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.

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Spin Cycle

I get so disheartened listening to political arguments about health care reform.

It’s not that I am a big fan of the bill that finally passed. I would much rather have seen “Medicare for All,” for policy reasons not germane to this post. But I have been astonished by the venom that the bill has engendered. It’s bad enough that crazies like Glenn Beck compare Obama’s effort to provide health care to the uninsured with Nazism. The despicable lie about “death panels,” hyped by Sarah Palin and her ilk, was equally odious. But perhaps the most annoying of these efforts at disinformation has been the recent effort by presumably serious GOP lawmakers to persuade the public that the Affordable Care Act–which they dub sneeringly as “Obamacare”–is a “jobs killer.”

This all started when the Congressional Budget Office reviewed the Act. Along with concluding that the reform bill will reduce the deficit significantly over the next ten years, the CBO noted that the measure will allow a number of people to leave the workforce. Congressional Republicans immediately cited this as evidence the Act was a “job killer.”

What the CBO found, however, had nothing at all to do with the number of jobs. It had to do with the number of people who are currently working only because they need affordable health insurance.

In other words, there are people who are only working because they desperately need employer-sponsored health insurance. These are people who have the means not to work full-time, if they have access to a health insurance market that currently shuts them out. Many of these workers will choose to retire early because they will now be able to buy their own health insurance.

This is what Republicans mean when they say that health care reform is ‘destroying jobs.’

There’s a reason many of us despair of ever having reasoned, rational discussions of policy. When ideology and political posturing trump reality, the common good–not to mention common sense–gets lost in the spin cycle.

Framing the Framework

Eliot Spitzer may be defective in sexual morality (not to mention taste), but he made a very important point in a recent speech reported by ACS–the American Constitution Society.

As the ACS blog put it:

Former New York Gov. Eliot Spitzer, during a keynote speech at an ACS event examining corporations’ influence on the federal courts, said that progressives have been far too passive in the debate over the meaning and reach of the U.S. Constitution. Spitzer called the Constitution a “wildly progressive document,” and urged progressives to stop being silent about the richness and vitality of the nation’s governing document.

“I think we are about to lose the Constitution,” Spitzer said at the Feb. 8 “Federal Courts, Inc.?,” event. “I don’t mean in some dramatic way, like it’s going to be ripped away from us. But I do mean, just as we lost the conversation about what government should do, just as we lost the ability to speak with pride and vigor and define what a government can do for our communities, because we failed to make a counter argument, we are losing the narrative about the Constitution, because we are letting the other side claim it.”

Spitzer continued:

The Constitution is a wildly progressive document. It is an amazing thing. We all appreciate that. But our failure to stand up and defend it permits them to claim it. This charade of reading an edited version of the Constitution on the floor of the Congress, as though some how the parts of it we don’t like didn’t exist, as though somehow therefore they can have both an originalist interpretation, but ignore the originalist pieces they don’t like; I mean the internal incoherence of what they do is so palpable. And yet we don’t stand up and push back and say ‘Shame on you, stop, read it, see that there were warts in this document, see that it has grown, see how wonderful it is, and understand it because it has a dynamic and has grown to show us where society can go. We’re quiet. I would have loved to see the president push back on that – in the State of the Union. I would have love to see him say ‘I want to read the Constitution to you, and explain to you what it means, and how it grows.’

Kicking the Dog–Extended Version

Watching the Indiana legislature reminds me more than anything of those days—and we’ve all had them—when nothing has gone right at the office, we’ve made fools of ourselves in a meeting, and we’re just in a foul mood. So we go home and yell at our spouse, snap at our children and kick the dog.

Our lawmakers are faced with massive problems, not all of which they created themselves. We have horrendous budgetary and fiscal problems, fights over education policy are reaching the boiling point, the Chief Justice and the Governor have stressed the need to rethink incarceration policies, and notwithstanding the constant hype from state officials, Indiana’s job creation has been anemic (to put it mildly).

So our legislators are kicking the dog—in this case, gays and immigrants.

Not that Indiana’s legislature has ever distinguished itself in the “serious and responsible” category. (When the late Harrison Ullmann edited NUVO, he regularly referred to the General Assembly as The World’s Worst Legislature.)  But this focus on gays and immigrants (more accurately, brown immigrants) is not only wrongheaded, it’s counterproductive. As the CEO of Cummins, Inc. wrote in this morning’s Indianapolis Star, Cummins has been a bright spot for employment in Indiana, creating jobs at a time when many employers have been cutting back. But much of their growth has depended upon international trade, and immigrant-bashing will hinder further job creation.

“We plan to add even more people given our ambitious plans for growth. These new jobs could be located in many places in the world; for us to add them in Indiana we must have an environment that is welcoming to all people and where diversity is valued and allowed to flourish.”

Cummins was one of the large Indiana employers who testified the last time the legislature tried to amend the Indiana constitution to prohibit same-sex marriage. All of them made the same point: legislation bashing “the other” not only accomplishes nothing (immigration policy is a federal responsibility, and there is no same-sex marriage in Indiana), it inhibits job creation and economic development.

As I have previously noted, Indiana’s economic development policy has focused on recruiting and growing high-tech and biotech employers. Those tend to be companies that are gay-friendly, companies that also employ significant numbers of gays. Passing an anti-gay constitutional amendment sends, shall we say, a somewhat “mixed” message.

Leaders of Indiana’s religious and business communities have spoken out against these efforts to marginalize and disenfranchise. Editorial writers and lawyers have cautioned against the unanticipated consequences of the bills currently pending in the Indiana General Assembly. Administrators at institutions of higher education, including my own, have warned that these bills will make it difficult for our international students, and may jeopardize hard-won domestic partner benefits for gay and lesbian employees.

All of these groups have warned that the risks of passing these measures are real, while the “benefits” are non-existent.  The immigration bill violates federal law, and if passed, will be struck down, and as many of us have pointed out, the only way Indiana will ever get same-sex marriage is if the United States Supreme Court rules that the U.S. Constitution requires it—and if that happens, a state constitutional provision won’t be enforceable anyway.

I hope some of our legislators are listening, but I doubt it. Kicking the dog doesn’t solve any of our problems, but it’s easier than dealing with fiscal and policy realities. And it evidently makes them feel better.

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Kicking the Dog

Watching the Indiana legislature reminds me more than anything of those days—and we’ve all had them—when nothing has gone right at the office, we’ve made fools of ourselves in a meeting, and we’re just in a foul mood. So we go home and yell at our spouse, snap at our children and kick the dog.

Our lawmakers are faced with massive problems, not all of which they created themselves. We have horrendous budgetary and fiscal problems, fights over education policy are reaching the boiling point, the Chief Justice and the Governor have stressed the need to rethink incarceration policies, and notwithstanding the constant hype from state officials, Indiana’s job creation has been anemic (to put it mildly).

So our legislators are kicking the dog—in this case, gays and immigrants.

Not that Indiana’s legislature has ever distinguished itself in the “serious and responsible” category. (When the late Harrison Ullmann edited NUVO, he regularly referred to the General Assembly as The World’s Worst Legislature.)  But this focus on gays and immigrants (more accurately, brown immigrants) is not only wrongheaded, it’s counterproductive. As the CEO of Cummins, Inc. wrote in this morning’s Indianapolis Star, Cummins has been a bright spot for employment in Indiana, creating jobs at a time when many employers have been cutting back. But much of their growth has depended upon international trade, and immigrant-bashing will hinder further job creation.

“We plan to add even more people given our ambitious plans for growth. These new jobs could be located in many places in the world; for us to add them in Indiana we must have an environment that is welcoming to all people and where diversity is valued and allowed to flourish.”

I hope some of our legislators are listening, but I doubt it. Kicking the dog doesn’t solve any of our problems, but it evidently makes them feel better.

Comments