Tea Party Originalism

David Schultz is a colleague (and co-author of my recent textbook, American Public Service: Constitutional and Ethical Foundations) who has written a timely article for Salon. It’s the sort of article that should be read by the very folks who won’t read it, because it actually takes one of the Tea Party’s avowed purposes—constitutional originalism—seriously.

“With reverence and awe, Michele Bachmann and the Tea Party pay homage to the original Constitution and framers who drafted the document in 1787. The House of Representatives, in a nod to them, began its session this year by reading it. Bachmann even brought Antonin Scalia to a seminar on the Constitution for members of Congress, where the Supreme Court justice instructed members to read the Federalist Papers and follow the framers’ original intent. Moreover, many of the Tea Party’s political positions, such as opposition to President Obama’s healthcare reform program, are rooted in their adherence to the original document.

But what if they actually got their way? If a Tea Party constitutional reading suddenly took sway and we returned to the original document as conceived, what would the American republic look like?”

David begins by pointing to the obvious: the right to vote wasn’t part of the original constitution. Voting rights were largely left to state law, and in 1787 most states limited the franchise to white, male, Protestant property owners, age 21 or older. There was no direct popular voting for president or the United States Senate, and there wasn’t even language that addressed voting for members of the House of Representatives. It took the 17th Amendment, adopted in 1913, to allow for people to vote for their senators (an amendment many Tea Party activists wish to repeal), and the 19th Amendment before women could vote.

As David points out, Michelle Bachmann—self-proclaimed devotee of the Constitution—could neither vote nor serve if we still followed the original document. The Senate wasn’t chosen by popular vote originally, and the President still isn’t.

“Even if we consider the Bill of Rights, which was adopted in 1791, to be part of the original Constitution, there are still many limits on its use. Most importantly, as written, the Bill of Rights limited only national power — not state power. Notice how the First Amendment begins by declaring, “Congress shall make no law. ” … a state could take an owner’s property through eminent domain without compensating him.

Subscribe to an original intent reading of the Constitution and states are free to disregard individual rights, including free speech, property, religion and others. States did just that in the early years of the Republic and into the 20th century before the Supreme Court used the 14th Amendment to apply Bill of Rights provisions to the states. Most recently, the Supreme Court (with Scalia supporting it) used this incorporation tactic to apply the Second Amendment right to bear arms to states. A Tea Party constitutionalist could not have done this. So much for states as protectors of individual freedom.”

Then of course, there are aspects of the original Constitution that even most Tea Party members find inconvenient. In their much-ballyhooed reading of the constitutional text on the floor of the House at the beginning of this session, these fearless defenders of originalism simply omitted that pesky provision about slavery.

It’s hard not to see similarities between the way so many of these “God and Country” zealots read the Constitution and the way they read the bible—very selectively.


  1. This is very true. The Constitution has grown with time. I think the one big mistake we are making is our misconception that the Supreme Court “interprets” the Constitution. Nowhere in Article Three does it say this, and it’s a mistake to view their powers as such. They are to review each case in light of the Constitution.
    Their job is to balance rights by interpreting the case within the constructs of the Constitution. It would be like a referee deciding what the rules mean with each play. The rules are there and everyone knows what they are and the referee calls the play in light of those rules. Of course, the Constitution is more complicated when being viewed within the reality of a case, thus the need to balance rights. In the Citizens United case the Supreme Court chose corporate and money rights over people.. When one reads the Constitution it’s obvious that this decision did not properly balance rights. It allowed the most powerful with the most say more power and that’s far from balancing: That’s a skew. Justice Stevens makes this clear in his dissent. When viewing the entire Constitution and it’s intent, it is clear they didn’t do their job very well. Currently, in our cultural consciousness, we allow them the unabashed right to interpret the Constitution, and so they can pretty much do anything they like with no accountability. Maybe we ought to try this out with sports and see how well it works in that arena? We have to realize that we have created a Supreme Court dictatorship by allowing ourselves as a culture to incorrectly define their powers. Nothing in the Constitution sets up any branch of our government to be a dictatorship. It makes each branch by law accountable, but we as a people have to be thinking clearly in order to judge their actions.

  2. The Original document allows for the “Public Welfare”. It’s seems government has a lot of room here and enough for universal health care in the 21st century.

  3. Yet I don’t think it is consistent with the Constitution to force people to buy from the private sector. I think this was the mistake with the health care bill. Medicare for all with voluntary enlistment into the program, would have been more consistent. I think the smarter people on the right knew this and set up the left for failure. They’re good at that!

  4. I’m sorry Sheila that you will not longer write editorials for the Star. Your opinions were a welcome relief, and you will be sorely missed.

  5. If Scalia were really interested in original intent it is highly unlikely that he would be enjoying his seat on SCOTUS. Of the first 54 SC Justices appointed, only one was a Catholic and that was the infamous Roger Taney (can you say “Dred Scott”?) appointed by Jackson. Even Taney’s appointment had nothing to do with his religion; he was a personal friend and fellow slave-holder with political views consistent with those of Jackson on the crucial issues of slavery and Indian removal and unfortunately remained as Chief Justice for nearly 30 years. No other Catholic was appointed until about 1890. Having a Catholic majority on SCOTUS at the time of the founding would have been unthinkable.

Comments are closed.