The Tea Party and the Constitution

Tea-ing Up the Constitution

by Adam Liptak
The New York Times

WASHINGTON — Brash and young though it is, the Tea Party movement has already added something distinctive to contemporary political discourse. It has made the Constitution central to the national conversation.

The content of the movement’s understanding of the Constitution is not always easy to nail down, and it is almost always arguable. But it certainly includes particular attention to the Constitution’s constraints on federal power (as reflected in the limited list of powers granted to Congress in Article I and reserved to the states and the people the 10th Amendment) and on government power generally (the Second Amendment’s protection of gun rights, the Fifth Amendment’s limits on the government’s taking of private property).

Not a few constitutional scholars say that it is possible to quarrel with the particulars while welcoming the discussion. And not just because it is nice to know that people read and care about the nation’s sacred text. The larger point, these scholars say, is that the Supreme Court should have no more monopoly on the meaning of the Constitution than the pope has on the meaning of the Bible.

“It really is open to interpretation by anybody, in what I sometimes call the lawyerhood of all citizens,” said Sanford Levinson, a law professor at the University of Texas. “Anybody in a bar can get into a shouting argument over what equal protection means, or the right to free speech.”

Those arguments can and should have consequences, according to scholars who endorse what they call “popular constitutionalism.” “Basically, it’s the idea that final authority to control the interpretation and implementation of constitutional law resides at all times in the community in an active sense,” Larry D. Kramer, the dean of Stanford Law School, wrote in The Valparaiso University Law Review in 2006…

…Judging by the rhetoric at many political rallies these days, the spirit of the current moment may be heading in the opposite direction on the question of federal power.

“The Tea Party movement is interesting in that there is a combination of localism, nativism and populism that we’ve seen at various points in America,” said Nathaniel Persily, a law professor at Columbia and an editor of “Public Opinion and Constitutional Controversy.” “It’s coalescing at a time when the government is growing to an unprecedented size.” …

The article continues at the New York Times.

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