Best of the Blogs: One Lump or Two?

November 2 is fast approaching, and the nation is awaiting the election results to see whether the Tea Party Movement will be revealed to be a force in American politics or an over-hyped media sensation.  This week’s “Best of the Blogs” feature provides everything a political junkie needs to learn more about the Tea Party Movement.

The obvious starting point might be Butch Cassidy’s (or Paul Newman’s) famous question, “Who are those guys?”  Amy Gardner at the Washington Post tries to answer that question here (hat tip to Steven Easley).  Despite her best efforts, a definitive picture of the Movement remains elusive:

[A] new Washington Post canvass of hundreds of local tea party groups reveals a different sort of organization, one that is not so much a movement as a disparate band of vaguely connected gatherings that do surprisingly little to engage in the political process.

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Tea Party Economics

Readers of this Blog know that I have a longstanding interest in the debate over the scope of the federal government’s power to regulate the economy under the Constitution.  I am also inclined to take the Tea Party Movement seriously as a political phenomenon rather than writing them off as a group of buffoons or extremists, unworthy of attention.  For that reason, I read with some interest Kate Zernike’s article in the New York Times  on October 2 that discussed the writers whose books are most often said comprise the intellectual foundation of the Tea Party movement. 

Taking pride of place among the “long-ago texts” highlighted in the article is Friedrich Hayek’s 1944 book The Road to Serfdom.  Hayek is often cited by the movement’s followers for his argument that a government that intervenes in the economy will inevitably intervene in every aspect of its citizen’s lives.  If one accepts this premise, it is easy to understand why members of the Tea Party Movement reacted with hostility to the Troubled Asset Recovery Program (TARP), health care reform, and the bailout of the domestic auto industry.  For Tea Party followers, these separate policies – when viewed together — comprise a centrally planned economy reminiscent of the Soviet Union’s infamous Five Year Plans.

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Perry v. Schwarzenegger and the Slippery Slope

As just about everyone knows, yesterday a Northern District of California judge struck down California’s Proposition 8 as unconstitutional. There has been a tremendous amount of blog commentary on this already, much of it worth reading. (See Orin Kerr (here and here), Dave Hoffman, Eugene Volokh, Dale Carpenter, Howard Wasserman, Rick Hasen.) The one issue I want to comment on is what Perry means for the future of the constitutional treatment of same-sex marriages.

Many advocates for legal recognition of same-sex marriage are deeply worried by Perry. Dale Carpenter, for example, is concerned that the breadth of the arguments considered in Perry could lead to a sharply negative precedent if the case is reversed on appeal. Those fears are legitimate. An Equal Protection or Due Process argument mandating equal treatment for low-status individuals is what might be called “a nuclear bomb of a legal theory” — it applies everywhere, all at once, and obliterates legal distinctions meant to enforce low social status. The same applies, to a lesser extent, to arguments that the Full Faith and Credit Clause mandates recognition of valid same-sex marriages by every other state in the union. Courts might be hesitant to, so to speak, stop worrying and learn to love the bomb. Marched to the precipice too quickly, they might find some way to pull back from the brink.

If that happens, and if American society continues to develop tolerance for same-sex couples, will we be locked into sub-optimal constitutional doctrine? Not entirely. As I argue in my forthcoming article on this subject (in the Alabama Law Review), there is an escape valve.

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