What Are The Core Constitutional Values Behind The Tea Party Movement?

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.

Continue ReadingWhat Are The Core Constitutional Values Behind The Tea Party Movement?

Federalism, Free Markets, and Free Speech

2not even-handed justiceThe Supreme Court decision in Citizens United v. FEC strikes down as unconstitutional a federal law that prohibits corporations and unions from using general treasury funds to make independent expenditures that expressly advocate the election or defeat of candidates for office.  The majority opinion, written by Justice Kennedy, ignores hundreds of years of Supreme Court history in interpreting the subjects of federalism, free markets, and free speech.  In its place, Justice Kennedy presents a textualist interpretation of the First Amendment that is divorced from any history or context.  Justice Kennedy engages in the sort of “faux originalism” (syn. “fake,” “artificial,” “false”) that has been criticized by Judge Richard Posner.  Kennedy places a historical glaze on his own personal values and policy preferences, and calls the result the “original understanding” of the First Amendment.

As such, Citizens United v. FEC stands with District of Columbia v. Heller, the Second Amendment case decided in 2008, as an example of the Justices slapping the “originalist” label on a profoundly un-originalist interpretation of the Bill of Rights.  It is appropriate to view the two cases together.  Both are exercises in raw political power employed in order to accomplish conservative objectives.  Both ignore hundreds of years of understanding about the meaning of the relevant constitutional provisions, in favor of a meaning derived by taking the words of the Amendment out of context.  And both embrace interpretations of the constitutional Amendment at issue that are inconsistent with the meaning ascribed to that same language by the intellectual father of originalism, Robert Bork.  In the same way that modern scholars deride the “Lochner era” as a misguided period in American Constitutional Law, I believe that future scholars and judges will recognize and reject the intellectual dishonesty of the “Heller era.”

Continue ReadingFederalism, Free Markets, and Free Speech

One Class: Deconstructed

eckstein hallIn a previous post, I took an op ed piece that I authored and provided a “deconstruction” of the text that explained the thought process behind the piece’s organization and argument.  In today’s post, I propose to take one class period from my Constitutional Law course and to deconstruct the class in a similar fashion.  Readers of this blog may find my thought process surprising, appalling, or some combination thereof.

The class period in question deals with the constitutional doctrine of standing in the federal courts.  Because federal courts only possess the power to hear cases described in Article III of the Constitution, standing doctrine has been developed by the Supreme Court to differentiate “cases” and “controversies” from disputes that are merely hypothetical, or that request an advisory opinion, or that are better left to family or political decision makers.  The case in the textbook that provides an entry way into a discussion of standing doctrine is Friends of the Earth v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000).

In that case, the plaintiff was a member of an environmental group who wanted to sue a polluter who had dumped mercury into a South Carolina river.  Congress had passed the Clean Water Act, which creates a cause of action in federal court for any person “adversely affected” by a violation of the statute.  The issue was whether the plaintiff in this case, who alleged that he no longer swam in the river or picnicked along its shore due to a fear of contamination, had suffered a sufficient “injury in fact” to have standing to sue.

Continue ReadingOne Class: Deconstructed