Tea and Sympathy
A law professor argues that the Tea Party movement is the Constitution's bodyguard. Scott McLemee gets schooled on originalism.
The prospect of reading a book about the Tea Party by a professor who supports the movement has a certain piquancy to it -- especially now, as campaigning for the Republican nomination enters what feels like its second or third year. Eight more months until the election? Even a political news-junkie's mood might turn a little gray at the thought. The Tea Party: Three Principles (Cambridge University Press) by Elizabeth Price Foley, a professor of law at Florida International University, is certainly a change of pace.
Its argument is clear enough to be forceful while revealing its presuppositions at every step. Foley regards the Tea Party as a movement that emerged as a spontaneous expression of concern to defend the U.S. Constitution from all enemies, foreign or domestic. (Whether Barack Obama counts as foreign or domestic, she does not address.) The Tea Party movement stands proudly apart from the two major parties, holding fast only to three principles: limited government, forthright American sovereignty, and constitutional originalism. It is a lucid and necessary response to threats such as "the globalist agenda" and Obama's suggestion that the founders "bequeathed to us not a static condition but a perpetual aspiration." The movement is not driven by racism, nor is it engaged in the culture wars, nor should it be treated as the religious right with a makeover. Tea Partiers are, she writes, "united in their fearless query, 'What happened to the America I grew up in?' "
That's one way to look at it, I guess, although "fearless" is hardly an apt characterization either of the Tea Party or the usual tone of that question. To ignore the level of racial animus expressed in the movement requires an act of will. In a paper from the American Political Science Association meeting in September, Alan I. Abramovitz said that an analysis of data from the American National Election Study Evaluations of Government and Society Survey showed that, while "ideological conservatism was by far the strongest predictor of Tea Party support," support for the movement also corresponded to both white racial resentment and aversion to Obama himself. "These two variables," Abramovitz noted, "had much stronger effects than party identification. Racial resentment had a somewhat stronger effect than dislike for Obama." The influence on the movement of constitutional-law scholars such as Foley is minute compared to that of the fantasies that Jill Lepore discusses in her recent book The Whites of Their Eyes: The Tea Party's Revolution and the Battle Over American History (Princeton University Press). And anyone believing that the Tea Party is a spontaneous and nonpartisan movement -- driven only by the humble but anxious civic virtue of just-plain-folks -- should take Deep Throat's advice during the Watergate affair: "Follow the money."
Foley's book shares the Tea Party's politics, but not its fevers. It has the soul of a talk-radio call-in show in the body of a law-review article. It left me wanting to argue with the author, or at least interview her -- not that the distinction lasted very long. A transcript of our e-mail discussion follows. If ever there is a Tea Party think-tank, it's clear Foley would be a capable director.
Q. Your dedication page reads, "To the intrepid members of the American Tea Party movement, with admiration and respect." Would you say something about your degree of involvement or interaction with the movement? Is this book simply an expression of political sympathy, or does it grow out an activist commitment?
A: I am not a Tea Party activist personally. I have spoken to Tea Party groups, who have read some prior articles and op-eds and invited me to talk. So I have met many Tea Partiers over the last few years and have learned to admire and respect them tremendously. They are the only group of ordinary Americans I have ever met who carry around pocket Constitutions and want to engage in substantive discussions about the text's meaning. From my perspective, this can only be a good thing for the country. The Constitution has become almost a dirty word in some parts of America's intelligentsia, and it's too often viewed as an anachronistic, backward-thinking document written by a bunch of dead people who were racist, sexist, and not worth admiring. This is a dangerous narrative, and the Tea Party seeks to reverse this trend by re-embracing the Constitution and its original meaning. As someone who has dedicated her life to teaching and studying constitutional law, I find the Tea Partiers' attitude healthy and refreshing.
Q: You write that the Tea Party is opposed to people who think of the Constitution as "an anachronistic, backward-thinking document written by a bunch of dead people who were racist, sexist, and not worth admiring." That seems like equal parts straw man and red herring. The racism or sexism of the authors isn't a topic for debate, since the evidence in the document itself: Article 1, Section 2 was to gave slaveholding states extra influence by letting them have extra representatives proportionate to three-fifths of their slave populations (not that this did the slaves any good); plus it took 133 years and 19 amendments before women got the vote. This doesn't mean the framers were Neanderthals, but it does suggest that "original intent" counts for only so much.
A: I'm afraid you misunderstand the nature of originalism. I can tell by the way you phrase the question that you've never had anyone objective explain it to you -- I'm sorry for that. But it's not as though you are alone in this view, and indeed it was a view I shared myself until I went to law school.
First, let me clarify what originalism means to most self-identified originalists today. I don't know any originalists who focus on "original intent" anymore. Instead, originalism is "original meaning" originalism, which asks the interpreter of constitutional text to ascertain what the meaning of the text would be, in commonsense terms, from the perspective of We the People who ratified it. By contrast, "original intent" originalism (which again, no one seriously espouses) tries to ascertain the subjective, oftentimes unknowable "intent" of those who wrote the constitutional text (i.e., the founders themselves). Notice that when I talk about originalism, I talk about not just those who wrote the text, but those who ratified it -- i.e., We the People. This is important because the founders had extensive conversations with the American people during the ratification process -- in widely-read pamphlets, newspaper articles, speeches, etc. -- and it is this understanding of the Constitution that matters to originalists.
With that clarification, I hope you don't honestly believe this is a red herring or straw man. The Three-Fifths Clause to which you refer, for example, was anti-slavery provision, not a pro-slavery one. Remember that the slaveholding states argued that slaves should be counted as whole persons (to boost those states' representation in the House), whereas the non-slaveholding states argued that slaves should not be counted at all. What the founders ultimately proposed (and the People ratified) was a Three-Fifths compromise. It certainly by no means meant that the founders endorsed or approved of slavery. Some did; many didn't. Indeed, you should look further at the constitutional text to get a more accurate picture. The Constitution never even uses the word "slavery," assiduously avoiding it because some of the founders (e.g., Madison) thought that mentioning it by name would give it further credibility, and they wanted to avoid that at all costs. Moreover, the 1808 Clause in Article I gave Congress the power to abolish all further importation of slaves beginning Jan. 1, 1808 (20 years after ratification). This was designed to choke off all future slave trade, stop its expansion, and hopefully its demise. Indeed, on Jan. 1, 1808 -- the first day this constitutional power kicked in -- Congress enacted exactly such a law and prohibited all further importation.
So the bottom line is that slavery was a very controversial issue, for obvious reasons, among the founders. To dismiss them all as racists is far too simplistic, and disregards the fact that the constitutional text they wrote was at ambiguous on the topic (to be expected given the divergence of opinion among the ratifying states) and in some key respects, quite hostile to it.
More fundamentally, please realize that originalists such as myself do NOT advocate that judges try to reinstitute the original Constitution. This is a very common misunderstanding, so again, you are not alone. But it is simply not accurate, as I discuss in the book. Originalism asks judges to interpret the Constitution's text as it presently exists. So, for example, none of the original Constitution's clauses addressing slavery have any continuing legal validity after the ratification of the Civil War Amendments -- the Thirteenth, Fourteenth, and Fifteenth Amendments. And of course the Nineteenth Amendment, giving women the right to vote, is likewise part of the text of the Constitution that is entitled to full respect and implementation.
The Constitution as a whole -- as its text and that text's historical context stands today -- is what originalists (and the Tea Partiers) seek to honor and preserve.
Q: Whatever the merits of claiming that Obama's health care reform violates the commerce clause, my recollection of the Tea Party in late 2009 and early '10 isn't one of a debate over constitutional law. It's of people carrying guns to demonstrations, growing hysterical about "death panels," and venting in ways that sounded pretty much like what you would have heard at a George Wallace rally in 1968. You refer to people carrying around well-thumbed copies of the Constitution, but what argument is there to make for that reflecting the true concerns of the Tea Party movement, rather than, say, that picture of Obama as a witch doctor with a bone through his nose?
A: As I spend a good number of pages explaining in the book, the Tea Partiers' opposition to the health care reform law is grounded in their belief in limited government. If one knows anything about this concept, one can easily see how the health care reform law threatens this foundational constitutional principle. The individual mandate is an unprecedented, breathtaking exercise of federal power. If upheld, it will have significant, negative implications for individual liberty.
A ubiquitous government presence in healthcare will indeed predictably lead to some form of health care rationing -- it is a matter of supply and demand. The health care reform law added some 32 million Americans to health insurers' rolls, but did nothing to expand the supply of available health care providers. Substantially increased demand, without a concomitant increase in supply, will lead to not only price increases (which we have already witnessed and will continue to do so), but access shortages that will necessitate some form of rationing. Tea Partiers were naturally concerned about this, as older Americans, as high-demand users of health care, are the most vulnerable in a rationing regime.
Q: You write that "the Constitution doesn’t require prior approval by the UN Security Council" for use of the military. But neither does the Constitution require prior approval by Congress. Article 1, section 8 gives Congress the power to declare war. If there ever was any sense of obligation on the part of the executive branch to seek approval for the use of military force abroad, it's been more or less a dead letter since the Korean "police action" -- with the War Powers Act of 1973 not changing the situation much. According to a Library of Congress report, "U.S. Presidents have consistently taken the position that the War Powers Resolution is an unconstitutional infringement upon the power of the executive branch," beginning with Richard Nixon.
A: Completely agree with you here. The war power is shared between Congress and the President. As Commander-in-Chief, the President under Article II can commit US troops in defense of US interests. Congress can declare a formal war, constitutionally, but doesn't have to, and the Supreme Court has never said otherwise. Congress's ultimate power lies in the power of the purse — i.e., withholding appropriations.
Q: You go on to say, "Americans – particularly Tea Partiers – would think it odd that either our Supreme Court or our president would think they need to consult with the international community before doing what they think is right for America." But how is that an either/or? "Consulting with the international community" is a matter of building support for what the US is going to do in any case. How seriously can we take the "globalist agenda" as something to worry about, given that US leaders, Democratic and Republican alike, pay exactly as much attention to international law or world public opinion as is expeditious for pursuing what they regard as the national interest?
A: "Consulting" is fine, if by that word you mean literally "consulting" rather than asking for approval. The difficulty with President Obama's statements prior to committing troops to Libya was that he espoused a view — embraced by progressives — that something more than mere consultation was desirable and necessary. He suggested that it would contravene international law to commit U.S. troops without prior UN Security Council approval, and it is that radical position about which tea partiers are concerned, from the perspective of defending US Sovereignty.
Q: You only quote Tea Party people once or twice, if memory serves, not counting a couple of passages from Glenn Beck. The book seems not so much about the Tea Party, or even of the movement, as for it. That is, you offer arguments and perspectives that support Tea Party positions -- but they express your sense of how the TPers ought to be arguing. You downplay any "culture war" or social-conservative aspect of the movement, although there's evidence that the Tea Party overlaps considerably with the religious right. I've given you a hard time here about the element of racism that has been abundantly evident in some Tea Party discourse -- and a recent statistical analysis of poll results from 2010 showed a high degree of correlation between Tea Party support and white racial resentment. But just to be clear, there's nothing of the sort going on in your book. It's as if you are trying to raise the tone a little bit. Is that fair? Is it any part of your intention? Isn't the book more about what the Tea Party can be or should be, from your perspective, rather than what it is?
A: I did not want to write a book about individual Tea Partiers (as many books have already done, some well, some not so well). Instead, I wanted to write a book about the constitutional principles that define the movement as a movement. My goal was to have a substantive discourse about these principles -- to offer, if you will, an intellectual defense of the Tea Party movement.
I downplay the culture war aspect because the Tea Party itself downplays it. It is a conservative movement, true, but conservative in the sense of fiscal and constitutional conservatism, not social conservatism. You don't attend Tea Party events and hear any serious discussion about abortion or gay marriage. Polling data confirms this, revealing that a majority of Tea Partiers support the legal availability of abortion, as well as gay marriage or civil union. So I don't think it would be factually accurate to try to paint the Tea Party movement as a socially conservative movement. There are undoubtedly some social conservatives within the movement, but this is inevitable, given that some social conservatives are also fiscal and constitutional conservatives.
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