movement. Many dormant extremists were also activated.
Many of these people talk about violent acts against government, but within the fringe groups it is known that only a few are likely to act -- the “three percenters.” One of these people was James Von Brunn, who killed a guard at a D.C. museum and was subsequently shot. His target was chief-of staff David Axelrod. Brunn believed that “Obama was created by the Jews,” so he schemed to go after Axelrod. James Cummings assembled a dirty radioactive bomb in hopes of killing President Obama but perished when his wife shot him in a domestic dispute.
Tenthers are claiming that the federal government has only the powers specifically approved in the Constitution. Using only information about our founders’ intentions, they make a fairly strong case. The problem is that over time historical events and court decisions have discredited their views. A vast body of constitutional law has developed which repudiates their views.
The wonder is that so many Republican politicians trained as lawyers can spout these archaic theories. They must know that these views will never fly -- even in the extremely conservative Roberts Court. The non-lawyers among them attended college or high school and may have even been required to memorize some of the famous speeches on the other side of the issues. It is all rank demagoguery; but the American people have a way of forgiving almost anything that comes from the Right.
Members of the Tea Bag wing of the Republican Party say the Tenth Amendment gives the states all power not explicitly given to Congress or denied to the states. Based on this, the Tea Baggers claim that Medicare and Social Security are unconstitutional. Some, using a video about the history of the Sixteenth Amendment, also say that the income tax is unconstitutional.
Ken Buck, the Republican nominee for the United States Senate in Colorado, is a strong advocate of Tenther views and calls it “constitutionalism.” He says that because the constitution does not refer to health insurance and retirement benefits there should be no Medicare or Social Security.
He is a very consistent Tea Bagger, but many others are practical enough to avoid following their philosophy to its logical consequences. They can be expected to attempt to trim both Medicare and Social Security. In addition, many want to let state legislatures elect U.S. Senators, and they want to give the states much more authority in civil rights matters.
A favorite Tea Bagger remedy is the long-discredited doctrine of nullification. It is the idea that a state can prevent a federal law from being enforced within its boundaries. This idea was promoted long before the Civil War by John C. Calhoun of South Carolina. It is an essential part of the package of legal doctrines based on the Tenth Amendment which promote the supremacy of the states.
In Missouri, 71% of the voters supported a ballot proposition that declared null and void the federal health care law. The proposition was engineered by Roy Blunt, the Republican nominee for the U.S. Senate. In Arizona, voters in November will vote on a constitutional amendment designed to nullify federal health care reform. Legislatures in 17 states are considering laws to nullify federal health care.
In Minnesota, Tom Emmer, Republican nominee for governor, thinks federal laws should not be enforced in a state unless a supermajority of the legislature decides to approve it. In Virginia, Tea Baggers want the legislature to pass the Freedom for Virginia Act, which would permit the state to invalidate any federal law it dislikes.
Tenther philosophy leads inexorably to support for secession. If federal power were granted by the states, the states could take it away or even leave the federal union. Of course, the constitution says the power comes from “We the People,” not the individual states.
Republican pundit Joe Klein recently voiced an opinion that almost no other Republican would even approach: Rush Limbaugh, some Fox commentators, and some Tea Baggers have come very close to sedition -- that is provoking people to violence against the state. The Republican candidate for the 9th district of Ohio (Toledo), turned out to be a person who enjoys playing the role of an SS officer in World War II reenactments. Hand in hand with a tendency toward violence is the advocacy of secession.
Sharron Angle, who well could eventually become a U.S. Senator from Nevada, talks about the citizens “looking toward the Second Amendment option” if they cannot get power through use of the ballot box. Michael Gerson, a conservative writer said “This is disqualifying for public office.” Klein and Gerson seem to be almost alone among Republicans in condemning these views held by a substantial list of Republican leaders who should be disqualified.
Pastor Stan Craig, of the Choice Hills Baptist Church in South Carolina, proclaimed that he "was trained to defend the liberties of this nation." He declared that he was prepared to "suit up, get my gun, go to Washington, and do what they trained me to do."
At the Texas Tea Party Convention in February 2010, former Governor Sarah Palin mentioned but did not advocate “Texas secession,” but there was a huge cheer when she mentioned it. Texas Governor Rick Perry has spoken as though secession were possible. Representative Zack Wamp, who sought the GOP nomination for governor of Tennessee, says that Volunteer state might have to secede from the union if health care were not repealed.
Standing outside the Capitol, Representative Stephen King of Iowa urged fellow Tea Baggers to “think secession.” The North Carolina Tea Bag Party promotes secession as a means of combating Washington’s “tyranny.” In Oklahoma, Tea Bag Republican legislators are planning to establish a militia separate from the National Guard to protect state sovereignty against incursions by the federal government. They have not used the “S” word, but it does come to mind when people talk about taking up arms against Washington.
Glenn Beck has been a little more circumspect about secession, saying the Tea Party might eventually “ be about secession” if it does not get its way.
In the last analysis, conservative constitutionalism is not about honoring the Constitution of the United States; it is about having things the way the far right wants them. Representative Bob Bishop of Utah is backing what is called the Repeal Amendment, which would permit 33 states to repeal pieces of federal legislation.
It is not quite the same thing as nullification, since more than one state must act. But it violates a number of basic constitutional principles, and provides a way to get around the will of a numerical majority of the citizenry. Theoretically, the 33 smallest states could impose their will on the remaining states that constitute the bulk of our population. The amendment has strong support in Virginia and is backed by the man who now represents James Madison’s district.
Eric Cantor, the new majority leader in the House, is leading an effort to seriously modify Madison’s legislative mechanism. Constitutional conservatism is not about reverence for the Constitution.
The talk about secession and armed resistance is dangerous in part because talk about resorting to violence can inspire acts of violence. Recently, Byron Williams, inflamed by what he heard from Glenn Beck and Fox News, took up arms, and ended up in a gunfight on a freeway where he was injured in a gun fight with police. He said he was upset by Congress’s “left-wing agenda” and that he planned to kill some liberals at a local foundation that Glenn Beck had denounced.
Beck frequently alludes to violence and insists that the government is being taken over through an insiders coup. Rush Limbaugh also talks about a coup from within. He talks about a “nefarious cabal” out to “destroy democracy in America.” Beck and Limbaugh are not the only shock jocks playing the Rawanda Radio game, and even some of the rhetoric of Newt Gingrich could be taken as a not-so-subtle endorsement of violence.
These people irresponsibly pour petrol on dangerous fires, and their colleagues in the Republican Party do nothing to rein them in. Why anyone would vote for a party that threatened secession, nullification, and sedition and uses such inflammatory language is a mystery. But a large number of Americans seem determined to support these Fire-Eaters.
On some matters, the Tea Baggers and their colleagues in the Republican Party take positions that border on lawlessness. For some months Republicans have been busy trying to find ways for the states to renege on their pension promises to exiting employees and former employees. At the Congressional level, Republican leaders -- from Speaker-in-waiting John Boehner and Eric Cantor on down -- have discussed the need to trim federal pensions. Boehner even flirted with the idea of trimming military pensions; that, of course, is unthinkable.
At the federal level, they would have to find a way of getting around the contract clause. Most state constitutions also have contract clauses. Governor Arnold Schwarzenegger has insisted that the pensions of California employees now working and those already retired should be slashed. Three states have initiated slight pension reductions, and there are challenges in the courts.
In the last analysis, the law is what the judges say it is, and state judges are likely to rule in favor of angry taxpayers who do not want to stand behind promises made to employees as part employment contracts. Those workers are being demonized now by Republicans and Tea Baggers, and they stand little chance of holding on to all their pension rights. There was a time when “conservative” meant someone who upheld standing law and the right of contract.
In Bush v. Gore, the five “conservative” justices of the Supreme Court made new law and embarked on the course of judicial activism that has vastly widened the political power and economic right of corporations and has made it more difficult to launch class action cases. And they tried to make it more difficult for women to enforce their rights to equal pay.
In the previous Republican controlled Congresses, we saw gross violations of the rules with very long vote counts, Democrats regularly barred from committee meetings, and blatant abuse of subpoena powers. Conservatism was infected with a lawless temperament.
It is very troubling that people in the mainstream media do not explore these views at length. Much of their thought is very similar to that of Timothy McVeigh. The people who allegedly helped James Earl Ray were also of this stripe.
For the moment, Republicans seem successful in uniting behind the rallying cry of “conservative constitutionalism.” However, if the public were to come to understand what the Tea Baggers mean by the term, at least a few Republicans might find it necessary to back away from secession, taking up arms against the government, and repealing the Sixteenth Amendment.
There is much we do not understand about these troubled peopl who espouse odd constitutional interpretations and oppose “big government” in some respects while silently backing “big government” in other ways. Very few of them object to endless wars or massive amounts being spent on the military-industrial complex. Here, their extreme nationalism is closely tied to xenophobia, racism, and dislike of “others” in general.
For right-wing men, the “other” clearly includes feminists and women who demand reproductive freedom and equal pay. Some of us have not forgotten that Republicans last year fought tooth and nail to preserve unequal pay.
All this is consistent with what we know about the authoritarian personality and people who need the guidance of strong authority figures. Even though they oppose the existing government, the Tea Baggers present many characteristics of authoritarians. Though they only represent perhaps 40% of Republicans, the problem is that their outlook spills over to others and has a way of growing. The widespread disgust with government helps the Tea Baggers, who offer a justification for intense hatred of the existing government.
Tea Baggers replace reverence for government with what has been called “constitution worship,” in which they conflate the civil and the sacred. Perhaps because the United States lacks a state religion, these people need to see something else as sacred. It is “divine guidance” thinking of a sort which requires unswerving devotion to particular interpretations of the constitutions, few of which are accurate or linked to mainstream constitutional thought.
[Sherman DeBrosse is a retired history professor. He also blogs at Sherm Says and on DailyKos.]
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