Can popular constitutionalism survive the tea party movement?

Northwestern University Law Review

Volumn 105, Issue 4, 2011, Pages 1807-1819

  Goldstein, Jared A ^a  

^a ROGER WILLIAMS UNIVERSITY   (United States)

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EID: 84857933490     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (118)

1. See, e.g., DICK ARMEY & MATT KIBBE, GIVE US LIBERTY: A TEA PARTY MANIFESTO 66 (2010) ("First and foremost, the Tea Party movement is concerned with recovering constitutional principles in government.")
2. JOSEPH FARAH, THE TEA PARTY MANIFESTO: A VISION FOR AN AMERICAN REBIRTH 27 (2010) ("[F]undamentally, [the Tea Party] is about the Constitution and the Declaration of Independence.").
3. A typical mission statement of a Tea Party group declares, "Our demands are simple. Return the role of the Federal government to the original design laid out in the U.S. Constitution." We're Doing It Again in 2010, TRUSSVILLE TEA PARTY (Mar. 19, 2010, 11:01 AM), http://www.trussvilleteaparty.com/2010/03/were-doing-it-again-in-2010.
4. See Ilya Somin, The Tea Party Movement and Popular Constitutionalism, 105 NW. U. L. REV. COLLOQUY 300 (2011), http://www.law.northwestern.edu/lawreview/colloquy/2011/12/LRColl2011n12Somin.pdf.
5. I am speaking here of the normative claims of some proponents of popular constitutionalism who advocate greater public control of constitutional interpretation.
6. See, e.g., MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 182 (1999) ("Populist constitutional law. treats constitutional law not as something in the hands of lawyers and judges but in the hands of the people themselves.")
7. Larry D. Kramer, Undercover Anti-Populism, 73 FORDHAM L. REV. 1343, 1344 (2005) ("The basic principle of popular constitutionalism can be briefly stated. It is, in a nutshell, the idea that ordinary citizens are our most authoritative interpreters of the Constitution.").
8. Popular constitutionalism also includes more descriptive scholarship that examines how political and social movements often influence constitutional developments without arguing that such influence is necessarily a good thing.
9. See, e.g., Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 CALIF. L. REV. 1323 (2006).
10. For a nice summary of the popular constitutionalist literature, including the distinctions between normative and positive popular constitutionalists
11. see David E. Pozen, Judicial Elections as Popular Constitutionalism, 110 COLUM. L. REV. 2047, 2053-64 (2010).
12. For an examination of the ways that some of these groups have succeeded in effectuating changes in constitutional law outside the Article V amendment process
13. see, e.g., William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 MICH. L. REV. 2062 (2002)
14. Siegel, supra note 4.
15. See JOHN M. O'HARA, A NEW AMERICAN TEA PARTY: THE COUNTERREVOLUTION AGAINST BAILOUTS, HANDOUTS, RECKLESS SPENDING, AND MORE TAXES 18-20, 237-38 (2010).
16. See id. at 1-18
17. KATE ZERNIKE, BOILING MAD: INSIDE TEA PARTY AMERICA 64-80, 83-84 (2010).
18. Exit polls show that 41% of voters in the 2010 election identified themselves as Tea Party supporters, and 87% of those who identified themselves as Tea Party supporters voted for Republican candidates.
19. Tom Curry, What Exit Polls Say About Tea Party Movement, MSNBC (Nov. 3, 2010, 10:00 AM), http://www.msnbc.msn.com/id/39979427/ns/politics-decision_2010.
20. Summarizing those constitutional views, however, is difficult because the Tea Party movement is broad and decentralized with no agreed-upon doctrines or leaders. The Tea Party literature I rely upon includes: the mission statements of the six national Tea Party umbrella organizations: 1776 Tea Party, FreedomWorks Tea Party, Tea Party Express, Tea Party Nation, Tea Party Patriots, and ResistNet
21. Tea Party websites, such as www.TeaPartyNation.com, www.TeaPartyPatriots.org, and www.TeaParty.org
22. books written by recognized Tea Party leaders and insiders, including ARMEY & KIBBE, supra note 1
23. FARAH, supra note 1
24. CHARLY GULLETT, OFFICIAL TEA PARTY HANDBOOK: A TACTICAL PLAYBOOK FOR TEA PARTY PATRIOTS (2009)
25. and O'HARA, supra note 6
26. as well as speeches given at Tea Party events. I also rely on two books on the Constitution that predate the Tea Party movement
27. W. CLEON SKOUSEN, THE FIVE THOUSAND YEAR LEAP: 28 GREAT IDEAS THAT CHANGED THE WORLD (James Michael Pratt et al. eds., Am. Documents Publ'g 2009) (1981) [hereinafter SKOUSEN, FIVE THOUSAND]
28. and W. CLEON SKOUSEN, THE MAKING OF AMERICA: THE SUBSTANCE AND MEANING OF THE CONSTITUTION (1985) [hereinafter SKOUSEN, MAKING], which are considered by many to be the most influential books on the Tea Party's constitutional vision and have been used by hundreds of Tea Party groups to educate their members and the public about the meaning of the Constitution.
29. See Jeffrey Rosen, Radical Constitutionalism, N.Y. TIMES MAG., Nov. 28, 2010, at 34, available at http://www.nytimes.com/2010/11/28/magazine/28FOB-idealab-t.html (characterizing Skousen as "the constitutional guru of the Tea Party movement"). In addition, I have also found useful several books and other materials describing the movement from the outside
30. including DEVIN BURGHART & LEONARD ZESKIND, TEA PARTY NATIONALISM: A CRITICAL EXAMINATION OF THE TEA PARTY MOVEMENT AND THE SIZE, SCOPE, AND FOCUS OF ITS NATIONAL FACTIONS (2010)
31. JILL LEPORE, THE WHITES OF THEIR EYES: THE TEA PARTY'S REVOLUTION AND THE BATTLE OVER AMERICAN HISTORY (2010)
32. And ZERNIKE, supra note 7.
33. In February 2010, a group of leading Tea Party activists circulated a "Tea Party Declaration of Independence," which seeks to articulate the movement's principles.
34. Carl Andrews, Tea Party Nation Drafts Declaration of Independence, AM. CONSERVATIVE DAILY (Feb. 25, 2010), http://www.americanconservativedaily.com/2010/02/tea-party-nation-drafts-declaration-ofindependence.
35. The document declares, "For much of its history the United States has been a land of prosperity and liberty[;] sound policies such as fiscal responsibility, constitutionally limited government and a belief in the free market have safeguarded this condition." Declaration of Tea Party Independence
36. DAILY CALLER, http://dailycaller.firenetworks.com/001646/dailycaller.com/wp-content/blogs.dir/1/files/Tea-Party-Dec-of-Independence-22410.pdf (last visited July 26, 2011).
37. Jill Lepore, Tea and Sympathy: Who Owns the American Revolution?, NEW YORKER, May 3, 2010, at 26, available at http://www.newyorker.com/reporting/2010/05/03/100503fa_fact_lepore?currentPage=all.
38. For examples of Tea Party criticism of Obama and his policies as un-American
39. see Brian Montopoli, Sarah Palin: Obama's Policies Are "Un-American," CBS NEWS (Apr. 14, 2010, 12:02 PM), http://www.cbsnews.com/8301-503544_162-20002464-503544.html
40. Kate Phillips, After Explaining a Provocative Remark, Paul Makes Another, N.Y. TIMES, May 22, 2010, at A10, available at http://www.nytimes.com/2010/05/22/us/politics/22paul.html (describing Rand Paul's criticism of the Obama Administration's stance toward British Petroleum after the 2010 oil spill in the Gulf of Mexico).
41. See, e.g., About, FIRST COAST TEA PARTY, http://firstcoastteaparty.org/?page_id=550 (last visited July 26, 2011) ("The First Coast Tea Party's mission is to promote the principles of our founding fathers-individual liberty and responsibility, limited government and moral leadership.")
42. About Us, WETUMPKA TEA PARTY, http://www.wetumpkateaparty.com/AboutUs.aspx (last visited July 26, 2011)
43. ("We believe in the principles that our country was founded upon: Faith, Honesty, Reverence, Hope, Thrift, Humility, Charity, Sincerity, Moderation, Hard Work, Courage, Personal Responsibility, Gratitude.").
44. For my initial and tentative answers to the questions posed in this Essay
45. see Jared A. Goldstein, The Tea Party Movement and the Perils of Popular Originalism, 53 ARIZ. L. REV. 827 (2011).
46. See, e.g., Pozen, supra note 4, at 2057
47. ("[Popular constitutionalists] believe that judicial supremacy threatens to sap the democratic legitimacy of American constitutional law and therefore the health of our legal-political order.").
48. See, e.g., O'HARA, supra note 6, at 4 (asserting that the Obama Administration's proposals "would erode everything we believed was good about the United States")
49. ZERNIKE, supra note 7, at 44 (quoting Dick Armey as saying that the Tea Party "is really riding now a crest of national fear" that the Democrats are "going to ruin our country" (internal quotation marks omitted)).
50. In April 2010, around 18% of Americans identified themselves as Tea Party supporters. National Survey of Tea Party Supporters, N.Y. TIMES 33 (Apr. 5-12, 2010), http://documents.nytimes.com/newyork-timescbs-news-poll-national-survey-of-tea-party-supporters.
51. Over half of Tea Party supporters described themselves as "angry" at the federal government, compared to 19% of Americans generally.
52. Id. at 14.
53. As Joseph Farah explained, "[m]any Americans are indeed dispirited as a result [of the profound changes the country is undergoing]. They look around and they no longer recognize their country and what it is rapidly becoming."
54. FARAH, supra note 1, at 84.
55. See, e.g., O'HARA, supra note 6, at 204 ("The only radicalism involved in this movement is the preservation of the once radical ideas defended by the Founders that people should have a right to life, liberty, and the pursuit of happiness.")
56. About the Campaign for Liberty, CAMPAIGN FOR LIBERTY, http://www.campaignforliberty.com/about.php#mission (last visited July 26, 2011) ("Our country is ailing. That is the bad news. The good news is that the remedy is so simple and attractive: a return to the principles our Founders taught us."). Although the term "fundamentalist" can be controversial because it is sometimes used pejoratively or dismissively, sociologists of religion have generally embraced the term to describe religious movements that arise in opposition to elements of modernity that believers perceive as threatening their core identities.
57. See Introduction to FUNDAMENTALISMS OBSERVED, at ix (Martin E. Marty & R. Scott Appleby eds., pbk. ed. 1994) (defining and defending the term "fundamentalism").
58. See, e.g., FARAH, supra note 1, at 83, 87 (asserting that because America is "under attack from globalists who seek to destroy America's national sovereignty[,]. [i]t's time to reclaim the promise our founders gave us uniquely in the Declaration of Independence and the Constitution").
59. Ellen, Sarah Palin Lectures Fox News Viewers: Our Constitution Creates Law Based on the God of the Bible and the Ten Commandments, NEWS HOUNDS (May 7, 2010), http://www.newshounds.us/2010/05/07/sarah_palin_lectures_fox_news_viewers_our_constitution_creates_law_based_on_the_god_of_the_bible_and_the_ten_commandments.php.
60. See, e.g., SKOUSEN, FIVE THOUSAND, supra note 9, at 118 (asserting that in the first decades of the twentieth century radicals sought to pave the way for socialism by attacking the Constitution and claiming it was out of step with an industrialized society).
61. Id. ("Therefore, to adopt socialism, respect and support for traditional constitutionalism had to be eroded and then emasculated.")
62. see also W. CLEON SKOUSEN, THE NAKED COMMUNIST 259-62 (10th ed. 1961) (asserting that Communists sought to lay the groundwork for collective government by discrediting the Constitution and the Founders, by prohibiting prayer in public schools, by encouraging public acceptance of homosexuality and masturbation, and by destroying the traditional family structure).
63. See SKOUSEN, FIVE THOUSAND, supra note 9, at 15, 17, 225.
64. Id. at 76
65. see also FARAH, supra note 1, at 73-74 (asserting that the Founders "got their inspiration from another radical document-the Bible"-and that, in fact, "[m]any of the founders were biblical scholars").
66. See SKOUSEN, FIVE THOUSAND, supra note 9, at 63, 80.
67. Id. at 63, 87-89.
68. Id. at 118 ("As Samuel Adams pointed out, the Founders had tried to make socialism 'unconstitutional.'").
69. See, e.g., Declaration of Tea Party Independence, supra note 10, § VI ("We are the Tea Party Movement of America and we believe in American Exceptionalism. We believe that American Exceptionalism is found in its devotion to the cause of Liberty.").
70. Judson Phillips, I Am Tired of Pat Buchanan, TEA PARTY NATION (Dec. 14, 2010, 6:29 AM), http://www.teapartynation.com/forum/topics/i-am-tired-of-pat-buchanan. For a brief description of Phillips and the founding of Tea Party Nation
71. see BURGHART & ZESKIND, supra note 9, at 33.
72. SARAH PALIN, AMERICA BY HEART: REFLECTIONS ON FAMILY, FAITH, AND FLAG 63 (2010)
73. see also Sarah Palin, Excerpt from Sarah Palin's Address, LAS VEGAS SUN (Mar. 28, 2010, 2:00 AM), http://www.lasvegassun.com/news/2010/mar/28/excerpt-sarah-palins-address ("And we still believe that America is exceptional. And we know that what makes her exceptional is not her politicians, it's her people and it is the founding principles that they hold dear.").
74. See PALIN, supra note 30, at 262 ("We have a president, perhaps for the first time since the founding of our republic, who expresses his belief that America is not the greatest earthly force for good the world has ever known.").
75. Widely followed among conservatives generally, Rush Limbaugh proclaimed that Obama is the "first anti-American President." The Rush Limbaugh Show: "Imam Hussein Obama" Is Probably the "Best Anti-American President the Country's Ever Had" (Premiere Radio Network Aug. 18, 2010).
76. Squawk Box: Santelli's Tea Party (NBC television broadcast Feb. 19, 2009), available at http://video.cnbc.com/gallery/?video=1039849853
77. see, e.g., ARMEY & KIBBE, supra note 1, at 19-20
78. O'HARA, supra note 6, at 1-2
79. ZERNIKE, supra note 7, at 13.
80. Squawk Box: Santelli's Tea Party, supra note 33 (at 00:15).
81. Id. (at 00:42 and 01:08).
82. ARMEY & KIBBE, supra note 1, at 19.
83. See id. at 34 ("Santelli, perhaps unintentionally, reintroduced freedom-loving Americans to their roots and a fundamental tenet of our nation's fabric.").
84. See, e.g., Frequently Asked Questions, TEA PARTY NATION, http://www.teapartynation.com/page/frequently-asked-questions (last visited Apr. 13, 2011) ("Tea Party Nation is a group of likeminded individuals who believe in our God given Individual Freedoms written out by the Founding Fathers. We believe in Limited Government, Free Speech, the Second Amendment, our Military, Secure Borders and our Country!")
85. Tea Party Patriots Mission Statement and Core Values, TEA PARTY PATRIOTS, http://www.teapartypatriots.org/mission.aspx (last visited July 26, 2011) ("Our mission is to attract, educate, organize, and mobilize our fellow citizens to secure public policy consistent with our three core values of Fiscal Responsibility, Constitutionally Limited Government and Free Markets.").
86. See, e.g., O'HARA, supra note 6, at 207, 214-15 (asserting that Tea Party supporters "believe that age-old philosophical principles of individual liberty, the pursuit of happiness, and basic property rights, as enshrined in law through the United States Constitution, are the fundamental building blocks of our civil society," while liberal support for programs like universal health care is "founded on the perversions of the philosophical principles that founded our nation").
87. See, e.g., Tea Party Patriots Mission Statement and Core Values, supra note 38 ("The Tea Party Patriots stand with our founders, as heirs to the republic, to claim our rights and duties which preserve their legacy and our own.").
88. See, e.g., FARAH, supra note 1, at 82-83 ("The very will of the American people is under attack. from globalists who seek to destroy America's national sovereignty.")
89. Glenn Beck, Foreword to SKOUSEN, FIVE THOUSAND, supra note 9, at 7 ("[O]ur Republic is at stake.").
90. Sometimes this rhetoric of invasion is literal. See, e.g., FARAH, supra note 1, at 68 (asserting that the "political and cultural elite" have sought to prevent American sovereignty by "conspir[ing] to bring into America millions and millions more sheep-illegally").
91. Id. at 85 ("Many Americans. look around and they no longer recognize their country and what it is rapidly becoming.")
92. SKOUSEN, FIVE THOUSAND, supra note 9, at iii, 135 (explaining that socialists succeeded in duping the American people into abandoning many of the foundational principles upon which the nation was founded, producing a "generation of lost Americans" and a nation of "un-Americans").
93. See FARAH, supra note 1, at 88.
94. See, e.g., id. at 91 ("[T]he courts and America's key cultural institutions are. slowly, inevitably changing the hearts and minds of the people to accept un-American values of collectivism and moral relativism.").
95. See, e.g., Kevin Drum, Recycled, MOTHER JONES, Sept.-Oct. 2010, at 50, 51, available at http://motherjones.com/politics/2010/08/history-of-the-tea-party ("'Obama isn't a US socialist,' thundered Fox News commentator, Steven Milloy at a tea party convention earlier this year, 'he's an international socialist!'").
96. See, e.g., Joseph Farah, Address at the National Tea Party Convention (Feb. 5, 2010), available at http://www.c-spanvideo.org/program/291955-1.
97. See, Alex Altman, Racism Rift Highlights Dilemma: Who Speaks for the Tea Party?, TIME (July 22, 2010), http://www.time.com/time/politics/article/0,8599,2005371,00.html (quoting Tea Party Express leader Mark Williams describing President Obama as an "Indonesian Muslim turned welfare thug and a racist in chief").
98. See, e.g., BURGHART & ZESKIND, supra note 9, at 57-67
99. see also Rich Swier, Destroy the Family, You Destroy the Country!, TEA PARTY NATION (Mar. 28, 2011, 4:00 PM), http://www.teapartynation.com/profiles/blogs/destroy-the-family-you-destroy (arguing that as a result of federal policies "[t]he White Anglo-Saxon Protestant (WASP) population in America is headed for extinction and with it our economy, well-being and survival as a uniquely America [sic] culture").
100. See, e.g., Alan Caruba, Obama, As Red as It Gets, TEA PARTY NATION, (Mar. 20, 2011, 8:18 AM), http://www.teapartynation.com/profiles/blogs/obama-as-red-as-it-gets. In various permutations, the meme that Obama is not truly American is widespread among conservatives.
101. See, e.g., DINESH D'SOUZA, THE ROOTS OF OBAMA'S RAGE (2010) (claiming that Obama is attempting to carry out the socialist, anticolonial dreams of his Kenyan father)
102. Steven G. Calabresi, Steven G. Calabresi's Response to "The Teleprompter Presidency?," POLITICO (Aug. 17, 2010), http://www.politico.com/arena/perm/Steven_G__Calabresi_A5D4F886-1279-48D4-96B9-D176A986A416.html) (asserting that "at some level [Obama] does not really know America very well nor does he thoroughly identify with it").
103. See, e.g., BURGHART & ZESKIND, supra note 9, at 68-69.
104. Mark Tushnet has argued that "populist constitutionalism"-which perhaps differs somewhat from Larry Kramer's "popular constitutionalism"-would seek to carry out the project of democracy and human rights begun in the Declaration of Independence and the Preamble to the Constitution, which Tushnet understands to embrace a "commitment to the realization of universal human rights" and popular democracy.
105. TUSHNET, supra note 4, at 52-53.
106. Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism?, 118 HARV. L. REV. 1594, 1640 (2005) (book review) (arguing that "constitutional interpretation by mob. is the logical stopping point of [popular constitutionalism]")
107. Laurence H. Tribe, The People's Court, N.Y. TIMES, Oct. 24, 2004, at 32, 33, available at http://www.nytimes.com/2004/10/24/books/review/24TRIBEL.html ("For if constitutional law were but a vessel into which the people could pour whatever they wanted it to contain at any given moment, wouldn't the whole point of framing a constitution have been lost?").
108. According to Larry Kramer, defenders of judicial supremacy dismiss "democratic politics as scary and threatening" and harbor "deep-seated misgivings about ordinary citizens." LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 242-44 (2004).
109. See SKOUSEN, FIVE THOUSAND, supra note 9, at 342-55 (asserting the unconstitutionality of the New Deal, administrative agencies, Social Security and other federal welfare programs, all federal environmental, labor, and consumer laws, the creation of national forests, wilderness areas, and national parks, and the abandonment of the gold standard)
110. Declaration of Tea Party Independence, supra note 10, § II ("We reject a profligate Government that is spending TRILLIONS of dollars on worthless socialist schemes designed to bankrupt us and put the American people in a position of dependence on the State, as peasants begging for their very sustenance from self-styled 'educated classes' and so-called 'experts.'").
111. Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting).
112. Cf. SKOUSEN, MAKING, supra note 9, at 217 (suggesting that Herbert Spencer's Social Statics expresses the Founders' principles after all).
113. See, e.g., Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 864 (1989) (contending that original meaning "establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself").
114. See, e.g., KRAMER, supra note 54, at 247 (2004) ("The point, finally, is this: to control the Supreme Court, we must first lay claim to the Constitution ourselves.").
115. Writing in 1937, Max Lerner spoke of the dual nature of the Constitution, in which it functions as both a legal instrument and a symbol: "As a symbol it is part of the mass mind, capable of arousing intense popular hysteria"-a fetish, widely believed to "possess supernatural powers, as an instrument for controlling unknown forces in a hostile universe."
116. Max Lerner, Constitution and Court as Symbols, 46 YALE L.J. 1290, 1294 (1937)
117. see also SANFORD LEVINSON, CONSTITUTIONAL FAITH 9-53 (1988) (discussing the role of the Constitution in civil religion).
118. Randy Barnett, The Tea Party, the Constitution, and the Repeal Amendment, 105 NW. U. L. REV. COLLOQUY 281, 287 (2011), http://www.law.northwestern.edu/lawreview/colloquy/2011/10/LRColl2011n10Barnett.pdf.