Wednesday, November 10, 2010

Constitution Worship and the Tea Party

Thomas Dumm
   Amherst College

Now that some of members of the Tea Party are actually charged with governing, it will be of some interest to see how their vision of the Constitution will play out. Many of these candidates insisted on a “return to the Constitution” as a plank in their platforms, and some are now proposing legislation that would require that any proposed law identify the specific Constitutional provisions that authorize the legislation being considered. 
But one only has to look back on the moment when Christine O’Donnell (R) interrogated Chris Coons (D) during the final Senate debate in Delaware on the doctrine of separation of church and state to realize that many of these candidates are relying on something other than the Constitution as interpreted for over two hundred and thirty years as their guidepost. You will recall that when Coons cited the doctrine of separation of church and state during that debate, O’Donnell challenged him, arguing that the First Amendment authorized no such thing, asking in a voice filled with incredulity for Coons to tell her where it said that. Coons mentioned the establishment clause, and the long history of its interpretation. O’Donnell, clearly flustered – the debate was at a law school and the audience couldn’t avoid reacting in disbelieving laughter at her questions – nonetheless acted as though she would be vindicated after the debate. Of course, she wasn’t. But what is more interesting is what she claimed justified her questions to Coons. In a statement she argued that Coons couldn’t show her the language that said there is to be “a wall of separation between church and state” in the First Amendment itself. Hence, she was justified in asking, and Coons, a lawyer of long experience, was the one who didn’t know what he was talking about.
There are more inconsistencies to be found in Tea Party arguments about the Constitution. Many Tea Party members think that certain amendments ought to be repealed, a position that is paradoxical for those who argue others are tampering with it. But it may be more interesting to see which parts of the Constitution they believe need amending. In forum after forum, these have been the 14th (revision) and the 16th and 17th (repeal). The latter two amendments provide for a national income tax and the direct election of senators. Both of these were the fruits of the Progressive era, deemed by Glenn Beck as the evil origin of our contemporary woes. The opposition to the income tax is fairly obvious. After all, it funds the overblown national government, and we are all taxed too much as is, in their view. The repeal of the 17th, while initially startling, indicates their great faith in state governments to provide for the interest of the people, as they are closer to understanding their needs.
But it has been the 14th Amendment that has captured their attention the most (John Boehner, incoming Speaker of the House and Tea Party sympathizer, has already suggested hearings). The 14th is in need of revision because in section one it says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” This clause allows there to be “anchor babies,” children of undocumented residents who by birth are citizens. But it is also interesting to note something else about the 14th Amendment that has been attacked by Tea Partiers than birth citizenship, albeit much more obliquely, namely, the reaffirmation in the 14th Amendment of the rights of citizens of the United States to enjoy “the privileges and immunities of citizens of the United States.” In other words, this is the clause that establishes the national government as the supreme final arbiter of the rights and duties of citizens, settling all prior argument regarding that question.
There has been an interesting silence on this clause, which is also to be found in section one of the 14th Amendment. That silence could be heard during the campaign when candidates trumpet the virtues of the 10th Amendment, which reads, “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.” This amendment -- which provided the basis for Calhoun’s ante bellum argument for state nullification of national law -- was touted by many Tea Partiers as a necessary antidote to too much federal action. Indeed, as early as the debate concerning the national healthcare law, Tea Partiers have argued the unconstitutionality of the law on the basis of the 10th amendment.
Back in the 1950s this was what was known as the “states rights” argument, and was directly attached to the white southern resistance to the civil rights movement. Its resurrection now is less obviously racist, but as Jairus Victor Grove documents in his recent post in The Contemporary Condition, there does seem to be a greater toleration of racist arguments now than there was even two years ago.
All of this strange revisionism – ahistoricism mingled with mythic history -- is draped in reverence for the Constitution itself as a sacred document of a chosen people. The long history of Constitution worship fits quite well into the Tea Party agenda, and attaches it more closely to the Biblical fundamentalism of conservative, evangelical Christians, a key actor in the right-wing resonance machine.
The deepest irony is that one of the most famous advocates for Constitution worship was Abraham Lincoln, the agnostic who did more than any other single American in history to reshape the Constitution. The 13th amendment, which abolished slavery, the 14th amendment, which established national citizenship and insured due process, and the 15th Amendment, which put into the Constitution equal rights for the newly freed slaves, all were a direct result of the Civil War that he led and won. But here is what Lincoln argued as a young man, in his later to be famous address to the Young Men’s Lyceum in Springfield, January 27, 1838. 

"Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor; --let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children's liberty. Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap--let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs;--let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars."
Constitution worship never had a greater advocate than Lincoln, who not only did more to rewrite it, but who also violated it more than any president until the second half of the 20th century.

This strange religiosity, as it has from the start, operates to prevent Americans from reasonably confronting serious dysfunctionalities in a governing document that was never designed for a country of this size and power. What helped forestall a serious reexamination of the Constitution in the past was what the Constitutional historian Robert Ackerman once referred to as “Constitutional moments,” when the constituent power of a mobilized majority would be able, either through explicit amendment, or more likely by creative reinterpretation, make this creaky machine last another few thousand miles, staying alive. But as Anthony Scalia, a member of both the old and new Gang of Five says, the Constitution is not a living but a dead document. Of course it is Scalia himself who has helped kill it. Contemporary Tea Partiers hope to keep it dead – it is impossible, it seems, to worship living things.
But it may also be the case that they are forcing us to look at a document that has failed in recent decades to produce anything resembling democratic governance. If this is the case, they may be bringing forth more conflict than even they imagine. For the idea of replacing what has increasingly been a Constitution reliant on a history of interpretation – however literal these readers have been – with a new document, would suggest that the there has either been a revolution or the completion of withdrawal of consent from above, as the neo-liberalism of today bleeds into the neo-feudalism of the future.


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