The Coming War over the Constitution
Despite a few victories in the lame-duck session of Congress, Democrats and progressives should be under no illusion about the new flood of know-nothingism that is about to inundate the United States in the guise of a return to “first principles” and a deep respect for the U.S. Constitution.
The same right-wingers who happily accepted George W. Bush’s shift toward a police state – his claims of limitless executive power, warrantless wiretaps, repudiation of habeas corpus, redefining cruel and unusual punishment, suppression of dissent, creation of massive databases on citizens, arbitrary no-fly lists, and endless overseas wars – have now reinvented themselves as brave protectors of American liberty.
Indeed, the Tea Party crowd so loves the Constitution that the new Republican House majority will take the apparently unprecedented step of reading the document aloud at the start of the new congressional session, presumably including the part about enslaved African-Americans being counted as three-fifths of a white person for purposes of congressional representation.
One also has to wonder if these “constitutionalists” will mumble over the preamble’s assertion that a key purpose of the Constitution is to “promote the general Welfare.” And what to do with Section Eight of Article One, which gives Congress the power to levy taxes, borrow money, regulate commerce among the states, and “establish an uniform Rule of Naturalization”?
If one were to buy into the Tea Party’s interpretation of the founding document, you’d have to denounce such concepts as “socialism” and/or “intrusions” on states’ rights.
Part of the Tea Party’s mythology is that federal taxes are an unconstitutional imposition invented by modern-day “lib-rhuls,” that the national debt is another new thing, and that regulation of commerce is outside federal authority.
Surely, there can be honest debates about what’s the best way to “promote the general Welfare,” or the wisest balance between taxation and debt, or the proper role of states in enforcing laws when there is a federal interest (as with Arizona’s anti-immigrant “present your papers” law).
But the pretense of the Tea Party is that the U.S. Constitution is definitive on these points and that the Founders favored today’s right-wing interpretation of the federal government’s powers, i.e. that taxes, debt and regulation of commerce are somehow unconstitutional.
Another curious “reform” from the new Republican House majority will be a requirement to specify what constitutional authority underpins every piece of legislation, a rather silly idea since every bill can make some claim to constitutionality even if the federal courts might eventually disagree.
But the larger truth that the Tea Partiers don’t want to acknowledge is that the Constitution represented a major power grab by the federal government, when compared to the loosely drawn Articles of Confederation, which lacked federal taxing authority and other national powers.
The Founders also recognized that changing circumstances would require modification of the Constitution which is why they provided for amendments. Indeed, the primary limitations on federal authority were included in the first ten amendments, called the Bill of Rights. Subsequent amendments included the eradication of slavery and extending the vote to blacks, and later to women.
Yet, while the Tea Partiers and the Right have embraced a mythical view of the Constitution as some ideal document that opposes federal power to tax, borrow and pass laws that improve “the general Welfare,” they have been less interested in the document’s protection of civil liberties, especially when the targets of abuse are Muslims, Hispanics, blacks and anti-war dissenters.
Many on the Right have found plenty of justifications to trample on the rights of these minorities, even when the actions violate clear-cut mandates in the Constitution, such as the Fourth Amendment’s requirement of “probable cause” before the government can engage in search and seizure and the Eighth Amendment’s prohibition on inflicting “cruel and unusual punishment.”
Especially when the Right’s hero George W. Bush was violating those rights last decade, there were word games to explain the unexplainable.
For instance, in 2007, Attorney General Alberto Gonzales argued that “there is no expressed grant of habeas in the Constitution.” But that was a point of sophistry since the Founders took habeas corpus rights for granted under English law and thus limited the reference in the Constitution to the extreme circumstances required before the government could suspend its need to justify a person’s incarceration before a judge.
Gonzales’s game-playing was similar to the argument made by Tea Party favorite Christine O’Donnell during a Delaware Senate debate – that the Constitution doesn’t call for the “separation of church and state,” because those specific words aren’t used.
The First Amendment does say that “Congress shall make no law respecting an establishment of religion,” which Thomas Jefferson paraphrased as the “separation of church and state.” But it has become an article of faith among many on the Right that “separation of church and state” is a myth. O’Donnell later described herself as high-fiving her aides, thinking she had won the debating point.
Many on the American Right also insist that the Founders created a “Christian nation,” even though the word “Christian” is nowhere to be found in the Constitution and the Founders pointedly set no religious exclusions for those serving in the U.S. government.
One has to wonder, too, how the Republicans on opening day will read the Constitution’s prescribed oath for the president’s swearing in, which ends with a promise to “preserve, protect and defend the Constitution of United States,” without the add-on “so help me God,” which was freelanced by George Washington but is not what the drafters of the Constitution wrote.
Leaving out “so help me God” might be deemed part of the war on Christmas.
Curiously, too, while supposedly revering the Constitution and its original intent, the Tea Partiers and their Republican allies simultaneously are proposing a radical revision of the founding document, an amendment that would allow a super-majority of states to overturn laws passed by Congress and signed into law by the president.
This neo-nullificationism smacks of South Carolina’s resistance to President Andrew Jackson’s federalism in the 1830s, a clash that set the stage for the Confederacy’s secession and the Civil War in the 1860s. The proposed Tea Party amendment, which is supported by many Southern officials including incoming House Majority Leader Eric Cantor of Virginia, could again wreak havoc on the nation.
A New York Times editorial noted that because the proposed amendment "focuses on giving states power to veto (e.g., taxes) without their shouldering responsibility for asserting it (trimming appropriations because of lost tax revenue), the unintended consequences would likely be at least as important as the intended.”
In other words, the Tea Party and the Republicans are positioning themselves as both fundamentalists embracing the Constitution's "original intent" and radicals determined to rip it up. Still, they are not likely to pay any price for their reckless ideas or their blatant hypocrisy.
If we’ve learned anything over the past several decades, it is that reason and consistency have little place in the U.S. political/media system. What counts is the size of the megaphone – and the American Right has built a truly impressive one, while the Left has largely downplayed the need for making an alternate case to the public.
As the Times noted, the Tea Party’s proposed 28th Amendment “helps explain further the anger-fueled, myth-based politics of the populist new right. It also highlights the absence of a strong counterforce in American politics. …
“The error that matters most here is about the Constitution’s history. America’s fundamental law holds competing elements, some constraining the national government, others energizing it.
“But the government the Constitution shaped was founded to create a sum greater than the parts, to promote economic development that would lift the fortunes of the American people.”
The Times also noted the inability of the American Left to make a case for more government intervention to address the nation’s deepening problems, such as high unemployment and severe income disparity. The Times wrote:
“In past economic crises, populist fervor has been for expanding the power of the national government to address America’s pressing needs. Pleas for making good the nation’s commitment to equality and welfare have been as loud as those for liberty.
“Now the many who are struggling have no progressive champion. The left have ceded the field to the Tea Party and, in doing so, allowed it to make history. It is building political power by selling the promise of a return to a mythic past.”
This means that we can expect the Tea Party’s myth-based assertions about the Founders’ intent to continue, along with the Right’s selective concern about the liberties guaranteed by the Constitution.
When those rights are extended to non-white minorities, it’s “lib-rhul” activism. If the rights go to multinational corporations or white folks with guns, then that’s the way it was meant to be.
Though the Tea Partiers insist that race is not a factor in their current fury against government power, they don’t explain their relative silence when Republican George W. Bush, a white man, was asserting unlimited executive power. But Barack Obama, a black man, can’t even get away with welcoming students back for the school year without howls about Orwellian totalitarianism.
Even Michelle Obama’s well-intentioned campaign for healthful eating has become a target of anger from the likes of former Alaska Gov. Sarah Palin and the Right’s powerful media machine.
So, it seems the country is in for a new round of crazy while the voices for sanity stay largely mute.
[For more on these topics, see Robert Parry’s Lost History and Secrecy & Privilege, which are now available with Neck Deep, in a three-book set for the discount price of only $29. For details, click here.]
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & 'Project Truth' are also available there.
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