I recently posted an article on SSRN entitled “Charters, Compacts and Tea Parties: The Decline and Resurrection of a Delegation View of the Constitution.” You can download the article here.
The emergence of the Tea Party Movement as a political phenomenon has generated a great deal of media attention and punditry over the last year. Most observers have concluded that those who self-identify as “tea partiers” comprise a loose amalgamation of libertarians, states’ rights advocates and opponents of government intervention in the free markets. While most activists have a Republican voting record, the Movement appears to have arisen independent of the Republican Party. Critics of the Bush Administration’s domestic spying activities stand shoulder to shoulder with skeptics of the Obama Administration’s health care reform efforts. To the extent that Tea Party activists share one common political philosophy, that philosophy might best be described as “rage against the federal government.”
Liberals seem inclined to deny the existence of any intellectual content behind the Tea Party Movement, preferring to focus on the undeniable presence of some racists, militia members, and conspiracy theorists among the activists. While it is safe to assume that, for some, anger at the federal government seems inextricably connected to the fact that an African-American is President, Juan Williams is correct when he identifies the core concerns of the Movement as non-racial. Similarly, the “birthers” and other fringe elements in the Movement are merely piggy backing on a generalized anger against the federal government that does not derive from their parochial concerns. Our nation’s public discourse would benefit greatly if conservative intellectuals did more to repudiate these fringe elements, much the way that William F. Buckley famously repudiated the John Birch Society in 1965, but the “anger industry” that profits off of cable television, books and political fundraising appeals is apparently loathe to alienate any of its prime consumers.
There is, in fact, a long tradition of antipathy towards the federal government reflected in our nation’s history. Historian Garry Wills produced a taxonomy of anti-government ideologies (on both the right and the left) in his book A Necessary Evil. I recommended this book in an earlier post. Wills discusses past political movements led by nullifiers (who believe that local law is more authentic and worthy of respect than federal law), secessionists (who believe that states as political units can withdraw from the union if local residents dissent from federal policies), insurrectionists (who believe that violence directed against the federal government is justifiable), vigilantes (who take it upon themselves to enforce social values that the federal government fails to pursue diligently), withdrawers (who seek to separate themselves from a corrupt society), and disobeyers (who use civil disobedience to challenge particular government policies). Anyone who seeks to identify the core constitutional values of the Tea Party Movement should begin by immersing themselves in this history.
I believe that there is an intellectual content to the Tea Party Movement, and that many Tea Party activists are attempting to further meaningful constitutional values. What I find significant is the manner in which the debate over health care reform has illuminated a shift away from the tradition of using states’ rights as a counterweight to federal authority and towards a renewed focus on the structural limits that the Constitution places on the power of the federal government. In some cases, this law will require individuals to purchase private health insurance, and arguments over the constitutionality of the law usually begin with the premise that Congress lacks the power to impose such a mandate under the Commerce Clause. This editorial by the Wall Street Journal is typical.
However, the editorial’s position is merely an invitation to re-argue questions of federalism and economic regulation that have been decided in favor of the federal government since the time of the New Deal. It is certainly possible that the conservative majority on the Supreme Court will revisit the scope of Congress’ Commerce Clause authority (the Citizens United v. FEC opinion illustrates how loosely the bonds of precedent seem to constrain this Court), but it seems unlikely that the current members of the Court will choose to go down a path that it declined to take in Gonzales v. Raich. For this reason, the academic response to health care reform legislation has been strongly on the side of its constitutionality.
Much of the rhetoric of the Tea party Movement has not been about states’ rights and federalism, however. Instead, there has been an emphasis on “delegated powers” and “limited federal authority.” This reaction to the health care reform legislation seems to reach back in time in order to resurrect the original understanding of our Constitution as a charter whereby a sovereign people grant discrete powers to the federal government. This is not a view that has been associated with either political party, Republicans or Democrats, in recent years.
There is no need to address the manner in which the Democrats, in furtherance of economic security and civil rights, came to embrace an expansive view of federal government authority. Less appreciated is the manner in which Republican Presidents also governed in a manner that accepted the broad scope of federal power. President Nixon greatly expanded federal payments to the working poor and imposed wage and price controls to combat inflation. Reagan biographer Lou Cannon concludes that President Reagan, despite his anti-government rhetoric, had no desire to sacrifice his popularity by rolling back New Deal social programs, no doubt that an increase in military spending was necessary, no intention of foregoing promised tax cuts, and no understanding of why eight consecutive unbalanced budgets reflecting this combination of priorities would cause the size of the federal deficit to explode. Both Nixon and Reagan also promoted the growth of the federal government as a means of combating the external threat of communism.
In many ways, President George W. Bush adopted policies that further pushed federal power beyond clearly delegated bounds. Not content merely to leave the New Deal social safety net in place, he added significantly to it with prescription drug coverage for seniors and the No Child Left Behind Act. At the same time, his national security policies adopted the neo-conservative view that a muscular exercise of military power to combat terrorism is unconstrained by any constitutional limits.
The Tea Party Movement reflects a fissure in the coalition of interest groups that have traditionally supported Republican political candidates. In particular, it appears that the advocacy of states’ rights is no longer a sufficient proxy for expressing an anti-government philosophy. Instead, Tea Party activists demand that the federal government stay within strict boundaries of delegated powers. Left out are elements of the Republican “base” such as national security “hawks” who express a more accommodating attitude toward federal power. Those who argue that President Obama is not doing enough to keep Americans safe must try to find common ground with those who assert that the executive branch is limited by its delegated powers. Also not invited to the Tea Party are large corporate interests who might rationally prefer to deal with one federal regulator as opposed to fifty state legislatures. A business that prefers a uniform and prompt legislative response to its concerns must find common ground with those who deny that Congress has any authority to legislate.
I remain fascinated by the arguments about basic federalism principles that one sees reflected every day in the media and in the halls of Congress. My article is an attempt to provide a historical context against which to judge the contemporary debate about the scope of federal government authority. The article begins with an examination of the manner in which the contractual nature of the Constitution illuminates the original understanding of the text. By closely examining the historical evidence, I argue that our interpretation of the Constitution has been influenced by dueling conceptions of contractual origin. One view treats the Constitution as a charter that delegates limited and defined authority to the federal government. The second view treats the Constitution as a compact the terms of which reflect a bargain between the federal government and a discrete body public. After discussing the important differences between these two views of the Constitution, the article discusses the manner in which the compact view came to eclipse the delegation view over the course of our nation’s history.
However, the article concludes by suggesting a connection between the Tea Party Movement and the core constitutional values promoted under the delegation view. These values are the public policing of constraints on federal power, the primacy of popular sovereignty, and the elevation of human rights over government authority. Whatever the political consequences of the emergence of the Tea Party Movement , the re-ascendancy of the delegation view as a part of the public debate over the meaning of the Constitution may aid in our understanding of the original constitutional design.
To read “Charters, Compacts, and Tea Parties: The Decline and Resurrection of a Delegation View of the Constitution,” follow this link and click “download.”