Tea Party Incoherence

The Tea Party’s manifesto, called the Contract from America, contains many interesting and some strange ideas.  Its authors proclaim a passionate devotion to the Constitution and its original text, accusing the nation’s political elite of failing to adhere to the grand charter.  Among the ten items in its plank, the first says: “Require each bill to identify the specific provision of the Constitution that gives Congress the power to do what the bill does.”  The document doesn’t say what provision of the Constitution supports that prescription.

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13 Responses

  1. Ken Rhodes says:

    Interesting timing of your brief item. About 15 minutes ago I red this in the NY Times OpEd page:

    The Founding Fathers Versus the Tea Party
    Movements that regularly summon the ghosts of the framers
    end up promoting an uncomfortably one-sided reading of

  2. Bryan Gividen says:

    I think your concluding sentence is a bit misleading. There are plenty of procedural requirements in the House and Senate that the Constitution doesn’t necessarily prescribe. The Tea Party can work to change procedural rules to re-enforce a particular policy goal of their own without being inconsistent with their dedication to the Constitution. However, I also am not sure what practical effect the measure would have on legislation. Really, each bill would come stamped with “Brought to you by the Commerce Clause” and it would be good to go. I think it may be superfluous, but I don’t think it’s “strange” in the sense that you’re presenting it.

  3. For extreme incoherence on the matter, check out Dahlia Lithwick’s comments on this matter. (from Slate):

    ” How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution?”

    Do they teach a different Constitution at Stanford? I can’t find any mention of judicial review in my copy…but then again, I attended Maryland so maybe all my top-tier educated professors there didn’t think we could handle the real deal.

  4. Ken Rhodes says:

    @Bryan: I don’t read his last sentence as “misleading,” but rather as intentional irony.

    Your second sentence is clearly true right now, but the first item in their manifesto would render that truth to be obsolete … except in the case of their own rule.

  5. Ken Rhodes says:

    @Conservatarian: Suggestion — Read Article 6, Paragraph 2; then go back and read Article 3, Section 2, Paragraph 2.

  6. Guest says:

    Great point, and funny. Thanks.

  7. Okay Ken – re-read; what’s the point? Appellate jurisdiction is not the same as judicial review of legslation…and remember, even that appellate jurisdiction can be modified by Congress. Further, read the next paragraph in Article 6. Everyone (Elected or Judicial) is required to support the Constitution, which many of us take to presume means drafting and signing legislation that comports with it. A low point for many of us with Pres. Bush was his signing of campaign financing restrictions while acknowledging constitutional problems with it.

  8. Ken Rhodes says:

    What’s the point? Conservatarian, the point was this:

    Look back at your comment numbered 3. We do NOT have “judicial review of legislation.” Rather, we have, at the SCOTUS level, “judicial review of lower court decisions.” (Ref. Article 3, Section 2, Paragraph 2, Sentence 2.)

    Further, that review is not simply a review of evidence and reversal of findings of juries as regards the evidence. Rather, that review is also a review of the action of the court in interpreting and applying the law, which must be in the context of, inter alia, various applicable provisions of the Constitution. (Ref. Article 6, Paragraph 2.)

    If, and only if, their review of a specific lower-court decision includes a finding that some law of lower priority than the Constitution is in conflict with some provision of the Constitution, then Article 6 requires that SCOTUS find in favor of the Constitution and overrule the lower court decision, thus (presumably) establishing a precedent that would also apply to future cases involving the law that was found to be in conflict with the Constitution.

    Of course all legislatures are required to draft legislation conforming to the Constitution. But does that mean to you that everyone will always agree on what conforms, and what is in conflict? Of course not!

    So the Founding Fathers wrote those Articles I cited. If there were no disagreements, we would have no split decisions, and we would be able to get along with a lot fewer lawyers, wouldn’t we?

  9. joseph bohrer says:

    Several years ago I practiced in a small town. Each morning I stopped by a cafe on the town square and had coffee before going to the office. There was a round table in the rear of the cafe around which a bunch of retired fellows met each morning to discuss the events of the day. I knew most of them and know that they had lived in the county most of their lives and that they had not been educated beyond high school. To the extent that they had been out of the county or state, it was in the midst of world war II as a member of the military. They had solutions for every social problem much like the Tea Party “manifesto” set out in the link. They had opinions but really had no carefully thought out solutions, certainly no solutions which appeared to be based on education or experience or careful analysis of pretty complex problems. They were the forerunners of the Tea Party. To the extent that they voted,they were entitled to be taken seriously. To the extent that they had useful ideas or coherent solutions to the country’s problems their proposed remedies were useless and then some. So it is with the Tea Party manifesto. Loud noise, but no coherent plan to solve any given problem. If the Tea Party dog catches the car, look out America.

  10. Aaron Titus says:

    Your logic doesn’t follow: “Because the Tea Party proclaims a passionate devotion to the Constitution and its original text, the Tea Party contradicts itself if it enacts any policy which is not found in the text of the Constitution; even if the policy is permitted by the Constitution and represents a reasonable expression of devotion to the Constitution.”
    Following that logic, there would be little need for Congress, a Constitutional body, because they would not be able to enact laws which are not already found in the text of the Constitution.
    Every political ideology of which I know is inconsistent, especially along its edges. If you’re looking for contradictions, it seems that this is not one of them.

  11. Adam says:

    “The document doesn’t say what provision of the Constitution supports that prescription.”

    Actually, it does. “Each House may determine the Rules of its Proceedings[.]” U.S. Const., art. I, s. 5.

  12. Adam says:

    Whoops. I foolishly mistook your point.

    But seeing what your point was, I’m puzzled by your non sequitur. The republicans proposed that any act of Congress would need to specify its constitutional “anchor.” But the GOP proposal wasn’t an act of Congress. So why would the GOP proposal need to specify its constitutional anchor?

  13. Aaron Titus says:

    Ken Rhodes- I read the NYT article you referenced (http://www.nytimes.com/2010/09/24/opinion/24chernow.html?th&emc=th). Good article. But I think Mr. Chernow inadvertently conflates the concepts of political philosophy and political opinion.

    The article makes the valid observation that not all of the founding fathers were “conservative” in their political philosophy about the role and size of government. As evidence, Mr. Chernow recounts how George Washington himself approved the (rather progressive) policy of a central bank. He convincingly argues that among the Founders, political philosophy about the role and size of government was varied, divisive, and rancorous. My, how history seems to repeat itself.

    Mr. Chernow’s unspoken argument could be summed up thus: “If Mr. Washington believed that the Constitution created implied as well as enumerated Federal powers, then the Tea Party cannot, in good faith, argue that George Washington would be on their side today, as they fight against expansive and implied government powers.”

    However, political philosophy is two or three levels of abstraction removed from political opinion. Distilling George Washington’s (or anybody else’s) political opinion based solely on his political philosophy is like trying to tease out fine detail from a pixilated image.

    It is reasonable to argue that although George Washington supported the notion of implied Federal power, he would have drawn some line limiting the exercise of that power, as a matter of political opinion. His political opinion on the propriety of incurring trillions of dollars of national debt, for example, would add nuance to his political philosophy that the Federal Government had the Constitutional power to go into debt (if that was in fact his position). In other words, his political philosophy would inform, but not dictate his political opinion. Political opinion adds nuance and restraint to unfettered political philosophy.

    I think Tea Party activists would argue that even if the founding fathers’ political philosophies were far from uniform, the country has as objectively become far more liberal than any of the founding fathers’ political opinions would have allowed.

    As evidence, they could cite numerous examples of progressive policies: The end of slavery and segregation, increase in size of the Federal government, expansion of entitlement programs, objective increase in the national debt, gay marriage, etc.

    I would not argue that Tea Partiers would be opposed to all of these policies. (Indeed, one could argue that Jefferson and Madison would have frowned on a Tea Partier accepting an unemployment check.) I merely cite them as evidence that the political opinion of the country is more liberal in 2010 than in the 18th century.

    The point is this: Even if George Washington had a progressive political philosophy, his political opinion on key issues of fiscal, social, and federal policies may in fact align closely with the Tea Party’s. And to mix metaphors, seeing the political philosophy forest is difficult through the trees of political opinion.

    What we see in another often betrays more about ourselves than the other person. Liberals tend evaluate George Washington abstractly, perhaps inferring a political philosophy from his actions; and they see a liberal. Conservatives tend to evaluate our first president less abstractly, perhaps inferring political opinion from his actions; and they see a conservative. Depending on the level of abstraction you wish to apply, both liberals and conservatives are able to claim a political lineage through George Washington.

    In that sense, Mr. Chernow had one point right as he paraphrased Pieter Geyl: History is an argument without an end.