There’s something that fundamentally bugs me when when I listen to Tea Party folk. Partly it’s the whole “squishiness” of the movement. Disaffected moderates stand next to white supremacists in an organization whose only consistent message seems to be “anger”. At another level, though, there’s a theme I’ve heard coming from TP folk that strikes a dissonant chord in my brain. What bugs me is their complaint that the US government (mostly via the new healthcare bill) is exceeding its constitutional bounds. They advocate a return to minimalist government as described in the US Constitution.
So what is bothersome about this? Well, I have a visceral reaction to the notion that a small set of fixed rules, written in a flawed language, can possibly capture everything which its author(s) intended. I believe that one of the structural advantages of Christianity over Islam is that the Bible is understood to have been written by imperfect humans whereas the Qur’an is supposed to be the literal transcription of Allah’s words to Muhammed. The former approach leaves us a lot of wiggle room. When Corinthians says, “Let the women keep silent in the churches; for they are not permitted to speak…” and, “And if they desire to learn anything, let them ask their own husbands at home; for it is improper for a woman to speak in church.” Christians (well, many of them) treat this in a historical context and don’t insist that it applies today. When reading surah 2:228 with regard to the rights of women how are we to interpret Allah’s words that “the men have a degree over them”? Does that still apply today? Fuzziness and being open to interpretation can be a good thing.
So, who gets to interpret the US Constitution? Can’t Obama simply say “the commerce clause is the basis for the healthcare bill”? How about Congress? The answer, of course is “no” in both cases. The Supreme Court gets to decide what’s constitutional. Right?
Well, right away we have a problem. Nowhere in the Constitution does it describe the process of judicial review. Let me state this another way, the Constitution does not subject laws to a constitutional test. And yet, judicial review is an accepted part of our political process. Congress makes the laws, the Executive branch enforces them and the Judicial branch subjects them to constitutional review. How did this come to be?
Well, if you read the Federalist Papers and some history books, you learn that many of the initial 13 states practiced judicial review and that many of the founding fathers were in favor of it (not all, some were against). Finally, in 1803 (Marbury v. Madison), the Supreme Court struck down a law, declaring it unconstitutional and formally established the concept of judicial review in the US.
Understand, then, why the Tea Party logic is problematic. It declares the US Constitution to be the basis for deciding what powers are vested to the Federal Government, but that document alone does not subject federal laws to constitutional review. Only a broader reading of the Constitution and an 1803 opinion of the Supreme Court require laws to comply with the guidelines of the Constitution.
Once we get past that knothole, the Tea Party folk run into another problem. The Supreme Court, the ultimate arbiter of constitutionality, has repeatedly interpreted the commerce clause in a very broad fashion allowing the Federal government to greatly expand its powers. In 1964, the commerce clause was used to justify the Civil Rights act. More recently, the commerce clause justified the preeminence of federal drug laws over state laws (even when drugs never cross state lines).
Will the TP folk stop complaning about the healthcare bill if, ultimately, the Supreme Court rules it constitutional? I bet not. They would probably complain about activist judges on the Court and claim that they’d made a bad decision.
Sigh. You can’t have it both ways. If you’re going to base your arguments on the US Constitution, you can’t then complain if your interpretation of the Constitution is judged to be wrong. Once the Supremes have decided against you, you are simply wrong. The Constitution doesn’t subject the opinion of the Supreme Court to a popular vote. You can disagree with them all you want, but as far as the Constitution is concerned, you are wrong.
By the way, as a point of semantic clarification, conservative Supreme Court behavior is to respect precendence. Since the Supreme Court has previously interpreted the commerce clause in a broad way, it would be considered judicially liberal to reject precedent and to now consider it narrowly. So what the TP folk are really asking for is for the court to behave in an activist fashion in order to re-interpret the commerce clause.
Hey, you know what else is not in the US Constitution? The fillibuster. So when the TP folk complain about the process that was used to pass healthcare legislation, understand that the process would not have been necessary if the Senate had followed the process set out in the Constitution and allowed a simple up-and-down vote. What they’re really complaining about is that the Democrats used deplorable tactics to overcome the deplorable tactics employed by the opposition.
So, I get it: the Tea Party folk are angry. Bank bailouts, deficit spending, terrorism, etc. – plenty of stuff to be scared and angry about. But to hide behind the Constitution? Please.